June 1982
Ccmnission Decisions
06-01-82
06-04-82
06-21-82
06-21-82

Amax Lead Conpany of Missouri
Frederick G. Bradely v. Belva Coal Co.
Puerto Rican Carent Co. , Inc.
Central Ohio Coal Co.

CENT 81-63-M
WEVA 80-708-D
SE 81-25-M
LAKE 81-78

Pg. 975
Pg. 982
Pg. 997
Pg. 1000

CENT 81-250-RM
SE 82-12
LAKE 81-163-LM
SE 81-21
CENT 80-349-M
WEm' 81-17-M
WEST 81-219-M
KENT 82-111-D
LAKE 80-11-M
LAKE 82-35-M
PENN 82-3-R
PENN 82-5
WEST 81-243-M
CENT 79-282-M
KENT 81-77
KEITT 82-10
CENT 82-93-RM
WES.r 82-23-lld
WEVA 80-565
WEST 79-290-M

Pg. 1004
Pg. 1007
Pg. 1013
Pg. 1051
Pg. 1078
Pg. 1084

Administrative Law Judge Decisions
06-03-82
06-03-82
06-03-82
06-03-82
06-04-82
06-07-82
06-07-82
06-08-82
06-08-82
06-08-82
06-08-82
06-08-82
06-08-82
06-14-82
06-21-82
06-21-82
06-24-82
00-25-82
06-25-82
06-28-82

Cowin and Calpany, Inc.
Jim Walter Resources, Inc.

Ottawa Silica Co.
S.A.M. Coal Co., Inc.
Phelps fudge Cbrp.
Kennecott Copper Corp.
lt>untain West Construction, Inc.
Canada Coal Co. , Inc.
Macon County Material, Inc.
United States Steel Cbrp.
Mathies Coal Co.
Mathies Cbal Co.
Allied Olemical Corp.
Phillips Uranium Cbrp.
Martiki Coal Corp.
Adams Coal Enterprises, Inc.
AnRx Olemical Corp.
Sandra Cantrell v. Gilbert Industrial
Davis Coal Co.
San Juan County Highway Dept.

Pg. 1091

Pg. 1094
Pg. 1099
Pg. 1104
Pg. 1111
Pg. 1121
Pg. 1134
Pg. 1136
Pg. 1138
Pg. 1159
Pg. 1161
Pg. 1164
Pg. 1168
Pg. 1203

Commission Decisions

JUNE
The following cases were Directed for Review during the month of June:
Secretary of Labor, MSHA v. Metric Constructors, Inc., Docket No. SE 80-31-DM.
(Judge Lasher, April 29, 1982)
Local Union 1889, District 17, UMWA v. Westmoreland Coal Company, Docket No.
WEVA 81-256-C. (Judge Steffey, Sunnnary Decision, April 28, 1982)
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket Nos. WEVA 80-116-R,
etc. (Judge Koutras, Decision on Remand, April 28, 1982)
Secretary of Labor, MSHA v. United States Steel Corporation, Docket Nos.
WEST 80-386-R, etc. (Judge Boltz, April 29, 1982)
Secretary of Labor, MSHA v. Cathedral Bluffs Shale Oil Company, Docket No.
WEST 81-186-M. (Judge Morris, May 12, 1982)
United Mine Workers of America v. Secretary of Labor, MSHA, Docket No.
LAKE 82-70-R. (Judge Merlin, Dismissal, May 21, 1982)

Review was Denied in the following case during the month of June:
Carolina Stalite Company v. Secretary of Labor, MSHA, Docket Nos. SE 80-21-M,
etc. (Judge Lasher, May 14, 1982)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K ST~EET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

June 1, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. CENT 81-63-M

AMAX LEAD COMPANY OF MISSOURI
DECISION
This case is before the Commission on interlocutory review. The
issue presented is whether the administrative law judge properly disapproved the parties' proposed settlement agreement on the ground that
the settlement contained exculpatory language inconsistent with the
general enforcement scheme of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et~· (Supp. III 1979). For the reasons that
follow, we hold that the judge was correct· in rejecting the partiesv
proposed settlement.
·

On April 23, 1980, Amax Lead Company of Missouri was issued two
citations alleging violations of 30 C.F.R. § 57.5-5, a mandatory health
standard regulating miner exposure to airborne contaminants. Thereafter,
on January 5, 1981, the Secretary filed a petition for assessment of a
penalty with the Commission. On April 6, 1981, the Secretary and Amax
filed with the judge a joint motion to approve settlement. 29 C.F.R.
§ 2700.30(a). lf In an order issued on April 9, 1981, the judge
rejected the proposed settlement agreement because of language contained
in the following paragraph:
iThe parties furthe+ a.gree that the elements of this settlement
agreement apply only to the particular citations herein and do not
prejudice the Secretary.in making any future determinations with
respect to [Amax'] operations.. [Amax'] consent to enter into this
settlement agreement does not constitute an admission of any violation of the Act or the regulations or standards promulgated
thereunder. The parties further agree that any factual admissions
made by [Amax] in this settlement agreement are for the purposes of
settlement only and shall not be deemed to be an admission by
[Amax] for the purposes of any subsequent proceeding brought in any
judicial or administrative forum by the United States Government or
by any other party.

1/

29 C.F.R. § 2700.30(a) is based upon 30 U.S.C. § 820(k)(text quoted
Commission Rule 30(a) provides:
General. No proposed penalty that has been contested
before the Commission shall be compromised, mitigated, or
settled except with the approval of the Commission after
agreement by all parties to the proceeding.

infra).

975

82-6-1

The judge found this paragraph objectionable because the exculpatory language made "uncertain the existence of the alleged violations."
In his order denying approval of the settlement, the judge concluded
that the exculpatory language impeded the Commission's ability to
determine the operator's history of violations for purposes of assessing
future penalties. 30 U.S.C. § 820(i). The judge also concluded that
the exculpatory language could possibly preclude the Secretary in future
enforcement actions from using the violations alleged he~e to establish
a pattern of violations under sections 104(e) and 108(a)(2) of the Mine
Act. The judge stated, however, that he would approve a settlement
containing the following or similar exculpatory language:
Nothing contained herein shall be deemed an admission
by [Amax] of the violation of the Federal Mine Safety
and Health Act or any regulation or standard issued
pursuant thereto in any action other than an action
or proceeding under the Federal Mine Safety and Health
Act.
Following the judge's rejection of the parties' proposed settlement, Amax submitted amendatory settlement language to the Secretary for
approval. That proposed amendatory language changed the paragraph of
the settlement agreement objected to by the judge to read as follows:
The parties further agree that the elements of this settlement agreement apply only to the particular citations
herein and do not prejudice the Secretary in making any
future determinations with respect to [Amax'] operations.
[Amax'] consent to enter into this settlement agreement
does not constitute an admission of any violation of the
Act or the regulations or standards promulgated thereunder. Nothing contained herein shall be deemed an admission by [Amax] of a violation of the Federal Mine
Safety and Health Act or any regulation or standard
issued pursuant thereto, in any judicial or administrative
forum, by the U.S. Gove~nment or by any other party,
other than in an action or proceeding brought by the U.S.
Government under the Federal Mine Safety and Health Act.
(Amendatory language emphasized.)
The Secretary rejected the proposed amendment.
Amax then submitted a second revised amendment to the Secretary for
approval. As further amended, the paragraph of the settlement agreement
objected to by the judge read:
The parties further agree that the elements of this settlement agreement apply only to the particular citations herein and do not prejudice the Secretary in making any future
determinations with respect to [Amax'] operations. [Amax']
consent to enter into this settlement agreement does not
constitute an admission of any violation of the Act or the
regulations or standards promulgated thereunder. The parties

976

agree that these two citatdions cannot be used against [Amax]
in any judicial or adminiSltirative forum, by the U.S. Government or by any other partw: other than in an action or
proceeding brought by thEyU.S. Government under the Federal
Mine Safety and Health Ad:t.h.
(Amendatory language emphasiza:S.)
The Secretary rejected this pu::iaposed amendatory language also.
Thereafter, Amax filed a.Etllbtion with the judge seeking the judge's
reconsideration of his order d:lisapproving the parties' original proposed
settlement. Amax also alterna:tEively sought either the judge's approval
of the amendatory language thiEt ·the Secretary had rejected and an order
enforcing the settlement as amended, or the judge's certification to the
Commission of his order denyirtg1the requested relief. Amax' motion was
opposed by the Secretary. Y . _?_
The judge issued an orde10:rdenying the motion insofar as it sought
reconsideration of his order dftsapproving the settlement and an order
enforcing the settlement in t1:fu",proposed amended form. The judge,
however, granted the motion irorpart and certified to the Commission for
review his interlocutory ordeID:rdenying the relief requested by Amax. We
subsequently granted the judg~\s certification of his interlocutory
ruling, as well as a petitiori.tfor interlocutory review filed by Amax.
29 C.F.R. § 2700.74(a).
Preliminary to our disculsiaion of the judge's ruling, we emphasize
the Commission's authority to::yreview settlements entered into between
the parties in contested pena:{tcy proceedings. The source of our authority is section llO(k) of th~Mine Act. 30 U.S.C. § 820(k). Section
llO(k) in part provides, "NQ pifoposed penalty which has been contested
before the Commission unden1silc:tion 105(a) shall be compromised, mitigated or settled except with&e approval of the Commission." Accordingly,
it is clear that section 110(k1)~ confers upon the Commission the statutory
authority either to approve ow,-to reject settlements in contested penalty
proceedings. As we observed,:h.n. Co-op Mining Company, 2 FMSHRC 3475,
3475-3476 (1980), 11 [S]ection ::lllO(k) of the Mine Act places an affirmative duty upon us to oversee Caettlements."
With respect to the factef..of this case, we conclude that the
judge was correct in disappro~ng the parties' joint proposed settlement. We hold that parties a'ma free to admit or to deny the fact of
a violation in settlement agrEements. Inherent in the concept of
settlement is that the partiea:-;find and agree upon a mutually acceptable

Y

The Secretary altered hllll initial position and submitted, as he
does on review, that the judg~ correctly rejected the parties' proposed
settlement. The Secretary al~o submitted that he was not bound to the
amendatory settlement languag~ proposed by Amax because he did not agree
to the changes.

977

position that resolves ~he dispute and that obviates the need for further
proceedings. Whether that mutual position involves an admission or denial
of a violation under the Mine Act will normally be left to the parties.
The Commission's only, task in the event of a proposed settlement is
to determine whether approval of the parties' agreement is in the public
interest. Here, however, the joint settlement of the parties contained
exculpatory language that was inconsistent with the enforcement scheme
of the Act.
The language proposed by the Secretary and Amax could have prevented
any consideration of the alleged violations involved here in future
proceedings arising under the Mine Act. Amax conceivably could attempt
to use the settlement as a shield in future litigation to avoid certain
key enforcement provisions contained in the Act. For example, if such
language were approved, settled violations could not then serve to
establish the operator 1 s history of previous violations as contemplated
by section llO(i) or as a basis for a pattern of violations under section
104(e) or 108(a)(2) of the Mine Act. 1/ Such exculpatory language as
originally proposed by these parties could prevent some of the Mine
Act's strongest compliance incentives from coming into operation. The
result could well be a considerable weakening of the agency 1 s enforcement
capabilities and, as a result, could jeopardize the health and safety of
miners. Although the effect of the parties 1 settlement could be determined in a future case in which that settlement is relied upon, we do
not find that persuasive or a reason for approving the settlement at
this time. To do so could allow the Secretary to disregard concessions
he had previously agreed to which the Commission had approved. For
these reasons, we affirm the judge's order rejecting the settlement
submitted to him by the parties. !±_/
Amax additionally requests approval of one of the amended settlements proposed by the operator. We disagree with the judge's statement,
in his order denying enforcement of the amended settlement, that "the ·
retention of the sentence preceding the exculpatory phrase is inconsistent with the amendatory language" and that the phrase creates an
ambiguity as to the validity of the involved citations. We do not see
such an ambiguity. Although,Alnfix refused to admit that a violation
occurred, it has quite clearly conceded that, for purposes of any

3/
Also, were this a case in which the involved violations were the
result of the operator's unwarrantable failure to comply with the cited
standard, approval of the exculpatory language could prevent the settled
violations from being used to establish an unwarrantable failure chain
of violations under sections 104(d)(l) and 104(d)(2) of the Act.

!!_!
As did the judge, we find no difficulty with the exculpatory
language as it relates to proceedings arising outside the scope of the
Mine Act's coverage. In our view, the effect of such exculpatory
language is properly left to the appropriate forum.

978

proceedings under the Mine Act, the violations were to be treated as if
established. -5/ There is no ambiguity as to the future effect under
the
.
Mine Act to be given to. the violations. The violations could serve as a
basis for implementing the entire enforcement and compliance scheme of
the Act noted above. Therefore, we believe that the proposed amendatory
language is consistent with the enforcement scheme of the Mine Act. §j
However, we cannot approve such an "amended settlement" because the
parties have reached no mutual agreement concerning it. Because the
Secretary did not agree to the amendatory language, he cannot be bound
to the terms of the settlement as unilaterally amended by Amax. Thus,
the only settlement agreement that was before the judge, and that is now
before us on review, is the settlement submitted to the judge for
approval on the parties' joint motion.
Finally, we note that approval of the amendatory settlement language is consistent with our decision in Co-op Mining Company, supra.
There, in reversing a judge's order approving settlement on the ground
that the parties' stipulation showed that the alleged violation did not
occur, we stated:
Amax

first proposed amendment in part read:
Nothing contained herein shall be deemed an admission by
[Amax] of a violation of the Federal Mine Safety and Health
Act or any regulation or standard issued pursuant thereto,
in any judicial or administrative forum, by the U.S. Government or by any other party, other than in an action or
proceeding brought by the U.S. Government under the Federal
Mine Safety and Health Act.

(Emphasis added.)
Amax' second proposed amendment similarly in part read:
The parties agree that these two citations cannot be used
against [Amax] in any judicial or administrative forum, by
the U.S. Government or by any other party, other than in
an action or proceeding brought by the U.S. Government
under the Federal Mine Safety and Health Act.
(Emphasis added.)
6/

The proposed amendatory language is also consistent with our

~uthority under section llO(i) of the Mine Act "to assess all civil

penalties" provided for in the Act •. In that regard, section llO(a) of
the Mine Act in part provides that "[t]he operator of a coal or other
mine in which a violation occurs of a mandatory health or safety standard
or who violates any other provision of this Act, shall be assessed a
civil penalty by the Secretary." Because Amax would have been admitting
a violation for purposes of Mine Act proceedings, had the amendatory
settlement language been agreed to by both parties and approved by the
judge, the assessment of a penalty would have been within the scope of
our statutory authority despite Amax' general denial of a violation.

979

The legislative history of the [Mine Act] states, 'The
purpose of a civil ,penalty is to induce those officials
responsible for the operation of a mine to comply with
the Act and its standards.' . [Fn. omitted.] To assure
this purpose is served section llO(k) of the Mine Act
places an affirmative duty upon us to oversee settlements. Compliance with the Act and its standards is
not fostered by payment of a civil penalty where the
stipulated facts establish that no violation occurred.
2 FMSHRC at 3475-76.
As the above passage indicates, our holding in Co-op Mining Company was
based upon our concern with promoting operator compliance with the Mine
Act. Because the settlement agreement in that case established that the
alleged violation did not take place, approving the settlement would not
have promoted the operator's future compliance with the Act. In this
case, however, with respect to the amendatory language under discussion
we are not presented with a settlement that establishes that no violation occurred. Rather, a violation is established even though the
operator makes no "admission" to that effect.
Accordingly, the judge's order denying approval of the settlement
agreement proposed by both parties is affirmed and the case is remanded
for further proceedings including, of course, the opportunity for both
parties to proceed with an appropriate settlement in light of this
decision.

Commissioner Lawso~, concurring in par

in part:

/j

Contrary to the majority, I agree with th
the Secretary
that the amendatory language creates an ambigu'ty
as to the validity of
1
the involved citations. One cannot deny the e i tence of a violation
and at the same time agree to the payment of a ivil penalty therefor,
since all penalties must be predicated upon the existence of a violation.
Section llO(a); Co-op Mining Company, supra. However, since any further
settlement which is proposed containing exculpatory language must be
agreed to by all parties to the proceeding, the Secretary has the power
to reject any such language which he believes to be contrary to the Act
or the public interest.
A. E. Lawson, Commissioner

980

Distribution
Gerald T. Carmody, Esq.
Bryan, Cave, McPheeters & McRoberts
500 North Broadway
St. Louis, Missouri 63102
Debra Feuer, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge John Morris
FMSHRC
333 West Colfax Ave.
Denver, Colorado 80204

981

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

June 4, 1982

FREDERICK G. BRADLEY
Docket No. WEVA 80-708-D

v.

BELVA COAL COMPANY
DECISION
This discrimination case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~· (Supp. III 1979), We are
asked to decide whether a decision by a state agency denying a miner 1 s
claim of discrimination under a state mine safety law precludes litigation of his discrimination claim under the Mine Act, or of issues arising
under the Mine Act claim. On the basis <tif the record in this case, we
affirm the judge's determination that the state action did not preclude
the miner's separate action under the Mine Act. We also affirm the
judge's conclusion that the miner had been discriminatorily discharged
in violation of the Mine Act, but remand for recomputation of the back
pay award.
I.

Frederick Bradley was employed as a section foreman at Belva Coal ·
Company's No. 5-B underground coal mine in Logan County, West Virginia.
His duties included coal production and supervising the abatement of
safety violations. He had a reputation for being a productive and
safety-conscious miner. On a number of occasions prior to his discharge
in June 1980, he complained about safety hazards in his section. Bradley
made some of his complaints to his immediate supervisor, Mine Foreman
Larry Davis.
On June 10, 1980, an MSHA inspector inspecting the 5-B mine issued
three withdrawal orders and nine or ten citations for violations of
mandatory safety standards. The cited conditions included excessive
accumulations of combustible materials in the haulageways, inadequate
short-circuit protection, incorrectly hung curtains, and damage to a
trailing cable that had been driven over by mobile equipment. Bradley's
crew spent a portion of its shift correcting the violations. The withdrawal orders were terminated the same day and most of the violations
were abated.

982

82-6-3

On June 11, 1980, the following day, the same inspector returned to
the mine and observed conditions similar to those that had led to the
citations and orders on June 10. He issued more citations and three
more withdrawal order~, one of which covered a continuous miner trailing
cable that had been run over and damaged by mobile equipment. The cable
was not energized at the time the order was issued, but was still connected to the continuous miner and to a power source. The inspector
agreed that the damaged part of the cable could be replaced by a permanent
splice. The cable was "red tagged" to indicate that it was not to be
used, but was not "locked out"--that is, locks were not applied to the
electrical equipment to prevent energization.
The miners immediately began abatement work. Mine Foreman Davis
instructed Bradley to have cribs brought up for roof support in the face
area, where the inspector had found inadequate support. Bradley directed
Thomas Minton, the scoop operator, to take the scoop and
a load of
cribs. Bradley and another miner began hanging the continuous miner 1 s
damaged trailing cable so that the scoop could pass. Foreman Davis told
Bradley not to bother hanging the cable and directed him to let the
scoop run over it. Davis testified that he perceived no danger in
having the scoop run over the cable because the cable was not energized
and its damaged section was to be cut away and replaced. Bradley refused
to comply with Davis 1 order, and hung the cable while Minton drove by in
the scoop. Bradley and Davis exchanged some words during this incident.
Shortly after the cable incident, Davis told Bradley to bring a
tape measure up to the face where the cribs were being installed. Davis
needed to measure a place in the work area that the inspector had
indicated was too wide. Bradley was engaged in other compliance work
and either directly or indirectly refused, complaining about being asked
to do a number of tasks at the same time. In the words of the judge (3
FMSHRC at 437), "heated words were exchanged" between the two, and Davis
informed Bradley that he was fired. Bradley testified that Davis told'
him the firing was for Bradley's 11 attitude." Tr. 35-6. Bradley left
the mine, and later Davis filled out a personnel form indicating that he
had fired Bradley for 11 unsatisfactory work," "disobedience," and "insubordination." l/
On June 27, 1980, Bradley filed a complaint of unlawful discrimination with the West Virginia Coal Mine Safety Board of Appeals and alleged a

ll

At one point on June 11 after Bradley had arrived on the surface,
Davis telephoned from below and offered to let Bradley return to work.
Bradley responded that he had been fired, and would discuss the matter
with Belva management. Tr. 39-40, 175. (Davis testified that he offered
the job back solely out of sympathetic concern over the economic effects
on Bradley of a termination. Tr. 175.) Bradley discussed his situation
with Belva management officials, Conally Carleton and James Miller.
Miller told Bradley to "leave the mountain." Tr. 40. Miller had been
below with Davis earlier, and had apparently overheard the last argument
between Davis and Bradley. Tr. 39. Neither Carlton nor Miller testified
at thehearing.

983

violation of that State's Coal Mine Safety Law (W. Va. Code § 22-121). 2:_/ The state action was heard by a three-member Board on August 26,
1980. At the state hearing, Bradley was represented by counsel and had
the opportunity to present witnesses and evidence and to cross-examine
Belva's witnesses. A transcript of the testimony was prepared by a
court reporter. On December 12, 1980, the State Board issued the
following decision:

2:_/

W. Va. Code § 22-1-21 provides:
(a) No person shall discharge or in any other way discriminate
against or cause to be discharged or discriminated against any
miner or any authorized representative of miners by reason of the
fact that he believes or knows that such miner or representative
(1) has notified the director, his authorized representative, or an
operator, directly or indirectly, of any alleged violation or
danger, (2) has filed, instituted or caused to be filed or instituted any proceeding under this law, (3) has testified or is about to
testify in any proceeding resulting from the administration or
enforcement of the provisions of this law. No miner or representative shall be discharged or in any other way discriminated against
or caused to be discriminated against because a miner or representative has done (1), (2) or (3) above"
(b) Any miner or a representative of miners who believes that
he has been discharged or otherwise discriminated against, or any
miner who has not been compensated by an operator for lost time due
to the posting of a withdrawal order, may, within thirty days after
such violation occurs, apply to the appeals board for a review of
such alleged discharge, discrimination, or failure to compensate.
A copy of the application shall be sent to such person who shall be
the respondent. Upon receipt of such application, the appeals
board shall cause such investigation to be made as it deems appropriate. Such investigation shall provide an opportunity for a
public hearing at the request of any party to enable the parties to
present information relating to such violation. The parties shall
be given written notice of the time and place of the hearing at
least five days prior to the hearing. Mailing of the notice of
hearing to the charged party at his last address of record as
reflected in the records of the department of mines shall be deemed
adequate notice to the charged party. Such notice shall be by
certified mail, return receipt requested. Any such hearing shall
be of record. Upon receiving the report of such investigation, the
board shall make findings of fact. If it finds that such violation
did occur, it shall issue a decision within forty-five days,
incorporating an order therein, requiring the person committing
such violation to take such affirmative action to abate the
violation as the board deems appropriate, including, but not
limited to, the rehiring or reinstatement of the miner or representative of miners to his former position with back pay, and also
compensation for the idle time as a result of a withdrawal order.
If it finds that there was no such violation, it shall issue an
order denying the application. Such order shall incorporate the
board's findings therein. If the proceedings under this section
relative to discharge are not completed within forty-five days of
the date of discharge due to delay caused by the operator, the
(footnote continued)

984

A majority of the Board finds that the dispute between
Mr. Bradley and his superior did not involve safety
matters and at no time did the matter of the individual
safety of the miner arise. In the opinion of a majority
of the Board, Mn. Bradley was terminated for insubordination. The complaint of Frederick G. Bradley is, therefore, dismissed.
Pursuant to state law, Bradley filed an appeal of the Board's decision
in the Circuit Court of Kanawha County, West Virginia, on January 15,
1981. The record does not reflect that a judicial decision has yet
issued.
While the state action was pending before the State Board, Bradley
filed a complaint of unlawful discrimination with the Commission on
September 23, 1980. 3/ Shortly after issuance of the State Board
decision, Belva filed with the Commission a "Motion to Dismiss or in the
Alternative .•. to Defer Proceedings." Belva contended that the State
Board decision precluded litigation of Bradley~s federal claim pursuant
to section lOS(c) of the Mine Act under the "doctrine of res judicata
and collateral estoppel. 11 Belva also argued that "principles of comity"
required dismissal of the federal proceeding. In the alternative, Belva
sought deferral of the federal proceedings until Bradley had exhausted
state appeal procedures. In an unpublished order dated January 12, 1981
("Unpub. Order"), the Connnission 1 s administrative law judge denied
Belva's motion. The administrative law judge held the hearing January 28
1981, and issued a decision on February 11, 1981, concluding that
Bradley had suffered unlawful discrimination and ordering Belva to
reinstate him with back pay. 3 FMSHRC 433 (1981). In a supplemental
decision on April 10, 1981, the judge refined his initial analysis to
reflect the Commission's discrimination tests in Pasula v. Consolidated
Coal Co., 2 FMSHRC 2786 (1980), rev'd on evidentiary grounds, 663 F.2d
1211 (3d Cir. 1981), and in Robinette v. United Castle Coal Co., 3
FMSHRC 803 (1981), and awarded Bradley back pay. 3 FMSHRC 921 (1981).
footnote±_/ cont'd.
miner shall be automatically reinstated until the final determination. If such proceedings are not completed within forty-five
days of the date of discharge due to delay caused by the board,
then the board may, at its option, reinstate the miner until the
final determination. If such proceedings are not completed within
forty-five days of the date of discharge due to delay caused by the
miner the board shall not reinstate the miner until the final
determination.
(c) Whenever an order is issued under this section, at the request
of the applicant, a sum equal to the aggregate amount of all costs
and expenses including the attorney's fees as determined by the
board to have been reasonably incurred by the applicant for, or in
connection with, the institution and prosecution of such proceedings,
shall be assessed against the person connnitting such violation.
3/
Bradley brought his discrimination complaint pursuant to section
l05(c)(3) of the Mine Act because the Secretary had determined after
investigation that a violation of section 105(c) had not occurred.

985

II.

We analyze first ~he question of whether the West Virginia Board
decision precludes lit~gation of Bradley's Mine Act discrimination claim
or of issues arising under that claim. Preclusion is an affirmative
defense, and the party asserting it must prove all the elements necessary
to establish it. For the reasons explained below, we conclude that
preclusion is inapplicable because Belva has not shown the necessary
identity either of claims or of issues.
As a general proposition, we recognize that preclusive effect as to
either claims or issues may attach in appropriate cases to the decision
of an administrative agency acting in a judicial capacity. See United
States v. Utah Construction & Mining Co., 384 U.S. 394, 421-2-z--(1966).
There are exceptions to the applicability of preclusion, as, for example,
where "there is reason to doubt the quality, extensiveness, or fairness
of procedures followed in prior litigation.n Montana v. United States,
440 U.S. 147, 164 n. 11 (1979). Additionally, in cases of overlapping
federal and state regulation, federal supremacy may, in effect, bar
proceedings under a state law that conflicts with a federal statute.
See, for example, Ray v. Atlantic Richfield Co., 435 U.S. 151, 157-58
(1978). As relevant here, however, unless the party asserting a preclusion defense can satisfy the "technical" requirements for raising it,
we need not resolve such questions as the quality or fairness of procedures followed in the state litigation or whether the state law conflicts with the Mine Act. !!._/ Belva has not made the necessary "technical"
showing with regard to either type of preclusion. We turn initially to
res judicata, or claim preclusion.
Res Judicata
We agree with the judge (Unpub. Order at 3) that since this case
arises under a federal statute, the federal law of preclusion, rather
than state law, must provide the criteria for analysis. See Maher v.
City of New Orleans, 516 F.2d 1051, 1056 (5th Cir. 1975), ~· denied,
426 U.S. 905 (1976). Under the federal doctrine of res judicata, a
judgment by a court of competent jurisdiction on the merits in a prior
4/
The Mine Act tloes not totally pre-empt state regulation of mine
safety and health, but does "supersede" any conflicting state law. Thus,
section 506(a) of the Mine Act provides:
No State law in effect on the date of enactment of this Act or
which may become effective thereafter shall be superseded by
any provision of this Act or order issued or any mandatory
health or safety standard, except insofar as such State law is
in conflict with this Act or with any order issued or any
mandatory health or safety standard.
Without reaching the possible conflict issue, we note in passing that
the provisions of West Virginia Code § 22-1-21 are not identical to the
discrimination provisions of section 105(c) of the Mine Act (n. 6 below).
We also note that Bradley argues that the West Virginia proceedings were
unfair, a contention not necessary to resolve in view of our disposition
of this case.

986

suit bars a second suit involving the same parties or their privies
based on the same claim. Lawlor v. National Screen s~rvice Corp., 349
U.S. 322, 326 (1955); Commissioner v. Sunnen, 333 U.S. 591, 597 (1948).
Res judicata also forecloses litigation in a second action of grounds
for, or defenses to, ~he first claim that were legally available to the
parties, even if they,were not actually litigated in the first action.
Brown v.
442 U.S. 127, 131 (1978). As indicated above, res
judicata may be applied to the decisions of administrative agencies
acting in a judicial capacity. In this case, the crucial res ..i..=..c.:...=...:...;..;_;:_.;;;_
question is whether nradley's state and federal claims action are
identical; of course, if they are not, res judicata is inapplicable.
See Newport News Shipbuilding & Dry Dock v. Director, 583 F.2d 1273,
1278 (4th Cir. 1978), cert denied, 440 U.S. 915 (1979).
The judge did not make an unequivocal finding on whether Bradleyvs
state and federal claims are identical. He defined claim as the "operative
facts out of which a grievance [arises]" (Unpub. Order at 2), and concluded that "the set of facts" in Bradleyis complaint "amount[s] to a
cause of action" under both West Virginia law and the Mine Act. Id. at
3. On the other hand, he also emphasized that "Bradley never had~n
opportunity to have his § 105(c) [Mine Act] claim litigated expressly"
before the West Virginia Board. Id. In any event, the judge
ected
Belva's preclusion defense largely on the statutory grounds that the
Mine Act creates a wholly independent federal claim in discrimination
cases. On appeal, Belva focuses on this latter aspect of the judge's
decision; however, it must still demonstrate that it meets the technical
requirements for asserting res judicata. In attempting to do that,
Belva contends that Bradley's state and federal claims are the same.
Petition for Discretionary Review at 9.
We first define a claim. The term has been variously described in
the res judicata context, and the judge's focus on a common nucleus of
operative fact is a formulation that has received judicial approval. We
are not inclined, however, to examine claims in a legal vacuum. A suit·
is founded on a source of law protecting against a wrong, as well as on
the events complained of. Dist~nct sources of law may create different
rights, impose different duties, and interdict different wrongs, yet may
all apply to the same set of facts. See, for example, Tipler v. E.I.
duPont deNemours & Co., 443 F.2d 125, 126-130 (6th Cir. 197l)(an administrative decision resolving a complaint arising under the National Labor
~_I

While this decision was being prepared, the Supreme Court held in
Kremer v. Chemical Constr. Corp.,~- U.S.~-' No. 80-6045, May 17,
1982, that a federal district court handling a plaintiff's employment
discrimination claim under Title VII of the Civil Rights Act of 1964
must give preclusive effect to a prior state court decision upholding a
state's administrative agency's rejection of the plaintiff's same state
employment discrimination claim. The Court overturned a line of cases
which had held that preclusion did not apply on the theory that Title
VII provided for an independent and cumulative federal remedy regardless
of state proceedings. Without engaging in detailed analysis, the Court
concluded in Kremer that the plaintiff's state and federal claims, or at
least the key issues common to both suits, were identical. The Court
did not modify the settled requirement that there must be an identity of
claims or issues in order for preclusion to apply. Our decision in the
present case rests on the conclusion that Belva has failed to show the
kind of identity of claims or issues which the Court found present in
Kremer.

987

Relations Act does not necessarily preclude a suit arising under Title
VII even though the same basic facts were involved in both actions).
Therefore, we favor and adopt the approach to defining claim for res
judicata purposes that looks not only to the operative facts, but also
to "'the primary right and duty, and the delict or wrong ••• in each
action.'" Maher v. C~ty of New Orleans, 516 F.2d at 1057, quoting
Seaboard Coast Line R., Co. v. Gulf Oil Corp., 409 F. 2d 879, 881 (5th
Cir. 1969). See also Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321
(1927). This test is well suited to employment discrimination cases,
which typically involve a complex mix of fact and law. In short, when
comparing a discrimination action brought under another statute to one
arising under the Mine Act, we will examine both the facts and the
substantive legal protection afforded the miner under both statutes.
Applying the foregoing analysis, we conclude that the gravamen of
Bradley's federal Mine Act claim is that he was discriminated against
for engaging in a protected work refusal--namely, for refusing to obey
an order that he reasonably believed would have created a safety hazard
if obeyed, From all that appears on the record, the gravamen of his
state claim is that he was discriminated against for making safety
complaints. Furthermore, his federal claim necessarily includes the
burdens of proof and discrimination analysis we announced in Pasula, 2
FMSHRC at 2796-2800, and Robinette, 3 FMSHRC at 817-18 & n. 20. There
is nothing in the record showing any corresponding elements under West
Virginia law. While Bradley's two claims are similar, we cannot conclude
on this record either that they are the same or that Bradley could have
brought an action under West Virginia law that would have been identical
to his federal claim.
Turning to Bradley's federal claim, we have previously concluded
that section 105(c)(l) of the Mine Act !i_I grants miners the general
right to refuse work if the refusal is based on a good faith, reasonable
belief that a hazardous condition exists. Pasula, 2 FMSHRC at 2789-94;
Robinette, 3 FMSHRC at 807-17. Although section 105(c) does not expressly

!ii

Section 105(c)(l) 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 miner or applicant for
employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is
about to testify in any such proceeding, or because of the
exercise by such miner, representative of miners or applicant
for employment on behalf of himself or others of any statutory
right afforded by this Act.

988

provide for the right to refuse work, the legislative history unambiguously shows that Congress intended section 105 to embrace this right.
See Fasula, 2 FMSHRC at 2791-93. The judge's decision--when read in
light of our views on the meaning of a claim--makes clear that the
essence of Bradley's ocederal claim is that he was fired for refusing the
order to allow the scoop to run over the damaged trailing cable. 3
FMSHRC at 922. The judge also analyzed Bradley's claim solely under the
Fasula-Robinette tests for examining an alleged discriminatory action.
Id.
In contrast, section 22-l-2l(a) of the West Virginia Code (n. 2
above), under which Bradley brought his state action, provides in
relevant part that "No person shall discharge ..• any miner .•• by
reason of the fact that he believes or knows that such miner ..• has
notified ••• an operator, directly or indirectly, of any alleged violati<ms or danger •••• n It is not clear from the face of this provision
whether the state law would treat Bradley 1 s refusal to obey an order as
a protected "notification to an operator of a danger." Belva has not
demonstrated in any event that West Virginia law confers a general right
to refuse work. (Belva has presented us with no other substantive provisions of the state law.) Other than the West Virginia decision in
issue, Belva has presented no West Virginia Board decisions (which, from
all that appears, are not officially published) nor any other court
decision interpreting the West Virginia act. Nor has Belva presented
any legislative history to explain the meaning of section 22-l-2l(a).
Similarly, Belva has not shown that West Virginia law affords a miner in
a discrimination case the burden of proof structure and analytical
framework used to resolve a Mine Act discrimination case.
Nor does the State Board decision in Bradley's case shed any light
on the foregoing matters. The decision is extremely brief and conclusory. The decision contains no findings of fact, credibility resolutions, or explanations for the conclusions reached. No mention is mad~
that the matter of a right to refuse work was litigated or considered by
the Board, or that such a right in general exists under state law. ]_/
The decision is also silent on the burdens of proof and discrimination
analysis employed to reach the result obtained.

JJ

At.the West Virginia state hearing, Bradley's counsel seem to have
argued that Bradley was fired because of prior safety complaints or
because he was being held responsible for the mine section being shut
down by the MSHA inspector. Transcript of West Virginia hearing, at 83,
87. We note in passing that the transcript of the state proceeding is
frequently garbled and does not provide significant assistance in
determining the basis of Bradley's state claim.

989

While we agree with the judge that the facts involved in Bradley's
two actions are substantially the same, we cannot find on this record
that the two claims are identical. Of course, we are not attempting to
essay any kind of a conclusive construction on the meaning of West
Virginia law. We have addressed only the facial, apparent meaning of
section 22-l-2l(a), and we have a record virtually devoid of proof on
identity of claims. Our holding therefore means only that Belva has
failed to show that Bradley's state "safety complaint" claim involved,
or could have involved, the same kind of work refusal claim litigated
before us. Cf. Tipler v. E.I. duPont deNemours & Co., 443 F.2d at 126130. §_/ We would, of course, take steps to prevent any duplicating
recoveries under state law and this Act, and, as we hold below, we will
also allow the decisions of state tribunals to be admitted into evidence
in our proceedings. This latter device may supply in appropriate cases
approximately the same relief the preclusion doctrines are designed to
afford.
Collateral Estoppel
Our conclusion on res judicata does not dictate a particular
to collateral estoppel, or issue preclusion.
the doctrine of collateral estoppel applies where
the second suit is based upon a different claim. Under collateral
estoppel, the judgment in the earlier suit precludes re-litigation of
issues actually litigated and necessary to the outcome of the earlier
suit.
for example, Parklane Hosiery Co. v. Shore, 439 U.S. 322,
326 & n.
(1979). We need not decide whether collateral estoppel
applies to our proceedings because Belva has not satisfied the requirements for raising this defense.
Indeed, Belva has not advanced any separate collateral estoppel
arguments, but instead has vaguely lumped this doctrine with its discussion of res judicata. The basic premise for applying collateral
estoppel is a showing that the precise issues involved in the second
action were actually and necessarily decided in the first. Belva has not
made this showing. The West.Virginia Board decision is so brief and
conclusory that we can not use it as a basis for collateral estoppel.
In the third section of this-dec.ision, we discuss the issues relevant to
this federal action, and nothing-in- this very limited record persuades
us that they were considered or decided in the West Virginia proceeding.

At oral argument before us, reference was made to section 22-2(g) of the West Virginia Act, which provides for a limited right to
refuse work under unsupported roof, and we agree with the position taken
by Belva's counsel that that section appears to have no relevance to the
facts of this case.

990

In addition to its preclusion arguments, Belva also raises a comity
argument, which appears to be based on the Supreme Court's discussion of
"Our Federalism" in Younger v. Harris, 401 U.S. 37 (1971). The analogy
to Younger is strained. In that case, the only issue was the proper
policy to be followe~ by a federal court when requested to enjoin on
constitutional grounds a criminal prosecution pending in a state court.
Even if this comity notion possessed some analogous appeal, which we do
not decide, it should not apply where, as here, a miner is pursuing
different claims.
We conclude our preclusion discussion by addressing the judge's
admission into evidence of the state decision, a procedural action to
which Belva does not object. Allowing the introduction of such decisions may satisfy many of the goals that the preclusion and comity
doctrines were created to serve: lessening the burdens of multiple
litigation, fostering harmonious federal-state development of similar
bodies of law, and avoiding unnecessary relitigation of points already
thoroughly tried and analyzed by a competent body. We approve the
introduction of such decisions into evidence, but also agree with the
judge that no weight should have been accorded to this particular
decision. 3 FMSHRC at 921. As we have already indicated, the state
opinion is on its face devoid of any meaningful
We therefore
concur with the judge that "[w]ithout knowing how the Board evaluated
the testimony or applied the law, ••• any deference to its opinion would
be unjustifiable." Id.
We now turn to the discrimination issues.
III.

We first analyze whether Bradley established a prima facie case
under our Pasula/Robinette tests, and then examine the question of
whether Belva nevertheless suces~fully defended against it.
The standards by which we analyze a section 105 prima facie case
were set out in Pasula and Robinette. In Pasula, we developed a twopart test:
.•• the complainant has established a prima facie case of a
violation of section 105(c)(l) if a preponderance of the
evidence proves (1) that he engaged in a protected activity,
and (2) that the adverse action was motivated in any
by
the protected activity. On these issues, the complainant must
bear the ultimate burden of persuasion.
Pasula, 2 FMSHRC at 2799. As we have already indicated, these two
decisions also recognize a right to refuse work so long as the refusal
is predicated on a good faith, reasonable belief in a hazardous condition.

991

The judge appropriately applied the Robinette test to Bradley's
refusal to let the scoop run over the cable (see discussion of facts
above). Although Belva disagrees with the specific manner in which the
Robinette test was ap~lied to the facts in this case, it does not argue
that the wrong test was applied. Belva contends that Bradley did not
have a reasonable belief that the cable was hazardous. Belva relies on
"objective" evidence and points to testimony that the cable was severed
and de-energized.
In Robinette, however, we adopted a test less rigid than "objective
proof":
Miners should be able to respond quickly to reasonably perceived threats, and mining conditions may not permit painstaking
validation of what appears to be a danger. For all these reasons~
a "reasonable beliefrt rule is preferable to an "objective proof 11
approach under the Act,
Robinette, 3 FMSHRC at 812. Here, the judge had before him ample evidence
that Bradley may have had a reasonable fear of shock or electrocution.
The miners in Bradley's crew testified that they did not know the cable
had been de-energized--the cable was still hooked up to the continuous
miner, it had not been locked out, and the opposite end of the cable was
located three breaks away. Tr. 89. Moreover, Bradley testified that
only a week before the argument he had been badly shocked by a cable
under similar conditions. Tr. 235. Belva also points to testimony that
electricians had already cut the cable for splicing. Tr. 221-22. However, this testimony does not make clear whether the cutting occurred
before or after the scoop incident, and there is no evidence Bradley knew
or was told of the cutting when he refused to let the scoop run over the
damaged cable. Under these circumstances, we affirm the judge's conclusion that Bradley's refusal to allow the scoop to drive over the
cable was a protected refusal to perform work that the miner reasonably
regarded as dangerous. The next question is whether Bradley's discharge
was motivated "in any part" by this protected work refusal.
The judge inferred improper motivation largely because of the
operator's knowledge of Bradley's protected activity and the timing of
the protected activity and the sanction. In Chacon v. Phelps Dodge
Corp., 3 FMSHRC 2508 (1981), ~·
rev. filed, No. 81-2300, D.C.
Cir., December 11, 1981, the majority and the dissent agreed that
circumstantial evidence of this type and reasonable inferences drawn
therefrom may be used to sustain a prima facie case of discrimination.
3 FMSHRC at 2510-12.
It is undisputed that Bradley had made a number of safety complaints to the operator, and had made some to his supervisor, Mine
Foreman Davis. Davis was the supervisor who fired Bradley and whose
order Bradley refused to obey. Thus, Davis was well aware of Bradley's
protected activity in general and his work refusal in particular. With
respect to coincidental timing, the judge found that "[s]ince the
discharge followed so closely on [Bradley's] refusal to allow the scoop
to run over the cable, such refusal unquestionably figured in the decision
to discharge." 3 FMSHRC at 922. We agree.

992

The evidence of knowledge and timing present in this case constitutes substantial evidence that Bradley's discharge was at least
partially motivated b~ his protected refusal to work. The more difficult issue is whether . Belva successfully defended against Bradley's
prima facie case. In Pasula, we spelled out the availability of defense
to a successfully established prima facie case:
The employer may affirmatively defend, however, by proving by
a preponderance of all the evidence that, although part of his
motive was unlawful, (1) he was also motivated by the minervs
unprotected activities, and (2) that he would have taken
adverse action against the miner in any event for the unprotected activities alone ..•. It is not sufficient for the
employer to show that the miner deserved to have been fired
for engaging in the unprotected activity; if the unprotected
conduct did not originally concern the employer enough to have
resulted in the same adverse action 9 we will not consider it.
The employer must show that he did in fact consider the
employee deserving of discipline for engaging in the unprotected activity alone and that he
have disciplined him
in any event.
2 FMSHRC at 2799-800.

(Emphasis in orig-inaL)

Belva's final defense is that, even assuming a prima facie case was
established, Bradley was also fired for his insubordinate refusal to get
a tape measure (see discussion of facts above) and that he would have
been fired anyway for that act alone.
Since it was the refusal to get the tape measure that immediately
preceded Davis' decision to fire, we agree with the judge's apparent
finding that this act also figured into the discharge. 3 FMSHRC at 922'.
Thus, this is a "mixed motivation" discrimination case and the ultimate
issue is whether Belva would have fired Bradley for the tape incident
alone. The judge found that Belva would not have discharged him over
that matter and, while Belva poses some reasonable arguments, the judge's
rejection of them is supported by substantial evidence. We do not,
however, approve of some of his reasoning.
As we emphasized in Fasula, and recently re-emphasized in Chacon,
the operator must prove that it would have disciplined the miner anyway
for the unprotected activity alone. Ordinarily, an operator can attempt
to demonstrate this by showing, for example, past discipline consistent
with that meted out to the alleged discriminatee, the miner's unsatisfactory past work record, prior warnings to the miner, or personnel
rules or practices forbidding the conduct in question. Our function is
not to pass on the wisdom or fairness of such asserted business justifications, but rather only to determine whether they are credible and,
if so, whether they would have motivated the particular operator as
claimed.

993

Here, Belva points only to Davis' testimony that the tape line
argument was the "only reason" for Bradley's discharge. Tr. 173-4.
Belva did not attempt to show that Bradley was an unsatisfactory miner
or had engaged in insubordinate acts previously. Neither did Belva
attempt to show that !it had rules or practices dealing with this kind of
problem, or had previously fired anyone for similar incidents. We also
note that Davis' testimony appears somewhat less than forthright. He did
not initially mention the cable incident, and conceded that he had
argued with Bradley over that point only upon questioning -Oy the judge.
Tr. 189.
Under the foregoing circumstances, we agree with the judge that
Belva's defense is not persuasive. Since the incidents involving the
cable and tape line happened virtually on top of one another, the
judge's inference that Bradley would not have been discharged over the
tape measure dispute alone is supportable. At the same time, we are
troubled by some of the language used by the judge. He suggests, for
example, that discharge over such an incident would be a "totally
disproportionate sanction." 3 FMSHRC at 922. Such personal views are
irrelevant; the proper point is that Belva failed to show that it would
have fired him over that incident alone. In a different case, an
operator might be able to show that such an incident alone supported
termination and a judge's and our views on the wisdom or justice of such
an action would be beside the point,
In sum, we affirm the judge's discrimination findings on the bases
discussed above.
IV.

In his supplemental decision, the judge awarded Bradley $22,249.76
in back pay with interest, as well as costs and attorney's fees. 3
FMSHRC at 923. 2J Because it appears that the judge erred in computing
the back pay due, we remand this aspect of the judge's decision for
expeditious recomputation of back pay.
In Northern Coal Co., 4 FMSHRC 126, 144 (1982), we followed precedent
established under the National Labor Relations Act and defined back pay
as the sum equal to the gross pay the miner would have earned but for
the discrimination, less his "actual net interim earnings." "Net interim
earnings" is an accepted term of art which does not refer to net earnings
in the usual sense (gross pay minus various withholdings). Rather, the
term describes the employee's gross interim earnings less those expenses,
if any, incurred in seeking and hO'lding the interim employment-expenses
that the employee would not have incurred had he not suffered the
discrimination. 10/ To remove any possible confusion, we will henceforth

2/

While this case was pending before us, Belva agreed to pay the sums
owed into an escrow account.
10/ Under the National Labor Relations Act, such deductible expenses
include transportation costs incurred in finding and maintaining interim
employment; employment agency fees; room and board where the employee
works away from home; moving expenses, etc.

994

refer to the term as "actual interim earnings." See OCAW v. NLRB, 547
F.2d 598, 602 (D.C. Cir. 1976),
denied, 429 U.S. 1078 (1977).
The judge subtracted Bradley's net earnings (that is, take home
pay) from the gross pay he would have earned from Belva. We remand so
that the judge can deduct the actual interim earnings as described
above. We note that in. the proceedings before the judge, Bradley
asserted he had not actually received a portion of the sum owed him by
one interim employer. The judge should ascertain on remand whether any
more of this sum has· been recovered by Bradley since the judge's initial
decision. The j
may take such additional evidence and·argument as
necessary.
For the
reasons, we remand for expeditious recalculation
of back pay, and affirm the rest of the judge 1 s decision on the bases
discussed above.

judge's handling of Belva's allegations of
unemployment compensation "fraud" by Bradley. Whatever the truth may be
regarding these allegations, the matter is before the state, not the
Commission.

995

Distribution
Daniel F. Hedges, Esq.
Appalachian Research &Defens~ Fund, Inc.
1116-B Kanawha Bl*d., East
Charleston, West Virginia 25301
Ricklin Brown, Esq.
Bowles, McDavid, Graff & Love
1200 Commerce Square
P.O. Box 1386
Charleston, West Virginia 25325
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James A. Broderick
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

996

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

June 21, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. SE 81-25-M
v.
PUERTO RICAN CEMENT COMPANY, INC.
DECISION
This penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979),
and involves the interpretation of 30 c."'F":'"R-:--§ 56.4-27. That
regulation states:
Mandatory. Whenever self-propelled mobile equipment is
used, such equipment shall be provided with a suitable
fire extinguisher readily accessible to the equipment
operator.
For the reasons that follow, we affirm the judge's conclusion that
Puerto Rican Cement Company violated this standard.
The relevant facts were stipulated by the parties. The company
was cited for failing to have a fire extinguisher attached to a
forklift at its Ponce cement plant. The forklift was consistently
used in the same manner. At the beginning of the shift it was taken
from its storage location in.the machine shop building and was driven
about 780 feet to the cement warehouse, where it was operated for the
remainder of the shift. At the end of the shift, it was driven back
along the same route to the machine.shop building. Inside the
warehouse, four fire extinguishers were located at intervals of
approximately 100 feet. Outside the warehouse and along the 780 foot
route traveled by the forklift, six fire extinguishers were attached
to the outside of buildings at intervals of approximately 130 feet.
Despite the presence of the extinguishers in the building where the
forklift was used and along the route it' traveled, the judge upheld
the citation. He construed the standard to require a fire extinguisher
to be affixed to the mobile equipment itself when the equipment is in
use. We agree.

997

82-6-10

In concluding that the judge properly interpreted the standard,
we have looked at the words of the standard, reviewed its purpose,
and finally we have noted the practical problems inherent in the
interpretations advocated by the parties.
We first consider the language and syntax of the standard. The
words of a standard when not technical in nature are to be given their
commonly understood meaning. 1/ The standard requires that mobile
equipment "shall be provided with a suitable fire extinguisher." The
generally understood relevant meaning of "provided" is to be furnished
or equipped with. 2/ In the standard, the term "mobile equipmentu
takes the action of the verb "provided." Thus, the plain meaning of
the regulation is that the machinery itself be equipped with an
extinguisher. 2./
Furthermore, it seems self evident that requiring extinguishers
to be affixed to self-propelled mobile equipment will augment the
safety of the equipment operator. In the event of a fire, the time
required to activate an extinguisher attached to the equipment would
be significantly less than if the extinguisher were located elsewhere.
Inordinate delay could result in determining which extinguisher location
were nearest to the equipment and securing the extinguisher. Moreover,
extinguishers might not readily or otherwise be accessible if the
mobile equipment left the area where the extinguishers were located.
For the foregoing reasons, we aff"nn the judge.

lf

See 2A Sutherland, Statutes and Statutory Construction § 47.28
at 141 (4th ed. 1973). Sutherland further notes that "dictionary
definitions ••• report common usage •••• " Id. § 46.02 at 52.
!} Webster's Third New International Dictionary (1971) p. 1827.
3/
The company 1 s argument that an extinguisher need not be attached
to the forklift so long as there are fire extinguishers readily accessible
to the equipment operator is obviously at odds with the syntax of the
standard.

S98

Distribution
Enrique Bray, Esq.
Lafitte & Dominguez
P.O. Box 1732
Hato Rey, Puerto Rico

00919

Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge Paul Merlin
Fed. Mine Safety & Health Rev. Commission
1730 K Street, N.W.
Washington, D.C. 20006

999

FEDERAL MINE S~FETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

June 2:1, 1982

v.

Docket No. LAKE 81-78

CENTRAL OHIO COAL COMPANY
DECISION
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et
(Supp. III 1979). Pursuant to 30 U.S.C.
§ 823(d)(2)(B) the Commission sua sponte directed review of the following
issue:
Did the judge err in approving this settlement agreement
containing an exculpatory clause stating "nothing contained
herein shall be deemed an admission by Respondent of a
violation of the Federal Mine Safety and Health [Act] of
1977 or any regulation or standard issued thereto."
In our recent decision in Amax Lead Company of Missouri, 4 FMSHRC ~
(Docket No. CENT 81-63-M, June 1, 1982), we held that "parties are free
to admit or deny the fact of violation in settlement agreements." Slip
op. at 3. This holding controls the present case. We emphasize that,
in light of the voluntary nature of the settlement process, settlements
cannot be conditioned upon an admission of violation.
Accordingly, the decision of the administrative law judge approving
the settlement at issue is affirmed.

A. E. Lawson, Commissioner, dissenting:

1000

82-6-11

Com.missioner Lawson, dissenting:
As stated in my dissent in Amax Lead Company of Missouri, supra,
one cannot deny the existence of a violation and at the same time agree
to the payment of a civil penalty therefor, since all penalties must be
predicated upon the existence of a violation. Section llO(a); Co-op
Mining Company, 2 FMSHRC 3475 (1980). Accordingly, I would reverse the
decision of the administrative law judge approving the settlement in
this matter.

A. E. Lawson, Commissioner

1001

Distribution
Debra L. Feuer, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
David M. Cohen, Esq.
American Electric Power Service Corporation
P.O. Box 700
Lancaster, Ohio 43130

1002

Administrative Law Judge Decisions

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

COWIN AND COMPANY, INC.,
Contestant

Contest of Citation
Docket No. CENT 81-250-RM
Citation No. 173604; 6/8/81

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Shafter Mine

DECISION
Appearances:

W. S. Pritchard, Jr., Attorney, Birmingham, Alabama for
the contestant; George D. Palmer, Associate Regional Solicitor,
U.S. Department of Labor, Birmingham, Alabama, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a contest filed by the contestant Cowin
and Company (hereinafter Cowin) contesting the legality and propriety
of a citation issued by an MSHA Inspector pursuant to section 104(d)(l)
of the Federal Mine Safety and Health Act of 1977, of June 8, 1981. At
the time the citation was issued, Cowin was an independent contractor
doing mine development work for Gold Fields (a corporation) ·at the
Shafter Silver Mine located near Shafter, Persidio County, Texas. The
work being performed by Cowin was a mucking operation at the bottom of
a drilled shaft that was drilled to a seven foot diameter and to a
depth of approximately 938 feet below the surface. The citation cites
an alleged violation of mandatory safety standard 30 CFR 57.19-71, and
it was alleged that during the mucking operation employees of Cowin were
required to stand in a bucket of loose, slippery, muddy "muck" while
being hauled approximately seventy feet up the shaft in question.
This case was originally assigned to former Commission Judge Forrest E.
Stewart, and upon his subsequent transfer from employment with the
Commission, the case was reassigned to me for further adjudication.
It should be noted that subsequent to the docketing of this contest with
the Commission, both Cowin and MSHA filed a number of motions, responses,
and further pleadings dealing with certain procedural matters concerning

1004

the timely filing of the contest, and a subsequent civil penalty assessment
:for the violation. Included in these filings are motions to dismiss,
amended motions, and responses filed by the parties. A summary of these
procedural motions, including my rulings, are set out in .a three page
order issued by me on January 28, 1982. The Order is a matter of
record and its contents need not be repeated herein.
The parties were served with a notice of hearing issued by me on
February 26, 1982, advising them that a hearing would be conducted
on the contest on May 5, 1982, in Birmingham, Alabama,.the hearing
location requested by the contestant. A subsequent amended notice of
hearing which I issued on April 13, 1982, advised the
of the
specific hearing location in Birmingham for the scheduled hearing.
At the hearing, the parties tendered a motion for approval of a
proposed settlement agreement for the citation in question. The proposal
includes an agreement by the contestant for a payment of a $210 civil
penalty for the citation, a reduction of $90 from the initial assessment
of $300. The proposed reduction was based on the assertion that the
gravity of the conditions cited was substantially less than initially
assigned in the initial assessment mad~ by MSHA 1 s Office of Assessments.

The section 104(d)(l) citation issued in this case, No. 173604,
cites a violation of mandatory safety standard 30·CFR 57.19-71, and the
conditions or practices cited by the inspector states as follows:
Employees were required to stand on loose muddy muck and
ride the muck bucket approximately 70 ft. to a landing.
The muck being muddy caused the footing to be unstable.
This company had previously been cited for men riding
in the muck bucket with materials and the supervision
was told along with employees that they were not to
ride the buckets with materials or muck. Safety belts
were used by the employees; attached to the rope hook.
The proposed settlement motion was rejected and denied. The parties
were reminded of my previous rulings in this matter, and in particular
the notice of hearing issued on February 26, 1982, stating that the
issues to be tried in this contest were the fact of violation, whether
it was "unwarrantable", and whether the conditions cited constituted a
"significant and substantial" violation of the cited mandatory safety
standard.
'
The parties were also reminded of my previous ruling of January 28, 1982,
that since no civil penalty proceeding was filed by the Secretary in
this matter, the normal civil penalty matters set out in section llO(i)
of the Act are not in issue in these proceedings. Further, since the
Secretary filed no proposal for assessment of a civil penalty in this

1005

case, it seems clear to me that I have no jurisdiction to consider the
proposed settlement proposal tendered by the parties with respect to
MSHA's initial penalty assessment. Accordingly, the proposed settlement
for the penalty assessment, which apparently has never been contested
by Cowin and for which no penalty proposal has been filed with the
Commission, was rejected and denied. In view of my 'ruling in this regard,
Contestant Cowin renewed its motion to withdraw its contest in this case
and it was granted from the bench.
ORDER
Contestant 1 s motion to withdraw its notice of contest filed in this
case is GRANTED, and this case is DISMISSED.

@~a~~~
_./'~A.
Koutras
Administrative Law Judge
Distribution:
George D. Palmer, Associate Regional Solicitor, U.S. Department of Labor,
Office of the Solicitor, 1929 South Ninth Ave., Birmingham, AL 35256
(Certified Mail)
W. S. Pritchard, Jr., Esq., Pritchard, McCall, Jones, Spencer & O'Kelly,
901 Brown-Marx Bldg., 2000 First Avenue North, Birmingham, AL 35203
(Certified Mail)

1006

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceedings

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. SE.82-12
A.O. No. 01-00758-03104 V

v.

Mine No. 3

JIM WALTER RESOURCES, INC.,
Respondent

Docket No. SE 82-13
A.O. No. 01-01247-03081 V
Mine No. 4
DECISIONS

Appearances:

George D. Palmer, Associate Regional Solicitor, U.S.
Department of Labor, Birmingham, Alabama, for the
petitioner; Robert W. Pollard, Attorney, Birmingham,
Alabama, and Gerald Reynolds, Attorney, Tampa, Florida,
for the respondent.

Before:

Judge Koutras
Statement of the Case

These proceedings concern proposals for assessment of civil penalties
filed by the petitioner against the respondent on November 27, 1981,
pursuant to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 820(a), proposing civil penalty assessments.for two
alleged violations of mandatory safety standards 30 CFR 75.316 and 75.1704.
Respondent filed timely answers to the petitioner's proposals,
denied that the alleged violations occurred, interposed several legal
and factual defenses, and requested a hearing. Subsequently, by notice of
hearing issued by me on February 26, 1982, the parties were advised that
both cases would be heard in Birmingham, Alabama, on May 4, 1982. By
an amended notice issued on April 13, 1982, the parties were informed
of the specific hearing location in Birmingham.
Although all of the notices of hearings issued in these proceedings
directed the parties to inform me of any proposed settlements arrived
at by the parties in writing no later then ten calendar days in advance
of the commencement of the hearings, petitioner's counsel, the Associate
Regional Solicitor, telephoned my office on Friday, April 29, 1982,
to advise me that the parties had reached a settlement in both dockets.

1007

I directed both parties by telephone calls placed on the afternoon of
April 29, 1982, to appear at the hearings as previously noted. I further
advised them that since the initial notices of hearings were served
on the parties more than sixty (60) days in advance of the scheduled
hearing date, petitioner's "last-minute" telephone call was totally
unacceptable, untimely, and contrary to the specific prehearing notice
requirement that settlement proposals he communicated to me in writing
no more than 10 days in advance of the scheduled hearings.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regulation as alleged in the proposal for assessment of a civil penalty
filed in this proceeding, and, if so, (2) the appropriate civil penalty
that should be assessed against the respondent for the alleged violation
based upon the criteria set forth in section llO(i) of the Act.
Additional issues raised by the parties are identified and disposed of
in the course of this decision.
In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness
of such penalty to the size of the business of the operator, (3) whether
the operator was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of the violation.
Applicable Statutory and.Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, P.L. 95-164,

2.

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

3.

Commission Rules, 20 CFR 27001.l et ~

30 u.s.c. § 801 et~

Discussion
Docket No. SE 82-12
The hearing in this case was convened pursuant to notice and the
parties appeared. Petitioner's counsel presented a motion for approval
of a proposed settlement for the citation in question. In addition
to the matters presented in the written motion, the parties were afforded
a full opportunity to present oral arguments in support of the proposed
settlement disposition of the case. In addition, statements were presented
by MSHA Inspector L. G. Ingram who issued citation, as well as by the
representative of miners (Bobby Johnson) who acted as the union walkaround
representative at the time of the issuance of the citation.

1008

The 104(d)(l) Citation No. 0756313, June 19, 1981, cites 30 CFR
75.316, and states as follows:
The ventilation plan was not being followed in
2 entry on section 10 in that the roof bolting
was being performed with out the temporary wing
curtain for blowing was not installed and the
curtain line was approximately 17 feet from the
deepest penetration. Wing curtain is required
when bolting.
Fact of violation
The respondent does not dispute the fact that the conditions or
practices cited by the
constituted a violation of cited mandatory
safety standard 30 CFR 75.316. The failure to insure the installation
of the missing temporary wing ventilation curtain was a violation of
the operator's approved ventilation plan, and the respondent conceded
that this was in fact the case. The citation is AFFIRMED.
Good faith compliance
The record reflects that the cited condition was immediately
abated within minutes after the missing wing curtain was installed, and
the inspector confirmed this fact.
Size of business and effect of civil penalty on respondent's ability
to remain in business.
The parties were in agreement that the No. 3 mine employed ~pproximately
679 miners at the time the citation issued, and that the mine's annual
coal production was approximately 500,000 to 800,000 tons. Respondent
does not contend that the penalty assessed in this case will adversely
affect its ability to remain in business.
History of prior of violations
Petitioner asserted that the respondent has a moderate history of
prior assessed violations, but failed to produce a computer print-out
detailing this history. However, the inspector stated that while he
had cited previous ventilation violations at the mine, he could not recall
any prior citations for failure to install temporary ventilation wing
curtains.

The information presented during the hearing reflects that the
No. 3 mine is a gassy mine and that methane is ever-present and liberally
emitted.
In addition, the inspector indicated that methane ignitions

1009

had occurred in the mine, particularly during the mining cycle. In
this case, the citation issued during the roof bolting operation, and
the parties agreed that methane ignitions during roof bolting were very
rare.
Although the inspector did not know how long the missing curtain
condition existed, he agreed that he observed the condition at the
beginning of the shift and that it was not likely that it existed for
any long duration. Since the missing curtain affected the ventilation
system, the inspector believed that the condition cited was serious,
and the parties agreed that this was the case.
Negligence
In itts motion in support of a reduction of the proposed civil
penalty assessment of $2,750, petitioner stated that the initial
assessment made by MSHA 1 s Office of Assessments was $750, and the rationale
for this assessment amount is detailed in the "Narrative Findings for a
Special Assessment", which is a part ~f the record in this case. Subsequently, when the respondent requested a conference, MSHA's assessment
representative at that conference increased the penalty assessment to
$2,750 and he did so on the basis of information that two higher level
mine management personnel were at the location of the missing ventilation
curtain and had been there for several minutes before the mine foreman
and inspector arrived on the scena 'Ihe conference officer obviously
concluded that the condition cited was known by top-level management for
an extended period of time, and their failure to correct the condition
before the inspector arrived at the scene resulted in a drastic increase
in the original assessment.
Petitioner asserted that the mine foreman arrived at the scene
a minute or so in advance of the inspector but that the other top-level
management personnel were directing their attention to an operating
problem and were not aware of the wing curtain violation. Thus,
petitioner maintained that the possible actual knowledge of the missing
wing curtain by respondent's management was not present for more than
about a minute before the inspector arrived and required correction.
Respondent's counsel agreed with the arguments advanced by the petitioner
with regard to the circumstances noted and insisted that such management
knowledge, if any, was at most momentary and was not sufficient for the
foreman to react before the inspector arrived on the scene. Given the
full facts and circumstances now known to the parties, respondent maintained
the increased assessment was totally arbitrary.
In view of the foregoing arguments, the parties proposed a civil
penalty assessment in the amount of $350 as an agreed upon settlement
disposition for the citation.

1010

Conclusion
After careful consideration of the arguments and information presented by the parties in support of their proposed settlement disposition
of this matter, and particularly with regard to the question of negligence,
I agree that a reduction in the increased assessment is justified.
However, in view of the seriousness of the citation, the proposed penalty
of $350 is rejected. Further, taking into account the almost instant
abatement of the condition, the parties were advised that I would approve
a civil penalty assessment of $500 for the citation, and they agreed.
Accordingly, pursuant to Commission Rule 30, 29 CFR 2700.30, I conclude
and find a settlement in the amount of $500 is reasonable and in the
public interest, and the motion is GRANTED, and the settlement is APPROVED.
ORDER
Respondent IS ORDERED to pay a civil penalty assessment in the amount
of $500 is staisfaction of Citation No. 0756313, June 19, 1981, 30 CFR
75.316, within thirty (30) days of the date of this decision and order,
and upon receipt of payment by the petitioner, this matter is DISMISSED.
Docket No. SE 82-13
The 104(d)(l) Citation No. 0752151, July 28, 1981, cites 30 CFR
75.1704, and states as follows:
The operator did not maintain the designated 10-men
service cage in the prod. shaft properly -- in that
such device (Nord Berg Hoist/Lakeshore Designed) would
not run. Further, the approved back-up North coal
skip did not have the embark-debark means available
for persons. The main service hoisting facility (Nordberg/Lakeshore cage) was unavailable as material
(flat car on trip) had cage tied up.
In this case the parties proposed a settlement in the amount of
$295 for the citation in question. The initial "special assessment" made
in this case was in the amount of $2,000. The assessment was further
reduced to $1250 at the assessment conference stage; and this is the
amount which was proposed by the.petitioner at the time that it filed its
civil penalty proposal on November 27, 1981.
In support of the proposed settlement reduction for the citation
in question the petitioner asserted that the facts as now known to him
justifies a reduction. Counsel stated that the citation was issued after
the inspector found that the 10-man service case located in the production
shaft would not operate on a manual mode, but could be used automatically.
Since this equipment was a designated main escapeway, the inspector was
not concerned that it was not totally operable, but that two additional
hoists designated as back-ups could not be used.

1011

In preparation for the hearing, petitioner's counsei asser~ed that
additional facts were brought to his attention concerning the two back-up
escape hoists. The service hoist had a piece of equipment stored on it
which could have been easily removed to facilitate the transportation
of men in an emergency. The second hoist referred to by the inspector
in his citation could have been used since a portable walk board for
use by the men to enter the hoist was located some distance from this
hoist. Thus, petitioner argues that the original assessment was made
on the assumption that the two additional hoists were totally unserviceable
for use in an emergency, which was in fact not the case.
In addition to the foregoing arguments, petitioner's counsel stated
that he has consulted with the assessment officer who "specially assessed"
the citation in question and that he was now in agreement that the regular
civil penalty process is appropriate in this case. As a matter of fact,
counsel asserted that the agreed upon proposed settlement amount of $295
was computed by the same MSHA assessment officer after all of the facts
were disclosed and brought to his attention. Counsel also brought to
my attention that he discussed the pr.oposed settlement with the inspector
who issued the citation, and that the inspector was unavailable for the
hearing because he was on sick leave and has filed for disability retirement.
Petitioner's motion also includes information concerning the other
statutory criteria found in section llO(i) of the Act. Coupled with the
facts and circumstances surrounding the issuance df the citation, the
subsequent assessments, and the arguments presented in support of the
proposed settlement, I conclude and find that the settlement proposal
is reasonable and in the public interest. Accordingly, pursuant to
29 CFR 2700.30, the motion to approve settlement is GRANTED, and the
settlement is APPROVED.
ORDER
Respondent IS ORDERED to pay a civil penalty assessment in the amount
of $295 in satisfaction of Citation No. 0752151, July 28, 1981, 30
CFR 75.1704, within thirty (30) days of the date of this decision and
order, and upon receipt of payment by the petitioner, this matter is
DISMISSED.

~'!r(~
Administrative Law Judge

Distribution:
George D. Palmer, Esq., U.S. Department of Labor, Office of the Solicitor,
1929 South Ninth Ave., Birmingham, AL 35256 (Certified Mail)
Robert W. Pollard, Esq., Jim Walter Resources, Inc., Box C-79, Birmingham,
AL 35283 (Certified Mail)

1012

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JOHN COOLEY,

Complaint of Discrimination
and Discharge
Docket No. LAKE 81-163-DM

Complainant
Michigan Division Quarry

v.
OTTAWA SILICA COMPANY,
Respondent

DECISION
Appearances:

David F. Wightman, Attorney, U.S. Department of Labor,
Detroit, Michigan, for the complainant; Frank X. Fortescue,
Esquire, Southfield, Michigan, for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

This is a discrimination proceeding filed by complainant MSHA on
June 19, 1981, pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977, on behalf of complainant John Cooley for an alleged
act of discrimination which purportedly occurred on May 6, 1980, ~ when
Mr. Cooley was discharged from his employment with the respondent for
refusing to follow an order from his supervisor to perform a work task
which Mr. Cooley contends was unsafe. Mr. Cooley alleged that he had
previously been suspended on May 2, 1980, for refusing to follow the same
order, and he contends that the discharge which followed violated certain
rights protected under the Act.
Respondent filed a timely response to the complaint, and pursuant to
notice served on the parties a hearing was held in Detroit, Michigan, during
the term December 15-16, 1981, and the parties appeared and participated
fully therein. Post-hearing arguments and proposed findings and conclusions
were filed by the parties, and they have been considered by me in the
course of this decision.

'!:_/ MSHA's assertion in its original complaint that Mr. Cooley was discharged
in 1981 appears to be a typographical error. The record in this case reflects
1980 as the correct year.

1013

Issues presented
The principal issue presented for adjudication in this case is
whether Mr. Cooley's suspension and subsequent discharge from his employment
with the respondent was in fact prompted by protected activity under the
Act. Specifically, the crux of the case is whether Mr. Cooley's refusal
to perform or carry out an order by his supervisor which he (Cooley)
believed constituted an unsafe work assignment insulated him from suspension
or discharge, and whether his abusive language warranted his discharge.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301

et~·

2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3).
3.

Commission Rules, 29 CFR 270P.l,

et~·

Stipulations
The parties stipulated that respondent operates a mine within the
meaning of the Act, that the Secretary has jurisdiction to initiate the
complaint, and that I have jurisdiction to hear and decide the matter (Tr. 8-9).
Testimony and evidence adduced by the complainant
John W. Cooley, testified that he is married, completed his education
through the ninth grade, and was employed by the respondent for 18 months
prior to his discharge on May 6, 1980. · He described his job classification as "laborer" and stated that this included such "typical" duties
as draining out elevator pits, shoveling and loading sand, hosing down
the floor, driving "bobcats", and other general cleaning duties. He
confirmed that prior to May 1980, he had been disciplined to carry out
orders from his supervisor and received a.penalty of a week off without
pay and placed on probation for 12 months. He had two weeks left on his
probation time at the time of his discharge (Tr. 10-12).
Mr. Cooley confirmed that David Chalmers was his supervisory foreman
for at least six months prior to his discharge in May 1980, and he believed
Mr. Chalmers had a great disregard for his own safety and cited several
examples of this (Tr. 13). Mr. Cooley confirmed that he bid on a dryer
operator's job in April 1980, and prior to this time he worked on the
No. 6 Dryer as a laborer, and his duties included lighting the dryer
pilot light with a cigarette lighter or a burning piece of paper. He
stated that he performed these duties for some eight months prior to his
discharge and that he lit the pilot in the fashion described at least
thirty times, and "sometimes two three times a day" depending on when it
would go out (Tr. 14-15).

1014

Mr. Cooley identified exhibit G-9 as a sketch or drawing of the No. 6
Dryer which he made and he explained the location of the parts and described
how he would light the dryer pilot light. He stated that the dryer was
located on a second floor landing some eight feet off the ground, and he
described where he would stand to light the pilot. He indicated that
he would have to stand on his toes and lean over a railing to reach the
pilot light location, and this position would expose him to a possible
fall head first over the railing and through an opening to the steel
floor below on the next landing. He also expressed concern over a "flash
flame" from the pilot and indicated that "this is where I singed hair
right off my knuckle" (Tr. 16-19). He also alluded to the fact that the
floor where he had to stand to light the pilot was of ten slippery due
to the presence of a thin coating of silica dust (Tr. 20).
Mr. Cooley stated that he was instructed in the method for lighting
the dryer pilot with a burning piece of paper or cigarette lighter by
Mr. Chalmers and by Bill Nivitt, who was his supervisor prior to Mr. Chalmers.
He had observed Mr. Chalmers lighting the dryer with a piece of burning
paper and when he advised Mr. Chalmers that he believed it was unsafe
to light it in that fashion Mr. Chalmers inserted a wad of paper towels
in the pilot and lit it. However, the paper did not catch fire and
Mr. Chalmers tried it a second time, and after a while it caught and
ignited the pilot (Tr. 21-22). Mr. Cooley expressed his concern over the
lighting of the dryer pilot with a burning piece of paper as follows
(Tr. 23-24):

Q. Okay. What was your opinion of lighting the
No. 6 pilot with a burning piece of paper?
A.

Dangerous, stupid.

Q.

Why do you say that?

A. I respect things. I just, I have great respect
for things that are supposed to be. They got the correct way
to do it. I will put it like that. They got a correct way to
do it. If they don't do it that way, don't do it.
Q.

What was the correct way to do it?

A. That panel board. Like I say, you got three lights
on there. This is time. You got your cleaning
to make
sure you clear it. All right. When that light goes off,
the other one comes on and you push that, sending -- that sends
the gas.
When that light goes off, the other one comes on, you
ignite it. That is the correct procedure.

Q.

That wasn't working?

1015

A. No. And this made me believe that if this wasn't
working, it is sheer madness not to think that these others
could malfunction. And what if they would? You would get a
double dose of gas in there. Well, hey, you know.

Q.

What were you afraid of?

A. Getting burned up or blowed up or great danger.
That is what I was afraid of.
Q.

Were you afraid of falling?

A. I stated before, I was,
hole in the floor, yes.

Falling through this opening

Q. You stated before that you bid on the drier operator
job, why did you bid on the drier operator job if you thought
it was unsafe?
A.

Well, to get out of lighting the pilot,

Q,

And?

A. It is much -- how should I say? -- strenuous, and it i
a little more pay. But the main reason was to get out of
lighting the pilot.

Q. Why did you think you would get out of lighting the
pilot with a burning piece of paper if you bid on the drier
operator job?
A. That was before when I was on labor. Marvin Phelps
and Smock, they would call Chalmers and he would order me
to go back there and light that while they worked the control
panel.

Q. So the drier operator didn't usually have to hold
the burning piece of paper?
A. No, no. I seen the times, one time during that week,
me and Marv, I beat him to the control panel and he didn't
say nothing but he looked like he was kind of disappointed
about it, you know, about lighting, reaching over.
Mr. Cooley stated that after he received his bid as a dryer operator
he received five days of training from Marvin Phelps, an experienced
dryer operator who lit the No. 6 dryer with a piece of paper. During
his training, Mr. Cooley stated that he lit it in that fashion on two
occasions, but that he complained to Mr. Phelps as well as Mr. Chalmers
that this was unsafe. He stated that he had also complained to Ken Smock
and Sam Watson, two other dryer operators about lighting the pilot with
burning paper (Tr. 27).

1016

Mr. Cooley testified that when he went to work on Friday, May 2, 1980,
the last day of his training week, the dryer was down due to a problem
so he proceeded to the lunch room. His foreman told him to get to work
so he proceeded to the dryer area where he performed some clean up work
and lubricated the trunion. Foreman Chalmers then called Mr. Phelps
with instructions to "fire up" the dryer and when he (Cooley) leaned
over the railing to light it the hair was singed off the knuckles of his
right hand and that point he decided that he would never again light the
dryer with burning paper. After making his mind up to voluntarily
withdraw his bid as a dryer operator and informed Mr. Chalmers that he
was "pulling his bid" as a dryer operator and informed him that he wanted
to go back to his laborer's job, and Mr. Chalmers said 11 ok 11 • Later that
day Mr. Chalmers called him and ordered him to
the No. 6 pilot,
and Mr. Cooley refused. Mr. Chalmers reminded him that he
Mr. Cooley cussed and stated to Mr. Chalmers that he would
and Mr. Chalmers asked him to come to his office. When he arrived at
the office, a union steward and safety man was present and Mr. Chalmers
indicated that he wanted Mr. Cooley 11 off the property". Mr. Cooley
thereupon was sent home, indicated t0 his union steward that he wished
to file a grievance and left (Tr. 27-32), He has not been
since
that time (Tr. 32).
On cross-examination, Mr. Cooley testified that he has worked in
other plant open areas other than the No. 6 Dryer, some of which he
considered to be unsafe. He indicated that he did complain about one
of these areas, but claimed that he was 11 in the dark" about any company
safety meetings (Tr. 35). He believed the entire plant was unsafe and
stated that he had called unsafe conditions to the attention of his
supervisors in the past (Tr. 37-39). Mr. Cooley conceded that
to Mr. Chalmers about "doing laborer's work", such as
the drYer, when he was in fact a dryer operator trainee.
that he did not like working around a steel floor which had water on it
and which was near the electrical dryer control panel. After he burned
his knuckles, he decided he had had enough and he withdrew his bid, and
he conceded that the pilot incident wasn't the controlling factor (Tr. 45-46).
He also stated that he knew he was on probation and felt that management
wanted to get rid of him. He also conceded cursing and using
language when speaking with Mr. Chalmers, but insisted that he was not
cussing "toward him" but was upset over the fact that he had withdrawn
his bid (Tr. 46). He also conceded that rather than going to Mr. Chalmers'
office he told him that he would meet him in the lunch room, and when he
finally met him there Mr. Chalmers told him he wanted him off the property
and that he was fired for refusing a direct order (TR. 47-48). The
following Monday, he met with Mr. Bentgen and his union stewards, and
he confirmed that he filed a grievance and identified a copy of the grievance
which a union steward prepared for him (Exhibit R-1; Tr. 47-53).
Mr. Cooley confirmed his prior probation before his discharge on
May 2, 1980, and he also confirmed that he had other differences with
company management while on probation and that he was suspended for a
week (Tr. 57-48). He explained that he was suspended for not following
a supervisor's order and that he realizes that he could have been fired
for that incident (Tr. 60).

1017

Mr. Cooley testified that prior to May 2, 1980, he complained several
times about the burner problem, and these complaints included complaints
to his supervisors as well as to other dryer operators and a union safety
man (Tr. 61-62). In response to further questions, he confirmed that he
singed his knuckles on May 2, 1980, when he attempted to light the pilot
with burning paper, and that coupled with the other problems he decided
to bid off the job as dryer operator (Tr. 64). He stated that while he
can read pretty well, he has difficulty in writing and nas difficulty
in expressing himself in writing (Tr. 65),
Hilliard W. Bentgen testified that he has worked at the quarry in
question since February 1980, and is now the Industrial Relations Safety
Director. He.has served in this position since June 1980, and prior to that
time was the Industrial Relations Supervisor. li11980 the quarry had 90
employees and comprised 650 acres. The quarry mines and processes silica
sand. He stated that in 1980 dryer operators were required to make written
inspection reports, and he identified exhibit G-8 as the reports for
March and April 1980 (Tr. 82-85).
Mr. Bentgen explained the procedures for tenninating employees and
he indicated that Mr. Cooley's probationary period was fixed by an Industrial
Board decision. He identified exhibit G-1 as a letter sent to Mr. Cooley
terminating his employment, and he confirmed that the letter stated that he
was discharged for (1) refusal to follow the instructions of his foreman;
(2) use of foul and abusive language in dealing with his foreman; and (3)
his prior disciplinary record with the company. He also explained that
the failure by Mr. Cooley to follow his foreman's orders was in connection
with his refusal to assist in the lighting of the No. 6 dryer, and the charge of using foul and abusive language resulted from foreman Chalmers
telling him (Bentgen) that Mr. Cooley used "violent profanity" against
him over the telephone. Mr. Bentgen related the circumstances surrounding
the discharge as follows (Tr. 88-89):

Q. What was the subject of the conversation in
which John Cooley used this profanity?
A. Mr. Chalmers related to me that he had instructed
Mr. Cooley to go assist in lighting the drier and this
resulted in the profanity from Mr. Cooley.

Q.

How was he instructed to do it?

A. I couldn't give his exact words. Mr. Chalmers
informed me that he had merely instructed John Cooley to
assist in lighting the drier.

Q.

How was he supposed to assist?

A. I assume he was going to hold the burning piece of
paper or whatever, to light the drier.

Q.

All right; thank you.

To your knowledge has anyone ever been fired for
using profanity by Ottawa Silica Company?

1018

A.

Not to my knowledge, no.

Q. Had John Cooley used foul and abusive language
without refusing to help Marvin Phelps light the No. 6
drier, with a burning piece of paper, would you have fired
him?
A.

In view of Mr. Cooley's prior record, yes, I would

Q.

In view of his prior disciplinary record?

have.

A. Yes, for insubordination. -We tend to review the job
refusal and insubordination, both as insubordination acts.

Q.

You mean both the job refusal and the

A. Yes. It could be a job refusal one time, the
profanity the next time.

Q.

This was the same conversation, wasn't it?

A.

I am talking about his prior instances,

Q.

Prior instances?

A.

Yes.

Mr. Bentgen testified that he investigated the circumstances surrounding
the discharge of Mr. Cooley and that this consisted of conversations
with the foreman and Mr. Cooley in the presence of union stewards. Based on
the information which came out he made the decision to discharge Mr. Cooley.
He believed that he asked Mr. Chalmers whether he told Mr. Cooley to light
the pilot with a burning piece of paper, but could not recall what
Mr. Chalmers' response was. He confirmed that Mr. Chalmers did not
deny that he asked Mr. Cooley to light the pilot in that fashion and
assumes that he did instruct him to do it in that fashion (Tr. 90). Later,
during Mr. Cooley's grievance, Mr. Chalmers stated to him that Mr. Cooley
had never informed him about any problems with the No. 6 dryer (Tr. 90).
Mr. Bentgen confirmed that his investigation revealed that foremen had
instructed people to assist the dryer operator in lighting the
with
a burning piece of paper, and that the foremen themselves had done it this
way. This occurred on five or six occasions during a two or three month
period prior to Mr. Cooley's discharge. After MSHA's investigation of
Mr. Cooley's complaint, he issued a memorandum instructing personnel not
to light the dryer with a burning piece of paper and he did so because "it
was unclear in my mind whether it was unsafe or not.
I did not have
the information or know-how" (Tr. 92). Mr. Bentgen conceded that he had
his doubts and questioned the method of lighting the dryer with a burning
piece of paper, and he was aware that employees were lighting it in that
fashion (Tr. 92-92).

1019

Mr. Bentgen admitted stating to MSHA investigator Russell Spencer
that the lighting of the No. 6 dryer pilot with a burning piece of paper
was an "unaccepted practice". He did not mean this to be interpreted
as "unsafe", but rather, meant that there is a "preferable practice" or
"better way" (Tr. 94). He explained his answer further as follows (Tr. 95-96):

Q. You said it was an unaccepted practice by the management
of Ottawa Silica? It was an unaccepted practice?
A. Yes, for several reasons, not necessarily the safety
factor. One, it took two men to light a drier that should
have only taken one.
Q.

Right.

A. I think in my mind at the time that that figured in
there as important as any other reason.

Q. That's right, because that might show it wasntt
designed that way; it might· be unsafe. Is that correct?
A.

That wasn't in my mind at the time,

Q. That's right. You were saying it was an unaccepted
practice, is that right?
A.

It is unacceptable.

Q.

Why wouldn't you accept it?

A.

For the reasons that I have stated.

Q. That it would take two people to do the job of one,
it wasn't designed that way?
A.

No, it wasn't.

JUDGE KOUTRAS: The other answer is: after Mr. Anderson
from MSHA called him, he got the word MSHA didn't look too kindly
with lighting the paper, he is liable to get a citation so
he issued a memorandum setting the company policy; isn't that
possible?
THE WITNESS:
JUDGE KOUTRAS:

Yes.
Isn't that right?

THE WITNESS: Like I say, I didn't know whether it was
safe or not. I wasn't worried about the citation.
Mr. Bentgen stated that he was familiar with the burner on the No. 6 dryer
and that the pilot is designed to be lit by one employee standing at a
control penal about ten feet away, and he identified exhibit G-2 as a

1020

copy of the drier start-up procedures which were a part· of the dryer
operator's job description and they were in effect in May 1980 (Tr. 97).
He confirmed that the procedures do not reflect that more than one person
is required to light the dryer, and he also confirmed that the company
did not contact the dryer manufacturer before ordering employees to ignite
it by means other than the automatic controls (Tr. 98). He confirmed that
the dryer procedures contain a notation indicating that the dryer purge
was "jumped out", and he has not been able to contact any knowledgeable
electricians or maintenance people to confirm that the purge was in fact
bypassed as noted on the instructions (Tr. 99). He explained that the
notation was typed on the exhibit in May 1978 by an individual who is
no longer with the company, and Mr. Bentgen believed that the No. 6 purge
had been repaired, and he could find "nothing to make me believe otherwise"
(Tr. 99-100).
Mr. Bentgen identified a copy of a portion of the manufacturer's
booklet concerning a flame scan burner dealing with the operation of the
dryer burner, and he explained the purge system (Tr. 102-104). With regard
to any purge bypass, Mr. Bentgen stated that his repair records do not
reflect when the purge was repaired (Tr. 106) 9 and he confirmed that
Mr. Chalmers was fired by plant manager Terry Fester for poor work
performance as a supervisor and for reporting to work on two occasions
while intoxicated (Tr. 107). Mr. Bentgen identified exhibit G-4 as the
labor-management agreement in effect between the union and the company
in May 1980. The agreement became effective November 10, 1979, and it
expires November 12, 1982 (Tr. 111).
On cross-examination, Mr. Bentgen stated that the No. 6 dryer had
problems in that a deflector which was installed to concentrate the gas
flame toward the igniter spark plug was removed, and fabricated replacements
were constantly being removed by persons unknown (Tr. 115). To his knowledge,
there have been no accidents connected with the No. 6 Dryer (Tr. 116).
Mr. Bentgen stated that when he met with Mr. Cooley on Monday, May 5, 1980,
Mr. Cooley said he refused to do the job for safety reasons and denied
using foul and abusive language against Mr. Chalmers. He also stated
that Mr. Cooley had never spoken to him about safety complaints, and that
Mr. Chalmers had no authority to fire Mr. Cooley. He also indicated that
when Mr. Cooley returned to the plant on Monday, May 5, he came in late
in the afternoon as if he were going to work (Tr. 118), and he made the
decision to fire him for the reasons stated earlier (Tr. 119). He
explained the grievance procedures and detailed the three-steps involved in
Mr. Cooley's grievance, and confirmed that it was rejected and his
discharge was sustained (Tr. 119~124).
In response to bench questions, Mr. Bentgen stated that as of 1978,
the notation on the dryer procedures reflecting that the purge was "jumped
out" would inidcate to him that this was probably true (Tr. 127), and that
for the period 1978 and 1979 it was probably "jumped out". However, he
indicated that an electrician who had been at the plant for three years
had no knowledge that the purge was "jumped out" (Tr. 128). With regard
to the meeting with Mr. Cooley and the union stewards, Mr. Bentgen stated
that the chief steward told him he would not want to light the dryer with
burning paper because he was not a dryer operator and knew nothing about
it. Mr. Bentgen stated "I was of the same opinion at the time because

1021

I didn't know anything about it", but he went on to state that he relied
on the foreman's statement that he believed it was safe· and 11 he was the
expert at the time I consulted with him" (Tr. 135-136).
Responding to a question as to whether he believed the lighting
of the dryer with a burning piece of paper was safe, Mr. Bentgen replied
as follows (Tr. 136-137):

Q. Do you still feel that the lighting of this
burner by manual means is safe?
A. There is a preferable method. I don't think
it is unsafe. I have done it myself and I would do it
again.
Mr. Fortescue mentioned the fact that
applying the flame to the gas, if there is a drier
operator there and I am holding the burning piece of paper,
he turns on the gas, there is a flame about that long
comes out of the pipe, directed in that direction and I
am standing here holding the paper with the flame; unless
he were to turn the gas on, and holding it there for some
period of time, which you cannot do, because there is a
safety device for that, if there is no flame in the gas to
the pilot. If this were to happen and then I were to light
the flame, then there might be an explosion. But I can't
imagine the safety devices that are put in there, the
scanning devices on the pilot would cut the light off to the
pilot, if there is no flame. The fact. that the operator is
standing there to turn the gas on while I have the flame
to the pilot, I can't imagine any unsafety.

Q. What if the purge is inoperative, if the purge
is not operating?
A. If the purge is not operating, I don't think
there would be any chance of explosion from the pilot light.
There may be a chance of explosion after the main burner is
kicked on, if I were to walk away from the pilot. But I
don't think I am qualified to answer that.
With regard to the company's motivation in discharging Mr. Cooley,
Mr. Bentgen indicated as follows (Tr. 141-142):

Q. Of course. This whole case is what the state
of mind of Mr. Cooley was at the time of his alleged refusal
to perform the task of lighting that pilot light by whatever
means. You seem to take, some people seem to take the position here it was an act of insubordination, compounded by
the fact that he had similar problems of an insubordinate
nature in the past.

1022

A. We believed at the time of discharge, and we
still have the belief, that Mr. Cooley's job refusal
was not, in fact, based upon a safety allegation, due to the
fact that he did not mention anything about safety to the
supervisor until after he was being sent home. That was
our case through the Industrial Board; that was our belief at
the time and still is.

Q. But you heard his testimony that he had complained
to two or three drier operators before. In fact, he complained to Mr. Chalmers.
A.

Mr. Chalmer denies that he ever made those complaints.

Q. I understand. So your position in this, as a result
of conversations the following Monday, it would be the
company's position rather, that Mr. Cooley brought in the
question of not being safe as an afterthought?
A. That was the position. We always took the hypothetical position that, say the job was unsafe, would Mr. Cooley
have been fired anyway because of the way he reacted? We
decided that based upon his record of similar instances that
he acted in the same way he had acted in all the other ways,
and that was improper.

Q.

Would you classify him as a hot head?

A. Yes. I think Mr. Cooley has a temper.
he has to work on it.

Like I said,

Q. You heard his testimony that his obscenities and
his cursing, et cetera, were not directed at the individual
but directed at the principle of his being forced to light
this burner on several occasions?
A. The foreman does say he felt obscenities were directed
at him rather than varied in nature.

Q. What is the company's present position again with
respect to the refusal by an employee to light this burner
manually? You say it is not an accepted practice and it would
be subject to discipline?
A. That policy was issued when I had the doubt, prompted
by Tom Anderson. I haven't retracted that policy. But that
has never been a question, because the cowell has never
been removed.
Mr. Bentgen detailed the prior disciplinary problems concerning
Mr. Cooley which included suspensions and probation for insubordination,
job refusal, and absenteeism, but he indicated that known of these

1023

incidents were related to any safety complaints made by Mr. Cooley. He
also indicated that during his tenure as the industrial· relations officer
he received no safety complaints from Mr. Cooley, nor was he ever advised
that any such complaints were ever filed (Tr. 145).
Kenneth R. Smock testified that he is employed by the respondent as
a dryer operator, and has served in that capacity "off and on about two
years". Mr. Smock stated that during one of his breaks on Friday, May 2, 1980,
he encountered Mr. Cooley, and was advised by Mr. Cooley that he had
withdrawn his bid for dryer operator and "was back on labor". Since
the dryer operator's job paid more money, he asked Mr. Cooley for an
explanation as to why he had withdrawn his bid, and before he could answer
he was summoned to the phone to answer a call from Dave Chalmers, Mr.
Smock overheard part of what Mr. Cooley said, and it included some cussing
by Mr. Cooley. Mr. Cooley hung the phone up, but Mr. Smock could not
recall exactly what Mr. Cooley told him with regard to why he bid off
the dryer operator's job (Tr. 149-150).
Mr. Smock stated that while Mr. Cooley was employed as a laborer
had assisted him in lighting the dryer, as did another laborer. Although
Mr. Smock knew that Mr. Cooley did not like lighting the dryer pilot
with a burning piece of paper, he could not recall him specifically
stating that he believed it was unsafe and Mr. Smock did not inquire as
to the reasons why he did not like lighting it in that fashion (Tr. 150).
Mr. Smock identified exhibit G-10 as certain dryer operator reports which
he filled out during the period February through April 1980, and they
were submitted to Mr. Chalmers (Tr. 151). Mr. Smock also stated that he
had observed Mr. Chalmers light the dryers with a piece of burning paper
and that this was before Mr. Cooley was fired (Tr. 151).
On cross-examination, Mr. Smock testified that he was assigned to
the dryer a week or so before Mr. Cooley was fired, and at that time he
was aware of the fact that the purge cycle had been "jumped out". He
explained that the dryer would not light and that the wire had been
burned off due to people putting paper in. The paper would ignite the
wire, but if "someone stretched it out and ran it around the spark plug
and it would work. It worked occasionally" (Tr. 152). He reported the
matter by indicating that "pilot needs to be fixed" on his reports. He
stated that the purge cycle was the "yellow light on the console" and when
that indicator light would come on, this would indicate that the purge
was completed (Tr. 153). He had reason to believe that the purge was
not working because the pilot button would not light when it was depressed,
and the burnt wire, coupled with sand and water which would get into
the pilot, caused the problem. He also stated that the pilot deflector
was missing, but he saw no one remove it, nor could he state why anyonP
would want to remove it (Tr. 154).
In response to bench questions, Mr. Smock stated that the telephone
conversation between Mr. Cooley and Mr. Chalmers lasted a few minutes and
he only overheard Mr. Cooley speaking, and the explained what he heard
as well as what followed later in the day (Tr. 156-157):

1024

Q. Do you recall what the subject of the conversati on was when he was cursing?

it.

A.

Yes.

It was to light the pilot.

Q.

Was it over the pilot light being difficult to light?

A. As near as I can remember, John didn't want to light
I don't know what the reason was. I didn't hear it stated.

It could have been because he thought it was unsafe. But
then again, it could have been that is the way John does things.
He fails to get some things out. Maybe that was it. I don 7 t
know.

Q. Did Mr. Cooley say anything to you that day about his
difficulty with the pilot light and the burner and that sort
of thing?
A.

Later on in the day, yes.

Q.

But not prior to the conversation?

A.

No, no, he didn't.

Q.

What did he tell you later in the day?

A. He felt that it was unsafe. I had to leave. I had to
go relieve the drier. I coundn't stick around, you know, to talk
to him.

Q. Were you aware of the fact that he, or had he ever told
you that he was burned or received some injury from trying to
light the pilot before?
A. Yes. It does sort of ring a bell. It seems to me that
he did tell me that but I don't know if it was after the phone
call or a long time before, or what. I don't know. It has
been so long.
Mr. Smock detailed the procedures he and Mr. Cooley followed while
attempting to light the dryer pilot, and he indicated that 90% of the time
it did not light. If Mr. Smock had no paper or matches, he would ask any
laborer who happened by to assist him. Someone had to be at the control
panel while the other person was at the pilot light location. He later
developed his own system for lighting it by himself. He would insert a
piece of paper into the pilot hole, light it, and he would then run over
to the control panel while the paper was burning. He believed this
practice was safe, and replied as follows as to how others may have felt
(Tr. 159-160):

1025

Q. Doesn't it strike you as unusual that Mr. Cooley
is the only one that feels that this is unsafe to light it
that way?
A. No, I have heard other people say they thought it
was unsafe, but I never -- Put it this way: they haven't been
around it as much as I have. I have been around it quite a
bit more. I was on production relief, which I have to know how
to operate the driers in case one of the operators don't show up,
I have to take his place.

Q. How long was Mr. Cooley around at the time, prior to
the time this happened?
A.

Well, I really -- Well, he didn 1 t know that much about

Q.

You don 1 t consider him to be as experienced as you?

A.

~.

it.

Q. In that situation do you find it unusual that he was
reluctant, assuming that there were experienced persons to light
it?
A.

Not really.

James Marvin Phelps, testified that he has been employed with the
respondent for two years and nine months. During the period Apil 1978
to May 2, 1980, he worked as a dryer operator and he was assigned the
task of training Mr. Cooley as a dryer operator during the week when he
was discharged. Mr. Bentgen assigned hi~ the job of training Mr. Cooley
and Mr. Phelps stated that the automatic lighting system for the No. 6
dryer was not working during the week in question and that it had not
been working for two or three months prior to Mr. Cooley's discharge.
Mr. Phelps identified exhibit G-11 as copies of 10 reports he filed
with the respondent with respect to his daily inspection of the No. 6
dryer, as well as other equipment for which he is responsible. The
reports reflect dryer conditions which required maintenance and attention,
and the reports are routinely made by him when he finds equipment in
need of maintenance or repair.
Mr. Phelps stated that prior to his bidding on the dryer operator's
job Mr. Cooley helped him light the No. 6 drier. Two people were required
to light the dryer because the automatic lighting system was not working
properly. One man was required to be at the control panel to activate
certain buttons, and a second man was required to be at the dryer
burner location in order to manually light the pilot light. Mr. Phelps
would position himself at the control panel, and Mr. Cooley would light
the pilot light by means of burning paper over the pilot light.

1026

Mr. Phelps confirmed the fact that foreman Chalmers was aware of
the fact that the automatic dryer lighting mechanism was not working and
Mr. Phelps stated that he advised Mr. Chalmers of this fact. Mr. Phelps
also confirmed that Mr. Cooley complained to him that lighting the dryer
with paper was unsafe, but he did not know whether Mr. Cooley communicated
this fact to Mr. Chalmers (Tr. 166-170).
On cross-examination, Mr. Phelps asserted that the problem with the
automatic lighting mechanism for the No. 6 drYer was an "on and off"
situation. He explained that the problems were intermittent and resulted
from the fact that the metal covering over the pilot light area was
being "ripped off". He reiterated the fact that Mr. Cooley complained
about the unsafe practice of lighting the No. 6 dryer manually by use of
a piece of paper.
Mr. Phelps stated that on May 2, 1980, when he came to work the
dryers were out and no production was in progress. There was a problem
with a crane and the dryers were not on. He received a call from Mr. Chalmers
at approximately 5:30 p.m., and Mr. Chalmers instructed him to light the
No. 6 drYer. He believes that Mr. CQoley assisted him in lighting the dryer
at that time by means of a piece of paper. The pilot light subsequently
went out and Mr. Chalmers called him a second time and instructed him
to light the dryer. Mr. Cooley refused to help him and stated that it
was unsafe. Mr. Phelps reported this to Mr. Chalmers and asked him to
send someone to help him light it. Mr. Chalmers came and lit it himself
and Mr. Cooley left the area and went to the cafeteria after advising
Mr. Phelps that he was withdrawing his bid for the dryer operator's job.
Mr. Phelps stated that he was not present during the phone conversation
between Mr. Cooley and Mr. Chalmers and he could not testify as to that
conversation (Tr. 170-178).
In response to further bench questions, Mr. Phelps stated that he
never attended any company safety meetings, and he believed the purpose
of the dryer purge system "was to clean out, if there was any gases left
in the line it would blow them out so there wouldn't be any built-up
gas in there" (Tr. 181). As for any complaints made by others with regard
to the dryer, and Mr. Cooley's reluctance to light it, he stated as follows
(Tr. 179, 182) :

Q. Do you find it unreasonable -- This may be
a difficult question for you to answer, but I still ask
it anyway. Do you find it unreasonable for Mr. Cooley,
under the circumstances to refuse to light it?
A. If he thought it was unsafe, he thougltit unsafe,
you know. That's all.

*

*

*

*

*

Q. Have you ever heard of any other employees at this
facility, at this organization, complain about the method
in which the pilot light was being lit on this burner or
any other burner, for that matter?

1027

A. None of the drier operators complained about it,
you know; That wasn't the right way to do it; but we all
do it. We didn't feel it was unsafe. Some of the other
employees, you know, told us it wasn't safe, we shouldn't
be doing it that way.

Q.

Who were some of these other employees?

A.

I can't really remember.

Q.

Just general conversation and chit chat?

A.

Right.

Q.

Why would they talk to you about it?

A.

I don't know.

Just people talking.

It would just come up, I guess,

And, at pages 183-184:

Q. I have a little difficulty in listening to the
the testimony of witnesses today, Everybody seems to be
talking to each other about the manner in which this thing
is lit. Some people think it is safe; others don 1 t,
A. That is not the right way to do it. It is not
the safe way to do it, but I didn't feel I was in any danger.

Q. No. What I am saying: if employees, if this were a
topic of conversation one would think at least some safety
people would be involved or someone at least would mention it
to somebody.
A. Well, they did, they did.
you know.

Q.

Which office?

·A. The management, I guess.
you know.

Q.

The office knew about it,

Knew about what?

The foreman knew about it,

Knew about the way it was being lit?

A. Yes, they knew the way it was being lit.
it; Chalmers did it.

*

*

*

*

They did do

*

Q. Did someone make a decision
Did someone come in
and look at these two driers, mangement came to the conclusion
that it was safe. From that point it would be standard operating
procedure to light it with a newspaper?

1028

A.

No.

Q.

It was just what?

It was an accepted practice?

A. I can't say what they were thinking. I don't know.
I don't know why they didn't fix it sooner. They knew about
it beforehand.

Q. Now, when this system is operating perfectly, with
the use of the button, I assume there is no need to use a
newspaper, right?
A.

Right.

Q.

It is all done automatically?

A.

Right,

Q.

Is that the better way?

A.

It is the right way; it is a better way.

It is easier.

Mr. Phelps stated that during the entire week that he trained Mr. Cooley
on the No. 6 dryer, the pilot had to be lit by means of paper and that it
would not light automatically (Tr. 198). He also indicated that the No. 5
dryer, which had the same ignition system as the No. 6 dryer, worked well
and would light automatically (Tr. 201-202).
Kenneth Stumpmier testified that he has been employed by the respondent
for over nine years, and approximately six years ago he worked as a dryer
operator for about a year. He stated that he has observed David Chalmers'
work habits and Mr. Chalmers "didn't have much regard for safety" (Tr. 203).
He explained that Mr. Chalmers would do things that other employees would
not do because of safety reasons. Mr. Stumpmier stated that he was a
union steward in May of 1980 and on Friday, May 2nd of that year he spoke
with Mr. Cooley in the lunch room and Mr. Cooley told him that Mr. Chalmers
was sending him home because he would not light the No. 6 dryer with
a piece of paper. After Mr. Cooley told him that he would not light it
in that manner because it was unsafe, Mr. Stumpmier attempted to speak
with Mr. Chalmers about the matter but he refused to speak with him (Tr. 203205).
Mr. Stumpmier testified that he was at the meeting with Mr. Cooley
and Mr. Bentgen on Monday, May 5, 1980, and he told Mr. Bentgen that
he too would not light the No. 6 dryer with a burning piece of paper because
he believed it was unsafe to light it in that fashion. A month later,
Mr. Bentgen issued a memorandum stating that anyone found lighting the
dryer with a burning piece of paper would be subject to disciplinary action,
including discharge (Tr. 206).
On cross-examination, Mr. Stumpmier confirmed that Mr. Chalmers is
no longer employed with Ottawa Silica and he believed he was in Utah.
In the past he never heard Mr. Chalmers order anyone to do anything unsafe

1029

and when he was a dryer operator he experienced no problems in lighting
the No. 6 dryer automatically. Mr. Cooley had not previously complained
to him about any unsafe working conditions connected with the dryer.
Although Mr. Cooley was "kind of mad" when he spoke with him on May 2,
he could not recall his using any profanity (Tr. 208). He assisted Mr. Cooley
in preparing his grievance a few days after his discharge, and he believed
that Mr. Chalmers "had bad feelings toward John" (Tr. 213). However, he
stated that this was only his opinion and he based it on the fact that
Mr. Cooley and Mr. Chalmers did not "joke around togethe'r" as other
workers and foremen do (Tr. 217).
MSHA Inspector Russel L. Spencer testified that he was employed as
a special investigator and confirmed that he conducted an investigation
in August, 1980, in connection with the discrimination complaint filed
by Mr. Cooley. Mr. Spencer stated that he had never been to the quarry
in question previously and that he observed the No. 6 dryer on two occasions
during his investigation, once on August 20, and again on August 21, 1980.
He described the area around the No. 6 dryer, and stated that he measured
the distance from the railing position where one would stand to light
the burner pilot light to the pilot light, and determined that it was
54 inches, The dryer is located on the second floor which is approximately
eight feet about ground level, and adjacent to the railing is an opening
or hole which measured 24 inches by sixty inches, and which is between
the railing and the pilot light location. The floor was wet and sandy
and he observed no deflector shield over the pilot light. Mr. Willard
Stubblebine,an electrician, was with him at the time and he hung over the
floor hole demonstrating how he would light the pilot light (Tr. 230-235).
Mr. Spencer testified as to his mining background and experience
which began in 1951, and he stated that he has been a Federal mine inspector
since 1970. His experience also includes employment as a state safety
inspector with the Michigan Department of Labor (Tr. 242). Mr. Spencer
stated that he did not believe it was safe to light the No. 6 dryer pilot with
a burning piece of paper because the automatic ignition controls which
were installed for the dry.er were installed for that purpose.
He also
indicated that the dryer was not intended to be ignited manually, and
that when he recently visited the dryer site on Monday, December 14, he
attempted to reach the spark plug igniter from the position where
persons using burning paper were standing, and he had difficulty doing it.
He also believed that the area where he stood presented slip and fall
hazards due to the wet floor and the proximity to the floor hole (Tr. 243245).
On cross-examination, Mr. Spencer stated that he was not personally
aware that the dryer had been substantially modified since he first observed
it in August 1980, but that Mr. Bentgen informed him that this was the
case. He also stated that he had not attempted to reach the pilot light
in August 1980, when he was there, and that the floor hole conditions were
based on his 1980 observations (Tr. 246-247).

1030

In response to bench questions, Mr. Spencer stated that he observed
no substantial changes in the dryer that may have taken·place since
August 1980, and that the operator controls have not been changed, and
the location of the railing around the dryer has not changed within an
inch or so. He also confirmed that he never inspected the plant in
question other than to investigate Mr. Cooley's discrimination complaint
(Tr. 249).
Mr. Spencer stated that he has inspected numerous sand and gravel
and crushed stone mining operations covered by the Part 56 safety standards,
and that those standards would apply to a silica sand operation such as
those conducted by the Ottawa Silica company. He conceded that he is
not familiar with the dryer in question, is not an expert, and he has
never worked on such a dryer (Tr. 251). He was not aware of any mandatory
safety standard which would apply to the dryer in question, and he indicated
that the question of whether lighting it with a
of paper was an
unsafe act which would depend on such circumstances as to whether the floor
was wet or slippery, whether the person extended himself over the railing,
and whether safe access was provided. Also, consideration must be given
to whether the dryer was intended to.be ignited by paper, or whether
the dryer could be considered as "defective equipment" under section 56,14-25
or 26, Other considerations would be whether the dryer purge cycle was
burned out and the possibility of pre-ignition (Tr. 252-256).
Respondent's Testimony and Evidence
Willard Stubblebine, testified that he has been an electrician for
23 years, and has worked in that capacity for the respondent since January 2,
1979. He is responsible for the electrical performance of all of the
equipment in the plant, including the dryers. Prior to May 1980, the No. 6
dryer had problems in that sand was getting into the burner, preventing
the pilot light from lighting. If it does not light within 30 seconds,
it shuts down. He fabricated a shield to hold back a pocket of gas which
would facilitate lighting the pilot. The shields kept getting lost,
so the men used paper to ignite the pilot. The purpose of the shield
or deflector was to keep the sand out of the burner, and it was first
installed on the dryer in early 1979. The dryer was not equipped with a
shield when he first began working on it, and he fabricated them out of
tin hose clamp, and he replaced it eight or ten times during the first half
of 1980 (Tr. 261-264).
With regard to any complaints regarding the lighting of the pilot
by means of burning paper, Mr. Stubblebine testified as follows (Tr. 265-266):

Q.

How would you find out that it had to be replaced?

A. Normally the operators would complain about lighting
it with the paper.

Q.

How would you find out about it?

1031

A. I shouldn't say "operators complain;!'. they didn't
complain to me. If they were complaining to the boss, I
don't know. I would find out a lot of times by walking back.
A kid that used to be on the third shift, Marshall, would
tell me. He wasn't complaining. He used to like lighting it
with a paper. He had his own little thing worked out. He
didn't step over the railing like you, he draped a paper towel
out of the burner or wired it up and the pilot would catch
on fire and the burner would light.
I can't really remember operators complaining to me.
I remember them telling me it wasn't working, but as far as
reaching a real and heavy complaint, I don 1 t know. Now, how

often, you know, if they ever complained to the foreman, I
don't know. A lot of time I think Russ Heyman may have mentioned
it to me. Offhand I can 1 t remember anybody coming over to the
shop saying it is not working,

Q. Did anybody ever complain to you that they felt it
was unsafe to light it by paper?
A. I can 1 t say for sure because I hear so much junk in
the lunchroom that don't mean nothing. I can 1 t say,

Q.

Did John Cooley ever complain to you?

A.

No.

John Cooley, I never talked to.

Regarding the lighting of the burner with a piece of paper or
cigarette lighter, Mr. Stubblebine stated as follows (Tr. 266-267):

Q. Do you have an opinion as to whether or not
it is safe to light the burner with a burning piece of paper
or cigarette lighter?
A. Well, my opinion, you know, I don't think it is.
What you are lighting is just the pilot. There is so much
safety involved, to get the main gas open, you know, and I
guess in extreme cases -- I don't know what the percentage
would be -- the main burner may open sometimes, but I don't
know.
I tried to light the main burner already without the
pilot. I couldn't get it lit. You've got to get the pilot
lit. You have to have your roof blower on. You have to have
your combustion blower on. You have a high and low gas limit.
You have an air limit from the combustion blower just to ignite
your pilot. When you push the button to get your beep you
have a Honeywell control unit and you have 30 seconds to light
it. If it don't light it shuts down and starts pumping again.
Okay?

1032

Now, once you get the pilot, I think within 15
seconds you got to have an established pilot within 15
seconds for the main gas to open, which is a motorized
safety shut-off valve for the gas. Once you establish
pilot, that opens. Now, I never seen one open without
establishing a pilot, although I think, like I said, it
is probably possible. I never saw it.

Q. Do you believe it is safe or unsafe to to
it that way?
A.

I think it is safe.

Mr. Stubblebine testified that at the present time the No. 6 dryer
purge cycle is working, but that in the past there was a problem with an
electrical alloy which would affect the purge cycle. However, since 1979
he has never known the purge cycle on the No. 6 dryer to be "j
out"
(Tr. 268). Since May 1980, a new conveyor was installed alongside the
dryer and the railing was moved back somewhat and made higher. Although
the water and sand problems around the dryer were "bad" in 1979, it is
now under control (Tr. 269-270).
On cross-examination, Mr. Stubblebine stated that while sand and
water was present in the dryer area in May 1980, he observed no "build-up"
of such materials. He indicated that it was a common practice to climb
over the railing and stand on an adjacent I-beam next to the cover to
it. He also observed a foreman light the pilot with material wrapped around
a hangar wire and he considered that to be the "worst way" to light it
(Tr. 270-274).
Mr. Stubblebine stated he had heard talk among some employees that
lighting the dryer pilot with paper was unsafe, but he believed the
majority of talk is not by the dryer operators but by others. He also
indicated that the dryer operators are normally responsible for lighting
the dryers and that laborers would be expected to do this if they were
assigned the job. He could not explain the notation on the dryer instructions
(exhibit G-2) that the purged had been "jumped out". Even if it were jumped
out, he would still not be reluctant to light it with a piece of paper.
However, he has known of instances where the purge was "jumped" or "shorted"
to save the three to five minutes waiting time for the purge cycle to start
again.
Mr. Stubblebine explained the operation of the dryer purge system,
and stated that if the pilot does not. light the first time, another three
or four minutes will pass before an attempt to again initiate pilot can
be made. He indicated that "you just keep going until you get it lit",
and "that is where you can run into a p.roblem" (Tr. 279). He explained
that he did not know what could occur with the dryer, but with a blast
furnace, repeated attempts to initiate pilot could cause a gas build-up
"inside the blast furnace that would blow". He believed any such gas
build-up in the dryer would disperse into the air because it is so open
(Tr. 279).

1033

When asked whether he knew what the instant case was all about, Mr.
Stubblebine replied "I think it is something about John Cooley's
discrimination", and he further stated as follows (Tr. 280-281):

Q. Let me tell you what it is about so I can
ask you this question. Put yourself in John Cooley's
shoes and he is asked to light that pilot with a piece
of paper and he refuses to do it because he thinks
it is unsafe; not because you think it is unsafe. He
thinks it is unsafe. And they tell John Cooley, you know,
"Mr. Cooley, your job here is to follow instructions and when
you are told to light the system, light the drier, you light
the drier. If you don't that is insubordination, et cetera,
and therefore you are subject to discharge for failing to
follow orders."
Leaving aside some other facts in this
case that I haven't given you, putting yourself in Mr. Cooleyis
shoes, what would be your reaction to that situation?
A. I would have to respect his opinion. If I
thought it was unsafe to light it then I would have to have
a case up myself, I guess, because I wouldn 1 t light it if
I felt it was unsafe.
Q. But you personally don't think it was unsafe in
this case?
A.

No.

Q. I think that you have lit it, you have put the
fire to the pilot many times?
A.

Not many times.

Q.

You have done it on occasion?

A.

Yes.
Discussion

In Secretary of Labor on behalf of David Pasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (October 14, 1980) (hereinafter Fasula), the
Commission analyzed section 105(c) of the Act, the legislative history
of that section, and similar anti-retaliation issues arising under other
Federal statutes. The Commission held as follows:
We hold that the complainant has established a
prima facie case of a violation of Section 105(c)(l)
if a preponderance of the evidence provides(l) that he
engaged in a protected activity, and (2) that the
adverse action was motivated in any part by the
protected activity. On these issues the complainant
must bear the ultimate burden of persuasion. The
employer may affirmatively defend, however, by proving

1034

by a preponderance of all the evidence that, although
part of his motive was unlawful, (1) he was also motivated by the miner's unprotected activities, and (2)
that he would have taken adverse action against the
miner in any event for the unprotected activities
alone. On these issues, the employer must bear the
ultimate burden of persuasion. It is not sufficient
for the employer to show that the miner deserved to
have been fired for engaging in the unprotected activity;
if the unprotected conduct did not originally concern the
employer enough to have resulted in the same adverse
action, we will not consider it. The employer must
show that he did in fact consider the employee deserving
of discipline for engaging in the unprotected activity
alone and that he would have disciplined him in any
event. Id. at 2799-2800.
Although upholding the Administrative Law Judge's decision that Pasula
has a "right to walk off the job" for: safety reasons, the Commission
acknowledged that such a right is not explicitly covered by the plain
language of the Act. However, relying on the legislative history, the
Commission stated as follows:
We must look to the entire statute, being mindful
that the 1977 Mine Act is remedial legislation, and is
therefore to be liberally construed. • • . In determining whether section 105(c)(l) protects Pasula's refusal
to work, we consider it important that the 1977 Mine
Act was drafted to encourage miners to assist in and
participate in its enforcement . . • • The successful
enforcement of the 1977 Mine Act is therefore particularly
dependent upon the voluntary efforts of miners to notify
either MSHA officials or the operator of conditions
or practices that require correction. The right to do
so would be hollow indeed, however, if before the regular
statutory enforcement mechanisms could at least be
brought to bear, the condition complained of caused the
very injury that the Act was intended to prevent. A
holding that miners have some right to refuse work under
the 1977 Mine Act therefore appears necessary to fully
effectuate the congressional purpose.
Pasula was appealed to the United States Court of Appeals for the
Fourth Circuit, and in an opinion filed October 31, 1981, 663 F.2d 1211,
the Court reversed the Commission's decision after finding that Pasula's
discharge was premised not on his walking off the job but on his closing
down of a continuous mining machine. The Court observed that "Pasula
was not disciplined because he refused to work but rather because he
exceeded the scope of his right to walk off the job under the Mine Act."

1035

In considering the effect of a previous arbitration decision which had
denied Pasula's claims of discrimination, the Court made the following
observations at 663 F.2d 1219:
In this case, the considerations underlying the
standards of gravity of injury in the Wage Agreement
and in the statute are different. The Wage Agreement
requires the arbitrator to determine whether the
hazard was abnormal and whether there was imminent
danger likely to cause death or serious physical harm.
The underlying concern of the Mine Act, however, is
not only the question of how dangerous the condition
is, but also the general policy of anti-retaliation
(against the employee by the employer). Because this
is a major concern of the Mine Act, it requires proof
merely that the miner reasonably believed that he
confronted a threat to his safety or health. Those who
honestly believe that they are encountering a danger
to their health are thereby assured protection from
retaliation by the employer even if the evidence
ultimately shows that the conditions were not as
serious or as hazardous as believed. Questions of imminence and degree of injury bear more directly on the
sincerity and reasonableness of the miner's belief.
(emphasis added)
In a detailed footnote at 663 F.2d 1216-1217, the Pasula Court discuased
the right of a miner to refuse work, and although the Court did not state
any specifics, it did agree that there was such a right in general when
it stated:
Thus, although we need not address the extent of
such a right, the statutory scheme, in conjunction with
the legislative history of the 1977 Mine Act, supports
a right to refuse work in the event that the miner possesses
a reasonable, good faith belief that specific working
conditions or practices threaten his safety or heal~h.
Id. at 1217 n. 6.
In Pasula the Commission est.ablished in general terms the right of a
miner to refuse work under the Act, but it did not attempt to define the
specific contours of the right. In several decisions following Pasula,
the Commission discussed, refined, and gave further consideration to questions
concerning the burdens of proof in discrimination cases, "mixed-motivation
discharges", and "work refusal" by a miner based on an asserted safety
hazard. See: MSHA, ex rel. Thomas Robinette v. United Castle Coal Companx,
VA 79-141-D, April 3, 1981, MSHA ex rel. Johnny N. Chacon v. Phelps Dodge
Corporation, WEST 79-349-DM, .November 13, 1981.

1036

In Robinette, the Commission held that a miner may· refuse and cease
work if he acted in good faith and reasonably believed that the performance
of the work would expose him to a hazard. The Commission also held that
the right to refuse work may extend to shutting off or adjusting equipment
in order to eliminate or protect against a perceived hazard. The facts
presented in the instant case are similar to those presented in Robinette.
Robinette complained about being taken off a job as a miner's helper and
being reassigned as a conveyor belt feeder operator. Robinette ceased
to operate and shut down the belt after his cap lamp cord was rendered
inoperative and he could not see. Robinette and his section foreman
exchanged heated words over the incident and Robinette uttered several
cuss words. Robinette's prior work record included prior warnings for
unsatisfactory job performance and insubordination, and his section foreman
was not too enchanted with his work, The section foreman testified that
"anytime Robinette had to do something he did not like, he usually messed
it up".
The Judge who heard the Robinette case treated it as a "mixed motivation" discharge case. Although finding that Robinette's work was
than satisfactory" and that he was "obviously belligerent and uncooperative"
with his section foreman as a result of his change in job classification,
Judge Broderick concluded that the "effective" cause of Robinette 1 s
discharge was his protected work refusal, and he rejected the operator's
contentions that the primary motives for the discharge were insubordination
and inferior work.
In Robinette, the Commission ruled that any work refusal by an
employee on safety grounds must be bona fide and made in good faith.
"Good faith" is interpreted as an "honest belief that a hazard exists", and
acts of deception, fraud, lying, and deliberately causing a hazard are
outside the "good faith" definition enunciated by the Commission. In
addition, the Commission held that "good faith also implies an accompanying
rule requiring validation of reasonable belief", but that "unreasonable,
irrational or completely unfounded work refusals do not commend themselves
as candidates for statutory protection".
In fashioning a test for application of a "good faith" work refusal,
the Commission rejected the "objective, ascertainable evidence" test laid
down in Gateway Coal Co. v. Mine Workers, 414 U.S. 368 (1973), and instead
adopted a "reasonable belief" rule, which is explained as follows at 3
FMSHRC 812, April 3, 1981:
More consistent with the Mine Act's purposes and
legislative history is a simple requirement that the miner's
honest perception be a reasonable one under the circumstances.
Reasonableness can be established at the minimum through
the miner's own testimony as to the conditions responded to.
That testimony can be evaluated for its detail, inherent logic,
and overall credibility. Nothing in this approach precludes
the Secretary or miner from introducing corroborative physical,
.testimonial, or expert evidence. The operator may respond in

1037

kind. The judge's decision will be made on the basis
of all the evidence. This standard does not require
complicated rules of evidence in its application. We
are confident that such an approach will encourage
miners to act reasonably without unnecessarily inhibiting
exercise of the right itself.

*

*

*

*

*

*

*

*

*

*

*

*

In sum, we adopt a good faith and reasonableness
rule that can be simply stated and applied: the miner
must have a good faith, reasonable belief in a hazardous
condition, and if the work refusal extends to affirmative
self-help, the minervs reaction must be reasonable as well.
In MSHA ex rel. Michael J. Dunmire and James Estle v. Northern
Coal Company, WEST 80-313-D and WEST 80-367-D, February 5, 1982, the
Commission defined further the scope of the right to refuse work under
the Act by adding a requirement that.a statement of a health or
complaint must be made by the complaining miner, and adopted the following
requirement:
Where reasonably possible, a miner refusing work should
ordinarily communicate, or at least attempt to communicate,
to some representative of the operator his belief in the
safety or health hazard at issue. "Reasonable possibility"
may be lacking where, for example, a representative of the
operator is not present, or exigent circumstances require
swift reaction. We also have used the work, "ordinarily"
in our formulation to indicate that even where such
communication is reasonably possible, unusual circumstances
--such as futility--may excuse a failure to communicate.
If possible, the communication should ordinarily be made
before the work refusal, but, depending on circumstances,
may also be made reasonably soon after the refusal. (Emphasis
added).
Respondent's arguments
In its posthearing brief, respondent argues that Mr. Cooley was
discharged on May 2, 1980, because his conduct and language was so
reprehensible that it could no longer be tolerated in the work place.
Citing prior occasions of "foul temper" which caused disciplinary action
to be taken against him, respondent points to the fact that Mr. Cooley
was on probation at the time be "made such a spectacle" on May 2, 1980,
that mine management could no longer countenance his presence.
Respondent maintains that there was absolutely no evidence produced
at the hearing to indicate that the manner of lighting the No. 6 dryer
was in fact unsafe, and that Mr. Cooley's co-workers Kenneth Smock, James Phelps,
and Willard Stubblebine attested to the safety of the procedure used for

1038

lighting the dryer with a burning piece of paper. Respondent asserts
that Mr. Cooley concocted the alleged incident of the singed knuckles, and
that his excuse concerning the unsafe method of lighting the dryer was
an afterthought also concocted after conferring with his union representative.
Respondent asserts that other than Mr. Cooley's self-serving
assertion, there is no evidence that he ever complained to anyone about
the alleged safety hazard involved in lighting the dryer, that Mr. Cooley
had often lit the dryer by means of burning paper in the past without
incident, and that his refusal to perform the task assigned to him on
May 2, 1980, for alleged reasons of safety was unreasonable and has no
basis in fact. Respondent concludes that Mr. Cooley's lack of good faith
concerning his purported fear of lighting the dryer with a burning piece
of paper is demonstrated "by the vile manner in which he treated his
supervisor and co-workers at the time of his discharge."
MSHA's arguments
In its posthearing brief filed in this case, MSHA argues that the
right of a miner to refuse work under conditions which he reasonably
and in good faith believes are hazardous has been affirmed and refined
by the recent Commission decision in Michael J. Dunmire and James Estle
v. Northern Coal Company, Docket No. WEST 80-313, 367-D (February 8, 1982)
which interprets Pasula v. Consolidated Coal Co., 2 FMSHRC 2786 (1980)
rev'd on other grounds sub nom. Consolidated Coal Co. v. Marshall, 663
F.2d 1211 (3rd Cir. 1981). MSHA asserts that under the Dunmire holding,
refusal to work is in good faith when the miner has attempted to communicate
his reasons for refusing to work to some representative of the mine at
or near the time of his refusal. Further, MSHA argues that a miner's belief
in the existence of a dangerous condition is reasonable if it is a belief
that a reasonable man confronted with those conditions could draw; however,
it need not be the only belief that a reasonable man could draw from
those conditions. Moreover, MSHA states that Dunmire reaffirms the
Commission's earlier determination in Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 809 (1981) that:
Because this (the general policy of anti-retaliation)
is a major concern of the Mine Act, it requires proof
merely that the miner reasonably believed that he confronted a threat to his safety or health. Those who
honestly believe that they are encountering a danger
to their health are thereby assured protection from
retaliation by the employer even if the evidence ultimately
shows that the conditions were not as hazardous as
believed.
MSHA argues that it is not essential that the condition which the
miner fears be actually hazardous, but only that his belief in the existence

1039

of a hazard be reasonable. After detailing the facts and circumstances
concerning the manner in which Mr. Cooley was required and directed to
light the dryer in question, MSHA concludes that Mr. Cooley's refusal
to perform this task was based on his reasonable and good faith
belief that it was unsafe.
In response to respondent 1 s assertion that even though Mr. Cooley
may have refused to light the dryer pilot for safety reasons, he would
have been fired anyway because of his past disciplinary record and his
abusive language to his supervisor Dave Chalmers, MSHA states that the
respondent must establish this affirmative defense. In this regard, MSHA
argues that the respondent has the burden of proving first, that John Cooley's
use of profanity in his work refusal is not protected activity under
the Act, and second, that had John Cooley never refused to light the
dryer pilot with a hand held flame, Ottawa Silica would still have fired
him for his use of profanity alone. Pasula v. Consolidated Coal Co.
2 FMSHRC 2786, 2800 (1980) rev 1 d on other grounds sub nom. Consolidated
Coal Co, v, Marshall, 663 F.2d 1211 (4th Cir. 1981), MSHA maintains that the
respondent has failed to carry its burden on either of these points.
MSHA maintains that Mr. Cooley's profanity in communicating his
refusal to work is protected activity under the Act. In support of
this conclusion MSHA argues that Mr. Cooley is a poorly educated and
unskilled miner and that he became upset after repeatedly being ordered
to perform an unsafe act. Taken in this context, MSHA asserts that
in as much as the profane language was used to communicate the refusal
to work, it is part of the protected refusal to work itself. Further,
MSHA maintains that the respondent has not met its burden of proving
that it would have terminated Mr. Cooley for using abusive language
alone, and points to the fact that the respondent could not identify any
prior incident where it terminated an employee for using profanity.
MSHA also argues that Mr. Cooley and Mr. Smock both testified that the
profanity was directed at the unsafe act rather than at foreman Chalmers
personally. As for Mr. Chalmers, MSHA makes reference to the record
which reflects that Mr. Chalmers lacked sensitivity to safety hazards,
that he performed several dangerous acts on the job, and that he was
discharged by the respondent for reporting to work twice while intoxicated.
Findings and Conclusions
As indicated earlier, the critical issue in this case is whether
Mr. Cooley's refusal to perform a job task which he believed to be unsafe,
and which led to his discharge, was protected activity under the Act.
Mr. Cooley claims he was ordere.d off the mine property by his supervisor
after he refused. to assist in the lighting of the No. 6 Dryer with a
buring piece of paper and that he was subsequently discharged because
of this incident. On the other hand, respondent maintains that Mr. Cooley
was discharged because he failed to carry out a work assignment and used
"foul and abusive" language when speaking with his supervisor about the
incident. According to the testimony of Mr. Bentgen, the man who discharged

1040

Mr. Cooley, mine management viewed the work refusal and· the use of foul
and abusive language as acts of insubordination. In addition, management
also took into consideration the fact that Mr. Cooley had previously been
disciplined for insubordination and work refusals (apparently unrelated
to safety), and that he was on probation at the time of the work refusal
which prompted his discharge. Under the circumstances, and in light of
the precedent discrimination cases discussed above, it is necessary to
explore the following issues raised in these proceedings:
1.

Whether the lighting of the dryer in question with a
burning piece of paper was an unsafe practice.

2.

Whether Mr. Cooley made any statements to management
concerning a safety complaint connected with the lighting
of the dryer with a burning piece of paper.

3.

Whether Mr. Cooley's safety concern connected with
the lighting of the dryer with a burning piece of paper
was made in good faith.

4.

Whether Mr. Cooley 1 s refusal to light the dryer with a
burning piece of paper was reasonable, and if so, whether
the work refusal is protected.activity under the act.

5.

Whether respondent has carried its burden of showing that
Mr. Cooley's discharge was motivated by unprotected
activities and that he would have been discharged for
those activities alone.

Lighting the No. 6 Dryer with a burning piece of paper.
One critical issue presented in this case is whether or not the practice
of lighting the dryer pilot light in question with a burning piece of paper
was an unsafe practice. The record in this case reflects that there is a "right"
and "wrong" way to initiate pilot for the dryer in question. The "right"
way is by means o-f pushing certain buttons on a control panel which is located
some fifteen or so feet from the area where the dryer pilot light is
located. The testimony and evidence adduced in this case amply supports
a conclusion that the "right" way to light the pilot in question is by
the mechanical means of buttons located at the control panel, and that
the lighting of the pilot by means of burning pieces of paper either
stuffed into the pilot location or attached to an end of a wire and then
inserted into the pilot light area is the "wrong" way to light it.
Although neither party
called any expert witnesses to testify as
to the engineering and mechanical operational parameters of the dryer
in question, I conclude and find that the testimony and evidence adduced
in this case supports the conclusion that the pilot light was never
intended to be initiated or lit by means of a burning piece of paper,

1041

and that this practice was unsafe. Aside from Mr. Cooley's opinion that
the lighting of the dryer pilot with a burning piece of -paper is "dangerous
and stupid", dryer operator James Phelps testified that the use· of
burning paper was not the "right" or "safe" method for lighting the dryer,
and former dryer operator Kenneth Stumpmiertestified that it was unsafe
to light it in that manner.
Company Safety Director Hilliard Bentgen conceded that the 11preferable 11
method for lighting the dryer is by means of the control' panel and not
a burning piece of paper. Although he testified that he did not personally
believe it was unsafe to light the dryer by means of burning paper, the
fact is that after MSHA 1 s investigation of Mr. Cooley's discharge Mr. Bentgen
issued a memorandum prohibiting such a practice. Although Mr. Bentgen
indicated that he was not an expert and was unclear as to whether such
practices of lighting the dryer with burning paper was unsafe, he candidly
conceded that he had his doubts and was aware of the fact that employees
were in fact lighting it with burning paper, It seems to me that as
safety director, Mr. Bentgen should have sought expert advice to resolve
the question as to whether the lighting of the dryer with burning paper was
safe or unsafe. A telephone call to .the Manufacturer or references to
the dryer operational manual would probably have answered this question. I
simply cannot accept self-serving assurances that it was safe, nor can I
accept the excuse or inference that persons unknown were removing a shield
that had been fabricated to prevent the pilot flame from going out,
particularly where the record shows that an identical No. 5 Dryer was
experiencing no such difficulties.
Although company electrician Willard Stubblebine testified that he
would not be reluctant to light the dryer with a burning piece of paper,
he candidly conceded that he would have to respect Mr. Cooley's refusal
to light it in that fashion if he thought it were unsafe. Mr. Stubblebine
also candidly admitted that it was common practice for a person to climb
over a protective railing adjacent to the dryer and stand on an I-beam
so as to be closer to the pilot light area while attempting to light it.
He also described an eyewitness account of a foreman's attempt to light
the dryer with material wrapped around a wire hangar as t.he "worst way"
to light it.
In addition to the testimony of the witnesses as to whether they
believed the lighting of the dryer with a burning piece of paper was safe
or unsafe, there are other factors present in this case which support
the conclusion that it was unsafe. First there is the question of the .so
called "purge cycle". Although there is conflicting evidence and uncertainty
as to whether the dryer purge cycle was in fact "jumped" or "shorted" out,
I believe it is clear from the record that the purge cycle is a mechanical
safety measure engineered into the dryer lighting sequence to prevent against
the build-up of gasses. Although Mr. Bentgen conceded that he was no
expert, he alluded to the fact that an inoperative purge could cause problems
and present possible explosion hazards (Tr. 136-137), and he conceded
that the notation which appears on the dryer operator's job description
(Exhibit G-2) that the "Purge is jumped out on No. 6, will be repaired"
would lead one to believe that the purge cycle was inoperative.

1042

Mr. Stubblebine indicated that problems can be encountered when an
inoperative purge cycle causes repeated efforts to initiate pilot.
Although he was not certain as to the dryer, he did state that repeated
unsuccessful attempts to initiate the pilot light of a blast furnace
could cause explosive build-ups of gas that would probably be dispersed
near the dryer because it is an open area (Tr. 279). Dryer operator
Kenneth Smock testified that he was aware the purge cycle was ujumped out",
and that a burned out wire caused by paper being inserted near the pilot
light ignition point, coupled with sand and wate~ made it difficult to light
the pilot, and that he had reported the condition on his daily inspection
report.
Although Mr. Cooley also indicated that he believed the manual lighting
of the dryer also exposed him to a hazard of possibly slipping or falling
on the floor or over a protective railing which was adjacent to and near
the location of the pilot light because of the presence of water and sand
which made the area slippery, I am convinced that his principal concern
centers over the fact that he was directed and required to use a burning piece
of paper in attempting to light the dryer pilot light and my decision
regarding his complaint is based on t.his fact. Having visited the plant
site in the company of counsel for both parties during the course of
the trial in this case, it would appear to me that the nature of respondent's
silica sand drying operation is such that water, moisture, sand and dampness
is an ever present fact of life, and absent any evidence that respondent
violated any mandatory safety standard dealing with the clean-up or control
of such materials I have no basis for finding that the mere presence of
such materials presented a hazard.
As for the positioning of the guardrail in question, since the
time of Mr. Cooley's discharge modifications have been made to the positioning
of that guardrail, and aside from any evidence of anyone climbing over it
to reach the pilot, I cannot specifically conclude that the guardrail is
all that critical to my decision. However, it seems clear to me that
at the time of Mr. Cooley's discharge, requiring an employee to manually
light the dryer by means other than the automatic control system and panel
procedures could have possibly exposed an employee to any number of situations
which may or may not have been hazardous, and I am convinced that the
company's policy prohibiting the manual lighting of the dryer reflects
in part some of these concerns.
Statement of a safety complaint
Respondent argues that only after Mr. Cooley was ordered off the
property on Friday, May 2, 1980, by Mr. Chalmers did he assert that his
work refusal was based on a perceived safety hazard. However, the record
adduced in this case reflects that Mr. Cooley had previously complained
about the hazards of lighting the dryer with burning paper. As a matter
of fact, the record supports a conclusion that the practice of lighting
the dryer with a burning piece of paper was well known to everyone at the
plant, including mine management.

1043

Mr. Cooley testified that he had previously complained that the lighting
of the dryer with burning paper was unsafe and that he complained to
Mr. Chalmers, Mr. Phelps, Mr. Smock, and to another dryer operator by the
name of Sam Watson. Mr. Smock confirmed that Mr. Cooley had often
expressed his displeasure over lighting the dryer with burning paper, but
he could not recall Mr. Cooley specifically stating that he was concerned
about the safety of that procedure and he did not inquire further as to
Mr. Cooley's reluctance to perform that task. However, he confirmed that
when he overheard Mr. Cooley speaking with Mr. Chalmers over the telephone
on Friday, May 2, 1980, his refusal to light the dryer "could have been
because he thought it was unsafe'', and that later that day Mr, Cooley did
tell him that he felt it was unsafe.
Dryer Operator Phelps, the man assigned to train Mr. Cooley during
his last week of employment, testified that Mr. Cooley complained to him
during that time that lighting the dryer manually with burning paper was
unsafe. Mr. Phelps also confirmed that the automatic mechanism for lighting
the dryer was inoperative during the week of Mr. Cooley's training, and
as a result, it took two men to light it, One man would stand at the control
panel and the other would stand at the pilot light location with a burning
piece of paper. He also confirmed that he had reported the inoperative
automatic lighting mechanism to Mr. Chalmers, noted the conditions in
his inspection reports, and that the lighting of the dryer with burning
paper was the subject of general conversation among the employees and that
company foremen and management knew about it.
Electrician Stubblebine confirmed that operators would complain about
lighting the dryer with burning paper, and while they did not complain
directly to him, it came to his attention more or less through lunchroom
conversations. However, since he did not speak to Mr. Cooley, Mr. Cooley never
complained to him.
There is nothing in the record to suggest that Mr. Cooley had ever
complained to MSHA about the practice of lighting the dryer with burning
paper, and Inspector Spencer testified that absent a finding that the dryer
was "defective equipment" there is no specific safety standard covering
this practice. Mr. Bentgen testified that Mr. Cooley had never previously
complained to him about his being required to light the dryer with burning
paper, and Mr. Bentgen stated further that during Mr. Cooley's subsequent
grievance Mr. Chalmers informed him that Mr. Cooley has never complained
to him that lighting the dryer with burning paper was unsafe. However,
Mr. Bentgen confirmed that when he met with Mr. Cooley and his safety
representative on Monday, May 5, 1980, Mr. Cooley informed him at that
time that his work refusal was based on his safety concerns and it seems
clear to me that Mr. Bentgen knew this before he made the decision to fire
Mr. Cooley that same afternoon.
In view of th.e foregoing, I conclude and find that the record supports
a conclusion that Mr. Cooley communicated his belief about the safety hazard
presented to his supervisor Phelps during the week of his training prior
to his discharge, and that he also communicated it to safety director

1044

Bentgen prior to his decision to discharge Mr. Cooley. Coupled with the
fact that the practice of lighting the dryer with burning paper appears to
have been general knowledge among the dryer operators and dryer laborers,
there is a strong inference that Mr. Cooley also communicated his safety
concerns directly to Mr. Chalmers, and that Mr. Chalmers chose to ignore
them. In short, I conclude and find that the communications made by
Mr. Cooley regarding his safety concern falls within the test enunciated
by the Commission in the Dunmire and Estle case discussed above.
The reasonableness of Mr. Cooley's work refusal
Having concluded that the practice of lighting the dryer pilot light
in question with a burning piece of paper was an unsafe practice, the
next question presented is whether Mr. Cooley 1 s belief that it was unsafe
was reasonable, and whether his reluctance or refusal to follow this
practice was made in good faith.
Mr. Cooley has a limited education, and after viewing him on the stand
during the course of the hearing he impressed me as being candid and
straightforward. Although his prior work record and differences with his
supervisors, as reflected by the record and the testimony of several
witnesses, lead me to conclude that he may be short tempered and lacking in
self-restraint when dealing with co-workers and supervisors, he nonetheless
impressed me as being sincere when he testified that he was frightened by
the prospect of being required to light the dryer pilot light with burning
paper and that his fears were heightened even more when he singed the hair
of his fingers as the result of a "flash-back" from an unsuccessful
attempt to initiate pilot with a burning piece of paper.
In addition to Mr. Cooley's testimony, electrician Stubblebine,
who testified that he had no dealings with him, nonetheless respected
his right to refuse to light the pilot with burning paper if he believed
it was unsafe. As a matter of fact, Mr. Stubblebine commented that if
he thought it was unsafe he too would refuse to light it in that fashion
and that if the company disciplined him for this he would file a complaint
as did Mr. Cooley.
Although dryer operator Smock expressed no fear at lighting the dryer
with burning paper and fashioned his own "one-man operation" procedure
for doing this, he confirmed that Mr. Cooley did not know much about the
dryer operation and was not as experieinced as he was. Given these
circumstances, Mr. Smock did not find Mr. Cooley's reluctance to light the
dryer with burning paper to be unusual. Dryer operator Phelps gave similar
testimony, and former operator Stumpmier testified that he too would
refuse to light the dryer with burning paper because he believed it was an
unsafe practice and so informed sa~ety director Bentgen. He also confirmed
the fact that approximately a month after Mr. Cooley's discharge Mr. Bentgen
issued a memorandum stating that anyone caught lighting the dryer with a
burning piece of paper would be subject to company disciplinary action,
including discharge, and the record reflects that this policy is still in
effect.

1045

Finally, although Mr. Cooley's former supervisor and foreman David
Chalmers did not testify in this case, the record presented raises a strong
inference that he was lacking somewhat in his appreciation for safe work
practices. Mr. Cooley referred to several instances where Mr. Chalmers
would perform dangerous acts, Mr. Smock confirmed that he personally
observed Mr. Chalmers light the dryer with a burning piece of paper, and
Mr. Stumpmier testified that Mr. Chalmers had little regard for safety and
that when he attempted to discuss Mr. Cooley's refusal to light the dryer
after he was ordered off the property, Mr. Chalmers would not speak with
him.
Although Mr. Chalmers had ordered Mr. Cooley off the property after
his refusal to light the dryer, Mr. Bentgen confirmed that Mr. Chalmers
had no authority to discharge Mr. Cooley and that Mr. Bentgen discharged
him after speaking with Mr. Chalmers. Mr.
also stated that his
investigation confirmed that foremen made it a practice to instruct employees
to assist in the lighting of the dryer with burning paper, that they themselves had engaged in this practice, and that Mr. Chalmers told him that
he had instructed Mr. Cooley to assist in the lighting of the dryer and
assumed that he would do so by holdiTug the burning piece of paper. Mr. Bentgen
also confirmed that Mr. Chalmers was subsequently fired for poor work
performance and for reporting to work on two occasions while intoxicated,
Given all of the aforementioned circumstances, I conclude and find
that Mr. Cooley had a good faith reasonable belief that the lighting of
the dryer in question by means of a burning piece of paper presented a
dangerous safety hazard which may have exposed him to injury, and that his
good faith belief in this regard falls squarely within the test laid down
by the Commission in MSHA ex rel Michael Dunmire and James Estle v.
Northern Coal Company, WEST 80-313-D and WEST 80-367-D, decided February 5, 1982.
By refusing to light the dryer as directed by his supervisor, Mr. Cooley
eliminated any hazard to which he may have been exposed had he carried
out the order, and, as stated by the Commission in Dunmire and Estle, supra,
"avoidance of injury is the very reason the right to refuse work exists".
Whether respondent would have fired Mr. Cooley anyway for use of profanity.
Respondent maintains that Mr. Cooley was discharged because of his
"bizarre" behavior and the use of "reprehensible and vile" language towards
his supervisor·Dave Chalmers. In addition, respondent asserts that Mr. Cooley
treated his supervisor and co-workers in a "vile manner" at the time of
his discharge, and that the record offers ample evidence that this behavior
warranted his discharge.
The only specific conduct of record in this case deals with a telephone
conversation which Mr. Cooley had with his supervisor David Chalmers. During
that conversation, Mr. Cooley purportedly used profanity and made certain
utterances which obviously prompted his being initially sent home by
Mr. Chalmers and then being discharged by Mr. Bentgen the following week,

1046

However, there is nothing of record here that suggests that Mr. Cooley
directed his remarks to his "co-workers". Further, the _only witness
to the one-sided telephone conversation was Mr. Smock. He testified
that the telephone conversation lasted only a few minutes, and that the
use of profanity by Mr. Cooley stennned from his reluctance to light the
dryer pilot light. Since Mr. Chalmers did not testify, and since no
one but Mr. Cooley knows what Mr. Chalmers may have told him during that
phone conversation, I have no way of knowing whether Mr. Chalmers' may
have also said something to further provoke Mr. Cooley.
Respondent's conclusions that Mr. Cooley used "vile", "foul", and
uabusive" language obviously is based on what Mr. Chalmers may have told
Mr. Bentgen. There is no evidence or testimony that Mr. Cooley used
this sort of language towards Mr. Bentgen or any other company official,
and Mr. Cooley, as well as Mr. Smock, indicated that the cursing was
directed at the method of lighting the dryer rather than at Mr. Chalmers
personally. Considering the circumstances under which Mr. Chalmers
left his employment with the respondent, and absent his testimony, there
is a strong inference that Mr. Chalmers may not have been too enchanted
with Mr. Cooley as an employee and m~y have said something to provoke
Mr, Cooley's outburst.
After careful consideration of the record adduced here, I conclude
and find that the use of profanity by Mr.·Cooley during the telephone
conversation in question was the direct result of his being required
to light the dryer with a burning piece of paper, an act which I have
found Mr. Cooley reasonably believed was unsafe. In these circumstances,
I agree with MSHA's assertion that the use of profanity .by Mr. Cooley
was part of the protected work refusal itself, and I conclude and find
that this was the case at the times the words were spoken on May 2, 1980.
While it may be true that Mr. Cooley may have bid off the job of dryer
operator and decided not to pursue that job at the conclusion of his week of
training, the fact is that what prompted his discharge was his refusal
t~ assist in the lighting of the dryer with a burning piece of paper, a
task that had been assigned to him on May 2, 1980, by his foreman. The
purported basis for Mr. Cooley's discharge was his refusal to follow his
supervisor's order to light the dryer with a burning piece of paper,
the use of foul language towards this same supervisor over this work refusal,
and Mr. Cooley's past disciplinary record with the respondent. Mr. Bentgen
testified that he considered the use of foul language and the refusal
to perform the assigned task to be acts of insubordination and that
Mr. Cooley would have been fired anyway even if he had carried out the
instructions to light the dryer. Mr. Bentgen reasoned that since Mr. Cooley
had a prior record of work refusal and insubordination, and since he
was on probation for these prior offenses at the time of the dryer incident,
his discharge was justified, However, since I have concluded that the refusal
to perform the assigned job task and the use of profanity were protected
activities, they do not constitute acts of insubordination warranting a
discharge under the Act. This being the case, Mr. Cooley's prior work
record is not controlling.

1047

Respondent has not established that Mr. Cooley had.ever been
disciplined for using profanity, nor has it established that it ·has
ever disciplined other employees for using profanity on the job. Since
Mr. Bentgen had the final authority to discharge or otherwise discipline
Mr. Cooley for the May 2, 1980 incident concerning the dryer, he had the
opportunity to consider Mr. Cooley's reasons for
to light the
dryer before making the decision to discharge him. Mr, B~ntgen candidly
conceded that prior to the decision to discharge Mr.
he was made
aware of the method of lighting the dryer by means of burning paper,
yet he opted to discharge him for insubordination and his past record.
Further, while it may be true that Mr. Cooley's grievance and arbitration
(exhibit R-4) was denied and his discharge sustained, that decision is
not binding on me, and since the arbitration decision contains no rationale
or reasons explaining it, I have given it no weight. The critical
question is whether the preponderance of the evidence adduced in the
instant proceeding supports a conclusion that the respondent would have
discharged Mr, Cooley in any event by reason of any unprotected activities
alone, After careful review of the record, I conclude and find that the
testimony and evidence adduced in this case does not support a conclusion
that the respondent would have fired.Mr, Cooley for the manner in which
he communicated his work refusal to his supervisor. This is not to say
that as a general rule an employer may never fire a miner for abusive
language and conduct towards a supervisor. By the same token, a miner
may not insulate himself against such conduct by hiding behind the Act.
However, on the facts of this case, where there is a direct nexus between
the conduct and a right protected under the Act, I simply cannot conclude
that the discharge was justified.
Conclusion
On the basis of the foregoing findings and conclusions, including
a preponderance of all of the credible evidence and testimony of record
in this proceeding, I conclude and find that complainant John Cooley was
unlawfully discriminated against and discharged by the respondent for
engaging in activity protected under section 105(c) of the Act, and the
complaint of discrimination IS SUSTAINED.
Remedies
In an Order I issued on February 26, 1982, extending the time for
the filing of posthearing briefs and proposed findings and conclusions, I
requested that the parties include as part of their posthearing briefs
arguments concerning the remedies to be afforded Mr. Cooley in the event he
prevailed in this matter. MSHA has included such proposed remedies as part
of its posthearing submissions, but the respondent has not. Since the record
reflects that MSHA filed its brief with me a month or so prior to the
respondent, and served a copy on the respondent, I assume that respondent's
counsel had an opportunity to review the proposed remedies. Since respondent
has not commented on it, I assume further that it does not disagree with

1048

the monetary information concerning back-pay, fringe benefits, etc.,
which MSHA has included as part of its argument. Further, I take note
of the fact that Industrial Relations Director Bentgen testified as to
the contractual pay and fringe benefit matters found in the wage agreement
during the hearing and indicated that the contract is effective through
November 12, 1982 (Tr. 111-112).
MSHA seeks Mr. Cooley's reinstatement to the position of dryer
operator with
and all the prerequisites of
, back
to the day of discharge, as well as back pay from the date of discharge,
May 5, 1980, until reinstatement. MSHA asserts that Mr.
's back
pay can be calculated from the contract between the Ottawa Silica Company
and the Teamster's Union (Exhibit G-4). Moreover, MSHA relies on the
testimony at trial that the monetary value of the fringe benefit package
under the contract is considered to be 52% of the base wage (Tr. 112),
and includes the amount of back wages and fringe benefits which have
accrued through March 30, 1982 as part of the requested remedy in this
case. The requested remedies, up to the dates shown, are as follows:
Time Period

Hours/Wk

5/5/80-11/9/80 $ 7.26 hr.
11/10/8011/9/81
$ 7.96 hr.
11/10/813/30/82
$ 8.66 hr.

Basic

52% of Basic

Total
--

40

$ 8,421. 60

$ 4,374.23

$12,800.83

40

$16,556.80

$ 8,604.53

$25,166.33

40

$ 62928.00

$ 32602.56

$102530.56

Totals

$31,906.40

$16,591. 32

$48, 497. 72

Civil Eenalty assessment guestion
The parties were permitted to make a record concerning those statutory
factors found in section llO(i) of the Act dealing with the assessment
of civil penalties for violations of the Act and the mandatory health
and safety standards promulgated therein (Tr. 8-9), and MSHA's solicitor
has included some arguments in support of its request for an assessment
of civil penalties against the respondent for discriminating against
Mr. Cooley. However, included in those arguments are new matters
with an alleged "knowing violation" by respondent's foreman, arguments
concerning respondent's prior assessments history for certain violations
of mandatory safety or health standards, and arguments concerning the
effect of any civil penalty on respondent's ability to remain in business.
While it is true that I invited the parties to make such a record
in this case, on reflection, and in light of the new matters pleaded, I
decline to assess any civil penalty against the respondent at this tiroP

1049

However, MSHA is free to proceed in a separate civil penalty proceeding
if it believes that this is appropriate. Since the Act, as well as
the Commission's rules,provide specific steps to be taken in regard to
civil penalty proceedings, I believe that it should proceed in a separate
proceeding if it desires to seek a civil penalty for respondent's act of
discrimination. MSHA's request for an assessment of a civil penalty
in this case is DENIED, without prejudice to its filing a separate
proceeding.
ORDER
1. Respondent IS ORDERED to reinstate Mr. Cooley to his former
or equivalent position at the mine in question, with all of his seniority
rights intact back to the date of his discharge, at the current prevailing
wage and fringes pursuant to the contract between the respondent and
the union (exhibit G-4).
2. Respondent IS ORDERED to pay to Mr. Cooley all back pay, including
fringe benefits, from the date of his discharge to and including the time
periods and in the amounts shown on MSHA's schedule of remedies ($48,497.72)
3. In addition to the back pay and fringe benefits shown in MSHA's
schedule of remedies, respondent IS ORDERED to pay Mr. Cooley back pay and
fringe benefits from March 30, 1982, up to and including the day he is
reinstated to his job in compliance with this Order. In this regard,
MSHA's counsel is directed to confer with respondent's counsel for the
purpose of calculating the amounts due Mr. Cooley and to insure compliance
with this additional back-pay and fringe benefits payment requirement.
Full compliance with this Order is to be made within thirty (30) days
of the date of this decision.

~
~~25:.:;;;
""""'/e"~e
A. Koutras
Administrative Law Judge
Distribution:
David F. Wightman, Esq., U.S. Department of Labor, Office of the Solicitor,
231 W. Lafayette St., Rm. 657, Detroit, MI 48226 (Certified Mail)
Frank X. Fortescue, Esq., Welday, Klyman, Fortescue, Burau & McGlynn,
200 Northland Towers East, Southfield, MI 48075 (Certified Mail)

1050

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Docket No. SE 81-21
A.O. No. 40-01148-03009 F
No. 1 Tennessee Strip

v.
S.A.M. COAL CO. INC.,
Respondent

DECISION
Appearances:

Thomas A. Grooms, Attorney, U.S. Department of Labor,
Nashville, Tennessee, for the petitioner; Daniel J. Tribell"
Esquire, Middlesboro, Kentucky, for the respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns 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),
charging the respondent with two alleged violations of certain mandatory
safety standards found in Part 77, Title 30, Code of Federal Regulations.
Respondent filed a timely answer and notice of contest and a hearing was
convened at Knoxville, Tennessee on February 2, 1982.
Issues
The principal issues presented in this proceeding are: (1) whether
respondent has violated the provisions of the Act and implementing regulations
as alleged in the proposal for assessment of civil penalties filed in
this proceeding, and, if so, (2) the appropriate civil penalty that
should be assessed against the respondent for the alleged violations based
upon the criteria set forth in section llO(i) of the Act. Additional
issues raised by the parties are identified and disposed of in the course
of this decision.
In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria: (1)
the operator's history of previous violations, (2) the appropriateness
of such penalty to the size of the business of the operator, (3) whether

1051

the operator was negligent, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the operator in attempting to achieve rapid
compliance after notification of the violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
30 u.s.c. § 801 ~~·
2.

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

3.

Commission Rules, 29 CFR 2700.1 ~~·

§

820(i).

Discussion
The conditions or practices allegedly constituting violations of
the mandatory safety standards cited by the inspector in this case are
set out in the following citations (Exhibits P-2 and P-3):
Section 107{a) citation 0736755, August 6, 1980, cites a violation of
30 CFR 77.1001, and the condition or practice is described as
follows:
Loose unconsolidated material (rock) is present along
the highwall. The wall is approximately 250 feet long
and 50 feet high. Observed in the No. 1 pit during a
fatal accident investigation.
Section 104(a) citation 0736757, August 6, 1980, cites a violation of
30 CFR 77.1713, and the condition or practice is described as
follows:
Evidence indicated that inadequate onshift examinations
were being made. The highwall on each end of the accident
scene was obviously hazardous and the conditions were not
recorded in the record book.
The inspector modified the citation on August 12, 1980, to include the.
following condition:
The person making the on-shift examination and filling
out the record book was not certified in the State of
Tennessee.
Stipulations
The parties stipulated that respondent is subject to the Act, that any
penalty assessed will not adversely affect its ability to remain in business,
and that respondent's prior history of violations consists of five
citations as listed in an MSHA computer print-out (Exhibit P-1; Tr. 4).

1052

Testimony and evidence adduced by the petitioner
MSHA Inspector Lawrence Spurlock testified that he has some 26 years
experience in the coal mining industry and has served as an MSHA inspector
for eleven years. His experience includes the inspection of surface mines
and the investigation of accidents involving high walls. He confirmed
that he conducted an accident investigation at the subject mine in August 1980,
and did so after the respondent advised MSHA that a fatal accident had
occurred at the mine. He also confirmed that as a result of that investigation
he issued the two citations which are the subject of this proceeding. He
issued the section 107(a) withdrawal order because loose unconsolidated
material was still present after the accident occurred (exhibit P-2;
Tr. 7-12). He also prepared an accident report and a copy was served
on the respondent (exhibit P-4). He indicated that the accident occurred
on August 5, 1980, and he identified several photographs which were taken
at the time (exhibits P-5 through P-21; Tr. 12-31).
Mr. Spurlock testified that the accident victim was killed when
part of the high wall collapsed on him and his drill rig while he was
working under it drilling boreholes into the ground to facilitate the
construction of a drainage ditch, and he identified the scene of the
accident as depicted inrbotographic exhibits P-6 through P-10, and he
estimated the width of the part of the wall which collapsed as 25 to 30
feet wide, and that the weight of the rock material which fell as approximately
100 tons (Tr. 18). With regard to the loose material which he cited
in his order, Mr. Spurlock referred to Ji-1otographic exhibit P-7 and drew
a red circle around the area in the photographic where he believed the
loose material was present. He also identified similar areas of loose
unconsolidated materials as well as areas described as "cracks" in exhibits
P-9 and P-10 (Tr. 19-20), as well as in exhibit P-11 (Tr. 21-22). Exhibit
P-14 depicts the area from which the rock fell and it also shows "overhanging material created after the wall collapsed" (Tr. 25).
Mr. Spurlock testified as to several cracks which he observed along
the top of the high wall, but he did not know what caused them. However,
he stated that they were present in the part of the wall which was left
standing after the collapse, and the cracks may have been caused by
drilling or blasting (Tr. 28). He believed that the accident may have
been caused by the vibration of the drill in the pit near the high wall,
and he believed that the mine operator should have removed loose material
from the wall as the pit was being developed (Tr. 35). Proper procedures
call for removal of loose materials so that the wall is sloped "back
toward the hill in at a proper angle of repose order to keep it from overturning on a person" (Tr. 35-36). Mr. Spurlock believed the wall was "pretty
straight" at a 90 to 95 degree angle, and he identified a copy of the
respondent's 11 ground control plans" as submitted to MSHA (Exhibit P-18, Tr. 40).
The plan contains the operator's procedures for scaling high walls and
contains a requirement that the angle of repose for the high wall be 85
degrees or less (Tr. 41). Mr. Spurlock did not believe that the wall
in question had been properly scaled because "there was too much loose,
unconsolidated material still present on the wall" (Tr. 41).

1053

Mr. Spurlock stated that the respondent advised him during his
investigation that the wall in question had been scaled by means of a
power shovel. However, he determined that the shovel had not been used
on the day of the accident and that it was parked on the spoil bank some
3/4 of a mile from the accident scene undergoing repairs (Tr. 42).
Further, the respondent adv
him that the shovel had not been used
for some three or four days prior to the collapse of the wall (Tr. 42).
Mr. Spurlock testified as to the second citation which he issued
for a violation of section 77.1713, and confirmed that he did so after
checking the mine record books for August 5, 1980, and failing to find
an entry for loose unconsolidated materials. Since he found such material
present on August 6, 1980, which he believed constituted an obvious violation
of section 77.1001, he also believed that a competent on-shift examiner
would have discovered those conditions (exhibit P-3; Tr. 45-46). He explained
that part of the mine is located in the State of Tennessee and part in
Kentucky, and that the portion of the mine which he cited is located in
Tennessee and the on-shift examiner was not certified in that state, but
was certified in Kentucky (Tr. 46).
On cross-examination, Mr. Spurlock testified as to certain drill holes
found at the top of the high wall, but he did not know when they were drilled,
nor did he know the condition of the area when they were drilled. The order
which he issued was terminated by another inspector, possibly the day after
it was issued, and he was not present when it was terminated. In addition,
he was not in the pit, nor did he inspect it, prior to the day of the
accident (Tr. 49). He was acquainted with "hill seams", which he described
as separations which are dry and sometimes wet, and he conceded that
it was possible that some were present in the area where the rock materials
fell out from the wall. He also conceded that the "cracks" he observed
were "natural" cracks (Tr. 51).
Mr. Spurlock conceded that the loose materials which he cited the
day after the accident were conditions that existed after the rock fall
in question, and that the overhanging area was what was
after the
wall fell (Tr. 55). He also described in an area of unconsolidated
material which he identified in photographic exhibits P-10, as unconsolidated
material that had nothing to do with the collapse of the wall and was away
from the fall area (Tr. 55-56). He had no idea as to the angle of repose
of the area from where the rock fell prior to the fall (Tr. 57), but did
observe "teeth" marks present on the high wall from the shovel (Tr. 57).
As for the second violation concerning the record book entry, he conceded
that he did not observe the area in question on the day of the accident,
August 5, and did not know what the foreman may have observed at that time
(Tr. 58).
Mr. Spurlock testified that the conditions were abated by blasting
down the remaining highwall area where the fall occurred (Tr. 69), and he
reiterated that he had never observed the high wall area in question prior

1054

to the day of the accident. He also indicated that the respondent had
never previously been cited for any similar violations,.and to his
knowledge had no problems with controlling the high walls prior to the
accident in question (Tr. 72). His rationale for issuing the second
violation is stated as follows (Tr. 76):
JUDGE KOUTRAS: But there is no question in your
mind that Mr. Spurlock issued the second citation because
of what I have just recited, that he believed that the
accident resulted from an obvious hazardous condition on
the high wall which should have been detected by the onshift Examiner.
MR. GROOMS:
Mr. Spurlock?

I believe that that is correct, is it,

JUDGE KOUTRAS:
THE WITNESS:

Is that right?
Yes,

Harold C. Copeland testified that he is employed by the State of
Tennessee as a mine inspector and that is presently engaged in duties
connected with the training of state mine inspectors. He also owned a
strip coal mine for about a year and is familiar with high walls. He
confirmed that he was called to the mine in question the day after the
accident and coordinated his inspection with MSHA's inspection of the
accident scene. He identified exhibits P-4 and P-5 as photographs of
the scene of the accident, and also identified photographs which he took
during the inspection (Exhibits P-14 through P-17, P-21; Tr. 77-80),
Mr. Copeland testified that the conditions depicted in exhibit P-15
show loose overhanging rock and major vertical cracks. The loose rock
on top of the highwall area depicted in the photograph are hazardous, but
he did not know about the cracks shown because "there is no way to tell
what those cracks lead to" (Tr. 81). When asked what should have been
done about the wall, he replied "if it was this way before there was men
working under, it should have been scaled down and cleaned up. The loose
rock should have been taken off of it" (Tr. 81). Referring to the cracks
which appear in exhibit P-21, he indicated that they may have been caused
by prior blasting, but that there was no way to know for sure (Tr. 82).
The present cracks however, would present a danger of the rock falling,
but he did not know if they were from the area where the original fall
had taken place (Tr. 83).
Mr. Copeland expressed an opinion that the fatality was caused by
falling rock, and he conceded that the loose rock which he observed was
present after the accident occurred. However, from his experience, he
did not believe that the high wall which he observed the day after the
accident would have looked any different the day before (Tr. 90).

1055

On cross-examination, Mr. Copeland confirmed that he did not see
the accident area prior to the fall and had no way of knowing whether
the cracks he described were present at that time (Tr. 95). He also
indicated that certain drilled holes which were located 50 or 75 feet
away from the immediate fall area and were not charged may have been due
to faults in the rock, but he did not know when the holes were drilled
(Tr. 97-98).
Wayne Farmer testified that he is a field representative for the State
of Tennessee Labor Department, but has worked in underground and surface
strip mining since 1944. He was part of the investigation of the accident
in question, and identified the loose unconsolidated materials shown in
exhibits P-5, P-6, and P-14 and P-15 (Tr. 107). While he did not know
why the wall in question fell, since it did fall, he believed that it was
due to unconsolidated rock (Tr. 108). He agreed with Mr. Copeland's
conclusions as to why the wall fell (Tr. 109).
On cross-examination, Mr. Farmer conceded that he saw none of the
rock prior to the fall, did not know when any of the holes in question
were drilled, and did not know how much of the rock fall may have changed
the adjacent area after the fall because "I wasn't there" (Tr. 109). He
also conceded that it was possible for the mine foreman to inspect the
wall immediately before the fall and come to the conclusion that it appeared
all right to him, but not to him (Farmer) when he looked at it (Tr. 117).
Testimony and evidence adduced by the respondent
Charles Woodall testified that he has been employed by the respondent
for about a year and half, and has worked around strip mines for about
34 years. He stated that he is ashovel operator and on the day of the
accident was working in the pit during the second shift from 3:00 to 11:00
p.m. He described the procedure for stripping the pit and stated that
he scaled the high wall in question by taking "everything down that is
loose that you can pull down as you go" (Tr. 128). All loose materials
are taken down with the shovel and in all the years he has served as a
shovel operator stripping pits and walls he has never had an accident and
has "never had a machine tore up" (Tr. 129). He indicated that he scaled
the high wall in question during his shift and thought it was safe enough
to work in the pit. He would not have continued to work in the pit if
he did not believe it was safe, and company policy dictates that no one
is required to work in unsafe areas. He has always been instructed to
inform his supervisor or foreman if he believes an area is unsafe and
he has no fear of any reprimand for leaving an unsafe work area (Tr. 130).
Mr. Woodall stated that the 2400 Lima Shovel which he operated was the
only one used in the pit in question and it was not out of service on the
day of the accident but it was taken out for repairs after the pit was
cleaned up (Tr. 131).
·
On cross-examination, Mr. Woodall stated that the shovel may have
been taken out of the pit the day after the accident, but that he did not
drive it out. After examining photographic exhibits P-9 and P-10,

1056

Mr. Woodall stated that the wall did not look the way the pictures show
it on the day of the accident since it did not appear in that condition
when he left the pit area (Tr. 131-133). He indicated that all loose
material is scaled with the shovel and any material that cannot be taken
down by the shovel is not "loose material". He also indicated that it
was possible that from the time he completed scaling the wall until the
fall the rock could have been "working", but in the 34 years he has worked
in the pits prior to the accident he has never known of anyone being struck
by a rock falling off a high wall (Tr. 135).
In response to bench questions, Mr. Woodall stated that he could not
recall when he last scaled the high wall which fell prior to the accident,
but his guess was that it would have been two days before. The wall
is scaled with the bucket attached to the boom of the shovel, and it will
extend some 30 to 35 feet. The walls are scaled as the
is opened
up and as the shovel moves in and out of the lifts (Tr. 135-139). He
indicated that he did not observe the high wall in question after the
accident, and that he was working in another area when the accident
occurred. He did not return to the area where the accident occurred until
a week or two later (Tr. 141).
~--~~~-'--'-- testified that he is employed as a s
mine foreman
and while he is not presently employed by the respondent was employed
as a shovel operator during August 1980, and he operated a shovel for
five or six years prior to that time. He stated that he and Mr. Woodall
operated the shovel in the pit where the accident occurred. He worked
the day shift and stated that the high walls were scaled and cleaned as
the pit was being stripped. He described the procedures he followed for
scaling and stripping, and indicated that the entire high wall was scaled
during the time he was stripping the pit. He also indicated that he took
the shovel out of the pit during the last shift the evening before the
accident and parked it some 500 feet away, and it was his understanding
that it would be overhauled. In his opinion, nothing was left to be
done in the pit when he removed the shovel and he observed no unsafe
conditions in and about the high wall at the time the shovel was brought
out. However, he did not return to the accident area after the fatality
occurred (Tr. 141-145).

Mr. Miracle stated that based on his 18 years' experience in and
around strip mine pits, he observed nothing about the highwall in question
at the time he last observed it when he moved the shovel out which would
lead him to conclude that it was not safe. He had worked with the accident
victim for some six years and considered him to be a safe worker, and
Mr. Miracle indicated that he would not hesitate to leave a pit area if
he believed it were unsafe. He was close to the scene of the accident
after the wall fell and observed rock from the fall laying in the pit
and that any overhanging rock which may have been present "wasn't hanging
there before the fall" (Tr. 147). The pit was completely finished when
he moved the shovel out and no additional scaling is done before the coal
is actually hauled out (Tr. 148).

1057

On cross-examination, Mr. Miracle stated that the area depicted
in photographic exhibit P-9 away from the rock fall itself resembles
the condition of the wall when he left it. However, he believed the
areas circled in red on the photograph which have been characterized as
"cracks" are in fact 11 offsets 11 in the wall. He confirmed that he was at
home when the accident occurred and that he performed no work with the
shovel on the day of the accident. He believed that the last time he took
the shovel out was on the Monday evening prior to the accident, but was
not absolutely sure. He also confirmed that no scaling was done after
the shovel was taken out of the pit (Tr. 152).
In response to bench questions, Mr. Miracle viewed photographic
exhibits P-7, P-10, and P-15, and stated that what appears to be overhanging
rock is shown in exhibit P-15, but that "it may be laying back on the
wall 15 to 20 feet" (Tr. 154). If it were small rock, the shovel boom
could reach it since it is 67 feet high, and when extended to its full
length it could reach a distance of 75 feet. Although he could not
describe the highwall as shown in the pictures, he stated that he would
not want to work under it after the accident occurred because "the fall
must have disturbed it when it fell out 11 (Tr. 156).
J. B. Huddleston, mine superintendent, testified that he has 17
years of strip mining experience and has operated shovels and other
related equipment during this time. He was the superintendent on August 5,
1980, when the accident occurred and was a personal friend of the accident
victim David Crawford. Mr. Woodall, and Mr. Miracle were good shovel
operators, and Mr. Crawford had always been a competent and safe worker.

Mr. Huddleston stated that he worked in the pit in question on the
Saturday before the accident and the shovel was not there. He believed
the shovel may have been moved out of the pit the previous Thursday or
Friday. He also indicated that once the tripping is completed with the
shovel, trucks and loaders are brought in to haul out the coal and the
coal cleaning machine comes in and cleans up the coal. The pit and wall
looked good to him when he worked it on Saturday and "everything looked
solid" (Tr. 160). At the time of the accident, Mr. Crawford was drilling
in the pit near the base of the highwall, and he did not believe that
Mr. Crawford would have exposed himself to any hazard had there been
any observable dangerous conditions present. Prior to the accident, no
one had ever.been injured from any dangerous highwall situation and he
believed the accident occurred when a hill seam in the wall slipped
and fell
off (Tr. 165-166).
Mr. Huddleston testified that drilling and blasting near and at the
top of the high wall had taken place prior to the accident and he described
the procedures followed during this process. Loading operations ceased
after the accident, but the holes which had been drilled and charged were
shot the next day (Tr. 169).
On cross-examination, Mr. Huddleston confirmed that the order was
abated and terminated after the highwall in question was blasted down
(Tr. 171). Referring to exhibit P-9, Mr. Huddleston stated that the wall

1058

after the accident did not look the way it did the previous Saturday.
The exposed 11 jagged-like 11 rock and signs of hill seams shown in the photograph
were not present prior to the accident and the wall appeared smooth and
"there was nothing loose that you could see on it 11 (Tr. 175).
to exhibit P-21, he could not tell whether there were "cracks" in the wall
area shown because he did not go to that area and what appears to be cracks
may be an open place in the ground (Tr. 179).
In response to a question concerning the condition of the
as stated by the inspector in his citation, and as depicted in exhibits P-7,
P-10, and P-15, Mr. Huddleston stated as follows (Tr. 181-182):
A. Yes, he was correct that there had been loose
stuff on the wall because it was there.

Q. You could see that, is that what you are
to me now in those pictures, that you can see loose
unconsolidated rock?

*

A.

Yes.

Q.

Along that high wall?

A.

Yes, it looks to be.

*

*

*

*

*

*

*

*

*

Q. (By Mr. Tribell) Between the time this rock
fell out, whatever the condition was created, if any, at
that time and the next day when the Inspector came out
there, there was nothing done, we pulled out after we got
Mr. Crawford out; was any work performed in there?
A.

None at all.

Q.

Was the area barricaded and guarded?

A.

Barricaded and locked so that nobody wouldn't go in.

Q. In other words, if there had been any condition
created by this happening, we would not have attempted to
correct it before the inspector came on the job?
A. No, not at all. What was there was there, and it
it was to be faced, and even if there had of been, I wouldn't
have had anything to do about it because it was there and
everybody could see it, you know, whatever is done is done in
my opinion. I didn't "straighten it out" or nothing, I
wouldn't have had it done.

1059

Mr. Huddleston indicated that the length of the entire highwall
was approximately 500 feet but only the part immediately above the fall
which had been drilled was blasted down to abate the citation. The
entire wall was eventually taken down months later (Tr. 185-186).
Dallas Shackelford testified that he is the former owner of the
S.A.M. Coal Company, and since Augu:;t 1980, has served as general
manager in charge of all coal production. He was at the mine when the
accident occurred, and he viewed the pit and highwall the previous Thursday
and Friday and it looked safe to him. He also observed the high wall while
in the pit loading coal on the morning of the accident and observed no
cracks or other dangerous conditions (Tr. 187-189). Three or four men
and equipment were working under the highwall at any given time and he
observed nothing that would lead him to believe they were in danger,
The shovel was taken out of the pit for repairs, and a week before the
accident he had discussed the need to repair the motor with the mine
superintendent (Tr. 190),
Mr. Shackelford testified that he arrived at the scene of the
accident five or ten minutes after the wall fell, and after taking some
measurements concluded that the drill rig and accident victim were
approximately 40 feet from the base of the wall when it fell on them, He
indicated that the portion of the wall which fell "tumbled" and "pitched"
out approximately 50 feet. He was personally acquainted with the accident
victim and considered him to be one of the safest employees. The company
has had a good safety record, and no prior accidents have ever occurred
in connection with the highwalls. All employees are directed not to work
in unsafe areas and to consult with their boss if they encounter dangerous
conditions (Tr. 193).
Eddie Haley testified that he has been employed by the respondent
as a drill foreman for about three years. He confirmed that he had drilled
the holes depicted in the top of the highwall in question and stated that
they were drilled before the highwall was created. He has never drilled
such holes from a distance of 30 inches from the edge of any highwall, and
while he observed the highwall from the top, he had never gone down into
the pit. While at the top of the wall he never observed any loose or
unconsolidated material, nor has he ever observed any unsafe conditions
there. He was acquainted with the accident victim and knew him to be a
safe worker who would never have been in the pit if he thought it was
dangerous (Tr. 198-201).
Joe Wyatt testified that he. is employed by the respondent as a drilling
and blasting foreman, was so employed at the time of the accident, and he
discovered the victim after the section of the highwall fell. Mr. Wyatt
indicated that he had been in and around the pit area before the accident
and the walls "looked good to me from the top side and the bottom down
in the pit when we scuttled it with the shov'el" (Tr. 202). The only
difference he observed in the wall after the accident was in the area
where the rock fell out. The shovels were operating in the pit and the
walls were stripped and scaled. He explained that some of the drill holes
were loaded, but the shot was delayed a day because of the accident (Tr. 203).

1060

Mr. Wyatt testified that when the accident occurred all of the men left
the mine site, and he disagreed that loose and unconsolidated material was
on the highwall in question (Tr. 204).
Robert Marcum testified that he has worked around strip mines for
18 years and is employed by the respondent as a foreman. On the day of
te accident he was the second shift foreman. He and the first shift
foreman, David Ellison consulted with each other during the shift change
and together they checked out all of the work areas. This is the normal
practice during the shift change. They checked the pit and highwall area
where the accident occurred and they left it ten minutes before the accident.
They observed no conditions which they thought was dangerous, and he had
been in the pit previous to the accident supervising the loading and cleaning
of coal. In his opinion, the rock fall in question was caused by a hill
seam and that loose, unconsolidated rock did not cause the rock fall of
such magnitude. He had observed the shovel operator stripping and scaling
the highwalls and believes that it was a good job (Tr. 209).
On cross-examination, Mr. Marcum confirmed that he had previously
executed an affidavit for respondent 1 s counsel which indicated that he
had observed a hill seam in the wall with dirt and mud between sections of
rock, and that this is what caused the rock to separate and the wall to
fall (Tr. 211-212). He confirmed that he observed this condition on the
day of the accident, and he also confirmed that Mr. Ellison kept his own
shift examination books and that he (Marcum) kept his own. He did
not know whether Mr. Elison was making his on-shift examination at the time
he accompanied him, nor did he know about any entries that Mr. Elison may
have made in his book (Tr. 215).
Mr. Marcum stated that he was in the pit about five minutes making his
inspection of the highwall and that it does not take long to drive in and
out of the pit. He did not go to the top of the highwall because his men
were not expected to work in that area for weeks after the accident, and
he had no way of knowing whether. Mr.Ellison would be making his own on-shift
examination at that time (Tr. 216). Mr. Marcum stated further that he was
in Mr. Ellison'struck when he went to the pit to see how the accident
victim was doing and they were there about four or five minutes, and neither
he nor Mr. Ellisonwent to the top. He does not know whether this was
Mr. Ellison's on-shift examination and he does not know why Mr. Ellison was
not certified in Tennessee as a mine foreman, but that he (Marcum) is
certified in both places (Tr. 220).
Referring to exhibit P-9, Mr. Marcum identified an area along the
highwall which appears to contain loose, unconsolidated material, but he
could not state whether the fall caused that condition. He also confirmed
that he observed the dirt and mud in the hill seam when he returned to
the pit after the accident, and that he saw "the dirty streak right where
the hill seam was" (Tr. 222-223).

1061

Findings and Conclusions
Fact of Violations
Citation No. 0736755, August 6, 1980, 30 CFR 77.1001
30 CFR 77.1001 provides as follows:
Loose hazardous material shall be
stripped for a safe distance from the top
of pit or highwalls, and the loose unconsolidated material shall be sloped to the
angle of repose, or barriers, baffle boards,
screens, or other devices be provided that
afford equivalent protection.
Section 77.1000, requires a mine operator to establish and follow
a ground control plan for the safe control of all highwalls and pits,
and section 77.1000-1, requires the filing of a copy of the plan with
MSHA. The respondent's plan which was in effect at the time of the accident
in question was filed with MSHA on October 16, 1979, (exhibit P-18)
and the equipment used for the scaling of the highwall, as well as the
means for doing this is stated as follows in the plan:
Highwall will be brought down by the dozers and
high lifts and scaling needing to be done will
be done by 2400 Lima Shovel.
In addition, the plan reflects the anticipated height of the highwall
to be 60 feet, the maximum height as 80 feet, and the proposed angle
of the highwall is shown as 85 degr~es or less. Further, I take note of
the fact that the respondent is not charged with a violation of its
ground control plan. Inspector Spurlock includes no such "finding" in
his accident report (exhibit P-4), and petitioner does not assert any
violation of section 77.1000.
·
During the course of the hearing, respondent's counsel argued that
there is no evidence presented that loose, unconsolidated rock or material
was present along the entire 250 feet of the highwall. Conceding the
existence of loose and overhanging rock after the fall, counsel asserts
that these conditions were the obvious result of the fall. Further, since
the inspector only required the highwall area which remained in the
immediate vicinity of the fall to be blasted down to abate the citation,
respondent's counsel further suggests that even if loose rock was present
prior to the fall, it obviously was confined to that area and not to
the other areas testified to by the inspector during the hearing well
after the fact. Counsel also suggests that there is a strong inference
that the only reason the citation issued was because a fatality had
occurred, and he emphasizes the point that the testimony and evidence
presented by his witnesses reflects that the highwall in question was
scaled of all loose unconsolidated rock prior to the fall and that
inspections of the highwall revealed no obvious hazardous conditions
(Tr. 233-235).

1062

Petitioner's counsel argued that the evidence he presented clearly
established that
the fall loose unconsolidated.rock material was
left on the highwall, and that these conditions constitute a violation
of the cited safety standard. As to the condition of the highwall prior
to the fall, counsel concedes that there is no direct evidence that loose
unconsolidated materials were present on the highwall. However, counsel
asserts that there is circumstantial evidence that loose unconsolidated
materials were present and that these conditions caused the rock fall in
question. Counsel asserts further that it is not credible that only
the portion of the wall which fell out was loose and unconsolidated and
that the remaining portion away from the wall was in any better condition.
Counsel stated that "it is only reasonable to assume that this entire
distance here was in poor shape, and that that was the cause of the wall
to fall out" (Tr. 237). When asked whether he meant the entire 250 feet
of highwall, counsel responded "at least portions along that way, as you
get closer to the rock fall, obviously you get into the question of what
came first" (Tr. 237).
With regard to the proposed $10,000 assessment for an alleged failure
to scale the wall, counsel conceded that the fact that a fatality occurred
prompted that initial assessment amount by MSHA (Tr. 237). Conceding
that the highwall area was isolated after the fall and that no one was
working in that area at the time the citation issued, counsel nonetheless
supported the proposed assessment as follows (Tr. 238).
MR. GROOMS: In some sense, you could argue
that this was an assessment, that is, in the sense
that assessment took these circumstances; but based
on the Inspector saying in his Inspector's Statement
that there was a fatality associated or related to this
violation, now clearly then the Inspector believed, and
it is our position, that the circumstances, the state
of that wall circumstantially supports the theory that the
fatality was caused by the poor condition of that wall •

•

The parties do not dispute the fact that the rock which fell from the
highwall and caused the fatality constituted a t1massive 11 fall (Tr. 225).
This conclusion is supported by the testimony of witnesses which described
the extent of the fall as encompassing a total volume of approximately
100 tons of rock which fell from an area of the wall which was approximately
25 to 30 feet wide and approximately 50 feet high, and from the photographic
exhibits taken shortly after the accident showing the rock mass which covered
the drill as well as the victim. Inspector Spurlock's accident inves
tion report contains a finding that "loose overhanging material was
present for a distance approximately 250 feet" (pg. 3, exhibit P-4).
The citation (exhibit P-2), described the highwall as being 250 feet
long, but the loose unconsolidated material is described as being "present
along th: hig~wall". In his narrative statement describing the gravity
of the violation, Mr. Spurlock states that the accident occurred "due
to the walls not being evaluated properly".

1063

When read together, the highwall conditions described by the inspector
in the citation, accident report, and narrative statement are lacking
somewhat in clarity. It is difficult to determine from these documents
precisely what the inspector had in mind when describing the parameters
of the loose rock and materials which may have been present on the highwall
in question. A reading of those documents suggests that loose unconsolidated
rock materials were present on the highwall when the inspector viewed
the pit and wall area after the accident, but is is far from clear to me
whether his concern was with the entire 250 feet along the top of the
highwall, or simply that 25 to 30 foot area from where the rock fell,
including the immediate edges on both sides of the wall. In addition,
it is not clear to me whether the inspector intended to cite the respondent
for conditions which may have existed before the highwall collapsed,
or whether his intent was to cite a violation for the conditions of the
highwall which existed at the time he viewed the area after the fall.
On the basis of the facts presented in this case, separation of
those conditions which may have caused the highwall to collapse, and those
conditions which the inspector believed constituted a violation at the
time he issued the citation is no easy task. Significantly, since none of
the inspectors who testified observed the condition of the highwall
prior to the fall, petitioner 1 s case concerning hazardous conditions rests
on speculation and inferences based on what
observed after the event.
On the other hand, respondent's defense that the highwall which fell had
been scaled and contained no readily observable hazardous conditions is
supported by the testimony of several witnesses who were in the pit and
highwall area immediately prior to the fall.
The citation issued on August 6, 1980, was issued the day after the
fatal fall of rock material from the pit highwall. The inspector had
been summoned to the scene, and during his investigation of the accident
issued the citation which states on its face that "loose unconsolidated
material (rock) is present along the highwall". The inspector described
the wall in the citation as being approximately 250 feet long and 50 feet
high, and he states that he observed the conditions during his fatal accident
investigation. Although no other conditions are described on the face
of the citation issued at the time of the event, at the hearing held on
February 2, 1982, the inspector identified several photographs taken during
his investigation and he described several areas along the highwall as
"cracks." and "overhanging materials" as well as loose unconsolidated materials.
However, he also testified that the cracks were present in the highwall
area which remained after the fall, and that the overhanging material was
created
the wall collapsed.
With regard to the assertion that the respondent failed to properly
scale the highwall, the inspector testified that he reached this conclusion
after observing loose unconsolidated rock still present on the highwall
after the fall. He also identified other areas along the highwall containing
unconsolidated material, but conceded that these areas were away from the
fall area and had nothing to do with the rock which fell, He also conceded
that he did not view the highwall in question prior to the fall, had no

1064

knowledge as to the condition of the wall prior to the fall, had no idea
as to the angle of repose of the highwall prior to the fall, and was not
present when the conditions he cited were abated. Although he indicated
that he observed "teeth" marks made by the shovel in the highwall, his
conclusion that the wall was not scaled was based on the fact that the
shovel was not in the pit area on the day of the accident and he determined
during his investigation that the shovel had not been used in the pit for
the three or four days prior to the accident.
With regard to the existence of "hill seams" in the highwall, the
inspector conceded that it was possible that some were present in the
highwall area which had fallen, and he also conceded that some of the
cracks which he described may have been "natural". He reiterated that the
fact that the loose unconsolidated materials which existed, and which he
observed after the fall, constituted an obvious violation of section 77.1001.
State mine inspector Copeland, who accompanied the MSHA inspector
during the accident investigation did not view the wall
to the
fall and had no knowledge of its condition. His testimony regarding the
existence of loose rock on the,wall is based on observations made~~~
the fall and while he expressed an opinion that the wall would not
looked any different before the fall, he had no basis for making that
judgment other than his "experience". In these circumstances, since
I believe that the massive fall of rock 'which occurred was a rather unusual
event, particularly in light of the extent of the fall, I reject the notion
that anyone may rely on "past experience" to support a conclusion that the
highwall area which fell probably looked the same way the day before the
fall. As for the cracks which he observed, Mr. Copeland conceded that
he had no way of knowing what caused them, and he candidly conceded that
he could not state whether the cracks presented a hazard because there
was no way to tell where they led to,
As for the testimony of state mine inspector Farmer, he too conceded
that he had no knowledge of the condition of the wall prior to the fall,
and while he agreed with Mr. Copeland's conclusion that loose unconsolidated
material caused the f~ll, his conclusion in this regard~ as well as that
of Mr. Copeland is simply based on the fact that "it did fall".
Petitioner's arguments
In addition to the arguments presented during the course of the
hearing, in its posthearing brief petitioner argues that the fatal
accident was caused by the respondent allowing the highwall in question
to deteriorate over a period of several days, during which time its
scaling and stripping shovel was absent from the pit. Petitioner maintans
that the inspector issued the section 107(a) withdrawal order the day
the fatal rock fall when he observed loose and unconsolidated material
along the entire length of the highwall during the course of his accident
investigation, and in support of this contention, petitioner has cited
certain testimony by the inspector, as well as several photographs of
the highwall taken at the time of the investigation. Further, petitioner

1065

asserts that the inspector cited a violation of section-77.1001, because
the highwall had not been sufficiently scaled or sloped to the required
85 degree angle of repose. Petitioner cites the inspector's testimony
that the wall was vertical and overhanding, and at an angle of from 90
to 95 degrees, and that the wall which fell and crushed the victim was
identical to a column which buldged out from the highwall is shown in
photographic exhibit P-8.
Petitioner also relies on the testimony of mine superintendent
Huddleston that the shovel used for scaling was moved out of the pit
on the previous Thursday or Friday prior to the accident which occurred
on Tuesday, August 5, 1980, as well as the testimony of the inspector
that the wall was probably "working" two or three days before the fall,
and the testimony of the shovel operator Woodall that the wall could
have been working during the time the shovel was removed, to support a
theory that the removal of coal requiring heavy front end loaders and
trucks to pass near and under the wall, as well as vibration from the
victim's drill, during this time caused the deteriorating wall to collapse.
Finally, petitioner cites the testimony of respondent's witnesses
who expressed concern about the conditions of the wall as depicted in
MSHA's photographs, and asserts that respondent's suggestion that the
collapse of the wall was caused by undetectable 11 hill-seams 11 should
be rejected as sheer speculation based on no credible evidence or testimony.
Respondent's arguments
In addition to oral argument made at the hearing, respondent argues
in its brief that the inspector's decision to issue the citations in
this case was dictated by the fact that a fatality occurred. Conceding
that a dangerous condition existed prior to the accident, respondent
maintains that such a condition was not apparent to the accident victim,
the mine foremen, or any other employees in the area in question.
With regard to the photographs introduced by MSHA during the hearing,
respondent maintains that they contribute nothing constructive to this
case since they can be, and in this case are, deceptive, especially as
to depth, the lay of land, etc., and simply do not give an accurate idea
of the way the area looked, even at the time they were taken.
With regard to Inspector Spurlock's "evaluations" as reported in
his accident investigation report, respondent makes the following comments:
1.

Respondent concedes that foreman David Ellison
directed the accident victim to drill a series
of holes in the bottom of the pit near the
highwall.

106G

2.

Regarding the conditions of the highwall as
reported by the inspector in his report, respondent
maintains that the highwall had, in fact, been
scaled properly as testified to by the operators,
foreman, and other mine employees. As for the alleged
cracks in the wall, respondent asserts that they resulted from the fall and that the respondent had no
control over this condition.

3.

With regard to the existence of certain drill holes
at the top of the highwall and the inspector's belief
that the weight of the drill may have weakened the
highwall, respondent points out that this assumption
was proved to be completely erroneous because the holes
were drilled before the highwall was even created and
that it is impossible to operate a drill within 3 to 5
feet of the highwall due to the way a drill must
be set up and braced for drilling.

4.

Concerning the purported statement by foreman Ellison
that the shovel normally used for scaling the highwall
had been out of service for repairs for five days,
respondent states that the evidence proved that the
shovel had not been taken out of service until it had
completely stripped the pit, scaled the highwall, and
completed its job in that area. It then left the pit
under its own power, in an operating condition, and
the shovel operators described how they scaled the highwall as the pit was stripped down.

5.

Respondent agrees with the statement that foreman
Ellison and second shift foreman Robert Marcum observed
the drilling operation approximately five minutes
before the accident and that both men stated that they
observed no hazardous conditions at that time.

I am convinced from all of the evidence and testimony adduced in this
case that Inspector Spurlock was primarily concerned about the loose,
unconsolidated and overhanging rock which was present at the highwall
area after the collapse of the wall. I am further convinced that he
issued the inuninent danger withdrawal order because of his concern
that the condition of the highwall after the fall posed an imminent danger
in the event mining were permitted to continue before the conditions
which remained were corrected. However, the critical issue presented
in this case is not so much the condition of the highwall after the fall,
but rather~ the conditions which existed prior to the fall and whether
proper scaling and removal of rock had been accomplished in accordance
with the requirements of the cited safety standard. The fact that an
imminent danger may have existed at the time the inspector viewed the

1067

scene of the accident the day after the wall collapsed during his
investigation does not establish that the condition of the wall sometime
prior to that event was such as to constitute a violation. After careful
consideration of all of the evidence and testimony adduced in this case,
I conclude and find that the petitioner has failed to establish by a
preponderance of any credible evidence that loose, hazardous, and unconsolidated materials were present along the entire highwall in question
prior to the fall, or that respondent had failed to comply with section
77.1001 by failing to strip or scale the entire highwall wall in question.
Inspector Spurlock's conclusion that the entire highwall had not
scaled was based in part on his assertion that loose,
unconsolidated material was still present on the wall after the massive
rock fall. However, he conceded that the loose materials he cited, as
well as the overhanging areas, were at the location or in close proximity
to that part of the wall which collapsed. In short, it seems obvious
to me that his observations concerning the unconsolidated materials still
present when he conducted his investigation on August 5th, were in f~
observations of loose and overhanging materials which were the direct
result of the fall which had occurred the day before, and which were
present at or near that location.
~nproperly

A second reason for Inspector Spurlock concluding that the entire
highwall was not properly scaled was his determination made during his
investigation of the accident that the shovel normally used to scale
the highwall had been out of service for repairs for five days prior to
the highwall collapse, and that no other equipment capable, of scaling
the wall was present in the pit when Mr. Spurlock was there. The information
concerning the absence of the shovel from the pit area was apparently
given to Mr. Spurlock by former pit foreman David Ellison. Mr. Ellison
did not testify at the hearing and petitioner did not take his deposition.
Since none of the witnesses presented by the petitioner viewed the highwall
conditions prior to the fall, petitioner's assertions that the highwall
was not properly scaled in based on speculation and assumptions that no
scaling of the highwall took place prior to the massive fall which occurred
on August 5th. Although state mine inspector Copeland stated that the
wall should have scaled, he prefaced his testimony with the re.mark "if
it was this way before". Since he candidly admitted he had never
observed the wall prior to the fall, and since it seems obvious to me that his
testimony regarding the condition of the wall focused on how it appeared
to him after the fall, his testimony as to whether it was in fact scaled
is of little or no value. As for state inspector Farmer's testimony,
I have given no weight to his inference that since the wall fell it
obviously needed scaling.
Respondent's witnesses testified as to the scaling which had been
on the highwall prior to the fall. Shovel operator Woodall, a man with 34
years of experience in the pits, testified as to the procedures he follows

1068

in stripping and scaling a highwall. Although his test~mony regarding
the work that he performed in the pit indicates that it was done on the
shift following the accident, he "guessed" that the last time he scaled
the highwall in question was one or two days prior to the fall, and he
indicated that the 2400 shovel was the one used to scale the wall and
that it was not out of service on that day.
Former shovel operator Jack Miracle testified that he and Mr. Woodall
operated the Lima 2400 shovel in the pit area where the fall occurred.
Mr. Miracle testified that while he performed no work in the pit the day
of the accident, he did work on Monday, the day before the accident,
and that he took the shovel out of the pit after the last shift that
evening and parked it some 500 feet away for overhaul. He also testified
that nothing was left to be done in the pit when he took the shovel out,
and he observed no unsafe conditions on the highwall.
Mine Superintendent Huddleston, a personal friend of the accident
victim, testified that he was supervising the pit operations on the day
of the accident and that he also worked in the pit the previous Saturday
and observed nothing which would cause him concern for the integrity
of the highwall. Mr. Huddleston did not see the shovel in the pit on
Saturday, and he believed that it may have been moved out of the pit
the previous Thursday or Friday. Thus, his testimony contradicts the
testimony of Mr. Woodall and Mr. Miracle as to when the shovel may have
actually been taken out of the pit area.
Drilling and blasting foreman Wyatt and shift foreman Marcum testified
that they were both in the pit area in question on the day of the accident,
that the highwall appe~red to be safe, and they observed no dangerous or
hazardous conditions. 'General Manager Shackelford testified that he
observed the highwall the previous Thursday and Friday and it appeared
safe. He also stated that he was in the pit on the morning of the accident,
observed no cracks or dangerous conditions, observed men and equipment
working under the highwall, and observed nothing which would lead him
to believe they were in danger.
With regard to the existence of any loose, unconsolidated or overhanging rocks, it should be noted at the outset that the citation issued
by the inspector states that such materials is present, and that it
was observed during his accident investigation. Although the inspector's
accident investigation report contains a finding that the loose materials
was present for a distance of 250 feet, the citation simply states that
the highwall was that long, but it does not state that the loose materials
were present for that entire dis,tance. Further, during his testimony
at the hearing, the inspector made frequent references to certain photographs
which were taken after the fall at the scene of the accident (exhibits
P-5 through P-15), and he relied on those photographs to support his
contention that loose materials were present along the highwall. However,
a close examination of his testimony, as well as the photographs, leads
me to conclude that Mr. Spurlock's concern with the conditions of the highwall

1069

focused on what remained of the wall after it fell and not with the
conditions of the entire 250 length and breadth of the wall. For example,
the inspector identified exhibit P-7 and drew a circle around an area
of overhanging loose materials. One of the circles is directly over
the fall area, and the other area circled appears to be in close proximity
to the fall area.
The inspector also identified several cracks in the highwall, and
circled several areas which he believed contained loose, unconsolidated
rock, as well as overhangs of rocks and loose materials, as depicted
in photographic exhibits P-9 through P-11,and P-14, However, he candidly
admitted that some of the cracks along the top of the highwall, as well
as the overhanging rocks and loose materials,were present in that part
of the highwall which was left standing after the fall had occurred,
and the enlarged photographs which he relied on substantiate the fact
that the conditions referred to were at or closely adjacent to the area
of the wall collapse. He also described some of the "cracks" as natural
rock formations, and while state inspector Copeland also alluded to the
presence of "cracks", he could not tell what caused them or where they
led to and his description of overhanging rock as shown in photographic
exhibit P-15 is clearly in reference to a condition left
the rock
fall in question,
None of the witnesses who testified for the petitioner in this case
had viewed the highwall in question prior to the fall, and it seems clear
to me that they had no way of knowing the condition of that wall prior
to the massive fall of rock which occurred on August 6, 1980. On the
other hand, practically all of the witnesses who testified for the respondent
had viewed the conditions of the highwall both before and after the fall,
had worked in and around the pit area where the fall occurred, and their
consistent testimony is that the highwall at the immediate location of
the fall, as well as in the adjacent areas, as depicted in the photographs,
simply did not look the same the day before and after the fall. Having
viewed these witnesses on the stand during the course of the hearing,
I find their testimony to be credible.
Petitioner's reliance on Inspector Spurlock's testimony that the
highwall conditions he observed during his accident investigation on
August 6th, a day after the fall, were not significantly different
from those which prevailed on August 5th, the day before the fall, is
rejected. The testimony in this is case is that over 100 tons of rock
materials fell from a 25 to 30 foot wide section of the highwall which
was some fifty feet high and that several locations at the edges of the
fall were left with loose, overhanging materials. However, it seems
obvious to me that these conditions were the direct result of the fall,
and I fail to comprehend how the petitioner can argue that the highwall
conditions on both days were the same. Further, the testimony in this
case is that the cited conditions were abated after "the loose unconsolidated
material (rock) had been shot off, and the hazardous condition no longer
exists" (exhibit P-2).

1070

The record here confirms the fact the Inspector Spurlock did not
issue the abatement or termination, but he did confirm that the citation
was terminated after the highwall where the fall occurred was blasted
down. Mine Superintendent Huddleston also confirmed that the citation
was abated by blasting down the area immediately above the fall, and
that the entire wall was eventually taken down months later. These
facts support the conclusion that the gravamen of the charge
t
the respondent is that loose, unconsolidated materials were present along
the highwall on August 6, 1980, the day that the inspector conducted
his accident investigation, and that he was concerned about those conditions
and that they were subsequently abated to MSHA's satisfaction by
down that portion of the wall which was left standing after the fall
and which contained loose, overhanging rock materials.
In view of the foregoing, I conclude and find that the evidence
and testimony adduced in this case does not support a
that
loose, hazardous materials were present on the highwall prior to the fall
and that the respondent failed to strip or scale any such materials
from the wall. Although the testimony regarding
when the shovel
used for scaling was taken out of the pit area
presented credible testimony that scaling and
accomplished in the pit area in question .prior to the massive rock fall
and that the condition of the highwall immediately prior to the fall
appeared to be free of any readily observale or detectable hazards to
those men and supervisors who were in the area. As for the existence
of the loose, unconsolidated and overhanging rock materials which were
left after the fall, I cannot conclude that these conditions constituted
a violation of the cited standard. Those conditions were the direct
result of the fall and the area had been secured, miners were withdrawn,
and barricades erected to facilitate MSHA's accident
Given
these circumstances, I do not believe that the respondent should be
charged with a violation. As indicated earlier, the fact that the remaining
conditions may have presented an innninently dangerous condition does
not necessarily support a conclusion that a violation of any mandatory
safety existed. Under the circumstances, Citation No. 0736755, issued
on August 6, 1980, citing a violation of 30 CFR 77.1001, IS VACATED.
Citation No. 0736757, August 6, 1980, 30 CFR 77.1713
30 CFR 77.1713(a) provides as follows:
At least once during each working shift, or more
often if necessary for safety, each active working
area and each active surface installation shall be
examined by a certified person designated by the
operator to conduct such examinations for hazardous
conditions and any such hazardous conditions noted
during such examinations shall be reported to the
operator and shall be corrected by the operator.

1071

Subsection (c) of section 77.1713 requires the cer~ified person
making the examination required by subsection (a) to record the .conditions
of the mine areas that he examined in an approved book maintained at a
designated mine area. The certified person is also required to report
any hazardous conditions discovered during his examination so that
appropriate corrective action may be taken.
Subsection (c) of section 77.1713 requires the certified person
making the examination required by subsection (a) to record the conditions
of the mine areas that he examined in an approved book maintained at a
designated mine area. The certified person is also required to report
any hazardous conditions discovered during his examination so that appropriate
corrective action may be taken.
The citation charges the respondent with failing to make an adequate
onshift examination, and the reasons given for this conclusion on the
face of the citation is that "the highwall on each end of the accident
scene was obviously hazardous and the conditions were not recorded in
the record book". The citation was subsequently modified to include a
second charge that "the person making the on-shift examination and
out the record book was not certified in the State of Tennessee". The
term "certifiedn is defined in pertinent part by section 77,2(m) as
"a person certified or registered by the State in which the coal mine is
located to perform the duties prescribed by this Part 77".
Petitioner's arguments
Petitioner argues that Inspector Spurlock cited a violation of
section 77.1713, because the on-shift examination book for August 5, 1980,
showed that the highwall was "okay". Due to "the obvious nature of the
bad highwall", petitioner asserts that the inspector concluded that the
required inspection was not done, or was incompetently done, and points
to the inspector's testimony that in his judgment the wall as he saw
it on August 6, 1980, would not have significantly changed so that what
he observed on August 6, 1980, should have been apparent to the on-shift
examiner on August 5, 1980.
Petitioner argues that Inspector Spurlock cited a violation of
section 77.1713 because he interpreted that section as requiring not only
an examination of active working areas and active surface installationa,
at least once on every shift, but also that this examination must be
competent, in that it must detect hazardous conditions which then must
be reported and corrected, as required by the standard.
Petitioner submits that the inspector's interpretation of section
77.1713 is correct and that it requires the certified person to do more
than simply "view" the highwall. Since the standard requires that such
areas be examined, petitioner asserts that the Dictionary definition
of that word, which states in part "to inspect or test for evidence of
disease or abnormality" is applicable in this case, In addition, petitioner

1072

relies on the requirement of section 77.1713(c) that the certified person
must make a report of the nature and location of any hazardous condition
found to be present at the mine in further support of its interpretation of
the standard, and cites Judge Stewart's decision in Secretary of Labor v.
Bill's Coal Company, Inc., 1 FMSHRC 167 (1979) (Judge Stewart interpreting
77.1713(c)),wherein he stated that:
The operator's failure to record the existing hazards
was negligent in that the conditions were visually
apparent.
Petitioner submits that Judge Stewart 1 s interpretation of section
77.1713(c) in Bill's Coal Company, Inc. and the interpretation which
gives substance to this standard, in general, compels an interpretation
consistent with that of Inspector Spurlock's, that the section is violated
not only by the complete failure to examine working areas at least once
per shift, but also by the failure to carry out these examinations in
a competent manner by failing to discover the hazardous conditions that
are present.
Petitioner argues further that section 77ol713(a) was also violated
when foremen Marcum and Ellison went into the pit to make an examination
a few minutes before the accident and failed by their cursory inspection
to discover not only the apparent hazards but also the imminent hazard
of the rock fall which took place within a few short minutes after this
"inspection". In support of this conclusion, the petitioner cites the
Commission's decision in Peabody Coal Company v. Secretary of Labor, 1 FMSHRC
1494 (1979), where the Commission stated:
The regulation is broadly worded and requires, among
other things, that a designated certified person
examine working areas for hazardous conditions a~
of ten as is necessary for safety and that any conditions
noted be corrected by the operator.
In conclusion, petitioner maintains that section 77.1713(a) was
violated when the respondent failed to competently examine the work areas
and thus failed to identify the hazardous conditions present there. This
occurred, states the petitioner, not only when the first shift foreman
Ellison conducted his regular on-shift examination (if it was earlier
than the examination conducted with second shift foreman Marcum) but
also when Ellison and Marcum again entered the pit shortly before the
accident to carry out another examination and failed again to detect
the hazards.
Failure to perform adequate inspection and to record hazardous conditions.
The inspector testified that he cited this condition because of his
assumption that the accident was caused by a hazard (loose unconsolidated
rock) which he believed should have been detected and recorded by shift
foreman David Ellison. The citation which he issued states that "inadequate"

1073

on-shift examinations were made because the highwall "on each end of
the accident scene was obsiously hazardous and the conditions were not
recorded in the record book". In support of this specification petitioner
relies on the testimony of the inspector as well as the notation made
on his "narrative statement" recorded at the time that he issued the
citation (exhibit P-3), indicating that "The on shift record books showed
o.k. in all highwalls, and at the scene of the accident and at another
pit loose material was present". The book was not produced at the hearing,
nor were any entries for the previous days mentioned.
Mr. Ellison is no longer employed by the respondent and neither
party apparently made any attempts to take his deposition. However,
second shift foreman Marcum testified that when he and Mr. Ellison were
in the pit some ten minutes prior to the rock fall they observed no
hazardous conditions. Although Mr. Marcum did not know whether the brief
visit to the pit constituted Mr. Ellisonvs onshift examination, general
manager Shackelford and superintendent Huddleston testified that they
too were in the pit the morning of the accident, visually observed
the highwall, and saw no hazardous conditions present.
Respondent does not argue or assert that the rather cursory view
of the highwall by Mr. Ellison and Mr. Marcum while driving by the pit
area in a truck during the end of the first shift and immediately before
the wall collapsed constituted the inspection required by section 77.1713.
Inspector Spurlock's accident investigation report (pg. 2) indicates
that the accident victim reported for work at the pit in question at 7:00
a.m. on the day of the accident, and the pit was under foreman Ellison's
supervision. The report also reflects that Mr. Ellison made an examination
of the working areas of the pit and then assigned the workmen to their
normal duties. Mr. Ellison entered the pit again at approximately 3:00 p.m.
with second shift foreman Marcum, observ~d the work that had been performed
by the accident victim at the base of the highwall, and left the area.
Shortly thereafter another individual discoverd that a portion of the
highwall had fallen on the cab of the drill and that the accident victim
had been crushed by the falling material.
Inspector Spurlock conceded that he did not know what foreman Ellison
may have observed during his shift, and as previously noted, Mr. Ellison
did not testify, and petitioner did not take his deposition. Since
Insp2ctor Spurlock had absolutely no way of knowing what Mr. Ellison
may have observed when he noted the highwall conditions as "okay", I cannot
conclude that Mr. Spurlock is in any better position to conclude that
the conditions were in fact hazardous and that Mr. Ellison's failure
to observe and record these purported hazardous conditions constituted
a violation of section 77.1713. It seems to me before anyone can conclude
that the respondent failed to accomplish its required on-·shift examination
in a "competent" manner because of some failure on its part to discover
and record any asserted "hazardous conditions" which may be present it
must first be established through competent credible evidence that such
hazardous conditions existed and were readily obvious to the certified
person making the examination.

1074

While I agree with the petitioner's interpretation- of what constitutes
an examination pursuant to section 77.1713, the evidence and testimony
adduced by the petitioner in this case in support of the citation simply
does not establish a violation. It seems clear to me that the petitioner's
position is that since there was a massive fall of rock from the highwall,
the on-shift examiner was somehow derelict in his duty by not recording
the hazardous conditions which led to that fall when he conducted his
required inspection the day before the fall. However, as previously noted,
I have concluded and found that the petitioner did not establish that
such hazardous conditions existed and I have rejected petitioner's assertion
that the highwall conditions observed by Inspector Spurlock during his
accident investigation were not significantly different from those which
probably prevailed the day before. Further, as previously noted, the
evidence in this case clearly established that some 100 tons of rock fell
from a 25 to 30 foot wide section of the highwall, and that the remaining
portion of the highwall at or directly adjacent to that fall contained
loose overhanging rock materials. It seems obvious to me that these
conditions were the direct result of the fall and I fail to comprehend
how the petitioner can now argue that the conditions on both days were
the same and that they were somehow readily observable and should have been
apparent to the on-shift examiner.
In view of the foregoing, I conclude and find that petitioner has
presented no credible evidence to support its contention that loose
hazardous materials were in fact present on the highwall area which fell
or that the person conducting the on-shift examination observed such
conditions and failed to record and report them. While it is true that
loose unconsolidated rock materials remained on the highwall after the
fall and that an overhang was present immediately above the wall area
which had fallen out, I am convinced that these conditions were the direct
result of the fall. This is also true for the areas described by the
inspector as being "on each end of the accident scene". The fact that
respondent was only required to blast down that portion of the wall
in the immediate vicinity of the fall to abate the citation strongly
suggests that this was the area which really concerned the inspector. Since
the withdrawal order issued after the accident occurred and the area was
barricaded off and no one was working there, the failure to record those
remaining conditions does not in my view give rise to any violation of
section 77.1713. The purpose of this standard is to alert a miqe operator
of obvious detectable hazards so that corrective action may be taken, and
if necessary, to facilitate the withdrawal of mines from the zone of danger
Accordingly, that portion of the citation which charges a failure to
conduct an adequate inspection and record obvious hazardous conditions is
VACATED.
Lack of state certification on the part of the on-shift examiner.
The facts in this case reflect that part of the respondent's mining
operation is located in the State of Tennessee and part in the State of
Kentucky. The site of the accident took place in that portion of the

1075

mine which has a Mine "ID" number indicating that it is in the State of
Tennessee. Mr. Marcum testified and confirmed that shift foreman Ellison
was not certified in the State of Tennessee, but he did not know why.
Mr. Marcum is certified in both states, and Inspector Spurlock confirmed
that Mr. Ellison was certified by the State of Kentucky. No evidence
was forthcoming as to the requirements for certification in these states,
and there is nothing in the record to indicate the relatiave mine expertise
required by those jurisdictions before one is "certified". In any event,
I believe it is clear from the evidence presented that Mr. Ellison was
not certified by the State of Tennessee and since he was required to
perform duties at the mine in that state, his lack of proper certifiecation
has been established by the petitioner and this specification of the
modified citation is AFFIR11ED.
History of Prior Violations
Respondent's history of prior violations for the period August 6, 1978
through August 5, 1980, as reflected in the computer print-out (exhibit P-1),
shows that the respondent has paid assessments in the amount of $414
for five citations issued during this 24-month period, none of which are
for violations of sections 77.1001 or 77.1713.
On the basis of the record presented in this case I conclude and find
that the respondent has a good safety record and that its history of
prior violations does not warrant any additional increases in the civil
penalties imposed by me on the basis of this criterion. Further, I have
considered the fact that the accident which occurred in this case was
the first of its kind at the mine and that respondent had not previously
been charged with violations connected with pits and highwalls. In addition,
the record reflects that prior to the accident in question the respondent
had no problems with the highwall in question, and except for the accident,
petitioner presented no evidence to reflect that respondent has previously
failed to maintain its highwalls and pits free from hazardous materials.
Size of Business and Effect of Civil Penalties Respondent's Ability to
Continue in Business.
The record reflects that the respondent employs approximately 140 persons
and its annual coal production is approximately 280,000 tons. Its strip
mining operation extends into Kentucky and Tennessee, and the mine in
question is located in Tennessee and employed approxiamtely 29 persons
at the time of the citation (Tr. 223-224). I conclude and find that
responsent is a small-to-medium sized mine operator and this is reflected
in the penalty assessed by me in this case. Further, the parties have
stipulated that any penalty assessment in this matter will not adversely
affect respondent's ability to continue in business and I adopt this
as my finding.
Gravity
On the facts presented here, I cannot conclude that the failure by
the foreman making the examination in question to be certified by the State

1076

of Tennessee constituted a serious violation. The record reflects that
foreman Ellison was certified by the State of Kentucky, and since the
mine property crossed both jurisdictions, I assume that a foreman certified
by one state is just as competent as one certified by another. Further,
absent any evidence by MSHA that the lack of certification was serious
per se, I cannot conclude that it was.
Negligence
A mine operator is presumed to know the law. In this case I find
that the violation which I have affirmed resulted from the failure by
the respondent to exercise reasonable care, and that this constitutes ordinary
negligence.
Penalty Assessment
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
that a civil penalty of $75 is appropriate for the citation which has been
affirmed,
Order
Respondent IS ORDERED to pay a civil penalty in the amount of $75
within thirty (30) days for a violation of 30 CFR 77.1713(a) as detailed
in the section 104(a) Citation No. 0736757, as modified on August 12, 1980.
Upon receipt of payment by the petitioner, this case is dismissed.

Administrative Law Judge
Distribution:
Daniel J. Tribell, Esq., S.A.M. Coal Corp., Box 188, Middlesboro, KY
40965 (Certified Mail)
Thomas A. Grooms, Esq., U.S. Department of Labor, Office of the Solicitor,
280 U.S~ Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)

1077

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

JUN 4 - l9ln
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,
v.
PHELPS DODGE CORPORATION,
Respondent.

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CIVIL PENALTY'PROCEEDING
DOCKET NO. CENT 80-349-M
A/C No. 29-00159-05012
MINE: Tyrone Mine & Mill

~~~~~~~~~~~~~~~~~~-

Appearances:
Linda Bytof, Esq., Office of the Solicitor
United States Department of Labor
11071 Federal Building, Box 36017, 450 Golden Gate Avenue
San Francisco, California 94102
Appearing on behalf of the Petitioner
James Speer, Esq., and Stephen Pogson, Esq.
Evans, Kitchel & Jencks
363 North 1st Avenue, Phoenix, Arizona 85003
Appearing on behalf of the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Federal Mine Safety and
Health Administration, (MSHA), charges respondent Phelps Dodge Corporation
(Phelps Dodge) with violating the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 ~seq.
After notice to the parties a hearing on the merits was held on March
25, 1982 in Phoenix, Arizona. At the conclusion of the evidence the
parties waived their right to file post trial briefs and they further
requested a bench decision.

1078

Based on the evidence I issued the following bench decision:
JURISDICTION
The parties in the pleadings filed in this case admit that the Federal
Mine Safety and Health Review Commission has jurisdiction over the
parties.
SETTLED CITATIONS
Petitioner has moved to vacate citations 162308~ 162309~ 162310 and to
vacate all penalties in connection with those citations. The motion to
vacate is granted. The citations and penalties should be vacated.
Respondent has also moved to withdraw its notice of contest to
Citation 162205 and pay the proposed penalty. That motion is granted,
Citation 162205 the proposed penalty is $72.00 should be affirmed.
CITATION 162203
The petitioner in this citation alleges a violation of Title 30, Code
of Federal Regulations, Section 55.9-11 which provides as follows:
Mandatory. Cab windows shall be of safety glass or
equivalent, in good condition and shall be kept clean.
ISSUES
The issues are whether respondent violated the regulation and, if a
violation occurred, what penalty is appropriate.
FINDINGS OF FACT
Furloughed MSHA Inspector Bill Novinger testified for the petitioner.
On March 11, 1980, inspector Novinger was at the Phelps Dodge mine arriving
there about 7:30 a.m. At that time he saw a Caterpillar loader in the
respondent's crushing area next to the primary crusher. It was parked 35
to 50 yards from the primary crusher. The Caterpillar is a large rubber
tired vehicle with a cab that can be entered seven feet above the ground,
Access to the cab is provided by a ladder.
Inspector Novinger observed that the upper glass of the cab window was
shattered on the left side and short pieces of glass were protruding. The
window itself measures 20 inches wide and 30 inches high. The entire upper
window was broken into four or five pieces. The lower window was missing
altogether.
The inspector and a company representative had the pieces of glass
removed with the worker holding a cloth to protect his hand. The hazard
here was that the glass could fall out and strike a worker either inside or
outside the cab. Vibration could also cause the glass to jiggle out and

1079

strike the driver. The citation was abated the following day. The inspector extensively reviewed the company records and reached a conclusion
that some of the shop people were not aware of some of the defects in the
equipment.
DISCUSSION
Witnesses Terrazas and Shupe offered by the respondent, in my view,
do not establish a defense for this violation. Witness Terrazas reviewed
the company records and they indicated that two days before this citation
was issued the loader was in the repair shop for some welding work,
Ordinary procedure would require somebody in the welding shop to have repaired the broken window, This was apparently not done and there was no
record from the shop of it having been done,
Respondent 0 s code of safety practices and the operator 0 s checklist (Rl
and R2) merely establishes that the company has an internal procedure to be
followed if defective equipment enters the repair shop, However, there is
no evidence indicating that the window was repaired when the loader was in
the shop for other repair work,
The most devastating evidence offered by the government in this
particular citation is that this equipment was in close proximity to the
workers and sitting on the ready line where any worker could use it, In
this condition, there was no reason it couldn't have been seen by a
supervisor and ordered removed from service. I further note that when the
MSHA representative and the company official called for a worker to start
the equipment, he was able to do so. The equipment, at that time, was
obviously not locked out, nor had it been removed from service.
The law is clear in these circumstances that where defective equipment
is available for use, the mine operator must be held in violation of the
mandatory standard.

CIVIL PENALTY
The criteria for establishing a penalty and for assessing such a
penalty is contained in 30 U.S.C. 820(i). Considering that statutory
criteria, I deem that the proposed civil penalty of $48 for the violation
of citation 162203 is appropriate and should be affirmed,
CITATION 162312
Petitioner in this citation alleges that respondent violated Title 30,
Code of Federal regulations, Section 55.9-2 which provides as follows:
Mandatory. Equipment defects affecting safety shall
be corrected before the equipment is used.

1080

FINDINGS OF FACT
MSHA representative Charles Price inspected the Phelps Dodge work site
in March 1980. The inspector observed an "electra-haul" vehicle which has
a hauling capacity of 170 tons. The vehicle has six large tires each with
a diameter of ten feet, six inches. A strip of rubber (two inches deep by
two and a half to three feet long) was missing on the outside portion of
the rear tire. "Electra-Haul" vehicles move at 5 to 30 miles per hour in a
pit area which has a number of grades in it.
On the same day of the inspection, witness Jack M. Alexander was
present. Mr. Alexander has attended a number of training schools on the
functions and hazards of tires and their rim components. He has studied
the company literature on the matter and has extensive work dealing with
Goodyear tires in his last 30 years in that particular field.
The particular tire on this truck was manufactured by the Goodyear
Company. The tires are made from a radial base ply and there are six steel
breakers above the body ply. The tread is 2-1/4 inches deep when the tires
are new. The purpose of the rubber tread is for traction and the steel
breakers are made of steel. The missing portion of the tire tread had come
off near the shoulder of the tire. It was possible to see the top
breakers. The strength of this tire was as good as the one next to ito
There were 3,000 to 5,000 miles of safe operation left in this particular
tire. The missing tire tread was not in contact with the pavement. A
blowout would not occur unless at least three to four metal breakers are
disrupted. The metal in this tire was in good condition.
DISCUSSION
The regulation at Part 55.9-2 has two facets.
concerns whether there is an "equipment defect."

The first portion

Petitioner can establish a prima facie showing of a defect by proving
that the equipment was being used in a different condition from that in
which it was received from the manufacturer. Obviously, Goodyear Tire does
not supply tires with portions of the tread missing. Accordingly, I conclude that an "equipment defect" existed.

JJ

The second requirement of the standard is whether the equipment defect
"affected safety". In this regard, I find the witness, Jack M. Alexander,
to be credible as he has broad experience in tires of this type. On the
other hand, petitioner's witness, MSHA inspector Price, disavows any claim
of expertise as to tires. Inasmuch as I find witness Alexander to be
credible, I believe his testimony that the equipment defect involved here
did not affect safety. For that reason, I conclude that citation 162312
should be vacated.
1/ In Allied Chemical Corporation, WEST 79-165-M (March 1982) (pending on
review) a violation of this standard was ruled to have occurred when the
mine operator used equipment that did not contain an integral part (a
chock) originally provided by the manufacturer.

1081

Petitoner's counsel argues in her closing argument that the term
"affecting safety" should be broadly construed. I agree. The regulation
is a broad t.nnbrella inasmuch as the purpose of the Federal Mine Safety and
Health Act of 1977 and its predecessors is to promote the safety of miners.
I also have no quarrel with the cases she cites that safety had been
affected in situations involving loose lug nuts, a rusted out brake, and
inoperative rear signals. However, dealing with the evidence in this case,
I do not find that the defect on this tire was one that "affected safety."
Counsel for the petitioner also argues that there was a lack of
balance in the defective tire. This condition could put more pressure on
one tire than the other. That may be, but the evidence fails to establish
that such a lack of balance was one that would affect safetyc
Based on the foregoing findings of fact, the conclusions of law~ I
enter the following order:

ORDER
1.

Citation No. 162203 and the proposed penalty of $48 are affirmed.

2.

Citation Noc 162308 and all penalties therefor are vacated.

Citation No. 162309 and all penalties therefor are vacated.
3
4. Citation No. 162205 and the proposed civil penalty of $72 is
affirmed.
0

5.

Citation No. 162310 and all penalties therefor are vacated.

6.

Citation No. 162312 and all proposed civil penalties are vacated.
POST TRIAL ORDER

The foregoing bench decision is affirmed.

Judge

, 1082

Distribution:
Linda Bytof, Esq.
Office of the Solicitor
United States Department of Labor
11071 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, California 94102
James Speer, Esq.
Stephen Pogson, Esq.
Evans, Kitchel & Jencks
363 North 1st Avenue
Phoenix, Arizona 85003

1083

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

)
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Pet it ioner P

JIJN 7 - 1982

CIVIL PENALTY PROCEEDINGS

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DOCKET NO. WEST 81-1~-M
A.C. No. 42-00712-05015
MINE: Arthur Concentrator

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v.

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KENNECOTT COPPER CORPORATION,

DOCKET NO. WEST 80-474-M
A.C. No. 42-00149-05013 I

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Respondent.

DOCKET NO. WEST 80-360-M
A.C. No. 42-00149-05011 H

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MINE:

Bingham Canyon

Appearances:
James R. Cato, Esq., Office of the Solicitor
United States Department of Labor
911 Walnut Street, Suite 2106
Kansas City, Missouri 64106,
for the Petitioner.
Kent W. Winterholler, Esq. and John B. Wilson, Esq.
Parsons, Behle & Latimer
79 South State Street
Salt Lake City, Utah 84147,
for the Respondent.
Before:

Judge Virgil E. Vail
DECISION
STATEMENT OF THE CASE

The above three cases, which were consolidated for hearing, involve
alleged violations of Section llO(a) of the Federal Mine Safety and Health
Act of 1977 (hereinafter the Act), 30 u.s.c. 820(a) (Supp. III, 1979).
A hearing on the merits was held in Salt Lake City, Utah on April 27,
1982, where the parties were represented by counsel. Post hearing briefs
were waived.

1084

STIPULATIONS
At the outset of the hearing, the parties stipulated as follows:
1. The Bingham Canyon Mine and Arthur Concentrator of Kennecott
Minerals Company are subject to the Federal Mine Safety and Health Act and
the jurisdiction of the Federal Mine Safety and Health Review Commission.
2. The past record of citations against the Bingham Canyon Mine and
Arthur Concentrator are such that it would neither warrant an increase or
decrease in the amount of a penalty, if the Court should decide that a
penalty was warranted in either one of the three cases.
3. The Bingham Canyon Mine and Arthur Concentrator of Kennecott
Minerals Company are considered large in their relationship to other
operations of this type.
4. The two individuals who issued the citations involved in this case
are duly authorized representatives of the Secretary.
ISSUES
Whether the respondent violated the Act or regulations as charged by
the Secretary and, if so, the amount of the civil penalties which should be
issued.
DECISION
At the hearing, documentary exhibits were received and witnesses
testified on behalf of the operator and MSHA. At the conclusion of the
taking of evidence, the parties waived the filing of written briefs,
proposed findings of fact and conclusions of law. Instead, they agreed to
make oral argument and have a decision rendered from the bench. That
decision which appears below with only nonsubstantive corrections is
affirmed as my final decision at this time. lf
DOCKET NO. WEST 81-17-M
This involves Citation No. 577414 issued on June 4, 1980, and involves
a 104(a) violation of mandatory safety standard § 55.12-19 which states
as follows:
Where access is necessary, suitable clearance shall
be provided at stationery electrical equipment or switch gear.

Jj

Tr. 225-235.

1085

The citation No. 577414 reads as follows:
Suitable clearance and/or adequate access was not observed
to the six electrical disconnect switches/starters/circuit
breakers at the east end of the tripper floor. Access clearance was blocked and made difficult by the following materials
stacked in and around the electrical switches: (1) Numerous
grease/ oil-soaked cardboard boxes partially filled with oily
rags; (2) two dollies; (3) one empty large cardboard box;
(4) one 18" x 18" (approx.) piece of heavy metal; (5) one z4u
x 3011 piece of thick rubber-like material; ( 6) several long
pieces of wood. Employees are in this area daily. !J
The issue in this case is whether or not suitable clearance was
provided in the area near and around the switch boxes~ described as the
east end of the tripper floor? Petitioner argues that there was not
suitable clearance or what I interpret to mean access for personnel to the
particular switch boxes located in the tripper area. Respondent argues
that it was not necessary for there to be access to these switches, as
there were other places where the equipment that was hooked up to the
electrical boxes could be disconnected or the electricity turned off,
Respondent further argues that if quick access was required to the
particular disconnect switches to the machinery in the area cited herein
due to an emergency, there were other ways to deal with this and it woulri
not be necessary to use the switches at the east end of the tripper floor.
I find a preponderance of the evidence shows that in the area cited
under Citation No. 577414, particularly the pictures, demonstrate
graphically there was considerable debris, clutter, and material which
prevented quick access to these particular electrical boxes. Evidence
shows that those electrical boxes would be of considerable help in case
there was an emergency where it would be necessary to have a quick
disconnect of electricity to machinery in the area. Depending upon where
the person who was to be responsible for turning the equipment off was
located, he would have a difficult time getting through the debris that
existed in this area. Exhibits P-3, P-4 and R-1 shows the various items of
debris that the MSHA inspector observed at the location covered under the
citation. There appears, from looking at Exhibit R-1, to be space to the
right side of the debris where a person could walk through. However, a
broken 2 x 4 on the floor, as well as the other debris, I feel constitutes
a violation of 55.12-19.
I find the proposed assessment amount of $195.00 is reasonable in view
of the fact that this is an area where the respondent's employees would go

2/

Exhibit P-1.

1086

regularly to use products from a grease cabinet located in the area and
would be aware of the conditions that existed there.
DOCKET NO. WEST 80-360-M
Docket No. WEST 80-360-M involves a 107(a) order of withdrawal and a
104(a) citation for a violation of mandatory safety standard § 55.12-14
which states in part as follows:
Power cables energized to potentials in excess of 150
volts phase-to-ground shall not be moved with equipment
unless sleds or slings, insulated from such equipment
are used. When such energized cables are moved manually,
insulated hooks, tongs, ropes or slings shall be used unless suitable protection for persons is provided by other
means... .
Citation No. 576222 issued in this case states as follows:
The Michigan front-end rubber tire dozer was moving
the energized 5000 volt power cable to the No. 45
shovel on the 6440 level with the dozer blade causing
a potential shock hazard. The slings on either side
of the protective insulated mats were not being used.
The employee on the ground near the front end dozer
was using tongs to help move the cable. 1/
The issue is whether the power cable was being moved in such a manner
as to jeopardize the employees health and safety?
Petitioner alleges that the testimony of the inspector should be
believed in that he observed this activity of the dozer moving the sled
upon which the cable was located and in so observing saw the cable come in
contact with the blade of the dozer. He also testified he saw an employee
in contact with the equipment.
Respondent argues that they were not in violation of § 55.12-14 for
the reason that they were using a sled and that the cable did not come in
contact with the equipment nor did the employee come in contact with either
the cable or the end loader.
I find the most credible evidence in this case is that of the operator
of the end loader and respondent's employee who testified that he assisted

3/

Exhibit P-9.

1087

in moving the cable with a hook. Testimony in the case was that the cable
lay in a trough through a mat of rubberized material {sled) covered with
another strip of material on top of the cable. In the process of moving
the sled the strip of material covering the cable came loose and that this
is probably what the inspector saw and thought was the cable coming in
contact with the blade. The fact that the inspector was not at the area
where this was taking place, but observed it from afar (estimated to be 150
yards) makes the credibility of the two other witnesses more believable,
and based upon that evidence I am going to vacate Citation No, 576222,
DOCKET WEST NO. 80-474-M
Docket No. WEST 80-474-M involves a 104(a) violation of mandatory
safety standard 55.9-22 which provides as follows:
Berms or guards shall be provided on the outer bank
of elevated roadways.
Citation No. 576220 which states as follows:
12 feet of the outer bank on the 6040 level haul
road was not provided with a berm to prevent the
electrical preventive maintenance truck No, 803
from going over the elevated bank, injuring two
employees. The distance from the 6040 level'to
the 5990 level is approximately 50 feet.
Both parties stated that there were no witnesses to what happened and
a decision as to what occurred must be based upon a careful review of all
of the evidence. The evidence that was admitted in the manner of exhibits
and testimony does not clearly point to what actually occurred. I see the
issue, having heard all of the evidence and observed all of the exhibits
that were submitted, is, whether the area where the truck went over the bank
had fallen prior to its arrival there eliminating the berm or collapsed
from the truck backing up to near the edge causing the bank to fall?
Respondent argues, based on the testimony of the driver, that he
backed up to approximately 8 to 10 feet from the edge of the bank and
stopped preparing to go ahead when the truck went over the embankment.
Further, that members of respondent's safety investigative team were of the
opinion that material at the bottom of the embankment resulted from the
sloughing !!./ when the truck backed up to this point and went over the
bank. Respondent further argued that Kennecott management has a good berm
policy and they inspect for berms all the time which makes it unlikely that
there was not a berm at this particular location.

4/ Sloughing is defined in Websters New Collegiate Dictionary as:
crumble slowly and fall away."

1088

11

to

Petitioner argues that based on the testimony of the inspector who
arrived at the scene shortly after the accident and the pictures and other
documents submitted in the way of evidence, that the material at the bottom
of the area that apparently sloughed off does not indicate that it happened
at the time the truck went over the bank and, therefore, there wasn't a
berm at the top. Petitioner maintains this particular area had sloughed
prior to the time the truck backed up there.
It is not a question so much as to whether or not at one time there
had been a berm at this location, because the evidence shows a berm on both
sides of the area where the truck went over which appears to have been
adequate when it was installed. The question here is whether the embankment fell at sometime eliminating the berm prior to the electrical
maintenance truck backing up here, or did the truck's presence and weight
cause the bank to collapse thus eliminating the berm at that time?
Delbert S. Tapp, driver of respondent's truck involved in this
accident, was asked on direct examination whether or not there was a berm
where the accident occurred and he stated: "No, I didn't notice" (Tr. 170).
On cross examination, Mr. Tapp was again asked if he saw a berm at this
location and answered: "Not necessarily 1 I canut say as I did or didn 1 t,
because I wasn 1 t paying attention" (Tr. 177-178). The witness was vague
about this. I realize he was called by the petitioner· to testify and I had
the impression he was uncomfortable. I was surprised that it was his and
everyone else's observation of the facts that Tapp stopped at the distance
that he said he did from the edge of the bank (8 to 15 feet) and did not
observe a berm, if one existed. I further find that the photographic
evidence, and particularly Exhibits P-15 and P-16 show a large indentation
and gapping hole on the top of the embankment, and Exhibit P-19 shows a
large sloughed area, yet there is not a great amount of loose material
shown at the bottom of the embankment as might be expected if the area
caved when the truck backed onto the top area. I also note in Exhibit P-10
that there is little evidence of material around the truck where it ended
up on its side after going over the bank. There is some material near the
truck shown on the photos but with the size of the area that was supposedly
sloughed off, I would expect a larger amount of material at the bottom and
some on top of the truck which I don't see in the pictures.
I find that the most credible evidence is that the driver of the truck
backed up and over the edge of the embankment causing the truck to fall to
the bottom. I'm convinced that there was not a berm at this particular
location and that it was erradicated when the area sloughed off at an
earlier time. I further find that respondent had a policy of inspecting
the respondent's mine for berms and repairing them when they needed
repairing but they failed to see the need for repair in the area involved
in this accident. Respondent should have observed this condition if their
policy was working but apparently it is not infallible.

1089

As to the amount of the penalty to be assessed in this case, I find
that this area was not an area that was in regular use. The history of
respondent's prior violations is such that the penalty should be- neither
increased or decreased, but that they had a prior berm violation which was
not refuted. The gravity of the violation is serious as shown by the fact
that the two employees in the truck were injured with one sustaining a
broken arm. Based upon the six criteria, four of which were stipulated to,
I find a penalty of $750.00 is appropriate.
ORDER
It is ORDERED that the bench decision rendered in Docket Nos. WEST
81-17-M, WEST 80-474-M and WEST 80-360-M is hereby affirmed.
It is ORDERED that the Citation No. 576222 issued in Docket No. WEST
80-360-M is hereby vacated.
It is ORDERED that respondent pay the penalty in the amount of $195.00
for Citation No. 577414 and the penalty in the amount of $750.00 for
Citation No. 576220 totaling $945.00 within thirty (30) days of the date of
this decision.

~,£-~£~{,
Virgil F'J1Vail
Administrative Law Judge
Distribution:
James R. Cato, Esq.
Office of the Solicitor
United States Department of Labor
911 Walnut Street, Room 2106
Kansas City, Missouri 64106
Kent w. Winterholler, Esq.
John B. Wilson, Esq.
Parsons, Behle & Latimer
79 South State Street
P .o. Box 11898
Salt Lake City, Utah 84147

1090

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 7-1982

Civil Penalty Proceedings

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No: WEST 81-219-M
A.O. No: 48-00154-05001 H
Docket No: WEST 81-232-M
A.O. No: 48-00154-05002 S68

v.
.MOUNTAIN WEST CONSTRUCTION, INC.,
Respondent

Big Island Mine

DECISION
Appearances:

Stephen P. Kramer,
., Office of the Solicitor,
U.S. Department of Labor, for Petitioner
Dean W. Clark, Esq., for Respondent

Before:

Judge Moore

The above docket numbers were consolidated for trial and involve
two citations. Citation No. 337616 issued on October 15, 1980, alleges
a violation of 30 C.F.R. 57.4-33·in that 11 there was a welding truck
parked between the buildings at the No. 1 crusher with nobody in attendance
and the oxygen and acetylene cylinders were not shut off." Citation No.
337799 was issued on July 10, 1980 (there was no explanation of the
numbering sequence) and alleges a violation of 30 C.F.R. 57.15-5 in that
"two employees working for Mountain West Construction were observed 75
to 100 feet in the air not using their safety belt and line. The men
were putting bolts and nuts in the steel beams. The two beams had
already been connected.
Very little may be said as to Citation No. 337616. The inspector
saw the welding cart with the oxygen and acetylene lines running into
the fourth or fifth floor of the building. An employee of the mine
operator, (Mountain West was not the operator but an independent contractor)
went in the building came out again and shut off the oxygen and acetylene
cylinders and the inspector assumed that there was nobody in the building
and that the torch was not in use. Later testimony developed the fact
that the torch was in use on an intermittent basis and that it was
attended at all times. The workmen were putting pipe through the building
and using the torch to cut pipe and cut the.metal supports. They would
turn the torch off when they were not using it,but would not go four or
five flights down the steps to shut off the gas at the cylinder. In my
opinion the standard does not require that they go back to the cylinders
every time they decide not to use the torch for a short period of time.·
This citation is vacated.
Citation No. 337799 presents a different problem.
30 C.F.R. 57.15-5 states:

1091

The standard,

"safety belts and lines shall be worn when men work where there is
danger of falling: a second person shall tend the lifeline when
bins, tanks, or other dangerous areas are entered."
The standard clearly states that if there is a danger of falling,
belts and lines shall be worn. MSHA does not so interpret it, however,
so far as high steelwork' is concerned.
While I am not sure it is a universal practice throughout MSHA,
here in southern Wyoming, which is notorious for its high winds, it is
considered hazardous to have a high ironworker tied with a safety line
while the crane is hoisting beams to be attached to others, than to have
him free to move in case the beams should be blown toward him. The MSHA
position is that the workman does not have to use his safety line until
the new beam is in place and one or two bolts have been fitted to hold
the beam in place. When the bolts are being tightened, however, and
perhaps torqued, the workman is supposed to have his line attached.
In the instant case the inspector saw two men, 75 to 100 feet in
the air, sitting on an "I" beam without their lines attached. Someone
in the area told the inspector that the men had finished connecting the
iron together and were now tightening the bolts. He issued the citation
and imminent danger order at the time. The inspector does not remember
who he talked to, but it was a supervisor for Mountain West. The company
witnesses said that they classified their high iron workers in two
distinct groups. One group would go up and connect the steel beams with
two bolts at each end. The bolt~ were not tightened so as to leave
the structure with sufficient flexibility so that more beams could be attached.
When the connectors are finished, they leave the structure and different
workers climb up to tighten the bolts with impact wrenches. This second
group of workers use safety belts, whereas the first group does not.
The evidence indicates that at the time of the citation, the workers
observed by the inspector were connectors rather than bolters. Under
the MSHA policy, they were not required to have safety lines at:tached
and if the unknown Mountain West employee had told the inspector that
they were connecting rather than bolting the inspector would
not have issued the citation.
While it bothers me that MSHA has in effect, modified a safety
standard by interpretation, I do not view my role in these proceedings
as one of a prosecutor charged with strict enforcement of the Act. The
Congress gave that job to the Secretary of Labor, and if he chooses to
apparently relax a standard in the interest of safety, I will not second
guess him. Under the Secretary's policy, however, no violation occurred
in the instant case and the citation and order are accordingly vacated.
The above proceedings are dismissed.

~(. 9?? ~JJi,
Charles C. Moore, Jr.
Administrative Law Judge

1092

Distribution:

By Certified Mail

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
Dean W. Clark, Esq.,
WY 82935

145 North 1st East Street, Green River 0

1093

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of GEORGE D. JUSTICE:
Applicant

v.

JUN 8 - \982.

APPLICATION FOR TEMPORARY
REINSTATEMENT
Docket No. KENT 82-111-D
Case No. PIKE CD 82-10

CANADA COAL COMPANY, INC.,
Respondent

No. 2 Mine

DECISION AND ORDER DENYING APPLICATION
FOR TEMPORARY REINSTATEMENT
On January 22, 1982, Mr. George D. Justice, purportedly
a miner, filed a complaint of discharge with the Secretary
of Labor, alleging that his discharge was in violation of
section lOS(c) (1) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et. seq., the "Act". More than
four months later, on June 3, 1982, the Secretary filed an
Application for Temporary Reinstatement on behalf of Mr.
Justice under the provisions of section lOS(c) (2) of the Act
and Commission Rule 44 (a) , 29 C.F. R. § 2700. 44 (a) (as
amended).
Under amended Commission Rule 44(a), an application for
temporary reinstatement must state the Secretary's finding
that the miner's complaint of discrimination, discharge, or
interference was not frivolously brought and must be accompanied by a copy of the miner's complaint, an affidavit setting forth the Secretary's reasons for his finding and proof
of service upon the operator.
The application herein contains a finding by the Secretary that the miner's complaint was not frivolously brought,
and is accompanied by proof of service upon the operator and
a copy of what purports to be the miner's complaint. While
the application is also accompanied by the affidavit of
Michael Yanak, Jr., an employee of the Secretary (Mine
Safety and Health Administration) / that affidavit does not
set forth the Secretary's "reasons" for his finding that the
miner's complaint was not frivolously brought, as required
by Commission Rule 44(a). A copy of the affidavit is attached
hereto as Exhibit "A".
"Reasons" are essentially statements made to explain or
justify an action or decision and which provide a rational
and sufficient basis for such action or decision.
See

1094

The American Heritage Dictionary of the English Language,
Houghton Mifflin Co., 1976. The affidavit here at issue
essentially sets forth only vague conflicting uncorroborated
allegations.
Considered as a whole, it cannot be said that
the affidavit sets forth sufficient grounds to explain,
justify, or provide a rational and sufficient basis for the
Secretary's finding that the miners complaint was not frivolously brought.
Accordingly, the Application for Temporary Reinstatement
must be denied.

Distribution~

By

Jack T. Page, Esq.,
George D. Justice,

KY
Phyllis, KY

41501

41554

Thomas P. Piliero,
., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203

1095

EXHIBIT "A"

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
IN THE MATTER OF:

Application for Temporary
Reinstatement

SECRETARY OF LABOR,
on behalf of
GEORGE D. JUSTICEv
Applicants
Case Noo PIKE CD 82-10
CANADA COAL COMPANY, INC.,
No. 2 Mine,
Respondent

Docket Noo KENT 82-111-D

A F F I DAV I T
Commonwealth of Virginia
County of Arlington

Michael Yanak, Jr., being first duly sworn, deposes and
states:
1.

I am a Mine Safety and Health Specialist on the staff

of the Off ice of Technical Compliance and Special Investigation,
Mine Safety and Health Administration, located at 4015 Wilson
Boulevard, Arlington, Virginia
2.

22203.

As a Mine Safety and Health Specialist, I had the

responsibility of initially reviewing the report of investigation
of the above-captioned matter.
3.

My review of the report of investigation disclosed

the following:

1096

2

(a) At all relevant times herein mentioned, Respondent
Canada Coal Company, Inc., did business and operated the No.
2 Mine in the production of coal and therefore is an "operator"
as defined in Section 3{d) of the Federal Mine Safety and Health
Act of 1977 (Act) •
(b) At all relevant times herein mentioned, Applicant
George D. Justice, was employed by respondent as a mechanic 0
assigned to work at the subject No. 2 Mine and was a "miner"
as defined in Section 3{g) of the Act.
(c) The subject No. 2 Mine located in or near Kimper 0
Pike County u Kentucky 0 is a '1 mineu• as defined in Section 3 (h) (1
of the Act, the products of which enter or affect commerce.
(d) Mr. Justice was hired by respondent in August
1981, and continued to work in respondent's employ until he
was discharged on or about January 21, 1982.
(e) On or about January 21, 1982, Mr. Justice was
working in the No. 2 section of the subject mine during the
third shift.

During the course of that shift, Mr. Justice

required the need for a sanitary toilet.
(f) Mr. Justice alleges that he made a diligent search
but was unable to locate a sanitary toilet on the No. 2 section
of the subject mine.

He therefore advised his immediate supervisor

of that circumstance and requested transportation to the surf ace
for the purpose of using the surface toilet facilities.
request was refused.

His

Mr. Justice then repeated his request

for transportation to the Company Safety Inspector.

'1097

His request

3

was refused.

Mr. Justice then repeated his request for trans-

portation to the Third Shift Mine Foreman.

The Third Shift

Mine Foreman arranged transportation to the surface for Mr.
Justice.
(g) Once on the surface Mr. Justice was advised to
remain there in order to await the General Superintendento
Thereafteru the General Superintendent discharged Mro Justice,
alleging that a sanitary toilet was available on the No. 2
section.
(h) On January 22, 1982u Mr. Justice timely filed
a complaint of discharge with the Mine Safety and Health Admini

stration alleging that his discharge was in violation of Section
lOS(c) of the Federal Mine Safety and Health Act of 1977.
5.

Based upon the

foregoin~

information the Secretary

of Labor, through his authorized designees, determined that
the complaint of discharge filed by George D. Justice was not
frivolously brought.

Taken, subscribed and sworn before me this
of June, 1982.

Notary Public
My commission expires:

1098

~,...J,

day

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JU~ g - \9B2
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. LAKE 80-11-M
A.C. Noo 11-02360-05002

v.
MACON COUNTY MATERIAL, me .•
Respondent

Macon County Material, Inco
(Dredge and Mill)

DECISION
Appearances:

Leonard A. Grossman, Esq., Office of the Solicitor~
U.S. Department of Labor, for Petitioner;
Charles C. Hughes, Esq., for Respondent.

Before:

Administrative Law Judge William Fauver

This proceeding was brought by the Secretary of Labor under section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et~·' for assessment of civil penalties for alleged violations of mandatory safety standards. The case was heard at St. Louis, Missouri. Both
parties were represented by counsel, who have submitted their proposed
findings, conclusions, and briefs following receipt of the transcript.
Having considered the contentions of the parties and the record as a
whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent, Macon County Material~ Irie.,
operated a sand and gravel pit and plant known as the Macon County, Inc.,
Dredge and Mill, in Macon County, Illinois, which produced sand and gravel
for sales in or substantially affecting interstate commerce.
2. Respondent extracted material from its pit by a dragline and stockpiled the material at various places in its plant. Front-end loaders then
carried the material to conveyor belts for processing through a series of
screens, washers, and classifiers before the material was stockpiled for
sale and shipment to customers.

1099

3. The pit and plant were about three-quarters of a mile apart.
Respondent employed about 15 people with experience ranging from 2 years to
30 years. The pit and plant operated three overlapping shifts per day. The
first shift was 4:30 a.m. to 1:30 p.m., the second 1 p.m. to 10:30 p.m.,
and the third 7 a.m. to 5 p.m. The draglines, loaders, trucks.• mechanics,
and electricians operated only during the third shift.
4. On July 17, 1979, a foremen, Mike Hamrich, removed a guard from the
5/8 belt conveyor tail pulley and a guard from the Mason sand tail pulley in
order to run the belts under load to see where the belts might need adjustment. In violation of company safety policy, Mr. Hamrich failed to replace
the guards after this test.
5o Also on July 17~ the front-end loader operator, Les Patrick, disconnected the backup alarm on his equipment. This action was in violation
of company safety policy.

6. Also that morning, Respondent's electrician, Mark Sadorous, unlocked
the gate to No. 3 7,200-volt transformer station to work on the transformerc
When he left the station he failed to lock the gate to keep out unauthorize<"
personnel. This action violated company safety policyo
7. Later in the day, on July 17, 1979, Federal Inspector Bill Henson
inspected Respondent's pit and plant.
8. The inspector observed that tbe 5/8 belt conveyor tail pulley was
operating without a guard. He observed one person cleaning in the area.
The tail pulley was about 5 feet above the surface. Inspector Henson charged
Respondent with a violation of 30 C.F.R. § 56.14-6 (failure to install guards
on moving machinery parts). Citation No. 362872 reads in part: "The tail
pulley guard on the 5/8 belt conveyor was not in place." The cited condition was abated promptly by placing a guard on the tail pulley.
9. The inspector also observed that the guard was missing from the Mason
sand belt conveyor tail pulley, which was in operation. He observed no one
in the ar~a during the inspection, but it was likely that miners would pass
through it. The tail pulley was about 5 feet above the surface. Inspector
Henson charged Respondent with a violation of 30 C.F.R. § 56.14-6 (failure to
install guards on moving machinery parts). Citation No. 362873 reads in part:
"The tail pulley guard on the mason sand belt conveyor was not in place."
The cited condition was abated promptly by installing a guard on the tail
pulley.
10. The inspector next observed the 980 Caterpillar front-end loader
being operated in reverse without an automatic reverse signal. He observed
that the back-up alarm on the loader was disconnected. There was an
obstructed view to the rear of the loader and an observer was not present
to signal the operator when it was safe to travel in reverse. Inspector
Henson charged Respondent with a violation of 30 C.F.R. § 56.9-2 (failure

1100

to correct equipment defects). Citation No. 362874 reads in part: "The
automatic reverse signal alarm on the 980 Cat. End loader was not operable."
The cited condition was abated immediately by reconnecting the alarm.
11. Finally, the inspector observed that the gate to the No. 3,
7,200-volt transformer station was unlocked. The transformer was energized.
Inspector Henson charged Respondent with a violation of 30 C.F.R. § 56.12-68
(failure to keep transformer enclosures locked). Citation No. 362875 reads
in part: "The No. 3 transformer station was not locked to prevent unauthorized entry." The cited condition was abated promptly by locking the gateo
12. Respondent has received safety awards from MSHA and the National
Sand and Gravel Association in 10 of the 11 years of operation" There has
been only one injury resulting in lost work time. Respondent had received
only one citation before the instant inspection and has never received an
employee safety complaint.
DISCUSSION WITH FURTHER FINDINGS
Based on citations issued on July 17, 1979, the Secretary has charged
Respondent with two violations of 30 C.F.R. § 56.14-6, which provides:
"Except when testing the machinery, guards shall be securely in place while
machinery is being operated."
The Secretary argues that the guards for the tail pulleys on the 5/8
conveyor and the Mason sand belt were not in place while the equipment was
in operation, and that there was no evidence that the equipment was being
tested at the time of the inspection.
The Secretary proposes a penalty of $36 for each of these violations.
Based on a citation issued on July 17, 1979, the Secretary has charged
Respondent with a violation of 30 C.F.R. § 56.9-2, which provides: "Equipment defects affecting safety shall be corrected before the equipment is
used. 11
The Secretary argues that the 980 CAT front-end loader was operating in
reverse without an operable automatic warning device and the operator had
an obstructed view to the rear with no observer to signal the operator when
it was safe to back up.
The Secretary proposes a penalty of $28 for this violation.
Based on a citation issued on July 17, 1979, the Secretary has charged
Respondent with a violation of 30 C.F.R. § 56.12-68, which provides: "Transformer enclosures shall be kept locked against.unauthorized entry."
The Secretary argues that, at the time of the inspection, the gate to
the No. 3 7,200-volt transformer station was unlocked and seeks a penalty
of $40 for this violation.

1101

Respondent has admitted to the facts alleged in each citation, but
argues that it should be relieved of liability because each of the violations
was committed by an experienced employee who acted contrary to company safety
policy and that the company had no knowledge of or reason to know of the
violations.
The Federal Mine Safety and Health Act of 1977has been construed to be
a strict
statute (Warner Company, 1 MSHC 2446 (June 9, 1980))~ so
that an operator 9 s liability is not conditioned upon fault (Ace Drilling
Coal
1 MSHC 2357 (April 24, 1980); United States Steel Corp.s
MSRC
September 17, 1979); and Peabody Coal Co., 1 MSHC 2215
(October 31, 1979)). As stated in Ace Drilling, supra, the actions of an
employee are deemed to be the operator 9 s actions for purposes of determining
liability for conduct regulated by the Act (at 2358). While an employee's
negligence may be considered in assessing penalties; it has no bearing on
the fact of violation (El Paso Rock Quarries, 2 MSHC 1132, and 1135
(January 29~ 1981)).
Each of the violations here constituted a serious hazard and could
ly contribute to a mine accident causing death or serious bodily
injury.
Before the inspection, Respondent had an excellent safety record insofar
as reported accidents and conditions disclosed by inspections. However,
to the extent of the violations revealed by the inspection on July 17, 1979,
the company's safety rules, policies, training, and supervision had not been
effective and can be improved.
Considering the statutory criteria for assessing penalties, and giving
weight to the company's excellent prior history and its good faith efforts
to abate the conditions cited, it is determined that nominal penalties are
justified in this case. These may serve as a record and formal reminder to
the company that steps are needed to achieve more effctive compliance with
the safety standards promulgated under the Act.
CONCLUSIONS OF LAW
1. The undersigned judge has jurisdiction of the parties and subject
matter of this proceeding.
2. On July 17, 1979, Respondent violated 30 C.F.R. § 56.14-6 as alleged
in Citation No. 362872; violated 30 C.F.R. § 56.14-6 as alleged in Citation
No. 362873; violated 30 C.F.R. § 56.9-2 as alleged in Citation No. 362874;
and violated 30 C.F.R. § 56.12-68 as alleged in Citation No. 362875.
3. Based upon the statutory criteria for·assessing a civil penalty for
a violation of a mandatory safety standard, Respondent is assessed a penalty
of $25 for each of the above four violations.

1102

ORDER
WHEREFORE IT IS ORDERED that Respondent, Macon County Material, Inc.,
shall pay the Secretary of Labor the above-assessed civil penalties, in the
total amount of $100.00, within 30 days from the date of this decision.

U/~~v~
WILLIAM FAUVER, JUDGE

Distribution:
Charles C. Hughes, Esq., Welsh, Kehart & Shafter, P.C., P.O. Box 871,
457 Citizens Building, Decatur, Illinois 62525
William C. Pasternack, Esq., US Department of Labor, Office of the
Solicitor, 230 S. Dearborn St., Chicago, IL 60604

1103

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
HINE SAF:CTY AND HEALTH
ADMINISTRATIOi'J (MSHA) ,
Petitioner
v.

Civil Penalty Proceeding
Docket No. LAKE 82-35-H
A.O. No. 12-00820-05031
Minntac Mine

UNITED STATES STEEL CORPORATION,
Respondent
UNITED STATES STEEL CORPORATION,
Contestant
v.

Contest of Order
no, LAKE 82-6-Rl1
Order No. 486720; 9/10/81

~ocket

SECRETARY OF LABOR,
MINE SAFETY AJ.~D HEALTH
ADMINISTRATION (MSHA),
Respondent

Minntac Hine

LOCAL UNION NO. 1938, DISTRICT 33,
UNITED STEELWORKERS OF AMERICA,
Representative of the Miners
DECISION
Appearances:

Robert A. Cohen, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, on behalf of
the Secretary of Labor;
Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, on
behalf of United States Steel Corporation;
Clifford Kasenan, Safety Chairman, Local Union 1938,
United Steelworkers of America, Virginia, i.1innesota, on
behalf of the Representative of the Hiners.

Before:

Administrative Law Judge Broderick

STATEHENT OF THE CASE
The two cases have been consolidated since they both involve the
same order of withdrawal. The notice of contest filed by U.S. Steel

1104

challenges the validity of the order and the civil penalty proceeding
seeks a penalty for the violation charged in the order. Pursuant to
. notice, a hearing was held on the consolidated cases in Duluth,
Minnesota on March 24, 1982. Federal mine inspector Thomas Wasley and
Terry Martinson testified on behalf of the Secretary. Nick Brascugli,
Herbert Brandstro~. Randall Pond and Phillip Anderson testified on
behalf of U.S. Steel. No witnesses were called by the Representative
of the Miners. The Secretary and U.S. Steel have filed posthearing
briefs. Based on the entire record and considering the contentions of
the
, I make the following decision.
FINDINGS OF FACT

1. At all times pertinent to this proceeding, U.S. Steel was the
operator of the Hinntac Plant, a mine as defined in the Federal iUne
Safety and Health Act of 1977. The subject plant produces goods which
enter interstate commerce.
2. U.S. Steel is a large operator, and the assessment of a
will not affect its ability to continue in business.
3. A total of 180 violations were assessed against the subject
mine within the 24 months prior to the violation involved herein, of
which 170 have been paid.

4. Respondent demonstrated good.faith in abating the condition
after the issuance of the order involved in this proceeding.
5. An order of withdrawal had been issued under section 104(d)(l)
of the Act on March 31, 1981, for an alleged violation of 30 C.F.R.
§ 55.15-5.
6. The order of withdrawal referred to in Finding 5 was issued
during a regular mine inspection which was completed prior to the
issuance of the order involved in this proceeding.
7. The Inspector was regularly in the subject facility between
March and September, 1981. However, he did not carry out a complete
inspection of the facility between March 31, 1981 and September 10,
1981.
8. The subject plant cont~ins an agglomerator in which iron ore
concentrates are formed into pellets, fired at high temperatures, cooled,
and shipped out to steel mills.
9. Cooling of the pellets takes place in.a large structure called
a cooler where outside air is drawn in through large fans to cool the
bed of pellets.

1105

10. The cooler is a vessel with a donut-like shape. The heated
pellets are dumped into the cooler on to castings or pallets, which
rotate slowly around the cooler, following which the pallets are
tipped to a vertical position and the taconite pellets are dumped into
a bin below the cooler.
11. There is a door to the cooler through which maintenance
personnel go in to inspect or make repairs on the inside of the vessel.
12. On June 10, 1981, a maintenance crew entered the cooler to
patch a burned-out area on the load wall of the c9oler.
13. Before any of the men went into the cooler they dropped
plywood boards to cover the openings which resulted from one of the
pallets being locked in the vertical position. A form was erected in
the shop, placed in the cooler and the patch was made on the wall.
The entire operation took about three hours and a half. The crew was
in the cooler about 45 minutes.
14. The crew left the cooler, after which the foreman inspected
the job and handed out the plywood sheets. After handing out the last
sheet of plywood he pulled himself from the cooler. He was not wearing
a safety belt at the time.
15. When the plywood was removed there were two openings resulting from the pallet being in the vertical position: one was 51 inches
by 44 inches by 8 feet; the other was 11-1/2 inches by 6 inches by
8 feet. The openings go to the dump zone, more than 18 feet below.
16. On September 10, 1981, Inspector Hasley issued a withdrawal
order under section 104(a)(2) of the Act charging an unwarrantable
failure to comply with 30 C.F.R. § 55.15-5.
17. The condition was abated and the order terminated on
September 15, 1981, when U.S. Steel instructed employees entering the
cooler to use a safety belt when a danger of falling into the cooler
exists.
13. At the time the order was issued, U.S. Steel had a company
safety rule requiring the use of a safety belt where there is danger of
falling 5 feet or more.
REGULATION
30 C.F.R. § 55.15-5 provides as follows: "Safety belts and lines
shall be worn when men work where there is danger of falling; a second
person shall tend the lifeline when bins, tanks or other dangerous
areas are entered. 11

1106

1. Did the Secretary establish the prerequisites for a 104(d)(2)
order, i e., was there an intervening "clean inspection" between the
104(d)
order and the 104(d)(2) order?
2.

Is 30 C.F.R. § 55.15-5 impermissibly vague?

3. If it is not, did the evidence establish a violation of
30 C.F.R. § 55.15-5?
4. If a violation was established, was it caused
unwarrantable failure to comply with the standard in

operator's

5. If a violation was established, what is the appropriate penalty
therefor?
CONCLUSIONS OF LAW
1. The U.S. Steel Corporation is sub]ect to the
ions of the
Federal Mine Safety and Health Act of 1977, in the operation of the
Minntac Plant.
2. The undersigned Administrative Law Judge has jurisdiction over
the parties and subject matter of this proceeding.
3. The Secretary established prima facie that there was no clean
inspection of the facility intervening between the 104(d)(l) and the
104(d)(2) orders.

Although U.S. Steel did not specifically raise the issue in its
pleadings, the question whether there.was an intervening clean inspection between the prior 104(d)(l) order and the 104(d)(2) order involved
herein is properly before me. It is MSHA's obligation to establish
prima facie the absence of an intervening clean inspection in order to
sustain the order being challenged. Secretary v. CF & I Steel
Corporation, 2 FMSHRC 3459. Unfortunately, the
bearing on
this issue is skimpy, and possibly conflicting. The Inspector testifed:

Q. Now, when you decided to issue the - the
104(d)(2) order, did you know whether there was a prior
intervening clean inspection that had taken place since
your issuance of the 104 (d) (1) order?

1107

A.

There was not no clean inspection, no.

Q.

And how do you know that?

A. Cuz I was the inspector.
(Tr. 28).

*

I issued the last one.

*

*

*

*

Q. Okay. Now did you inspect Hinntac operations
between March 3rd, 1981 -- March 31, 1981 and September 10th,
1981?
A.

Oh~

sure.

Q.

Were you there every day?

A.

No, not every day.

Q.

Were you there regularly?

A.

Just about.

Q.

And did you cover the entire facility?

A.

Um, I have covered the entire facility, yes.

*

*

*

*

*

Q. So between March 3rd, 1981 -- March 31, 1981, and
September 10, 1981, you had been entirely through the
Minntac Plant?
A. Are you talking about a complete thorough
inspection?

Q. I'm asking you if you went to every area in the
Minntac Plant between March 31st, 1981, and September 10th,
1981.
A. This was a different inspection on -- in March.
That one was completed.
Q.

Between

A.

Then we started another inspection.

1108

Q. But between March 31st, 1981, and September 10th,
1981, you had gone through the entire :Minntac plant?
A.

Well, that's possible I went through there.

(Tr. 54).
I conclude, based on the above testimony, that HSHA established
prima facie that there was not an intervening clean inspection between
the (d)(l) and the (d)(2) orders. U.S. Steel did not offer any evidence
to rebut the prima facie showing.
4. The mandatory standard in 30 C.F.R § 55.15-5 is not
impermissibly vague.
DISCUSSION
The standard in question has been construed by the Conunission in
at least one case. Secretary v. Kerr McGee Corporation, 3 FMSHRC 2496
(1981). Although the issue of vagueness was apparently not raised, the
Commission did refer to the general language of the regulation: 11 As
contrasted with more detailed regulations, it is the kind made
and brief in order to be broadly adaptable to myriad circumstances.
From an operator's standpoint, one benefit of this flexible regulatory
approach is that it affords considerable leeway in adapt,jng safety
requirements to the variable and unique conditions encountered in
different mines." Id, at 2497.
U.S. Steel argues that the regulation is deficient because (1) it
does not specify any distance or depth for the possible fall and
(2) no standards are set for the probability of a fall. I conclude
that the words "danger of falling" (1) eliminate the de minimus situation, i.e., a fall of a few inches or feet and (2) are sufficiently
specific to apprise reasonably prudent operators when safety belts are
required. I also conclude that the standard requires safety belts to
be worn during the entire time when a danger of falling exists. Thus,
one exiting a vessel must wear his belt until he has reached a point
in his exit where the danger is passed.
5. A violation of 30 C.F.R. § 55.15-5 was established by the
evidence in this case.
DISCUSSION
Once the plywood flooring was removed, a workman in the cooler
could fall a distance of more than 18 feet through the larger opening
created by the pallet being in a vertical position. It is true that
the foreman in this instance stated that he positioned himself in such
a way when exiting the cooler that he would fall back on the pallet

1109

rather than toward the large opening. It is also true that the foreman
had crawled out of similar coolers for years without injury, that he
had worked on construction jobs up to 180 feet in the air without a
safety belt, and that it was his opinion that a safety belt was not
needed in the circumstances of this case. Whether a danger of falling
exists must be determined with reference to the ordinary working person.
Considering the foreman's testimony describing how he climbed out of the
cooler (Tr. 115, 119-121), it seems evident to me that an ordinary
working person could have slipped and fallen through the large opening.
There was (and is) a danger of falling in exiting the cooler in question,
Failure to wear a
belt is a violation of the standard.
6. The violation was caused by the unwarrantable failure of the
operator to comply with the standard.
ION

The violation was committed by a foreman, a representative of
management. He should have known of the hazard and should have taken
steps to avoid it. Zeigler Coal Company, 7 IBMA 280 (1970); Cleveland
v. Secretary, 4 FMSHRC 171 (1982).
7. I conclude that the violation was serious, since a serious
injury could have resulted. The violation was the result of the
operator's negligence. I conclude that an appropriate penalty for the
violation is $1,250.
ORDER
On the basis of the above findings of fact and conclusions of law,
IT IS ORDERED that Order No. 486720 issued September 10, 1981, is
AFFIPJ1ED. IT IS FURTHER ORDERED that U.S. Steel Corporation, within
30 days of the date of this decision, pay the sum of $1,250 as.a civil
penalty for the violation of 30 C.F.R. § 55.15-5 charged in the order.

J
Distribution:

.A,tU:~ A-f}rvdR..1/'l e_,Jt

(J•

James A. Broderick
Administrative Law Judge

By certified mail

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Louise Q. Symons, Esq., Attorney for United States Steel Corporation,
600 Grant Street, Room 1580, Pittsburgh, PA 15230
Clifford Kasenan, Safety Chairman, Local Union 1938, United Steelworkers
of America, 307 First Street North, Virginia, MN 55702

1110

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MATHIES COAL COMPANY,

Contest of Citation
Contestant
Docket No. PENN 82-3-R
Citation No. 1142334; 9/22/81

Vo

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)~

Mathies Mine

and

.:

UNITED MINE WORKERS OF AMERICA,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Petitioner

Docket No. PENN 82-15
A.C. No. 36-00963-03181

v.
Mathies Mine
MATHIES COAL COMPANY,
Respondent
DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for the Secretary of
Labor;
H. Juanita M. Littlejohn, Esq., Pittsburgh, Pennsylvania, for
Mathies Coal Company.

Before:

Judge Lasher

A hearing on the merits of this consolidated proceeding was held in
New Kensington, Pennsylvania, on April 8, 1982, at which both parties were
represented by counsel. On April '8, 1982, after consideration of the
evidence submitted by both parties and proposed findings of fact and conclusions of law proferred by counsel during closing argument, a decision was
entered on the record. This bench decision appears below as it appears in
the official transcript aside from minor corrections.

1111

This matter is comprised of a contest proceeding filed
by Mathies Coal Company, herein Mathies, on October 9, 1981,
under section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq.1 herein the Act, and a
civil penalty proceeding initiated by the Secretary of Labor
by a filing on December 7, 1981, under section 110 of the Acto
The citation involved in both proceedings which were
consolidated for hearing and decision by my order dated
April 1, 1982, is numbered 1142334 and was issued by MSHA
Inspector Francis E. Wehr on September 22, 19810 The
allegedly violative condition described in the citation is
that~
"One of the four sanding devices provided for the
Noo 4 self propelled personnel carrier (mantrip) was
inoperative which was going to transport personnel from
Gamble No. 1 to 4 face, 24 butt parallel section ID054. The
sander was empty due to valve that was stuck openo Foreman
in charge Ron Pietrobonio Notice to provide safeguard
lOWC 12-01-7?. o 11 The citation also alleged, in addition to the
purported violation of 30 C.F.R § 7501403 9 that said violation
was of such a nature that it could significantly and substantially contribute to the cause and effect of a mine safety
or health hazard. This latter allegation was accomplished on
the face of the citation by the placement of an X in an
appropriate box. The notice to provide safeguard referred to
on the face of the citation is dated December 1, 1972,
(Exhibit lb) and it provides: "Sanding devices were not
sufficient to supply sand to all wheels in both directions of
travel on Lee-Norse Nos. 1, 2, 3 and 4 and Galis Nos. 5, 6,
7, 8 and 9 self propelled mantrip cars." This obviously has
reference to a specific situation existent at Mathies on
December 1, 1972. Subsequently, this safeguard notice was
amended to provide more reasonable guidance and by citation
issued August 12, 1980, the original safeguard notice was
modified to provide as follows: "This is to modify safeguard
number 1 JWC dated 12/01/72 to include that all mantrips at
this mine.will be provided with properly maintained sanding
devices sufficient to sand all wheels in both directions of
travel."
If not specifically established in the record, I find
from the pleadings herein that on or about 8:20 a.m., on
September 22, 1981, approximately five minutes after the
citation was issued that Inspector Wehr issued a termination
of the citation which indicated: "Adjustment [sic] were made
on the valve and sander fill with sand returning the sander
to a operative condition."
The general issues involved are whether a violation of
section 75.1403 of 30 C.F.R. occurred as alleged by Inspector

1112

Wehr and if so whether such violation was of such nature as
could "significantly and substantially" contribute to the
cause and effect of a coal or other mine safety or health
hazard. And again, if such violation occurred, the amount of
civil penalty which should be assessed in consideration of the
six standard statutory penalty assessment factors provided in
the Act.
Section .75.1403, a general statutory requirement repeated
in the codified mandatory standards contained in CFR, provides:
"Other safeguards adequatell in the judgment of an authorized
representative of the Secretaryt to minimize hazards with
respect to transportation of men and materials shall be
providedo" Authority for the issuance of the aforesaid safeguard notice is contained in section 75.1403-1 and the specific
requirement relating to sanding devices on self propelled
personnel carriers is provided fqr in section 1403-6(b)(3).
At the commencement of the hearing the parties provided
general stipulations with respect to the ownership of the
Mathies Mine wherein the alleged vio~ation occurred and jurisdictional agreements. They further stipulated with respect
to four of the six penalty assessment criteria. Two witnesses
testified for the Secretary of Labor, Coal Mine Inspector
Francis E. Wehr and MSHA Supervisor William A Dupree. Malcolm
Dunbar, Safety Supervisor at Mathies Mine, testified for
Mathies.
Inspector Wehr testified that on the morning of
September 22, 1981, at approximately eight-fifteen a.m. he
was standing on the clearance side of the mantrip in question, which I find-based on other testimony in the record-to
be a Lee-Norse self propelled mantrip car, and observed the
operator of this mantrip car-who, based upon subsequent
testimony in the record, I find to be one Steve Nick-perform
a safety inspection after which Mr. Nick engaged the trolley
pole thereon. According to Inspector Wehr management personnel had previously left the area when this event occurred.
After asking Mr. Nick if he was ready to go and receiving
Nr. Nick's answer that he was ready to go but was waiting for
the foreman to return, Inspector Wehr conducted his own
inspection of the mantrip and determined that one of the
four sanders thereon was malfunctioning. The foreman who had
left the area had gone to find another person to ride with
him on the mantrip. The mantrip was loaded with seven or
eight miners at the time Inspector Wehr discovered the
inoperative sander and was scheduled to travel from the area
where it was observed by Inspector Wehr (called "the bottom")
some sixty-five hundred feet to the section. (The bottom is
marked point "A" on Joint Exhibit No. 1, a mine map, and the
section is marked point "B" thereon).

1113

Inspector Wehr concluded that Mr. Nick, the operator,
had performed his inspection of the mantrip based on his
observation that Nick had pulled the levers controlling the
sanders and had turned around and looked at various points on
the mantrip, for example, the fire extinguisher. When
Inspector Wehr checked the malfunctioning sander in question
he determined that because a valve was stuck the sand contained in the container constituting part of the sander had
been emptied. In other words there was no sand in the sander
to be released in the event such might become necessary during
the trip to the section.
I footnote at this point that the record indicates that
approximately one half a gallon of sand is contained in the
sander and that there are sanders above each of the four wheels
on the mantrip. The record also indicates that the sand is
released on the tracks for the purpose of increasing friction
when the brakes of the mantrip are applied thereby increasing
the stopping power of the mantrip brakeso
Inspector Wehr indicated that the sander would have been
used in the course of going to the section because the mantrip
would have had to change directions. Evidence in the record
in further explanation of this testimony is to the effect that
the mantrip uses only two sanders at any one time determined
by the direction of travel of the mantrip. Thus if one sander
is inoperable, fifty percent of the sanding capacity of the
mantrip is withdrawn insofar as the same relates to its effect
on stopping power. Wehr said Mr. Nick, the mantrip operator,
did not indicate to him that there was a problem.
Inspector Wehr determined that a violation occurred
because the plunger (valve) was open and there was no sand in
the sander. Thus, no sand could be applied to the rails. He
indicated that he considered the violation to have resulted
from the negligence of the mine operator because the condition
of the sander should have been known and that as the operator
checked it the violative condition should have been discovered.
The Inspector indicated that he considered the violation to
have been of the "significant and substantial" variety because
of various factors which he. mentioned were prevalent in the
haulageway. He testified that in addition to the sander not
working there were hills and grades the mantrip would have to
pass over to get to the working section and that the Mathies
Mine is a "wet" mine which has pumps all along it's haulageways. Specifically, he indicated that point "D" on Joint
Exhibit No. 1 gets water in it and that also point "G" gets
water in it. I footnote at this point that Mathies' witness
Malcolm Dunbar indicated that there is at least one location
along the haulageway where water had been observed on the

1114

track. Mr. Dunbar did not recall the conditions on the
track on September 22, 1981, and to the extent there is any
substantial conflict between the testimony of Inspector Wehr
and Mr. Dunbar on this particular point the more specific
testimony of the Inspector is credited.
The Inspector indicated that from point "A" to point
"C" on the mine map there is a small down grade and at point
"D" there is a dip. According to Mr. Dunbar, between point
"D" and "E" there is a 3.4 percent downgrade, from point "E"
to point"F" the haulageway is fairly level and from point "F 11
to point "G" there is an S turn. With respect to visibility
the record, in this case the testimony of Mr. Dunbar~ indicates that the mantrip (sometimes called portabus) has headlights and that while there is some low top the bus has
windows at each end.
The hazard envisioned by Inspector Wehr resulting from
the impairment of the sander was a sliding derailment or
"slamming" into some object on the tracks. The injuries
expected by the Inspector would be broken bones resulting
from crushing blows to people who were thrown around or thrown
out of the mantrip. In Exhibit M-4, the gravity sheet which
Inspector Wehr completed, Inspector Wehr indicated that the
injury contemplated by the occurrence of the event in question
could reasonably be expected to be "fatal." Although Mathiesin taking his deposition as well as at hearing-has challenged
Inspector Wehr's conclusion as to projected injuries from the
occurrence of the anticipated hazard (Exhibit C-6), I conclude
that Inspector Wehr's testimony is reasonable, logical and
credible under all the circumstances. His testimony in this
connection was reinforced by the testimony of Mr. Dupree who
indicated his awareness of fatalities which had occurred in
Utah and Kentucky resulting from sander insufficiency. The
Inspector also indicated his awareness of an accident where a
miner sustained a back injury after being thrown from a mantrip. I therefore find that with respect to the injury
aspect that it is established on this record that upon the
occurrence of the hazard contemplated there exists a reasonable likelihood that a resultant injury would be of a
reasonably serious nature.
The Respondent, Mathies, contends that no violation
occurred in the first place because at the time the Inspector
observed the malfunctioning sander the mantrip operator had
not completed his process of making safety checks.
Significantly, Mathies did not call Mr. Nick as a witness.
Mr. Nick would be the best witness in view of his exclusive
knowledge with respect to the defense raised by Mathies.
Mr. Dunbar testified that after the citation had been issued

1115

by Inspector Wehr he spoke to Mr. Nick and that Mr. Nick told
him that he had completed all safety checks except for his
check of the sanders. I conclude that the direct knowledge
of the Inspector on this vital conflict must be found to
overpower the less probative testimony of Mr. Dunbar. As
pointed out by the Secretary on cross examination and readily
admitted by Mr. Dunbar, Mr. Nick's disavowal to him with
respect to not having completed his safety examination of the
mantrip might have been with a view toward avoidance of disciplinary action. Secondly, Mathies 1 position on this point
is damaged by virtue of its own system establishing
responsibility for making these important safety checkso
Mathies has a written policy placing the responsibility for
such checks on the section foreman, in this case on Ron
Pietroboni, who likewise did not testifyo In any event, like
Mr. Dunbar, Mr. Pietroboni was not in the area at the time the
defective sander was initially discovered by Inspector Wehr,
when Inspector Wehr observed Mr. Nick making the safety check,
when Inspector Wehr asked Mr. Nick as to the readiness of the
mantrip, and when Inspector Wehr made his decision to issue
the citation.
Accordingly to Mr. Dunbar, the foreman 1 s responsibility
for making safety checks can be delegated to others in the
foreman's discretion. Although Mr. Dunbar testified that on
September 22 he did not know who had the responsibility to
make the safety check or who Mr. Pietroboni had delegated
such responsibility to, nevertheless it was Mr. Nick who
Mr. Dunbar conversed with to determine if the mantrip had
been safety checked. I therefore c6nclude that Mr. Nick was
the responsible person to make the safety checks on behalf of
Mathies on the day in question, that he was observed by
Inspector Wehr to make those checks, that he did advise
Inspector Wehr that the mantrip was ready and that for some
unspecified reason the safety check (1) was either not made
as it should have been or (2) was negligently performed----SO-as
not to have revealed the malfunctioning sander. Although I
found Mr. Dunbar to be a sincere and knowledgeable witness
his position from whi.ch to observe the critical event here
was not as close as that of Inspector Wehr whose account of
events I find no basis in the record to discount. I therefore conclude that the violation occurred as charged in the
citation. The mere occurrence of the defective sander under
mine safety law constitutes a violation since liability is
imposed on a mine operator without regard to fault.
ElPaso Rock Quarries, 3 FMSHRC 35, 38-39 (1981).
Based upon Inspector Wehr's account, I find that Mathies
was negligent necessarily in one of three possible regards
raised by the circumstances: (1) in failing to specifically

1116

delegate the responsibility to make a safety check of the
mantrip in question on September 22, 1981; or (2) in negligently conducting the safety check on the mantrip at that
time; or (3) in the failure of the person to whom such
responsibility had been delegated to inspect the sanders in
question. Because the persons having the responsibility or
who may have had the delegated responsibility did not testify,
it is impossible to more specifically determine the person who
was culpable in this instance.
Although Respondent challenged the Inspectorvs testimony
in various respects on the basis that it was inconsistent
with testimony he gave in a prior deposition on October 21 9
1981, I find that the discrepancies are not sufficient to
result in a repudiation of the quality thereof. Briefly,
Respondent during the hearing made a point with respect to
the Inspector's testimony that he had not asked if a safety
inspection had been performed on·the mantrip. It does appear
that the Inspector was asked this question on page seventy-six
(76) of the deposition (Exhibit C-5). Inspector Wehr
answered the question by indicating that, "The individual
(Mr. Nick) running it said it was okay." Subsequently, on
the same page, the Inspector was asked why he didn't ask
Mr. Nick if the safety inspection had been done. I construe
his answer-which is not an articulation of precise thinking-to
be that by asking Mr. Nick if the bus was ready to go the same
subject matter was being solicited from Mr. Nick. Interplay
between highly intelligent, articulate attorneys and sometimes
less sophisticated witnesses frequently will result in
ambiguities and surfaces inconsistencies. I find no basis,
on the attempts made by Mathies in this case, to blur the
otherwise credible testimony of the Inspector.
We turn now specifically to the question whether or not
the violation was of such a nature as can significantly and
substantially contribute to the cause and effect of a mine
safety or health hazard. In Secretary of Labor v. Cement
Division, National Gypsum Company, 3 FMSHRC 822, 825
(April, 1981), the Commission defined the phrase "significant
and substantial violation" as being one, "if based upon the
particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious
nature." I previously found that the actual occurrence of
the event or the hazard contemplated would likely result in
an injury or illness of a reasonably serious nature. The
question I see remaining under the National Gypsum test is
whether or not the violation here contributed to the cause
and effect of a mine safety hazard. The Commission in
National Gypsum noted that the Act does not define the key

1117

terms "hazard" or "significantly and substantially." It was
determined that the word hazard denotes a measure of danger
to safety or health and that a violation "significantly and
substantially" contributes to the cause and effect of a
hazard if the violation could be a major cause of a danger to
safety or health. The Commission also noted that the inspector's "independent judgment is an important element in making
'significant and substantial' findings, which should not be
circumventedo" The effect of the National Gypsum decision
constituted a retreat from the view urged by the Secretary
that a violation is of a significant and substantial nature
so long as it poses more than a remote or speculative chance
that an injury will result, no matter how slight that injury
might beo Prior to National Gypsum most violations were
treated as "significant and substantial. 11 The National Gypsum
case elevated significant and substantial violations to a
middle ground between the technical non-serious category of
violations and "imminent danger" violations. I footnote here
that my own view prior to passage of the 1977 Act was that the
phrase "as could significantly and substantially contribute to
the cause and effect of a mine safety or health hazard" was a
phrase of art which had specific meaning under the 1952 Act
which had been picked up in its entirety under the 1969 Act
and under normal rules of statutory construction, absent
input by interested legislators on both sides of the aisle,
would have transferred a meaning carrying a greater degree of
seriousness than the intermediate ground chosen by the
Commission after the passage of the 1977 Act. In fleshing
out its holding in National Gypsum the Commission did indicate
that "something more than the violation of a standard itself
is required."
In view of the National Gypsum decision I conclude that
the Secretary in this case has carried its burden of proof
with respect to its "substantial and significant" allegation
by showing the wetness, albeit occasional, of the haulageway,
the curves and down grades in the mine and the intrinsic
danger of haulage travel itself. A violation which affects
the braking capacity of a vehicle which carries human beings
under the circumstances described in this case is a relatively
serious violation by its very nature.
I will comment on the failure that I believe occurred in
the record of this proceeding at this point. There was no
showing that the Mathies Mine had an unusual number of sanding
violations or of braking accidents. There was no expert
testimony with respect to the stopping distance loss which
would occur by the loss of one sander or two. There is no
indication of the speed which mantrips ordinarily travel. The
mechanics of how the violation would contribute to the cause

1118

and effect of a violation or accident was not developed.
Those deficiencies, however, are not found to totally offset
the prima facie case which I conclude the Secretary established primarily through Inspector Wehr's testimony.
Based upon the stipulation of the parties, I find that
(a) this is a large coal mine operator which (b) proceeded in
good faith to achieve rapid abatement of the violative condition after notification thereof and which (c) will not be
adversely affected by the payment of penalty in terms of its
ability to continue in business. Mathies, which has a total
complement of five hundred and sixty-eight (568) miners working three (3) shifts, has a record of one thousand fifty-nine
(1,059) previous violations for the twenty-four (24) month
period preceding the commission of the violation in question.
I've found that the coal mine operator was negligent in the
commission of the violation. I 90 not find gross negligence
or willfulness of any degree in the occurrence of the viola~
tion. I find that this was a moderately serious violation
under all the circumstances and, as previously noted, have
found that it contributed to the cause and effect of a safety
hazard as charged by the Secretary. The Secretary, both in
its administrative process and the penalty aspect of this
case and in this hearing, has sought a penalty of a hundred
and thirty ($130.00) dollars. I find no reason on the basis
of this record to reduce or increase that amount. Accordingly, a penalty of one hundred and thirty ($130.00) dollars
is assessed and Mathies is ordered to pay the same to the
Secretary within thirty (30) days from the date of the written
decision which I will subsequently enter incorporating this ·
bench decision.
CONCLUSION OF LAW

A violation which adversely affects the braking capacity of a
personnel-carrying vehicle (mantrip) could significantly and substantially
contribute to both the cause and effect of a mine safety hazard where such
vehicle is expected to encounter wet conditions and to negotiate curves and
downgrades while transporting miners along a mine haulageway.
ORDER
(1) Mathies Coal Company's Notice of Contest is found to be without
merit, and Docket No. PENN 82-3-R is dismissed.
(2) Mathies Coal Company, in Docket No. PENN 82-15 is ordered to pay
the Secretary of Labor a civil penalty of $130 within 30 days from the date
hereof.

1119

(3) All proposed findings of fact and conclusions or Law not expressly
incorporated in this decision are rejected.

Michael A. Lasher, Jr., Judge
Distribution:
David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor~
Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
H. Juanita M. Littlejohn, Esq., and Jerry F. Palmer, Esq., Consolidation
Coal Company, 1800 Washington Road, Pittsburgh, PA 15241
(Certified Mail)

1120

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

3ECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner-Respondent

v.

Civil Penalty Proceeding
Docket No. PENN 82-5
A.O. No. 36-00963-03171
Contest of Citation

MATHIES COAL COMPANY,
Contestant-Respondent

Docket No. PENN 81-230-R
Citation No. 1050403; 7/30/81
Mathies Mine

DECISIONS
Appearances:

Covette Rooney, Attorney, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the petitioner-respondent;
H. Juanita M. Littlejohn, Esquire, Pittsburgh, Pennsylvania,
for the contestant-respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated cases concern a contest filed by Contestant-Respondent
Mathies Coal Company challenging the legality of one citation issued by an
MSHA inspector on July 30, 1981, pursuant to section 104(a) of the Federal
Mine Safety and Health Act of 1977. In addition, Petitioner-Respondent
MSHA seeks a civil penalty pursuant to section llO(a) of the Act for the
alleged violation stated in the citation. A hearing was conducted in
Pittsburgh, Pennsylvania on March 18, 1982, and the parties appeared and
participated therein. The parties waived the filing of posthearing arguments.
Issues
The issues presented in this proceeding include the question as to
whether contestant-respondent violated the provisions of the mandatory safety
standard cited by the inspector in the citation, whether the violation was
"significant and substantial", and the appropriate civil penalty which should
be assessed for the alleged violation.
Applicable Statutory Provisions
1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
seq., particularly sections 104(a) and 104(d)(l).

1121

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i), which require~
consideration of the following criteria before a civil penalty may be
assessed for a proven violation: (1) the operator's history of previous
violations, (2) the appropriateness of such penalty to the size of the
business of the operator, (3) whether the operator was negligent, (4)
·the effect on the operator's ability to continue in business; (5) the
gravity of the violation, and (6) the demonstrated good faith of the
operator in attempting to achieve rapid compliance after notification
of the violation.
3.

Commission Rules, 20 C.F.R.

§

2700.1 et ~·

Discussion
The section 104(a) citation no. 1050403, was issued on July 30, 1981,
by MSHA Inspector Joseph J. Baniak, and the condition or practice cited
is described on the face of the citation as follows:
Evidence observed and measured showed that workers
were 7-1/2 feet inby roof supports and a danger board while
installing line brattice in the unsupported face area of
No. 2 entry 26 Butt section ID 056. This was left from the
mid-night shift. NOTE: This condition was corrected; however, the citation shall not be terminated until the approved
roof control plan is reviewed with the mid-night shift crew
members who left this condition. (No. signs were evident
in the soft muddy bottom that any type of support was installed.
Inspector Baniak charged a violation of mandatory ~afety standard
30 CFR 75.200, and also included a finding in the citation that the
cited condition or practice constituted a "significant and substantial"
violation of section 75.200. The abat·ement time was fixed as 8:30 a.m.,
July 31, 1981.
Inspector Baniak terminated the citation on July 31, 1981, at 8:00 a.m.,
and the action taken by the operator to abate the conditions cited is
described on the face of the abatement notice as follows:
The approved roof control plan was reviewed with the
mid-night shift crew members that worked in the
26 Butt Section I.D. 506.
Stipulations
The parties stipulated to the following (Tr. 5-6):
1.

The Mathies Mine is owned and operated by the respondent,
Mathies Coal Company.

2.

The Mathies Mine is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977.

1122

3.

The Administrative Law Judge has jurisdiction over these
proceedings.

4.

The subject citations were properly served by a duly authorized
representative of the Secretary of Labor at the dates, times
and places stated therein, and may be admitted into evidence
for the purpose of establishing their issuance and for the
truthfulness or relevancy of any statement asserted therein.

5.

The assessment of a civil penalty in this proceeding will not
affect respondent's ability to continue in business.

6.

The appropriateness of the penalty, if any, to the size of
the coal operatorvs business, should be based upon the fact
that the respondent's Company and Mine 1 s annual production
tonnage is one million, four hundred, fifty four thousand,
three hundred forty nine.

7.

The respondent demonstrated ordinary good faith in it's
handling of compliance after the issuance of the citation,

8.

The Mathies Mine was assessed a total of one thousand,
one hundred, ninety one violations during the twenty-four
month period preceding the issuance of the instant citation.
Two hundred five of these violations were issued for violation
of 30 CFR 75.200.

9.

The parties stipulate to the authenticity of their exhibits,
but not to their relevance or for the truth of the matters
asserted therein.

Testimony and evidence adduced by the petitioner
MSHA Inspector Joseph T. Baniak, testified as to his background and
experience, and indicated that he has been a mine inspector for some
eleven years. He confirmed that he inspected the mine on July 30, 1981,
as part of an MSHA "ventilation saturation inspection", and confirmed
that he issued the citation in question (exhibit P-1). The citation
was abated by another inspector and Mr. Baniak identified a copy
of the termination notice (exhibit P-2). Mr. Baniak stated that he
rode the mantrip into the section with inspector escort Tom Rigotti
and section foreman Allan Tedeschi and they proceeded to the working
places through the number three entry to the number two entry. Mr. Baniak
stated that he wanted to inspect the area to determine how it was
left by the previous midnight shift.
Mr. Baniak testified that upon inspection of the number 2 entry
he observed that part of the line brattice was hung 7-1/2 feet inby temporary
roof supports in the last place which had been mined. He measured the

1123

distance with a rule, observed three temporary jacks which had been
installed, two of which were visible, and the other one was behind the
curtain. He issued the citation because he observed the brattice line
attached to the roof and the area was not supported. The mine bottom
was muddy and he observed nothing to indicate that temporary roof support
jacks had been installed five feet from the permamently supported roof
in the.entry crosscut as required by the approved roof control plan. He
also observed foot prints in the area where the line curtain was installed
and he assumed that someone from the previous shift had walked beyond
permanent roof supports to install the line curtain without installing
temporary roof jacks for support. The three temporary jacks which he
observed were installed directly under the roof bolted area in the crosscut and the roof area there was completely bolted in accordance with the
roof control plan (Tr. 9-14).
Mr. Baniak identified a sketch which he prepared for the hearing
and he testified as to the location of the temporary jacks and line
curtain as shown on the sketch (exhibit P-3). He indicated that
mine management agreed with his citation and were in complete agreement
with the conditions which he noted on the citation. · He stated that the
three temporary jacks he observed were 4 or 5 feet apart, that the cut
of coal was completed, and that the entry is approximately 11 feet wide.
He is familiar with the mining method used in the section and indicated
that 20 feet deep cuts are taken in the entry, and ventilation tubing is
installed, and the entry is then cleaned (Tr. 14-19).
Mr. Baniak testified that the line curtain in que~tion would have
been hung at the end of the midnight .shift. He indicated that the curtain
is used when the auxiliary fan is down and that based on the position
in which he found the curtain the fan could not have been down because
the width of the mining machine would have torn it down. He described
the clean-up procedures and indicated that once the first cut or lift is taken,
the machine makes a clean-up pass and ventilation is then provided to a
depth of ten feet. A second pass is made and the clean-up repeats. During
this process, the temporary jack nearest the fan need not be removed to
make a clean-up pass.
Mr. Baniak identified a copy of the applicable roof control plan
for the mine (exhibit P-4) and stated that the conditions he cited
were in violation of mandatory safety standard 75.200 as well as safety
precautions 3-C and 4 found on page 6 of the plan. He indicated that
a small warning danger sign was posted on one of the temporary roof jacks
which were installed. He also identified a copy of his notes which he
made at the time the citation was issued, as well as a sketch of the
scene which are part of his notes (exhibit P-5), (Tr. 20-21). He
believed that the roof control plan was violated for the following reasons
(Tr. 22):

1124

There was no evidence of a temporary support installed
in or near where the spad was driven supporting the
check curtain that was left in number two entry. However, there were many visible signs of footprints because
of the soft muddy bottom. The area was thoroughly examined
prior to issuance of the citation, and it was
upon by management personnel.
Mr. Baniak believed that the violation was "significant and substantial 11
because anytime anyone is under unsupported roof doing work serious injuries
could result (Tr. 27). He also indicated that there have been 36 fatal
accidents in his district and 24 of them were the result of men working
inby permanent roof support. He believed that the respondent was aware
of the conditions because the section foreman and crew members are required
to know about the roof control plan provisions. If a roof fall had
occurred, one or more people would have been directly affected (Tr. 27),
On cross-examination, Mr. Baniak confirmed that he saw no one walk
under unsupported roof and that his conclusion that they did are based
on the foot prints, the position of the brattice line in an area 7-1/2
feet inby permanent supports, and no s
in the mud that any temporary
supports had been installed where the curtain was attached to the roof
(Tr. 32, 34). He also stated that Mr. Ricotti asked him to make the
citation out to him because he was "partly responsible" for the roof
support material (Tr. 35, 37-38).
Mr. Baniak conceded that the sketch he drew in hia,notes at pg. 4
is different from exhibit P-3, and he explained that his notes were
intended as a "reference" to the area where the violations were cited
(Tr. 40, 44). He confirmed that at the time he issued the citation he did
not speak with anyone on the previous midnight shift and did not know
for a fact that anyone walked out under unsupported roof to install
the line curtain (Tr. 47). He stated that the line curtain is hung after
the cut of coal is completed and the machine is moved out. Clean-up
could not have been accomplished with the line curtain installed in the
center of the entry because the machine could not get into the area (Tr. 48).
Had the line curtain been adjacent to the rib, there would be no need
to remove the temporary jacks to clean up. The section was
an
auxiliary fan and tubing for ventilation and this system does not
require temporary support to provide face ventilation (Tr. 50).
Alan Tedeschi testified that he is currently employed by the Jones
and Laughlin Coal Company in a management position and that he previously
worked for the respondent as a section foreman. He confirmed that he was
discharged by the respondent on August 17, 1981, for refusal to work a
scheduled shift. His refusal to work was based on the fact that he had
worked two straight 8-hour shifts and would not work a third one because
he didn't believe he could perform his duties· safely. He also confirmed
a prior disciplinary action against him for missing a day of work, but
he denied harboring a grudge against the respondent (Tr. 86-91).

1125

Mr. Tedeschi stated that he was the section foreman on the day
shift at the time the citation issued and that he accompanied Mr. Baniak
on his inspection. The violation was issued on his shift, but the conditions
cited by Mr. Baniak concern the prior midnight shift. Mr. Tedeschi
confirmed that a cut of coal had been taken out and three temporary
jacks were installed. He observed two of the roof jacks on the right
side of the line curtain and confirmed that part of curtain was inby
these supports. The curtain was 4 or 5 feet from the left hand rib.
He reviewed the sketch prepared by Mr. Baniak and agreed that it generally
depicted the area in question. He also confirmed the fact that he voiced
no objections at the time the citation was issued (Tr. 92-94).
Mr. Tedeschi then described the mining procedures which he followed
in cutting the coal, installing roof support jacks, and the clean-up
process. He saw no foot prints in the area described by Mr. Baniak
because he was not looking for any and he indicated that anyone working
at the face should be aware of the roof control plan. He stated that roof
jacks were to be installed along the left rib line, but the clean-up
should take place before the jacks are set. Further, after the second
cycle of coal is taken out the jacks are not supposed to be removed (Tr. 97-98),
On cross-examination, Mr. Tedeschi reiterated the circumstances
surrounding his termination from the respondentts employ and stated that
he was fired for not showing up for work, and denied that he was discharged
by the mine superintendent for lying to him about his failure to report
to work as scheduled (Tr. 99-103). He confirmed that he did have a
grudge against the respondent at the time he was fired _because he had
lost his job, and confirmed that he told the superintendent that "he
couldn't get away with this" and that he was "going to get Consol" for
firing him (Tr. 105). He also confirmed that he spoke with Inspector
Baniak two weeks before he was subpoenaed and that Mr. Baniak asked him
whether he recalled the incident connected with the issuance of the
citation, but denied that he was pressured by Mr. Baniak and that his
testimony is from his indePendent memory of the circumstances (Tr. 109-110).
Mr. Tedeschi stated that he heard no arguments between Mr. Rigotti
and Mr. Baniak over the citation (Tr. 113), and conceded that the condition
cited by Mr. Baniak "was there", and he agreed that the roof control
plan prohibited anyone going inby the last row of permanent supports
(Tr. 115), but he did not know how the line curtain in question was
attached to the roof because he ·was not there and made no further inquiries
in this regard. Abatement was achieved by supporting the area with three
roof jacks and he assumed that· the condition was left by the preceding
crew (Tr. 117).
Respondent's testimony and evidence
Thomas Rigotti testified that he is employed by the respondent as a
mine environmental technician and that part of his duties are acting
as an escort for MSHA inspectors. He confirmed that he escorted Mr. Baniak

1126

into the number 2 entry on the 26 Butt Section on July 30, 1981, and
that Mr. Baniak served the citation on him. He indicated that the
citation was issued after Mr. Baniak advised him that he saw evidence
that men had worked under unsupported roof. Mr. Baniak assumed that
someone worked under unsupported roof after observing that part of the
line curtain was hung in an area where he believed no temporary roof
supports had been installed. Mr. Rigotti observed no foot prints in the
area and he did not discuss the citation with Mr. Baniak at that time,
but did so later. He denied that he agreed with Mr. Baniak's action in
issuing the citation but he did discuss the fact that Mr. Baniak saw
no evidence that roof jacks had been installed. In addition, Mr. Rigotti
indicated that he wanted to review the roof control plan first to determine
whether proper procedures were followed in advancing the line curtain
and installing the roof jacks (Tr. 126-127).
Mr.
stated that company policy prohibits employees from
proceeding or working inby unsupported roof and that employees are
disciplined if they are in violation of this policy (Tr. 128). Mr. Rigotti
reviewed Mr. Baniak's sketch (exhibit P-3) and disagreed that three
temporary jacks were installed in the place shown. He stated that he
observed two roof jacks set further into the entry and marked the exhibit
accordingly. He also disagreed with the position of the line curtain
as shown on the sketch and stated that it was further inby the entry
along the left rib and marked the sketch accordingly and stated that the
curtain was 8 to 10 feet from the face (Tr. 130-132).
Mr. Rigotti stated that he left Mr. Baniak on two occasions to check
on other mine areas and to use the mine phone. He described the mine
bottom in the number two entry as wet' and indicated that it had been
cleaned. He stated that the entry was 16 feet wide, that the floor is
cleaned with the miner pan, and that the miner passing through the area
during the clean-up process would have destroyed any evidence of jacks
being installed. He also indicated that jacks would have been set along
the left hand rib line (Tr. 134).
Mr. Rigotti stated that he could not recall
mine with him and Mr. Baniak because a "blitz" inspection
place and there was a lot of confusion. He confirmed that
not argue with Mr. Baniak about the citation, and agreed that there
was no evidence that temporary jacks had been set. He also confirmed that
he has never observed employees going under unsupported roof (Tr. 138).
Mr. Rigotti stated that after the citation was issued he made an
inquiry as to whether anyone had worked under the unsupported roof. He
learned that section Foreman Frank Coccagna had installed jacks and
advanced them as the cuts of coal were taken out. Mr. Rigotti did not
know whether anyone was in the area between the time the midnight shift
ended and the time he and Mr. Baniak arrived on the scene. He did not
lift the curtain to see whether another jack was behind it and he indicated
that line curtain and tubing are used for ventilation when coal is being
mined. When line curtain is used, the auxiliary fan is normally used
and both are operating at the same time (Tr. 139-146).

1127

In response to bench questions, Mr. Rigotti stated that pg. 6,
item 4, of the approved roof control plan permits the installation of
a minimum of two temporary jacks or posts on five foot centers after one
half a cut of coal is taken, the advancement of canvas or tubing, and
the performance of work as long as men stay under the roof support. The
temporary supports can then be removed remotely by use of a jack handle,
and then the other side of the cut can be mined (Tr. 148). He also
indicated that Inspector Baniak should not have assumed that anyone was
inby roof support without investigating the matter further (Tr. 150).
Mr. Rigotti stated that he observed no equipment in the working
place in question when he and Mr. Baniak arrived on the section, that the
area was completely mined out, and immediately outby the curtain there was a
warning device there to keep people from entering the area. The line
curtain was beyond the warning place and no roof supports were there
and he believed someone pulled them out remotely in accordance with the
roof plan. However, they could have been left i~ but this is discretionary
(Tr. 151-152).
Frank A. Coccagna, section foreman, testified that he holds a
degree in economics and political science from the University of Pittsburgh
and a two-year degree in mining technology from Penn State University.
He stated that he was familiar with the roof control plan in effect
on July 30, 1981, as well as company policy which prohibits anyone from
going inby unsupported roof for any reason except to install roof support
jacks (Tr. 166-168).
Mr. Coccagna identified a sketch of the scene of tne citation as
he recalled it on July 30, 1981, and he described the work performed
in the area during his midnight shift (Ex. C-1; Tr. 168-170). He stated
that the line curtain was hung up on the last roof jack which was installed
next to the ventilation tubing and the curtain was no more than a foot
from the jack where a person could reach it (Tr. 170). The jacks were
about five feet from the rib, and after the curtain was hung the first
line jack was removed by means of reaching in with a jack handle. He
removed the jack in order to use it across the face of the cut to
facilitate the hanging of a danger board to alert miners on the next
shift not to walk inby unsupported roof (Tr. 171-172).
Mr. Coccagna stated that after the jacks were taken out and the
line curtain hung, they proceeded to mine the second half of the lift,
backed the miner up and cleaned up along the curtain in such a manner
as to not disturb the curtain. The section was dry with a little water
from the sprays. Since the jacks were installed two feet from the line
curtain, the clean-up would have destroyed any visible evidence that the
jacks had been set. There would not have been a third jack behind the
line curtain, and during the entire mining process the roof control
plan was complied with at all times. At no time was work performed
under unsupported roof, and he was on the section during the entire
shift supervising the operation. He has gone out under unsupported roof,
but only to support it, and he does not condone his men going under unsupported roof, nor has he ever ordered them to do so (Tr. 173-176).

1128

Mr. Coccagna stated that he first learned about the citation at
noon the day it was issued. Mine superintendent Karazsia telephoned
him at home and asked him how the line curtain came to be located inby
unsupported roof. He explained the mining procedures which were followed
on his shift and Mr. Karazsia responded "fine" (Tr. 177).
Mr. Coccagna testified that three or four weeks prior to the hearing
Inspector Baniak was in the mine and engaged him in a conversation
concerning the citation in question and told him "You were wrong, you
were wrong", and that this went on for two and half hours while
he was escorting Mr. Baniak on his inspection rounds (Tr. 178).
On cross-examination, Mr. Coccagna stated that at the time the cut
was being mined and the area cleaned up, they were following roof control
plan "drawing number 1-B" and safety precaution number 4, found on page
six of the plan (Tr. 180). He described the clean-up process, including
the operation of the continuous miner cutting heads during the clean-up
cycle (Tr. 180-186).
Mr. Coccagna stated that when the curtain was hung, a foot of left
over material was tucked behind it. One of his crew members inserted a
spad into the roof with a spad gun and he connected the curtain to the
spad. The ventilation tubing was left a little behind the roof bolts
so that it could be pulled out. Permanent roof supports were present
in the entry when the auxiliary fan tubing was pulled out. The curtain
was hung while under temporary support (Tr. 186-190).
In response to bench questions, Mr. Coccagna stated that Mr. Baniak's
"rough sketch" of the scene as depicted in his notes resembled the area
at the time the citation issued, except that the line curtain was closer
to the rib and did not "curve out" (Tr. 199). He also indicated that
Mr. Baniak's "hearing sketch" was not accurate in that the curtain was
not in the middle of the entry as shown and the first cut of coal had been
taken out a week earlier (Tr. 200).
George Karazsia, mine superintendent, Gamble Portal, Mathies Mine,
testified that when he learned that the citation had been issued by
Mr. Baniak he telephoned section foreman Frank Coccagna to inqurie about
the allegation that men worked under unsupported roof on his shift.
Mr. Coccagna explained the procedures which were followed in installing
the line curtain and assured him that it was done in full compliance
with the roof control plan and that no one on his crew worked under
unsupported roof. After speaking with Mr. Coccagna he called Mr. Baniak
to discuss the matter but Mr. Baniak refused to discuss the citation
with him. Since that time Mr. Baniak visited the mine three times to
discuss the citation with mine employees and with him. Mr. Karazsia
stated that he advised Mr. Baniak that since the matter was being litigated
and was in court he did not believe he should.discuss the matter with
him or his men (Tr. 204-208).

1128

On cross-examination, Mr. Karazsia confirmed that he instructed
Mr. Baniak not to speak with or discuss his citation with his salaried
personnel because the matter was in litigation and the men felt that
Mr. Baniak was harrassing them because of his attempts to discuss the
citation with them during his mine visits after the citation was issued
and before the present hearing was convened (Tr. 208-210).
George Puskarich, retired shuttle car operator, testified that he
was so employed on the section midnight shift in question on July 30, 1981.
He stated.that he observed the curtain in question during the end of
the shift and he observed that two jacks were set and the curtain was
then hung. The jacks were then moved back and Mr. Coccagna put a danger
board across them. Mr. Puskarich observed no one
under unsupported
top during the shift and i f they do "they are crazy" (Tr. 216-217).
Referring to the sketch (Ex. C-1), Mr. Puskarich described how the entry
was mined, cleaned, and how the jacks and curtain were installed during
the shift (Tr. 219-220).
Inspector Baniak was recalled by me and testified as follows
(Tr. 229-231):

Q. Leave the practicalities out of it. I
want to know what happened that night. He claimed
they were using tubing and curtain?
A.

Both.

Q.

Both.

A.

Okay.

Q. All I'm asking you is, can you confirm that?
Were they in fact using tubing and curtain to ventilate?
A. Well, your Honor, I based the condition I
cited by the fan being in that position and the check
curtain, mostly was in the center of the place.
Whether it be fifteen feet inby, whether it be twenty
feet qutby from the permanent support, it was seven
and a half feet inby, and hung approximately center
of the entry.

Q. Yes, but my question is, if they followed
the procedure that Mr. Coccogna testified to as to
how they installed that line curtain inby with the
permanent supports, would that still be a violation?
A. Yes, from what I saw I'd still have go [sic],
yes. If this was hung at the completion of the cut,
why would, whether it be one or two temporary supports,
why would they have to possibly be removed? And this
is the condition that I made.

1130

Why would they be moved? If there was one they
were still inby. If there were two or if there was
one at the canvas, they're too far. And I was just
basing mine on the check curtain.
In fact I think I measured that the check curtain
was seven and a half feet inby. And this was my whole
case. And the position of the curtain.

Q. Had Mr. Coccogna been right there on the scene
and explained to you how that check curtain came to be
installed in the manner in which you found it, had he
explained to you that he set two temporary jacks on the
side along the rib line, installed the check curtain
and then removed the jacks with a thirty foot bar and
hung a danger board up there and left the area, would
that have been a violation?
Just a hypothetical?
A. Okay. From the position I saw the check curtain
this is what I'm basing it on.· Probably the way he had
explained it using that, it's a possibility that it
could be done.
But the way I saw it when I was in the section
and the curtain being in such, in the center,of the
face, there would be no need to remove any temporary
supports.

*

*

*

*

*

*

*

*

*

*

*

*

Q. But you heard him testify that he did in fact,
remove the two that were along the line curtain.
A.

To place here.

Q.

Yes, and put them back where he claims they

A.

Um-hum, okay, well there's a possibility.

were.

Mr. Baniak also confirmed that the citation was abated by another
inspector and that he was not present when the inspector met with the
midnight crew to discuss his citation and the approved roof control plan
(Tr. 238).

1131

Findings and Conclusions
Fact of Violation
The critical question in this case is whether MSHA has established
a violation by a preponderance of the credible evidence and testimony
adduced in this case. MSHA has the burden of proving that'miners were
inby roof supports and the posted danger board at the time the line brattice
in question was installed. Since no one observed anyone inby these
areas, MSHA 1 s case rests essentially on the testimony of Inspector Baniak,
In issuing the citation in question, Mr. Baniak arrived at certain conclusions
based on assumptions and speculations with respect to the approved roof
control plan, the method of mining and clean-up being utilized by the midnight
shift immediately prior to the time he observed the conditions cited,
and certain foot prints which he states he observed at the scene. The
crux of MSHA's case lies in the inspector's belief that someone was under
unsupported roof and they attached one end of the ventilation line curtain
to a roof spad which extended some 7 1/2 feet inby the last row of roof
supports. In short, the Inspector saw some foot prints, saw no evidence
that temporary jacks had been installed at or near where the curtain
was attached to the roof, and came to the conclusion that someone had
installed the curtain while under unsupported roof (Tr. 52-54). MSHA also
presented the testimony of the former day shift foreman, Alan Tedeschi,
who confirmed what the inspector observed at the time the cited conditions
were found.
The crux of the defense to the citation is the assertion by the
respondent that the line curtain was 'install~d in full compliance with
the approved roof control plan. In support of this defense, respondent
presented the testimony of the section foreman who was responsible for the
work performed on the shift immediately preceding the one on which the
conditions were found. Mr. Coccagna testified that he supervised the
work which had taken place at the location of the line curtain in question,
and he described in detail the procedures followed in supporting the roof
and hanging the curtain in question. He also stated that the installation
of temporary supports, their subsequent removal after the curtain was
installed, and the installation of the curtain itself, were all accomplished
in full compliance with the approved roof control plan (exhibit P-4,
Safety Precaution No. 4, pg. 6, and Drawing l(b)). Mr. Coccagna's testimony
was corroborated by former shuttle car operator George Puskarich, and
mine superintendent George Karaz?ia confirmed that Mr. Coccagna explained
the procedure he followed in hanging the curtain in question when he
questioned him shortly after the citation was issued.
The record establishes that the roof in the entry crosscut in the
immediate vicinity of the curtain was fully supported and bolted in accordance
with the roof control plan. In addition, petitioner's counsel conceded that
there is no evidence that anyone was under unsupported roof while the
auxililary ventilation tubing was installed in the area in question, and that
had any other hazards or violations been observed by the inspector, he
would have issued additional citations (Tr. 190). Given these circumstances,

1132

I find it unlikely that the section foreman on the midnight shift
would expose himself to a citation by such a foolhardy act as leaving
a curtain installed in full view of an inspector if he (the foreman)
did not believe what he had done was in full compliance with his roof
control plan.
Both Mr. Coccagna and Mr. Puskarich impressed me as straightforward
credible witnesses. Mr. Coccagna is a college graduate, with two years
of post-graduate study in mining technology, He impressed me as being
most knowledgeable with respect to the detailed provisions of the roof
control plan, and I accept his explanation as to how the line curtain
in question was installed, Mr. Puskarich was retired at the time he
testified and was no longer employed by the respondent, and I see no
reason why he would not tell the truth. Further, all of the respondent's
witnesses were sequestered during the hearing, and having viewed them on
the stand, I find their testimony to be credible. In addition, Inspector
Baniak conceded that it was possible that the curtain in question was
installed, and the temporary jacks removed, as explained by Mr. Coccagna
(Tr. 230-231).
Although there is no dispute as to what Inspector Baniak observed at the
time the citation issued, I cannot conclude that MSHA has established
a violation. In short, MSHA's "circumstantial case" that someone had been
under unsupported roof at the time one end of the line curtain in question
was fastened to the roof spad has been rebutted by the testimony and
evidence presented by the respondent in this case. Under the circumstances,
Citation No. 1050403, July 30, 1981, citing a "signific_~mt and substantial"
violation of mandatory safety standar.d 30 CFR 75.200, IS VACATED.
ORDER
In view of the foregoing findings and conclusions, the civil penalty
proceeding, Docket No. PENN 82-5, IS DISMISSED. Contestant's contest of
the vacated citation, Docket No. PENN 81-230-R, IS SUSTAINED.

c:1'r~

Koutras
Administrative Law Judge
Distribution:

Covette Rooney, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
H. Juanita M. Littlejohn, Esq., Consolidation.Coal Co., Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)
Harrison Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 20005
(Certified Mail)

1133

rEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No: WEST 81-243-M
A.O. No: 48-00155-05070

v.

Alchem Trana Mine

ALLIED CHEMICAL CORPORATION,
Respondent
DECISION
Appearances:

Stephen P. Kramer, Esq., Office of the Solicitor,
U.S. Department of Labor, for Petitioner
John A. Snow, Esq., for Respondent

Before;

Judge Moore

The above case originally involved 6 citations, 5 of which involved
the dust standard. At the trial, government counsel moved to dismiss
the 5 dust violations because the testing criteria had been changed
since the issuance of the citations, the chain of possession criteria
had been changed, and counsel did not believe that he could prevail in
view of the current rules. I granted the.motion and all citations
except citation 577319 issued on December 17, 1980 alleging a violation
of 30 C.F.R. 57.3-22 were vacated.
Citation No. 577319 alleges a violation of 30 C.F.R. 57.3-22 in
that "there was loose ground on the back and rib in 5 room between 18
and 19 crosscut in B-92 panel. The panel is down at the time of inspection.
The pieces of loose measured approximately 12" by 18" times by 12"
thick. A piece from the rib measured approximately 20" by 18" by 34"
thick." There was considerable dispute as to where the loose roof and
rib were located in the mine,but there is no question but that the
condition existed and that the two pieces of trona were barred down by
an employee of the company. No management personnel were in the immediate
vicinity with the two inspectors when they observed the condition,
however.
The inspector stated that even though this was an idle shift, a
workman was observed in the vicinity of an electrical power station 200
feet away from the loose pieces of trona. The loose material was in an
entry or room and the power station was in a crosscut. Thus the 200 foot
distance would include a ninety degree turn. The company records show
that even though this was an idle shift, the required roof and rib

1134

inspection had been made, but it showed no bad roof or rib conditions.
The inspector stated that in retreat mining, and that ·ts what was being
done in this panel, trona can become cracked and loose in a matter of
ten minutes.
The standard requires that miners examine and test the back, face
and rib of their working places at the beginning of each shift, and
frequently thereafter and it also requires that supervisors examine the
ground conditions during daily visits. Inasmuch as there is no evidence
that the supervisors did not make the necessary examination, MSHA's case
depends upon whether the miner that was working in the vicinity of the
electrical distribution center was required to examine the area of the
loose pieces before working at the distribution center. The standard
says that miners shall examine "their working places." 30 C.F.R.
57.2 defines a working place as "any place in or about the mine where
work is being performed." Except for the inspection party, there were
at most two people working in the panel at the time of the citation.
Only one of the two people was observed but it was assumed that he was
accompanied by someone else. I cannot construe the standard to require
a worker to go 200 feet inby his working station to examine for loose
roof and ribs. He must make the examination in his immediate working
area and there is no evidence that the workman observed by the inspector
did not act in accordance with the standard.
The citation is vacated and the cas~ is dismissed.

Clzec)t/,~ C 9J;<Ye)r-1' £

Charles C. Moore, Jr.,
Administrative Law Judge
Distribution:

f'

By Certified Mail

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203
John A. Snow, Esq., Van Cott, Bagley, Cornwall and McCarthy, Suite 1600,
50 South Main Street, Salt Lake City, UT 84144

1135

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE Of ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE .400
OENVH, COLORADO 90204

)

SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,
v.
PHILLIPS URANIUM CORPORATION,

)

CIVIL PENALTY PROCEEDING

)

)
)
)
)

DOCKET NOS. CENT 79-282-M
CENT 80-6-M
CENT 80-124-M

~~~~~~~~~~R_e_s~p~o_n_d_e_n_t_·~~~~)

SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,
v.
PHILLIPS URANIUM CORPORATION,
Respondentn
and

)
)
)

)

CIVIL PENALTY PROCEEDING

)

)

DOCKET NO. CENT 79-281-M

)
)
)

AMERICAN MINING SERVICE, as 1ub1titute)
Respondent.
)
)
~~~~~~~~~~~~~~~~~~~

DECISION ON REMAND
On April 27, 1982, the Coani11ion i1aued it• final decision vacating all
citations and orders and dismi1sing the petitions for assessment of
penalties in each of the above ca1es except for Docket No. CENT 79-281-M.
That case was remanded to this judge because while the matter was
pending upon review, American Mining Service (AMS), an independent
contractor, executed a 1ubstitution agreement vith Phillips Uranium
Corporation, (Phillips) the owner-operator. In that agreement, now a part
of the record, AMS formally agreed to substitute itself as respondent in
this civil penalty proceeding in the place and stead of Phillips. It
further paid the full $48 penalty proposed in that docket number. (The
record discloses that a check including that amount was paid to Phillips,
which in turn endorsed it to MSHA).
As the original parties and AMS are amenable to the substitution, the
Commission remanded CENT 79-281-M with a aandate to dismiss as to Phillips
and to substitute AMS. In view of the state of the record, no further
proceedings are required. l/

1/ All parties were notified of my intent to issue this sunnnary decision
and were offered an opportunity to object. None did.

1136

Accordingly, AMS is substituted as respondent in the place and stead
of the original respondent, Phillips; this proceeding is in all respects
dismissed as to Phillips; and the $48 proposed civil penalty previously
paid by AMS is affirmed and assessed against AMS.
SO ORDERED.

ohn A. Carlson
Administrative Law Judge
Distribution:
James G. Williams, Esq.
Phillips Petroleum Company
Minerals Group
P.O. Box 3209
Englewood, Colorado 80155
George W. Terry, Jr., Esq.
Malcolm L. Shannon, Jr., Esq.
Phillips Uranium Corporation
P.O. Box 26236
4501 Indian School Road, N.E.
Albuquerque, New Mexico 87125
Nancy S. Hyde, Esq.
Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203
A.J. McDougall, President
American Mine Services, Inc,
4705 Paris Street
Denver, Colorado 80239

1137

FEDERAL MINE S~S::l5TY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 211982
Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Docket Nos,

Assessment Control Nos.

KENT 81-77
KENT 81-78

15-07295-03019
15-07295-03020

Petitioner
v,

MARTIKI COAL CORPORATION,

Martiki Surface Mine

Respondent
DECISION
Appearances:

George Drumming, Jr., Esq.~ Office of the Solicitor, U. S.
Department of Labor, for Petitioner;
William G. Francis, Esq., Francis, Kazee and Francis,
Prestonsburg, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to a notice of hearing issued March 16, 1982.., a hearing in the
above-entitled proceeding was held on Avril 20 and 21, 1982, in Prestonsburg,
Kentucky, under section lOS(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 815(d).
After the parties had completed their presentations of evidence each
day, I rendered the bench decisions which are reproduced below (Tr. 218-245
in Docket No. KENT 81-77 and Tr. 227-242 in Docket No. KENT 81-78):
DOCK.ET NO. KENT 81-77
The proposal for assessment of civil penalty filed on
March 16, 1981, in Docket No. KENT 81-77 seeks assessment of
civil penalties for five alleged violations of the mandatory
health and safety standards. The parties succeeded in reaching
a settlement agreement as to three of the violations and the
other two have been the subject of a hearing at which both MSHA
and respondent have presented witnesses.
Since there are both contested and noncontested violations
involved in this proceeding, I shall first consider the contested
violations. The remaining part of my decision in Docket No. KENT
81-77 will consist of a discussion of the settlement agreement and
indicate whether the settlement agreement should be accepted.

1138

Contested Violations
Citation No. 731280 (Exhibit 2), October 6, 1980, § 77.1605(a)
The information given below constitutes findings of fact with
respect to the
violation of Section 77.1605(a) in Citation
No. 731280.
1. The
have stipulated in Exhibit 9 that respondent
operates the Martiki Surface Mine and that it is a large operator,
Respondent demonstrated good faith in
rapid compliance
with respect to the violations which were settled, as well as the
ones which are contested. The parties further stipulated that any
penalty which may be assessed in this
will not adversely
affect respondent's ability to continue in business.
2. On October 6, 1980, Inspector Andrew Reed, Jr., made an
examination of the Martiki Surface Mine. At that time, he wrote
Citation No. 731280 alleging a violation of section 77.1605(a),
which provides, "cab windows shall be of
or equivalent,
in good condition and shall be kept clean."
3. The condition given in the inspector's Citation No. 731280
was that the cab windshield in Caterpillar Loader 992C (Company No.
309) is not in good condition. The windshield contained a shattered
place in the upper left side with approximately 14 cracks extending
from the shattered
Three of the cracks extended all the way
across the window and about five cracks were observed in the area
traversed by the windshield wiper blade.
4. The operator of the No. 309 end loader was Raymond Maynard
and it was his opinion that the cracks were not bad enough ~o obstruct his vision. He indicated that there was, in his opinion,
only a small place, which he described as a crack, where a rock had
hit the windshield and that some small lines extended out from the
initial point of impact. He didn't think there were as many cracks
or lines as the inspector thought existed in the windshield.
Maynard reported to his supervisor, Bill Houser, that there was a
cracked place in the windshield and the report to that effect was
given to Houser orally by means of a short wave radio, which was in
one of the trucks which Maynard was loading. Maynard testified
that it is a company practice to have anything that's wrong with a
vehicle reported in writing on a card, but he could not recall
whether there was a card available on the morning that this windshield was cracked. Therefore, he did not write on a card the fact
that the windshield was cracked.
5. The lead supervisor on the midnight-to-8:00 a.m. shift,
which was the shift on which the citation was written, was Bill
Houser. He testified that he had received a call from Maynard
about the existence of a cracked windshield in loader No. 309, but

1139

since Maynard did not feel that the cracks were bad enough to
keep him from operating the vehicle, he did not have the equipment
taken out of service. Consequently, the equipment was used on the
first part of the shift and Maynard was still in the end loader at
the time it was examined by the inspector in the neighborhood of
4:00 a.m. The citation, itself, was written at 6:55 a.m. but the
cracked windshield had been observed prior to that tinie. Houser
testified that if the operator of a piece of equipment thinks that
a given defect is sufficiently bad to interfere with the operation
of the equipment that he generally leaves that up to the judgment
of the operator of the equipment. If the defect, or problem that 1 s
reported to him is anything that Houser considers to be of a serious nature, such as the brakes giving a problem, he personally
goes to the equipment and checks it to be certain that there is no
endangering hazard associated with the problem, if the piece of
equipment is continued in service for the remainder of the shift.
Those are the primary facts that were given by the witnesses
in this case as to Citation No. 731280. A great deal of testimony
was given by the three witnesses, Reed, Maynard, and Houser, but
most statements are sufficiently diverse in nature to make it
necessary to discuss them in deciding whether a violation occurred
and, if so, whether the penalty should be of a moderate nature or
perhaps a fairly large penalty.
There was a motion made by counsel for respondent after all
the testimony was given, urging that Citation No. 731280 be dismissed because the inspector's testimony had failed to show that
the windshield was in other than good condition. As I have indicated previously, the violation involyes section 77.1605(a) which
provides that "[cJab windows shall be of safety glass, or equivalent, in good condition and shall be kept clean." Respondent's
counsel has emphasized that there's no dispute but that the windshield was made of safety glass, or equivalent and that the glass
was clean. The only question is whether the windshield with 14
cracks in it was in good condition. It is the position of respondent's counsel that although there were some cracks in the
windshield, I should give considerable weight to the testimony of
the operator of the equipment, who was of the opinion that the
cracks, although admittedly present, were not sufficiently bad to
cause him any problem in operating the equipment. So, the issue
before me, really, is whether, or at what point, cracks in a windshield become severe enough to be considered not in good condition,
as was alleged by the inspector.
It is human nature for a person to see events which will ultimately be used to make conclusions which·are consistent with
that person's position in life. The inspector wanted to show that
the cracks constituted a violation of section 77.1605(a) and there-

1140

fore he very meticulously counted the number of cracks in the windshield. Since his manual apparently indicates that cracks in the
area which is traversed by the wiper blades are especially likely
to be where a person's vision would be affected, he counted the
number of cracks in the area where the windshield wiper traversed
the windshield. He also noted that three of the cracks were long
enough to go clear across the windshield.
In opposition to the inspector's observations of the windshield, we have the loader operator's testimony. He said that the
cracks were perhaps long enough to extend 6 inches, that they
didn't traverse the area where the windshield wipers passed across
the windshield, and that his vision was not blocked in any way,
We have to keep in mind, of course, that these cracks were observed by both the inspector and the loader operator about 4:00
a.m., when darkness prevailed and during foggy weather conditions,
Consequently~ I can certainly believe that Maynard would have been
less inclined to see the cracks than the inspector because Maynard
didn't set out to establish any specific type of condition. It is
significant, though, that Maynard thought that these cracks were
sufficiently noticeable for him to take the time to report them to
his supervisor, Houser.
Both of the operators of end loaders who testified in this
proceeding indicated that the Company wants any kind of defects in
its equipment reported. Both witnesses gave respondent a high
grade for the effective and conscientious maintenance that's done
on the equipment. Consequently, this is not a case in which we
have a respondent which is dilatory about fixing equipment or a
case in which equipment operators are encouraged not to report
defects in equipment. Nevertheless, I think that the testimony,
when viewed from the standpoint of the position of each person who
has testified, would have to support a finding that the cracks
were of sufficient nature to keep the windshield from being in
good condition. For that reason, I find that there was a violation
of section 77.1605(a) and that respondent's motion to dismiss
should be denied.
Having found that a violation occurred, a civil penalty must
be assessed, based on the six criteria for assessing penalties as
those criteria are given in section llO(i) of the Federal Mine
Safety and Health Act of 1977. As Finding No. 1 above shows, the
parties have already stipulated as to three of the six criteria, in
that, they have agreed that respondent is a large operator, that respondent's ability to continue in business will not be affected by
the payment of penalties, and that all of the violations were abated
rapidly.

1141

In my past decisions, and in the assessment formula described
in 30 C.F.R. § 100.3, the criterion of good-faith abatement has
been used in the following manner: if a violation is found to
have been abated in a normal fashion, that is, within the time
given by an inspector for abatement, the penalty is neither increased nor decreased under the good-faith abatement criterion.
If the violation is not abated within the time given by the inspector, then up to 10 penalty points are added to the penalty 9 otherwise assessible under the other criteria, and the penalty is
therefore increased. On the other hand, if an operator abates a
violation in less time than was given by the inspector, then it's
considered rapid abatement and up to 10 penalty points are subtracted from the penalty which would otherwise be assessible and
the penalty is therefore decreased.
It is not of ten that I find parties stipulating that a respondent has demonstrated good faith in achieving rapid compliance.
With respect to each of the violations involved in this case, the
inspector's statement, which is Exhibit 3, in one instance, and
Exhibit 5 in the other instance, the inspector states that the operator abated the violation in about one-eighth of the time that
he had set. Therefore, whatever penalty is assessed in this case
should be reduced considerably because of the rapid abatement. I
have discussed the rapid abatement criterion first because it happens to be among those matters which were stipulated by the parties,
but it can't be applied until some determination has·been made with
respect to the other criteria. In 'other words, you have to determine an amount before you can deduct anything from it.
Exhibit 1 shows that the number of previous violations of section 77.1605(a) amounts to one in the 24-month period preceding the
occurrence of the violation alleged in this case. Exhibit 1 shows
in the second portion on the right side that there've been three
violations alleged but only one of them has been paid, and the other
two, I'm told by counsel, are the ones involved in this proceeding.
It's been my practice over the years to add some amount to a penalty
when I find that there has been a previous violation of the same
section which is before me in a given case. In this instance there
is the minimum that can exist, which is one, and that one occurred
over a period of 24 months. Consequently, I do not feel that a very
large amount needs to be assessed for a single violation in a 24month period. Therefore, whatever penalty is assessed, $20 will be
assessed under the criterion of history of previous violations.
The next criterion which has to be considered is negligence.
The evidence shows that there was a very low degree of negligence
because, first of all, the crack in this particular windshield had
not been in existence long enough for it to have been reported prior
to the shift on which it was reported by Maynard, the operator of
the end loader. Since Maynard did report the cracked windshield at

1142

the beginning of his shift to the supervisor, and since it cannot
be determined for certain whether that would have been sufficient
to have brought about the replacement of the windshield during
the day shift, I can hardly find on the evidence that respondent
was negligent in not having replaced the windshield before it was
cited by the inspector.
The reason for the foregoing conclusion is that the citation
was issued on a midnight-to-8:00 a.m. shift and the Company relies
on an independent contractor to replace windshields. As it turned
out, the windshield, in this instance, was replaced within 3 or 4
hours after it was cited by the inspector. There's no evidence in
the record to show, for a certainty, that it might not have been
replaced even if the inspector had not written a citation about it,
In any event, there was a very low degree of negligence so that I
think the most that I should assess under that criterion would be
$10.
The sixth criterion is gravity, or seriousness, As to that
criterion, there is little persuasive evidence because most of the
testimony as to gravity is based on speculation, The inspector
did get into the cab of the end loader and did look through the
place where the windshield wiper traverses the windshield. It was
the inspector's opinion that his vision was slightly reduced by
the five cracks across the windshield, but the inspector said that
there was no discoloration around the cracks, there was no accumulation of dirt in the cracks, and his most adverse statement about
the cracks was that there might have been some refraction of light
from the cracks at certain times of the day or night. Therefore,
the evidence as to impairment of one's ability to see through the
windshield ranges from the inspector's belief that his vision would
have been slightly reduced by the cracks to the equipment operator's
belief that his vision was not affected at all by the cracks.
In evaluating the gravity of the cracked windshield, there is
a second factor to be considered, namely, the inspector's belief
that the cracks in the windshield weakened the windshield structurally so that an additional rock or other object that might have
flown against the windshield at a subsequent time would necessarily
have exposed the operator to an additional hazard because some
ing glass might come off a windshield which had already been weakened by cracks as compared to a new windshield, or a windshield
which has no cracks in it. On structural weakening, I think that
the inspector's conclusion is supported by the record because his
testimony shows that there were 14 cracks in the windshield, some
of which extended all the way across the windshield, and there were
five in the area where the windshield wiper traversed the windshield.
So, there would have to have been a weakening of a windshield which

1143

has that many cracks in it. Consequently, I find that the violation was moderately serious and that a penalty of $30 should be
assessed under the criterion of gravity.
On the basis of the foregoing discussion, $20 should'be attributed to history of previous violations, $10 should be assessed
under negligence, and $30 should be assigned under gravity, for a
total of $60. As I indicated previously, since there was very
rapid abatement of the violation in this instance with the windshield being replaced so quickly that the day shift could go ahead
and use the end loader on the next shift, I believe that the penalty already assessed should be reduced by half, Therefore, the
penalty should be $30.00 in this instance for the violation of
section 77.1605(a) alleged in Citation No. 731280,
Citation No. 951482 (Exhibit 4), October 6, 1980, § 77.1605(a)
The findings of fact with respect to Citation No. 951482 alleging a violation of section 77.1605(a) are given below,
1. During the same inspection on which the inspector wrote
the citation considered above, the inspector also examined another
Caterpillar 992C loader, having Company No. 313, and the inspector
also cited that Caterpillar loader for a violation of section
77.1605(a). His citation, in this instance, states that the cab's
windshield was not in good conditi~n because approximately seven
cracks were present in the windshield.
2. When the inspector started testifying in detail about the
seven cracks in the windshield of loader No. 313, he was unable to
be nearly as explicit as he had been when he described the cracks
in the windshield of loader No. 309. He was sure only of the fact
that he had counted seven cracks in the windshield. He thought
that the cracks were caused by an object falling off the bucket of
the end loader and hitting the right side of the windshield, thereby causing seven cracks in the windshield. The inspector was not
sure whether those seven cracks were in the area traversed by the
windshield wiper blades, although he concluded that if one looked
through the windshield, those seven cracks would be in his line of
vision, or at least some of them.would be. He emphasized, in connection with the seven cracks, the fact that end loader No. 313
was being used in an area where there were several lights which
were strong and which, upon hitting the windshield at various
angles, might cause light refractions which could distort vision
through the windshield. But even as to that allegation or conclusion the inspector was not sure what hazard.the seven cracks would
cause, because he only looked through the windshield while the end
loader was stationary. In that single position, no light refractions showed on the windshield.

1144

3. The operator of loader No. 313 was Chester Lacey. Lacey
had worked for Martiki for about 5-1/2 years, but he'd been operating heavy equipment for many years longer than that. It was his
opinion that the crack in the windshield did not cause any problem
in his being able to see through the windshield. His description
of the crack was completely different from that of the inspector.
He testified that the only crack in the windshield was a half moon
crack about 10 inches long in the lower left corner of the windshield. It was his testimony that the half moon crack did not extend up from the windshield's bottom for more than 4 inches. As
he described the area traversed by th~ windshield wiper blades the
windshield wiper would not have come closer to the top of the windshield than 6 inches or closer to the bottom of the windshield than
6 inches. Since the crack extended up from the bottom 4 inches,
the crack did not come within the area traversed by the windshield
wiper blades.
4. Lacey emphasized that the crack was so low in the windshield that he would not normally look through that portion of the
windshield to do anything, because if he were loading the bucket he
would look, approximately, through the center of the windshield.
When he loaded a truck, or dumped materials out of the bucket into
a truck, which are very large trucks, he would be looking only
through the top of the windshield. Lacey also testified that although he had seen the crack in the windshield at the time he began
his shift, that he is a type of operator who is known as a general
mine utility person, who can operate practically any equipment at
the mine, except the drag line. Therefore, he said that he had
only about 10 minutes to inspect this piece of equipment. By the
time he had finished inspecting it, the lead supervisor, Bill
Houser, had already left. The only way he then had for reporting
the crack to Houser would have been to have had a truck driver report it over the truck's radio. Since Lacey wanted to get busy
operating the end loader, he did not orally report this particular
crack in the windshield because his supervisor had already left
and because he didn't think it was very serious, and he was confident it would not obstruct his vision.
5. Insofar as the crack in the windshield of loader No. 313
is concerned, Houser testified that he hadn't received any report
about the windshield in this instance, but that when the inspector
cited the violation he, of course, had the windshield replaced.
The significant part of Rouser's testimony was that if he personally had seen a half moon crack in the bottom of the windshield,
10 inches long, he would have had the windshield replaced. It was
also his testimony that the Company does have a practice of checking windshields on its own initiative and when it does find one
that's excessively scratched, or in need of replacement, the Company
does so on a regular and routine basis.

1145

Those are the findings of fact which are significant with
respect to the windshield cracks in end loader No. 313.
Respondent's counsel also made a motion to dismiss, with
respect to Citation No. 951482. He stressed the same factors in
his motion with respect to the instant citation as he did with
respect to Citation No. 731280, except that he emphasized that
there was even less reason to find that this windshield was not
in good condition than there was with respect to the preceding
alleged violation. He emphasized, correctly, that when Lacey was
testifying about the cracked windshield in loader No. 313, he
stated that he had the citation read to him, or showed to him by
the Company's safety supervisor the next day or so after it had
occurred. Lacey said that when he read the inspector 1 s description of the windshield on his loader No. 313, he thought the inspector had made a mistake and had described the wrong windshield
for his loader No. 313 because the inspectorvs description of
seven cracks in the windshield did not coincide or track with his
recollection of the crack in any way at all. Therefore, respondent's counsel emphasizes that there was not enough wrong with this
particular windshield to justify a conclusion that the windshield
was in other than the good condition required by section 77.1605(a).
Counsel for the Secretary of Labor and MSHA opposes the motion
to dismiss and he emphasized that Lacey, the operator of the end
loader, did acknowledge and did know that there was ~· crack in the
windshield that was 10 inches long.and that a crack in a windshield
is sufficient to show a lack of the required good condition.
This particular citation has given me a great deal of concern
because I am somewhat in agreement with respondent's counsel that
there must be some minor thing that can be wrong with a windshield
and still be considered in good condition. I believe it was the
operator of the previous vehicle, No. 309, who stated that if a
windshield didn't have anything at all wrong with it, he'd consider
it to be in excellent condition, and if it had a few cracks in it,
he'd still consider it to be in good condition. I think that that's
pretty much what respondent's counsel feels about the meaning of
the phrase "good condition".
I'm inclined to want to agree with him, except that I cannot
get it out of my mind that if a crack in a windshield is not reported and the windshield is not replaced at the time the crack
is first observed, I don't know whether it would get replaced at
all until it really does become a serious hazard. At the time the
windshield was cited, the question of safety was not as pronounced
a consideration as it would have been, for 'example, if the inspector
had alleged that a violation of section 77.1606(a) had occurred.
In that section, there's a reference to equipment defects affecting
safety which should be reported to the mine operator. I would assume

1146

that if the crack in the windshield had been very severe that the
inspector might have gone so far as to cite it as a defect affecting safety, but he didn't go that far. Instead, he said that the
windshield was not in good condition.
I believe that the phrase "good condition" will have to be
rather liberally construed in order to do what the Act was intended
to do, that is, make certain that a piece of equipment is safe and
that there won't be anything about the equipment that will result
in a possible injury just because a given operator doesn't see very
well in a moment of using the equipment in a certain position.
For example, even though Lacey, the operator of end loader No. 313,
stated that the crack didn 1 t cause him any problem at night, and
that he didn't think there was enough reflection of artificial
to cause a problem, he felt that in the daytime you might
get a rainbow effect, as he called it, which might cause an obstruction in vision, or a probability that you would not see as
well through the windshield as you would like to see.
Since Houser, the supervisor, indicated that he would have had
the windshield replaced if he had seen the same crack on his own,
it looks to me as if I shall have to find, on the evidence as a
whole, that even if I ignore the inspector's testimony that there
were seven cracks in the windshield and I accept only Lacey's testimony that there was one half-moon crack, 10 inches long, that I
would still have to find that this was a windshield that was not
in good condition. Rouser's testimony shows that he would have replaced this particular windshield if he had seen it. I think that
also shows that he would find it not to be in good condition or he
would not replace it.
I recognize that on redirect examination, counsel for respondent asked Houser if he would rely on the equipment operator's
opinion if the equipment operator thought that a windshield was in
good condition. Houser said he would have, and that he thought
Lacey's opinion was based on sound experience and discretion. The
fact remains that Houser had already given his opinion that a windshield with a 10-inch crack should be replaced before he was asked
that question. Since the testimony as a whole supports a finding
that the windshield was not in good condition, I find that there
was a violation of section 77.1605(a) with respect to end loader
No. 313.

Having found a violation, it's necessary for me to assess a
penalty. Some of the six criteria have already been considered
above and it is unnecessary for me to repeat those details, other
than to observe that it has already been found that respondent is
a large operator, that payment of penalties will not cause it to
discontinue in business, and that the violation was rapidly abated.

1147

I have already found that there has been one prior violation of
section 77.1605(a). It is true that the violation I am now considering is a third violation and one could find that there are two
previous violations, but I believe that the Act means what it says
when it refers to "previous" violations. I don't think that two
violations found by the inspector within a few minutes of each other
can be considered a "history" because the operator has no opportunity to benefit from having been told twice within a 30-minute period
that a certain condition constitutes a violation of a mandatory
health or
standard. There was simply not enough time between
the citations for management to take any action that would keep the
second violation from happening, based on the fact that a previous
one had been cited a few minutes prior to that, Therefore, I shall
make the same conclusion here with respect to history of previous
violations that I did before, namely, that $20 should be assessed
under the criterion of history of previous violations.
In this instance, there probably is a slightly higher degree
of negligence because the operator of loader No. 313 was not as
careful and prudent in reporting this particular crack as the operator of loader No, 309 had been. Of course, one must take into
consideration that the crack in the windshield in loader No. 313
was less noticeable than the crack in the windshield in No. 309.
The inspector had more difficulty in describing the extent of the
crack in No. 313 and the operator of No. 313 found the crack to be
so insignificant that it almost merited no reporting ··of it at all.
Still the operator said he would have reported it if he'd had a
radio in the vehicle to use for that purpose. The fact that the
operator did not report it has to be considered slightly more negligent than the other one which was reported. Consequently, I
think that a penalty of $30.00 should be assessed under the criterion of negligence in this instance.
As to the criterion of gravity, this violation of section
77.1605(a) was not as serious as the previous one because the inspector agreed that these cracks were much less significant. He
saw no light refractions when he looked through the windshield, and
since he was in some doubt about the exact location of the cracks,
I can hardly find from his testimony that a person's vision would
have been distorted by the cracks. While the inspector felt that
the windshield had been weakened by the cracks, the fact remains
that seven cracks would have weakened this windshield less than 14
cracks weakened the other windshield. The foregoing conclusions
assume that an ordinary layman can make such conclusions based on
the evidence that I have. Of course, the testimony of the operator
of loader No. 313 is that there was only one small crack at the
lower corner of the windshield. Consequent'ly, I can only find that
this violation was less serious than the other one, bordering on a
finding that it was nonserious. Based on the discussion above, I
find that a penalty of $10 should be assessed under the criterion
of gravity.

1148

Since the windshield here involved was replaced with the same
promptness that characterized replacement of the other one, I find
that the criterion of rapid abatement should be given a great deal
of weight. Therefore, the penalty of $60 which would otherwise be
assessed under the criteria of history of previous violations, negligence, and gravity will be reduced by 50 percent to $30.00.
Settlement Agreement
As explained in the introductory part of this decision, the
parties agreed to a settlement with respect to the other three violations
in Docket No. KENT 81-77. The findings with respect
to the contested violations are also applicable to the settlement
agreement insofar as three of the six criteria are concerned. It
has already been stipulated that the operator is a large operator,
that payment of penalties will not cause it to discontinue in business, and that the violations were rapidly abated.
Counsel for the Secretary placed into the record this morning
the basis for the settlement insofar as the remaining three criteria are concerned. The first violation was
in Citation
No. 950537 stating that a white Chevrolet explosives truck loaded
with various explosive materials was not securely blocked or braked
so as to prevent the truck from rolling, as required by section
77.1302(j). It is said that the violation was accompanied by
ordinary negligence because the foreman knew about the truck's
condition and had not taken
to secure it thoroughly. It
is also said that the violation is accompanied by moderate seriousness because there was a possibility that the truck could have
rolled away from its parking place and might have caused a hazard
to anyone who might have been in the area.
The Assessment Office evaluated the criteria of negligence
and gravity in about the same way that it was described on the
record by the Secretary's counsel. Exhibit 1 in this proceeding
doesn't show that there's been a previous violation of section
77.1302(j). Consequently, I find that the penalty of $130 proposed by the Assessment Office was derived under the six criteria
in an acceptable manner and that respondent's agreement to pay
the proposed penalty in full should be approved.
The next citation involved in the settlement agreement is No.
950538, which alleges a violation of section 77.1302(f) because
the explosives truck, the same one that was involved in the previous alleged violation, was found loaded with explosives, detonators, and detonating cord which had been left on the truck during
a previous working shift. The inspector concluded that the materials were left in the truck by personnel working on the previous
shift because the types of detonators and explosives left on the
truck were the types used on the previous shift, but were not the
kinds used on the shift during which he made his inspection which

1149

was the midnight-to-8:00-a.m. shift. The inspector considered that
the violation was associated with ordinary negligence because the
supervisor knew about the explosives on the truck.
The violation was moderately serious because the truck was
being used for transportation of personnel. Consequently, the
Assessment Off ice found that the violation was moderately serious
and proposed a penalty of $122. I find that to be an appropriate
penalty and that the settlement agreement should be approved with
respect to the alleged violation of section 77.1302(f). I should
emphasize that all of the violations in this proceeding were rapidly abated so that the penalties otherwise assessible under the six
criteria have been appropriately reduced to a lower amount than
they would have been if the operator had not shown rapid abatement.
Finally, the settlement agreement deals with a Citation No.
951485 which alleged that a violation of section 77.1110 had
occurred, in that the fire extinguisher on Caterpillar Dozer No.
429 had been discharged and had not been recharged with the appropriate chemicals and, therefore, was not in an operable condition.
Counsel for the Secretary stated that there was ordinary negligence
involved in this violation because an examination of the fire extinguisher would have disclosed that it had been discharged and
wouldn't operate. He indicated that the violation was only slightly serious because the dozer was located in an area which is above
ground where the possibility of fire is not associate·d with the
hazards which exist in an underground mine where coal dust or
methane can be ignited by any fire that does start.
The Assessment Office took into consideration that this violation was not as serious as the other ones mentioned above and
proposed a penalty of $78. In view of the operator's rapid abatement, I believe that that penalty was also appropriately derived
by the Assessment Office. Therefore, the motion for approval of
settlement will be granted and the settlement agreement will be
approved.
DOCKET NO. KENT 81-78
Citation No. 951770 (Exhibit 6), October 7, 1980,

§

77.1005(a)

When Inspector R. C. Hatter was at Martiki Coal Corporation's
surface mine on October 7, 1980, he wrote a citation alleging a
violation of section 77.1005(a). The findings of fact, which
should be made in connection with whether a violation was shown to
exist, will be set forth below in enumerated paragraphs.
1. The conditions which the inspector described in connection
with Citation No. 951770 began with an observation that the lowest
bench on a highwall was about 40 feet high. The inspector believed
that there were loose materials along the top of the bench in the

1150

form of sandstone and rocks, ranging in size from a fist to a hard
hat. The inspector first noticed what he thought were hazardous
conditions when he was looking at the bench from the pit area beneath it. In order to get a better view of the materials, the inspector went to the top of the bench and walked along the top of
the bench. The area traversed by the inspector is shown in three
different pictures, which have been identified and admitted in
evidence as Exhibits A, B, and C. In each of those pictures, a
hump is shown in the top of the bench, about halfway across the
bench, and approximately midway in each of the pictures. The inspector walked all the way across the top of the highwall to the
hump, and then stood on the hump and looked at the remaining part
of the top of the bench. At one place, about a quarter of the
way across the bench, the inspector lowered himself to the ground
and, using his foot, eased off of the highwall one sandstone
about the size of a hard hat. He examined the place where the
stone landed in the pit area beneath the bench, and found that
that place was about 10 or 12 feet from the base of the bench,
and that the rock had broken up somewhat~ but not completely.
2. The inspector decided that there had been a violation of
section 77.lOOS(a) which provides as follows: "[h]azardous areas
shall be scaled before any other work is performed in the hazardous area. When scaling of highwalls is necessary to correct conditions that are hazardous to persons in the.area, a safe means
shall be provided for performing such work."
3. The inspector was advised that work had been done in the
pit area for about 2 days, and he felt that the failure to scale
the materials along the edge of the top of the bench was an obvious condition that was hazardous and should have been scaled
further, before work was done in the pit area. Therefore, he
initially wrote Citation No. 951770 as an unwarrantable-failure
citation.
4. The Company's Safety Director, Donald McConnell, was of
the opinion that no violation had occurred and that it was certainly
improper for the citation to have been written as an unwarrantablefailure citation. McConnell asked Inspector Hatter's supervisors
to come to the mine and make an inspection of the area described in
Citation No. 951770. In response to that request, the Sub-District
Manager, Bill Coleman, and a Surface Supervisor named Webb, came to
the mine and made an examination of the top of the bench involved.
It was their opinion that Inspector Hatter should not have written
the citation as an unwarrantable-failure citation. The inspector
thereafter modified the citation to show that it had been issued
under section 104(a). Therefore, we are here concerned with a citation written under section 104(a), rather than 104(d)(l).

1151

5. Inspector Hatter was of the opinion that the highwall in
general, which was about 200 feet high, and which had four or five
benches above the lowest one here involved, had been well constructed and did not have hazardous materials on them. But he still
felt that the lowest one, shown in Exhibits A, B, and C, was a
hazardous condition, at the time he observed it.
6. The inspector was of the opinion that the additional loose
material that he was concerned about could have been removed by use
of a cherry picker or by using a crane of some sort to drag a piece
of dozer track along the top of the bench, Apparently, the Company
did not agree that that was a safe way to deal with the situation
and, therefore, the inspector and the Company compromised on abatement, whereby a berm was constructed at the base of the highwall,
at a distance of about 20 feet from the highwall, and for the entire length of the bench, so that equipment could not get any closer
to the bench than about 15 or 20 feet.
7, The Company abated the condition very rapidly, succeeding
in putting the berm entirely across the base of the bench by the
end of the shift on which the citation was written,
8. Four witnesses appeared in this proceeding on behalf of
respondent. The first one was James David Lewis, who was the lead
foreman during the production phase. He agreed that there were some
rocks along the feathered edge, but he did not get up on top of the
bench to check whether there were ·any fissures or cracks in the top
of the bench. He also agreed that the materials at the top of the
bench were composed of sandstone an<l slate, and that slate deteriorates more rapidly than sandstone. But it was his opinion that
the materials at the top of the bench did not constitute a hazardous area. He emphasized that the end loaders, which worked at the
bottom of the pit, in loading coal and cleaning off the coal, were
equipped with heavy tops which were adequate for not only roll-over
protection, but also to protect the operator from any falling
materials.
9. The next witness who testified on behalf of the Company
was Ralph Hodson, who was also a lead supervisor. He had made an
inspection of the bench before work was begun on October 7. It was
his opinion that no hazardous conditions existed along the top of
the highwall. He was familiar with the fact that there was loose
material on the feathered edge, but he believed that the top of the
bench had been constructed in a safe way, by having a bulldozer
scrape it first, and following up with a shovel. He had been a
shovel operator prior to becoming a lead supervisor, and he believed
that the few rocks and loose materials that were left were not
hazardous. He believed that proper techniques had been used to construct the bench. He emphasized that the bench, at its top, was not
wide enough, after the shovel operation, to permit a dozer to go
back and clean it again. In other words, it would have been unsafe
to have done so.

1152

10. The third witness who testified on behalf of respondent
was Robert Dixon, who was Assistant Safety Director at the time
the citation involved was written. He had been with Inspector
Hatter when the inspection first began. He had been down in the
pit area when the inspector advised Dixon that the inspector believed that the top of the bench was hazardous. While Dixon did
not agree with the inspector, it was his duty to stay with the inspector and, therefore, he accompanied the inspector to the top of
the bench, and he walked part of the way across the top of the
bench with the inspector. He saw the inspector push the hard-hatsized rock off the top, and noted that it landed about, in his
opinion, 8 feet out from the bottom of the bench, He saw only one
crack in the top of the bench, which he said was parallel with the
bench above the lowest one which is involved in this case. Dixon
had also made an inspection of the bench area before the inspector
made his examination, and he, like the other two witnesses, whose
testimony has been described above, felt that there was nothing
hazardous about the bench which is under consideration here,
11, The fourth witness who appeared on behalf of respondent
was Donald McConnell who, on October 7, 1980, was the Director of
Health and Safety, but who no longer works for the Company, having
left on January 28, 1982. It was his testimony that he also inspected the bench on October 7, 1980. He, like the three witnesses
whose testimony have been described above, agreed with them that
there were no hazardous conditions existing on October 7. McConnell
was called back to the pit area when Dixon advised him that the
inspector was of the opinion that a citation should be written
about the bench.
12. McConnell had participated in the construction of the
entire 200-foot highwall and he was particularly concerned about
the construction of a highwall and benches which would be free of
any kind of hazards. It was his opinion that no hazardous conditions existed. He believed that the feathered edge was a necessary
aspect of the lowest bench, because he knew that the top of the
bench consisted of slate and materials that would have a tendency
to be loose. He believed that by using the dozer in advance of the
shovel to feather the edge, any loose material would remain at the
top of the bench and, if they did fall, they would fall directly
below, without any hazard to people below, because of the small
consistency of the materials. He also believed that the equipment
that the Company used was sufficiently protective in the way it
was designed to prevent any injuries to anyone who might be working
in the pit at the time any loose material might come down.
I believe those are the primary findings that should be made
in this proceeding with respect to the alleged violation of section
77,lOOS(a).

1153

Respondent's counsel has stressed the fact that, while there
may have been some loose material at the top of the bench, that
the construction of the bench was of such a nature that it could
not be considered to constitute a hazardous condition.
The Secretary's counsel has emphasized that respondent has
placed undue emphasis on the type of equipment used by the Company, in that the Company seems to be of the opinion that its
equipment is so well made and so adapted to the kind of operation
involved, that no hazard exists when work is being done below the
bench here involved.
The crucial aspect of proof of the violation lies in the first
sentence of section 77.lOOS(a), and that is that I must first start
off with a finding that a hazardous area existed, because the sentence reads "[h]azardous areas shall be scaled before any other
work is performed in the hazardous area." The question of whether
there was a hazardous area is an extremely difficult determination
to make, based on the evidence that exists in this case, It is
particularly difficult, because I have the testimony of four witnesses working for the Company, and I only have the testimony of
one inspector. It is his position that it was a hazardous area and
it is their position that it was not a hazardous area.
If the inspector had simply cited the operator for having loose
material along the top of the bench, I suppose even the Company's
witnesses would have to concede that that was true, because all of
the witnesses agreed that there was some loose material at the top
of the bench. The difference in interpretation is whether that
loose material would fall and, if it did, whether the danger is so
obvious and so great that I should label the bench area as hazardous.
I don't really have a difference in facts here. I have four
Company witnesses and one inspector, all of whom agree that there
was a feathered edge at the top of the lowest bench, and they all
agree that there was some loose material in that feathered edge.
The difference in interpretation is the question which is before me
for decision~
The inspector examined the same physical features of the bench
which were scrutinized by the Company's four witnesses and he concluded that the area was hazardous, while the other four men looked
at the same conditions and concluded that the area was not hazardous. To the inspector's credit, of course, must be noted the fact
that he is the only one of the witnesses who walked along the top
of the bench over to the hump in the middle of the bench as shown
in Exhibits A, B, and C. Dixon is the only witness who was on top
of the bench with the inspector and Dixon is the only Company witness who was in a position to say whether there were or were not
cracks or fissures in the top of the bench. Dixon agreed that there

1154

was one crack in the top of the bench in the distance that he
walked, which was anywhere from a quarter of the way to the hump,
to half of the way. The inspector said there were other fissures
in the top of the bench, between the place where Dixon stopped
walking and the hump where the inspector stopped walking.
I would be inclined to agree with the four men, who reached
the conclusion that the loose material at the top of the bench was
not a hazardous condition, if it were not for the fact that I've
read several Commission decisions in which people have been killed
from having been at the bottom of a highwall when there were materials that fell off the highwall. In one of those cases,
Consolidation Coal Company, 2 FMSHRC 3 (1980), an assistant superintendent and a foreman-trainee were working at the bottom of a
highwall when a landslide occurred and killed the foreman-trainee.
I believe that I should interpret the mandatory safety standards in the fashion which will bring about maximum safety for the
miners. I find that the preponderance of the evidence in this case
shows that there were loose materials at the top of the bench and
that there was a possibility that these materials could fall below.
The fact that those materials existed _for 400 feet along the top of
the highwall supports a finding that there was a hazardous area
here.
The cracked windshield in the end loaders involved in the
violations previously considered in this decision were in the same
type of end loader which was being operated below the bench involved
in this case, that is, Caterpillar 992C end loaders. In each of
the prior cases, the windshields had been cracked by the fall of a
piece of material from the bucket down to the windshield, which
would only have been a distance of from 15 to 20 feet. Now, if a
rock falling off a bucket can crack a windshield, then it seems to
me that a rock falling from the top of a bench, a distance of 40
feet, is certainly capable of going clear through a windshield and
causing an injury to the person operating an end loader.
So, even though respondent does have instructions to its employees not to get out of equipment near a highwall, and if they
do get out of it, to exit on the outby side of the equipment, so
that they'll be protected from any falls from the highwall by the
equipment itself, the fact remains that there is a possibility of
injury from anything falling off of the highwall. I cannot find
that the inspector was incorrect in concluding that a hazardous
area existed. Therefore, I find that a violation of section 77.1005
(a) was proven.
Having found a violation, it's necessary that a civil penalty
be assessed. The Secretary's counsel, in his concluding argument,
asked that a large penalty be assessed if I affirmed the citation.

1155

The reason that he made that request is that I had pointed out, in
some questions of McConnell, that people who work with a given condition, such as the construction of the highwall, might get complacent, or so used to seeing a certain condition, that they might fail
to recognize its possible hazards. The purpose of civil penalties,
of course, is to deter operators from violating a given section of
the regulations. A large civil penalty, theoretically,' has a better
chance of keeping a person from forgetting that a violation occurred
than a small penalty would. A large civil penalty, however, should
be assessed only when a large penalty has been shown to be required
after proper consideration of the six criteria set forth in section
llO(i) of the Act.
As I pointed out in the previous portion of this decision in
Docket No. KENT 81-77, some of the six criteria have already been
the subject of a stipulation which is applicable to all the alleged
violations. It has already been stipulated that the Company is a
large operator, and that payment of penalties would not cause it to
discontinue in business.
Exhibit 1 deals with the criterion of history of previous violations. And that exhibit shows that there's been one previous violation of section 77.lOOS(a) in the last 24-month period. I believe
that that is about as minimal a history of previous violations as a
company could have. Consequently, I shall assess a penalty of $20
under the criterion of history of previous violations-.
The remaining three criteria are a good-faith effort to achieve
compliance, negligence, and gravity. As to the negligence involved,
I can find only a low degree of negligence, because all four supervisors involved in this case had inspected the highwall, or lower
bench, before work was done that day, and all of them appear to be
sincere and credible witnesses who did not feel that the material at
the top of the bench constituted a hazardous area. Since I have had
a lot of problems with being certain that it was a hazardous area,
I certainly cannot fault them for having some doubts about it.
Therefore, I shall only assess a penalty of $10 under negligence,
because I feel there is a very low degree of negligence.
Insofar as gravity is concerned, there doesn't seem to be any
doubt but that there was a possibility of a serious accident if some
of this material at the top of 'the bench should have fallen and gone
through a windshield or a side glass and hit an operator of an end
loader. The inspector testified, and it was generally agreed, that
an end loader, at the time the inspector first examined the bench,
was working within a few feet of the bench, and the operator of the
equipment would have been, according to all· the witnesses, within
12 to 15 feet of the bench. That would have been within the range
of a rock that might have fallen from the bench. So I would have to
find that it was a serious violation. At the same time, as I've

1156

pointed out above, there does not seem to have been a strong likelihood that an injury would have occurred even if a berm had not
been constructed for abatement of the citation. Consequently,
under the criterion of gravity, I believe that a penalty of $100
is warranted.
It has been stipulated that the Company made a rapid good-faith
effort to achieve compliance. The stipulation is supported by the
testimony because the Company immediately started constructing the
required 400-foot berm and had it completed before the inspector
left the premises, or so nearly completed, that the inspector terminated the citation. As I have already pointed out in the preceding
part of this decision, the criterion of rapid abatement has been used
by the Assessment Off ice and by me as a reason for reducing a penalty
reached under the other five criteria. In the discussion of the
other criteria above, I have derived a penalty of $130 under the
other criteria. I believe, as I indicated in assessing penalties
for the violations of section 77.1605(a), that the amount of the
penalty should be reduced by 50 percent under the criterion of rapid
abatement. Therefore, a penalty of $65 will be assessed for the
violation of section 77.lOOS(a) alleged in Citation No, 951770.
WHEREFORE, it is ordered:
(A) The motion for approval of settlement with respect to three of the
violations alleged in Docket No. KENT 81-77 is granted and the settlement
agreement is approved.
(B) Pursuant to the settlement agreement, Martiki Coal Corporation
shall, within 30 days from the date of this decision, pay penalties totaling
$330.00 which are allocated to the respective violations as follows:
Docket No. KENT 81-77
Citation No. 950537 10/6/80 § 77.1302(j) .•••••••••••.••• $ 130.00
Citation No. 950538 10/6/80 § 77.1302(f) •• •••• •••.... .••
122.00
Citation No. 951485 10/6/80 § 77 .1110 • • • • • • . • . . . • • . . • • • .
78.00
Total Settlement Penalties in This Proceeding ••..••.•••. $ 330.00
(C) Within 30 days from the date of this decision, Martiki Coal Corporation shall pay civil penalties totaling $125.00 with respect to the violations which were contested. Those civil penalties are allocated to the
respective violations as follows:
Docket No. KENT 81-77

$

30.00
30.00

Total Contested Penalties in Docket No. KENT 81-77 •••••• $

60.00

Citation No. 731280 10/6/80 § 77.1605(a)
Citation No. 751482 10/6/80 § 77.1605(a)

1157

•••••••••••••••

0

Docket No. KENT 81-78
Citation No. 951770 10/7/80 § 77.1005(a) .....••••.••..... $

65.00

Total Penalties Assessed in Docket No. KENT 81-78 ......•• $

65.00

Total Contested Penalties Assessed in This Proceeding •••• $ 125.00
Total Settled and Contested Penalties in This Proceeding .• $ 455.00

rtP~A/1--dl.

e. Jn-2J-_~"JJ~
-~il--;;--

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
George Drunnning, Jr •• Esq., Office of the Solicitor, U. S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
William G. Francis, Esq., Attorney for Martiki Coal Corp., Francis,
Kazee and Francis, 111 East Court Street, P. O. Box 110, Prestonsburg,
KY 41653 (Certified Mail)

1158

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. KENT 82-10

v.

A. C. No. 15-10559-03002

ADAMS COAL ENTERPRISES, INC.,
Respondent

No. 1 Preparation Plant
DEFAULT DECISION

Appearances:

George Drumming, Jr., Esq., Office of the Solicitor, U. S.
Department of Labor, for Petitioner;
No one appeared at the hearing on behalf of Respondent.

Before:

Administrative Law Judge Steffey

When the hearing in the above-entitled proceeding was convened in
Prestonsburg, Kentucky, on April 23, 1982, pursuant to written notice of
hearing dated March 16, 1982, and received by respondent on March 19, 1982,
counsel for the Secretary of Labor entered his appearance, but no one appeared at the hearing to represent respo~dent.
Under the provisions of 29 C.F.R. § 2700.63(a), when a party fails to
comply with an order of a judge, an order to show cause shall be directed to
the party before the entry of any order of default. An order to show cause
was sent to respondent on April 26, 1982, pursuant to section 2700.63(a),
requiring respondent to show cause why it should not be found to be in default for failure to appear at the hearing convened on April 23, 1982. A
return receipt in the official file shows that respondent received the showcause order on May 3, 1982. The time within which a reply to the show-cause
order should have been received has passed and no reply has been submitted.
Inasmuch as no reply to the show-cause order was submitted, I find respondent to be in default for failure to appear at the hearing convened on
April 23, 1982. Section 2700.63(b) of the Commission's rules provides that
"[w]hen the Judge finds the respondent in default in a civil penalty proceeding, the Judge shall also enter a summary order~ssessing the proposed penalties as final, and directing that such penalties be paid."
I have examined the Proposed Assessment sheet in the official file and
I find that the Assessment Office has proposed a penalty for the single violation of 30 C.F.R. § 71.802 involved in this pr~ceeding after considering
the six assessment criteria set forth in section llO(i) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 820(i), in accordance with the
assessment formula described in 30 C.F.R. § 100.3. Since section 2700.63(b)

1159

provides for the proposed assessment to be entered as a matter of course
in a default proceeding, it is unnecessary for me to discuss the six criteria in detail. I have discussed the proposed assessment solely to have
it reflected in my decision that the Assessment Office derived the proposed
penalty of $28.00 in a proper manner. The small penalty is appropriate in
this instance because respondent is a small operator, has no history of
previous violations, and the violation appears to have been nonserious.
WHEREFORE, it is ordered:
Adams Coal Enterprises, Inc., having been found to be in default, is
ordered, within 30 days from the date of this decision, to pay a civil penalty of $28.00 for the violation of section 71.802 alleged in Citation No.
983263 dated June 1, 1981.

~~-~

c. s.J-.w;~~·'>

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
George Drumming, Jr., Esq., Office of the Solicitor, U. s. Department
of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
David H. Adams, Esq., Adams Corporation, P. 0. Box 2320, Pikeville,
KY 41501 (Certified Mail)

1160

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 241982

Contest of Citations

AMAX CHEMICAL CORPORATION,
Contestant
v.

CENT 82-93-RM
CENT 82-94-RM
CENT 82-95-RL"l
CENT 82-96-1U1
CENT 82-97-RM
CENT 82-98-RM
CENT 82-99-RM
CENT 82-100-RM

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

517729
517732
517734
517738
517739
517740
518049
518060

2/2/82
2/4/82
2/9/82
2/11/82
2/ 11/82
2/17
2/10/82
2/18/82

Amax Mine and Refinery
DECISION AND ORDER OF DISMISSAL
Counsel for contestant filed on June 7, 1982, in the above-entitled proceeding a notice of contest seeking review of the validity of the
citations listed in the caption of this decision. A separate docket number has
been assigned to each of the citations, but review of all citations is sought
in a single notice of contest, a copy of which has been placed in each of the
folders made for the separately docketed cases. All of the cases involve the
same operator and raise common questions of law and fact. Therefore, the
cases are consolidated for purposes of hearing and decision.
Counsel for the Secretary of Labor filed on June 16, 1982, a timely
answer to the notice of contest. The answer alleges that the citations were
properly issued under section 104(a) of the Federal Mine Safety and Health
Act of 1977, that the citations properly allege violations of the mandatory
standards, that contestant's mine produces products which affect interstate
commerce, that the time for abatement given in the citations was reasonable,
and denies all other allegations made by the notice of contest. The Secretary's answer, however, does not raise any issue about whether the notice of
contest was timely filed.
The notice of contest states that it is contesting the eight citations
listed in the caption of this decision "in accordance" with section 105(d)
of the Act and 29 C.F.R. § 2700.20. Section 105(d) reads, in pertinent part~
as follows:
(d) If, within 30 days of receipt thereof, an operator of
a coal or other mine notifies the Secretary that he intends to
contest the issuance or modification of an order issued under
section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this
section, or the reasonableness of the length of abatement time
fixed in a citation or modification thereof issued under section
104, * * * the Secretary shall immediately advise the Commission

1161.

of such notification, and the Commission shall afford an opportunity for a hearing * * * and thereafter shall issue an order,
based on findings of fact, affirming, modifying, or vacating
the Secretary's citation, order, or proposed penalty, or directing other appropriate relief. * * * [Emphasis supplied.]
Section 105(d) requires that an operator file its potice of contest with
the Secretary of Labor within 30 days after the citation or order is issued
and the Secretary is required to notify the Commission "immediately" that
such a notice of contest has been filed. The question of whether a notice
of contest has been filed within the time limitation of section l05(d) depends upon how one interprets the word "immediately" in section 105(d), I
issued a decision on January 30, 1979, in Island Creek Coal Co. v. Secretary
of Labor (MSHA) and United Mine Workers of America, Docket No. PIKE 79-18, in
which I treated the provision in section 105(d) that the Secretary notify the
Commission "immediately" of the filing of a notice of contest as the equivalent of a requirement that the operator notify the Commission simultaneously
with notification of the Secretary. In that decision, I dismissed the operator's pleading because it had not been filed with the Commission within the
30-day time period. The Commission affirmed the dismissal in Island Creek
Coal Co., 1 FMSHRC 989 (1979).
Section 2700.20(b) of the Commission's rules provides that an operator
may file a copy of its notice of contest "* * * with the Commission at or
following the timely filing of his notice of contest with the Secretary 11 •
[Emphasis supplied.) There is no way for me to establish from the notice of
contest filed in this proceeding exactly when it was timely filed with the
Secretary, but it certainly cannot be considered as a timely filing because
it was filed 125 days after the first citation (No. 517729) was issued on
February 2, 1982, and was filed 109 days after the last citation (No, 518060)
was issued on February 18, 1982.
Contestant states in paragraph 10 of its notice of contest.that 11 [t]he
issues and costs involved with these Citations are such that a hearing should
not be deferred until penalties are assessed". In Energy Fuels Corp., 1
FMSHRC 299, 308 (1979), the Commission held that an operator may obtain
inunediate review of a citation, but the Commission indicated that it would
normally be possible to postpone the hearing on the notice of contest until
such time as the Secretary had proposed penalties so that the civil penalty
issues could be considered in a consolidated proceeding. The Commission
noted further that "[i]f the operator has an urgent need for a hearing, the
Secretary could make it more ·likely that the two contests would be tried
together by quickly proposing a penalty" (1 FMSHRC at 308-309).
Contestant has not specifically shown in its notice of contest why it
believes there is an urgent need for a hearing and contestant has not explained how its need for an immediate hearing can be reconciled with its
failure to file its notice of contest for from 125 to 109 days after the
citations to which it objects were issued. Section 2700.22 provides that
an operator's failure to file a notice of contest "* * * shall not preclude

1162

the operator from challenging the citation in a penalty proceeding."
Therefore, dismissal of the notice of contest for untimely filing will not
prevent contestant from raising in the civil penalty proceedings the same
defenses which it seeks to raise in its untimely filed notice of contest.
I am aware of the fact that the Commission has referred to the legislative history and has emphasized the need to give liberal interpretation
to the time limitations in the Act in such decisions as Victor McCoy, 2
FMSHRC 1202 (1980), and Salt Lake County Road Department, 3 FMSHRC 1714
(1981), but the McCoy case dealt with a miner who had filed a discrimination
complaint and Congress has indicated that the time limitations are not to be
treated as jurisdictional in such cases. In the Salt Lake case, the Commission was dealing with the Secretary's obligation to notify the Commission of
the filing by an operator of a notice of contest which an operator, if it
objects to a proposed penalty, is required to file within 30 days after receiving the Secretary's proposal of a penalty pursuant to section lOS(a) o
the Act. In the Salt Lake case, the Commission declined to dismiss a civil
penalty proceeding because of the Secretary's failure to notify the Commission within 45 days after the operator had filed its notice of contest. That
decision did not change the operator's responsibility under section lOS(a)
to notify the Secretary of its objections to a penalty proposal within 30
days.
The contestant in this proceeding is seeking to obtain an expedited
hearing on citations before penalties have been proposed. In such circumstances, contestant should not be permitted to obtain an expedited review of
the citations unless it files its notice of contest within the 30-day time
limit. Having failed to meet the 30-day time limitation for obtaining expedited review of the citations, the operator must now wait until the Secretary
has proposed penalties under section lOS(a) of the Act. At that time, the
operator may challenge the citations in a civil penalty proceeding in accordance with the provisions of section 2700.22.
WHEREFORE, for the reasons hereinbefore given, it is ordered:
The notice of contest filed June 7, 1982, in Docket Nos. CENT 82-93-RN,
et al., is dismissed without prejudice to contestant's right to raise in the
civil penalty proceedings the same issues which are given in its notice of
contest.

~ e.<Ji~r~

Richard C. Steffey'R ~
Administrative ~aw Judge
{Phone: 703-736-6225)
Distribution:
C. A. Feezer, Esq., Dow & Feezer, P.A., P.O. Box 128, Carlsbad, NM
88220 (Certified Mail)
Robert A. Cohen, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
D. R. Lambert, President, Local 181, USWA, 311 South Guadalupe Street,
Carlsbad, NM 88220 (Certified Mail)

1163

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG Pl•~E
FALLS CHURCH, VIRGINIA 22041

JUN 251982
SANDRA CANTRELL,
Complainant

Complaint of Discharge,
Discrimination or Interference

v.
Docket lifo. WEST 82-23-DM
GILBERT INDUSTRIAL,
Respondent
DECISION
Appearances:

Sandra Cantrell, Bellevue, I<laho pro ~;
Ronald F. Sysak, Esq., Prince, Yeates & Geldzahler,
Salt Lake City, Utah, for Respondent.

Before:

Administrative Law Judge Broderick
STATE..MENT OF THE CASE

Complainant filed this proceeding·under section 105(c) of the
Federal Mine Safety and Health Act of 1977, claiming that she was
discharged by Respondent because of safety related activity protected
under the Act. A hearing was held in Boise, Idaho, on Hay 25, 1982.
Sandra Cantrell testified on her own behalf. Charles Hames, James Vegh,
William Coffey and Ernest Kihs testified on behalf of Respondent.
Both parties waived their rights to file written proposed findings of
fact and conclusions of law, and stated their contentions orally at the
conclusion of the hearing. Based on the evidence presented at the
hearing and considering the contentions of the parties, I make the
iollowing decision.
FINDINGS OF FACT
1. Coflplainant was employed by Respondent beginning on March 19 0
1981, as a du:mp person, where her basic duty was to flag and direct
dump trucks. Her rate of pay was $8.2~ per hour.
2o After approximately 2 or 3 weeks as a dump person she was
promoted to the position of dozer operator and her wage was increased
(after 1 week) to $9.25 per hour. Her basic duty was to clear dirt and
debris froM areas previously blasted and push it over into a waste pile.
She worked an average of 50 hours per week.

1164

3. On April 14, 1981, while she was operating her dozer, the
ripper accidentally touched off a cap and primer which had been left
in the area after blasting.
4. The explosion shook up and frightened Complainant. It caused
a ringing in her ears and a headache. She worked about 2-1/2 hours
after the incident. She also worked the next
and part of the
following. She then went to a doctor for the headaches which had
persisted since the accident.
5. She attempted to return to work on April 23, but was unable to
work. She returned on about May 4 although she continued to be troubled
by headaches and back aches. Her physician recommended that she limit
herself to light work. She worked for 3 days as a flag person at
a pay rate of $7.00 per hour.
6. On about April 27, 1981, Complainant called the MSHA office in
Boise and told MSHA about the incident of April 14 and her injury,
7. An MSHA inspector
ted Respondent's facility on April 29,
1981, and issued a citation for failure to notify MSHA of the occurrence
of an accident as required by 30 C.F.R. § 50.10.
8. On May 6, 1981, Complainant was laid off, and was told that her
position (as a flag person) was terminated because a flag person was no
longer needed on her shift and no other light duty was available. The
foreman who laid her off was unaware of her complaint to MSHA or the
subsequent MSHA inspection.
9. Complainant filed a claim for worker's compensation for the
period she was unable to work following her injury. She also filed a
claim for unemployment compensation.
10. Respondent needed additional flag people on approximately
May 10, 1981. Respondent's Personnel Director pulled out Complainant's
folder, but was unable to contact Complainant since she had no telephone.
Other people were hired.
11. At the time Complainant was laid off there were other dozer
operators who continued working although they had been hired subsequent
to Complainant. Respondent states that it is "a merit shop company,"
by which it means that it does not follow seniority, nor does it have
to answer to any employee or employee representative in determining lay
off policies. The employees were not represented by a union.

1165

12. Respondent was a joint venture, the purpose of which was to
prepare a site for the Cypress Hill Mines. It was formed in November,
1980, and completed its work at the site in approximately October, 1981.
13. Following her
off, Complainant did not go back to work
until January, 1932, when she went to work at a night club. She earns
approximately $140 to $160 per week including tips.
CONCLUSIONS OF LAW
1. Respondent at all times pertinent to this case was the operator
of a mine and subject to the provisions of the Federal Mine Safety and
Health Act of 1977.
2. I have jurisdiction over the parties and subject matter of this
proceeding,
3. Complainant failed to show by a preponderance of the evidence
that she was laid off because of any activity protected under the Act.
DISCUSSION
Complainant
in part that she was shabbily treated in her
workmen's compensation case, that she :was discriminated against because
she was a woman, that when she returned to light duty following her
injury, her pay should not have been cut, that she should have been laid
off in accordance with seniority principles. None of these allegations
would, if proven, establish a claim under section lOS(c) of the Hine
Safety Act. Although Complainant did report her injury to MSHA, and
Respondent was cited for a violation of a mandatory standard, the evidence does not show that she was discriminated against because of the
report. She was returned to work at light duty subsequent to the report
and inspection. I accept the evidence that the persons responsible for
her layoff on May 6, 1981, were unaware of the report to MSHA, the
inspection, and the subsequent citation. There is no evidence linking
any adverse action
Complainant to her call to MSHA officials.
Thus, Complainant has failed to establish the basic requirement for
liability under 105(c): a nexus between the adverse action and protected activity under the Mine Act. Secretary/Fasula v. Consolidation
Coal Company, 2 FMSHRC 2786 (1980), rev'd on other grounds sub nom
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981).
Therefore, Complainant's case must be dismissed.

1166

ORDER
Based upon the above findings of fact and conclusions of law, IT IS
ORDERED that this proceeding is DISMISSED.

J
Distribution:

~ ~frz;~/l ;;L

ti4"Kf
James A. Broderick
Administrative Law Judge

By certified mail

Sandra J. Cantrell, P.O. Box 574, Bellevue, ID 83313
Ronald F. Sysak, Esq., Prince, Yeates & Geldzahler, Third Floor Mony
Plaza, 424 East Fifth South, Salt Lake City, UT 84111

1167

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v,

DAVIS COAL COMPANYs
Respondent

JUN 25 l98'l

Civil Penalty Proceedings
Docket Nos, WEVA 80-565
WEVA 81-106
WEVA 81-249
WEVA 81-377
WEVA 81-429
WEVA 81-449
WEVA 81-457
WEVA 81-458
WEVA 81-459
WEVA 81-460
WEVA 81-461
WEVA 81-462
WEVA 81-504
WEVA 81-505
WEVA 81-506
WEVA 81-600
WEVA 81-601
WEVA 82-25
WEVA 82-24
Marie No. 1 Mine

DECISIONS
Appearances:

Covette Rooney, Attorney, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the petitioner; Paul E. Pinson,
Esquire, Williamson, West Virginia, for the respondent.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated dockets concern petitions 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 penalty assessments for a total of 176 alleged
violations of certain mandatory safety and health standards promulgated
pursuant to the Act.
Respondent filed answers and contests to the civil penalty proposals,
and pursuant to an agreement by the parties, all of the dockets were

consolidated for hearing in Charleston, West Virginia, during the term

1168

May 18-19, 1982. The parties were afforded a full opportunity to present
oral arguments concerning their respective positions, and they waived the
filing of any posthearing briefs and/or proposed findings and conclusions.

The issues presented in these proceedings are (1) whether respondent
has violated the provisions of the Act and implementing regulations as
alleged in the proposals for assessment of civil penalty filed, and, if so,
(2) the appropriate civil penalty that should be assessed against the
respondent for each alleged violation based upon the criteria set forth
in section llO(i) of the Act. In these proceedings, the crucial question
presented is whether or not the assessment of civil penalties against the
respondent for the violations in question will have an adverse impact on
its ability to remain in business.
In determining the amount of a civil
assessment, section 110
of the Act
consideration of the following criteria: (1) the
operator's history of previous violations, (2) the appropriateness of
such penalty to the size of the business of the operator, (3) whether the
operator was
, (4) the effect on the operator's ability to
continue in business, (5) the gravity of the violation, and (6) the
demonstrated
faith of the operator in
to achieve rapid
compliance after notification of the violation,
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 u.s.c. § 801
~·

2.

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

3.

Commission Rules, 29 C.F.R. § 2700.1

Stipulations

1. The respondent is the owner and operator of the Marie No. 1
Mine and both are subject to the provisions of the Act,
2. The Administrative Law Judge has jurisdiction to hear and
decide these dockets pursuant to the Act.
3. All of the citations issued to the respondent in these
consolidated dockets, including any terminations, abatements,
or modifications, were properly served on the respondent by
duly authorized representatives of the petitioner, and all
copies of the citations in question in these proceedings which
are attached to and made a part of the proposals for assessment
of civil penalties are authentic copies of the original citations
duly served on the respondent or its

1169

4. The respondent is a small coal mine operator producing
87,251 production tons of coal annually, when the Marie No. 1
Mine is operating.
5.

The Marie No. 1 Mine is not currently producing coal.

Except for three dockets in which testimony was taken concerning the
fact of violations, the parties stipulated as to the fact of violations
in the remaining cases. They also stipulated as to the civil penalty
criteria found in section llO(i) of the Act as to each of the violations,
and these stipulations are discussed at the appropriate places indicated
in these decisions. In addition, the parties are in agreement that none
of the citations which were issued in these proceedings concern fatalities?
injuries, or accidents involving miners or equipment.
Findings and Conclusions
Docket No. WEVA 80-565
Fact of Violations
This docket concerns 14 violations served on the respondent in
December 1979, and March 1980. Two were issued for failure to properly
insulate power cables; two for failure to guard a belt conveyor; four
for failure to record results of weekly electrical examinations; .and
the remaining ones for miscellaneous infractions concerning ventilation,
an inoperative methane monitor, and failure to designate stationary
equipment on a mine map. The parties stipulated that ail of the violations
occurred, and they are all AFFIRMED.
.·
·
Gravity
The record establishes that the gravity and probability of harm
occurring as a result of all of the citations, with the exception.-of
Citations 677862, 677863, 673591~ 673592, 'ranged from low to moderate.
As for the four citations noted, the parties stipulated that they were
all serious infractions.
Negligence
The record reflects that all of the citations, except for 677861,
resulted from the respondent's failure to exercise reasonable care, and
that all of these violations constitute ordinary negligence. With regard
to Citation No. 677861, the parties have stipulated that the negligence
was low because previous inspections had not revealed any problems with
the inoperative methane monitor which was cited.
Good faith compliance
The record reflects that the respondent demonstrated extraordinary
good faith compliance concerning Citations 677798, 677799, 677861, 677862,
and 677863 in that correction and abatement of the cited conditions was

1170

achieved immediately. As for the remaining citations, the respondent
achieved compliance by abating the conditions within the time fixed
by the inspectors.
History of prior violations
For purposes of this docket, the parties stipulated that respondent
has no history of prior violations of section 75.313, 75.300-4(a),
77.508, or 77.502-2. One prior violation of sections 75.517, 75.703,
and 77.800-2 are noted; as well as five prior citations of 75.1722,
eight for violations of 75.1722, four for violations of section 75.200,
and two for section 75.512.
Docket No. WEVA 81-106
Fact of Violations
This docket concerns 16 citations served on the respondent during
April and May 1980. Three were issued for failure to keep records of
examinations made in the mine; two were for improper fittings on power
cables; three concerned permissibility violations on mining equipment;
two were guarding violations for failure to guard machine parts; two
were for failure to provide adequate fire suppression devices on a shuttle
car and roof bolter; and the remaining ones were for miscellaneous
electrical violations. The parties stipulated that the violations
occurred, and all of the citations are AFFIRMED.
Gravity
None of the violations were deemed to be serious. The gravity
and probability of harm occurring with respect to all of the citations
ranged from medium to low, and citations 910981, 910982, and 910983
were deemed to be technical recordkeeping infractions.
Negligence
All of the citations with the exception of six, resulted from the
respondent's failure to exercise reasonable care. Citations 910981,
910984, 910986, 910990, 910992, and 910994 all constituted low degrees
of negligence in that some of the cited conditions were not readily
apparent or occurred through inadvertence. In any event, all of the
citations in question resulted from ordinary negligence by the respondent.
Good faith compliance
With regard to Citations 910989, 910990, 910992, the record
establishes that respondent exhibited extraordinary compliance in that
the cited conditions were immediately corrected and abated. As for the
remaining citations, respondent exhibited good faith compliance by promptly
correcting the conditions.

1171

History of prior violations
For purposes of this docket, the parties stipulated that the respondent
had no prior violations of section 75.305, 75.1722(a), and 75.605; 11 prior
citations of section 75.400; six for section 75.303; five for section
75.515; three for section 75.701; seven for section 75.503; four for
section 75.604; and one citation of 75.1107.
Docket No. WEVA 81-249
Fact of violations
Two of the citations were issued for accumulations of coal dust and
small amounts of oil on equipment, one was for failure to follow the
ventilation plan in that 8 permanent stoppings needed repairs, one for
failure to guard a belt drive, one for an inadequate methane monitor
on a continuous mining machine, and one for failure to adequately rock
dust the roof. The citations are all AFFIRMED.
Gravity
The gravity and the probability of harm occurring as a result
of all of the citations ranged from very low to moderate. The repairs
needed for the stoppings were minor, the mining machine was permissible,
was not overheated, and was equipped with operative fire fighting equipment,
the mine floor was rock dusted, no methane was detected in the mine, and
no ignition sources were present in the areas where the accumulations
were observed.
Negligence
Citations 910319, 911658, 911659, and 911660 all resulted from a
low degree of negligence on the part of the respondent in that the
conditions cited were either beyond the control of the respondent or
were not readily detectable. The remaining citations resulted from
ordinary negligence.
Good faith compliance
Respondent demonstrated extraordinary good faith in abating the
accumulations citation by immediately stopping production until the
condition was corrected, and immediately rEpairing the continuous mining
machine methane monitor. The remaining citations were abated within the
time fixed by the inspector.
History of prior violations
Respondent has a history of eight prior violations of sections
75.316, and 75.400, and no history of prior citation of the other sections
cited in this docket.

1172

Docket No. WEVA 81-377
Fact of Violations
All four of these citations resulted from the failure by the
respondent to submit required respirable dust samples for certain areas
of the mine. They are all AFFIRMED.
Gravity
The gravity and probability of harm occurring as a result of all
of the violations described in the Citations were low.in that failure
to submit the samples of the areas for the bi-monthly periods, would not
per
be likely to lead to harm to an employee.
Negligence
All of the citations constituted ordinary negligence in that the
respondent failed to exercise reasonable care in insuring that the
required samples were submitted.
Good faith compliance
The respondent was unable to abate the violations since the bi-monthly
sampling period had passed. Accordingly, no abatement was required.
History of prior violations
The respondent has a .history of one violation for 30 C.F.R. 70.207(a).
Docket No. WEVA 81-429
Fact of Violation
The violation issued after the inspector observed scaling of the roof
in a portion of the track area of the mine. The citation is AFFIRMED.
Gravity
The gravity and the probability of any harm resulting from the
cited condition were moderate.
Negligence
The violation resulted from a low degree of negligence in that the
deterioration observed by the inspector cannot be controlled by the
operator.
Good faith compliance
The respondent demonstrated ordinary good faith compliance by
correcting the condition within the time specified by the inspector.

1173

History of prior violations
Respondent has no history of prior violations of section 75.205.
Docket No. WEVA 81-449
Fact of Violations
One citation concerns the failure by the respondent to maintain a
roof bolter in permissible condition. The remaining four were issued
because the respondent failed to submit respirable dust samples for
certain designated sampling cycles. They are all AFFIRMED.
Gravity
The gravity concerning the roof bolter citation was minimal since
no methane was present in the area and the probability of harm was remote
since only one bolt was missing on the machine. The gravity connected
with the sampling citations was low since it was improbable that any
exposure to dust during the sampling cycle could result in any harm.
Good faith compliance and negligence.
The respondent demonstrated extraordinary good faith abatement to
achieve compliance regarding the permissibility citation in that power
was immediately removed from the machine and it was repaired. With regard to
the sampling citations, no abatement was required since the sampling period
had passed. All of the citations resulted from ordinary negligence.
History of prior violations
For purposes of this docket, the parties stipulated that the
respondent has a history of five prior violations of section 75.503;
one prior violation of section 70.207(a); and three prior violations
of section 208(a).
Docket No. WEVA 81-457

This docket concerns 20 citations issued to the respondent during
November and December 1980. Five were issued for inoperative fire
sensor alarms on the conveyor belt line; two were for inoperative water
deluge systems; four were for the failure to record the results of certain
preshift and on-shift examinations; three for failure to remove combustibles
(grass, weeds, and oil cans) found near certain equipment; four w~re
electrical violations for improper fittings and bushings on cables; and
two were roof control violations for improper roof bolts and failure to
provide an approved torque wrench. The parties stipulation that all of
the violations occurred, and the citations are all AFFIRMED.

1174

Gravity
The gravity and probability of harm occurring as to all of the
citations ranged from low to moderate.
Negligence
None of the violations in question resulted from gross negligence
by the respondent, and all of the conditions or practices cited were
the result of low or ordinary negligence.
Good faith compliance
With regard to 11 of the citations, respondent demonstrated extraordinary good faith compliance by immediately correcting the conditions
and abating the violations.* As for the others, abatement was achieved
through prompt corrections of the conditions within the time fixed by
the inspectors.
History of prior violations
For purposes of this docket, the record reflects that the respondent
has no prior citations for violations of sections 75.323 75.1103-S(b),
75.305, 75.90l(a), and 75.1101-3. Two prior citations are reflected
for section 75.512, four for sections 75.515 and 75.200, one each for
77.504 and 75.1103, and eight prior violations of section 75.400.
Docket No. WEVA 81-458
Fact of violations
This docket concerns twenty citations served on the respondent
during December 1980, and January and February 1981. The citations were
issued for a variety of infractions dealing with accumulations of
combustible materials, violations of the mine ventilation plan, improper
fittings on power cables, failure to have an up-to-date mine map, the
existence of stumbling hazards in a surface shop, an unsafe roof bolter,
storage of compressed gas cylinders in an outside shop area without
proper valve covers, lack of insulation and proper bushings on certain
power cables, failure to record examination results in an approved book,
failure to lock a gate on a power substation, and the accumulations of
combustibles on certain mine equipment. All of the conditions or practices
cited are a matter of record, and the parties stipulated that the violations
did in fact occur. Accordingly, all of the citations are AFFIRMED.
Gravity
The parties stipulated that Citations 918006, 918008, 918009,
876570, and 910293 were all serious violations. They also stipulated
that that the gravity connected with the remaining citations were in four
cases minimal, and as to the others the gravity was low or null, and
that these were all nonserious infractions.

*/ Citations 916581, 916582, 916583, 916585, 916586, 916588, 916589,
916592, 916594, 916596, and 916648.

1175

Negligence
The parties agreed that Citations No. 912395 and 912396 were the
result of no negligence on the part of the respondent. They also agreed
that Citations 918322 and 918324 through 918328 resulted from a low
degree of negligence on the part of the respondent, and that the remaining
citations resulted from ordinary negligence. I conclude and find that
except for the citations indicating no negligence, the remaining violations
demonstrated a lack of reasonable care and therefore constitute ordinary
negligence.
Good faith comnliance
The parties stipulated that the respondent demonstrated extraordinary
good faith compliance by immediately correcting the conditions cited in
Citations 918008 and 918328. As for the remaining citations, they agreed
that the respondent promptly corrected the conditions and achieved
abatement within the time frames specified by the inspectors.
History of prior violations
For the purposes of this docket, the parties stipulated that the
respondent has a history of 14 prior violations of section 75.400;
two for section 75.1104; three for section 75.1101-3; four for section 75.1725;
five for section 75.701; 13 for section 75.316; six for section 77.505;
three for section 75.1200; five for section 75.504; six for section 75.212;
three for section 77.502; and no prior citations of sections 75.1725(2),
75.1400-4, 77.205(b), 77.509(c), and 77.208(e).
Docket No. WEVA 81-459
Fact of Violations
This docket concerns 20 citations issued to the respondent on
February 17 and 24, 1981. Two citations concern an inoperative methane
monitor on a continuous mining machine; four are permissibility violations
concerning loose bolts in a roof bolter panel, a loose light, and improper
openings in a panel box; three are for accumulations of combustible
materials on a bolter and in the roadway; three concern improper bushings
on a cable and broken conduit; two are for improper identification for a
belt head and a miner power connector; one was issued for a disconnected
fire suppression system on a scoop; one for an inoperative deenergizing
device on a scoop; and two were issued because of a missing wheel cover
and a bolt on a scoop. The parties stipulated to the fact of violations,
and all of the citations are AFFIRMED.
Gravity
The parties stipulated that two of the citations (917629, 917636),
were serious. Eight of the remaining citations were nonserious, with a
low degree of gravity in that it was improbable that any injuries would
result, and the remaining citations were of a minimal degree of gravity.

1176

Negligence
The parties stipulated that Citations 917622, 918337, 918338, 918339,
918340, and 917627 were the result on no negligence on the part of the
respondent. They agreed that Citation No. 917630, concerning accumulations
along the entire mantrip roadway for a distance of 8,650 feet resulted
from respondent's "extreme negligence" but that no ignition sources were
present. Further, they stipulated that the remaining citations were the
result of respondent's failure to exercise reasonable care, and that this
constitutes ordinary negligence.
Good faith compliance
The record reflects that the respondent demomstrated normal good
faith compliance in promptly correcting the cited conditions within
the time fixed by the inspectors in all but one citation. That citation,
No. 917631, was abated through rapid compliance by the respondent.
History of prior violations
For purposes of this docket, the parties stipulated that the
respondent has no prior citations for violations of sections 75.1107-16(b)
or 75.523-2(c); 17 prior citations of section 75.400; two citations of
sections 75.313 and 75.904; three citatior13of section 75.515; and one citation
of section 75.1725(a).
Docket No. 81-460

I take note of the fact that Citation No. 917642, February 24, 1981,
was assessed at 11 zero" by MSHA's assessment office, and a notation on
the pleadings filed by the petitioner reflects that the citation was
subsequently vacated. Under the circumstances, this citation is dismissed.
With regard to the remaining 19 citations issued in this docket,
the record reflects that three were guarding citations for failure to
provide adequate guards for equipment; ten concerned miscellaneous
citations for failure to properly insulate power cables, improper cable
bushings, and failure to install power cables on proper insulators; two
were for failure to provide fire extinguishers; two were for improper
electrical guarding devices; and one for failure to vent a battery charging
station. The parties stipulated that all of the violations occurred,
and the citations are all AFFIRMED.
Gravity
The record reflects that the gravity and probability of harm occurring
as a result of all of the citations which have been affirmed in this
docket ranged from low to moderate.

1177

Negligence
With the exception of Citation No. 917651, the record establishes that
all of the remaining citations constituted ordinary negligence and resulted
from the respondent's failure to exercise reasonable care. With regard
to citation 917651, the record reflects that the negligence was low inasmuch
as the cited loose cable bushing resulted from inadvertent machine
vibration.
Good faith compliance
With regard to Citation No. 917639, respondent demonstrated extraordinary
good faith compliance by immediately removing power from the equipment
and repairing the cable insulation. The same applies for Citations 917640
and 917643, where the respondent immediately removed the equipment
from service and installed a guard on the feeder coupler, and immediately
placed an identification tag on the cat head. As for the remaining
citations, the record establishes that the respondent demonstrated good
faith compliance by correcting all of the cited conditions and practices
within the times specified by the inspectors.
History of prior violations
For purposes of this docket, the parties stipulated that respondent
has four prior violations of section 75.515, one prior citation of section
75.807, and no prior citations for the remaining cited mandatory standards.
Docket No. WEVA 81-461
Fact of Violations
Citation No. 917753, March 6, 1981, citing 30 CFR 75.515, was vacated
by MSHA on June 1, 1981, after completion of a further investigation.
With regard to the remaining 19 violations, four were issued for
inadequate guards on belt conveyor pulleys; eleven were for improper
motor cable bushings, lack of insulators on cables, and failure to guard
power cables; two were for missing bolts on a motor and a scoop; one
for failure to provide a good fire extinguisher on a belt conveyor; and
one roof control violation for loose roof bolts. The parties stipulated
that all of the violations occurred, and all of the citations are AFFIRMED.
Gravity
Except for citations 917750, 917751, 917755, and 917761, which the
parties agreed were serious, the gravity regarding 15 of the remaining
citations was low, and one involved moderate gravity. All of these
concerned improbable nonserious hazards.

1178

Negligence
All of the citations were the result of respondent's failure to
exercise reasonable care, and they all constitute ordinary negligence.
Goodfaith compliance
Respondent corrected all of the cited conditions within the time
fixed for abatement, and demonstrated ordinary good faith compliance as
to all of the violations.
History of prior violations
The record reflects six prior citations of section 75.1725(a);
10 prior violations of section 75.515; four citations for section 75.1722(a);
six for section 75.506; seven for section 75.517; five for section 75.807;
16 for section 75.200; and no prior citations for violations of sections
75.516.Z(c) or 75.1100.Z(e)(l).
Docket No. WEVA 81-462
Fact of violations
Two of the citations were issued for coal dust accumulations along
the belt head, one for failure to provide a proper bushing for a switch
power cable, one for failure to guard a tail piece roller, one for failure
to adequately support the roof along the track ·slope, and one for failure
to provide a bumper block at the raw coal dump. All of the citations are
AFFIRMED.
Gravity
The gravity and the probability of harm occurring a result of five
of the citations ranged from low to moderate. No methane was detected
in the areas of the coal accumulations, but the presence of an ignition
source could have resulted in a fire. The roof support violation was
serious in that the existing roof bolts were not providing adequate roof
support and someone could have been seriously injured had a roof fall
occurred.
Negligence
All of the citations resulted from ordinary negligence on the part
of the respondent.
Good faith compliance
Respondent demonstrated good faith compliance as to four of the
citations by abating the conditions within the time fixed by the inspector.
Regarding the bumper block citation, respondent demonstrated extraordinary
efforts to comply by immediately installing a bumper at the raw coal dump.

1179

History of prior violations
Respondent has a history of 18 prior violations of section 75.400,
10 prior violations of section 75.515, four violations of section 75.1722(a),
16 violations of section 75.200, and one prior violation of section
77.1605(1).
Docket No. WEVA 81~506
Fact of violations
One of the citations was issued for failure to provide fuse protection
on a piston pump at the slope bottom, and a second one was issued for failure
to provide a fire extinguisher in the maintenance shop. These are both
AFFIRMED.
Gravity
The degree of gravity with regard to both citations was moderate.
Negligence
Both citations resulted from the respondent 1 s failure to exercise
reasonable care, and this constitutes ordinary negligence.
Good faith compliance
Respondent demonstrated extraordinary compliance by immediately
providing a fire extinguisher for the shop, and by promptly providing
fuse protection for the pump in question.
History of prior violations
Respondent has a history of two prior violations of section 77.506,
and one prior violation of section 77.1109(a).
Docket No WEVA 81-601
Fact of violation
This docket concerns Citation No. 911888, issued on June 2, 1981
for a violation of 30 CFR 75.316, for failure by the respondent to submit
an annual review of a ventilation plan to MSHA. The parties agreed that
a violation occurred, and the citation is therefore AFFIRMED.
Gravity
The parties stipulated that inasmuch as the respondent did in fact
have an effective ventilation plan at the time the citation issued, the
fact that it failed to submit a copy to MSHA had a minimal gravity level,
and the violation was not significant or substantial.

1180

Negligence
The parties are in agreement that the violation resulted from ordinary
negligence on the part of the respondent.
Good faith compliance
The plan was subsequently submitted to MSHA for review within the time
allotted by the inspector. Therefore, the respondent demonstrated good
faith compliance.
History of prior violations
The parties stipulated that the respondent has a history of eight
prior violations of section 75.316.
Docket No. WEVA 82-25

This docket concerns eight citations served on the respondent during
the period May through August 1981. Three citations were issued for
failure by the respondent to submit respirable dust samples for certain
sampling periods; one was issued for inadequate rock dusting; one for
permitting combustible materials to accumulate; one for failure to install
a power cable on insulators; one for having shields off a battery car
and the batteries were cracked; and one for failing to maintain a second
floor travelway safe in that a floor board was-missing, thereby exposing
a hole. The parties stipulated that all of the violations occurred, and
therefore, the citations are AFFIRMED.
Gravity
The parties agreed that none of the citations were significant or
substantial, and that the gravity or probability of harm occurring as a
result of the violations was minimal or moderate.
Negligence
The record establishes that all of the citations resulted from the
respondent's failure to take ordinary care, and that this amounts to
ordinary negligence.
Good faith compliance
With regard to the respirable dust citations, the parties stipulated
that abatement could not be achieved since the sampling cycle had passed
at the time the citations issued, As for the remaining citations, the
parties stipulated that respondent demonstrated ordinary good faith
compliance by correcting all of the conditions cited by the inspectors
within the time fixed for abatement.

1181

History of prior violations
For purposes of this docket, the parties stipulated that the respondent
has a history of 18 prior violations of section 75.400; seven prior
violations of section 75.750 and 75.1725(a); one prior violation of
section 77.205(a); and six prior violations of section 70.208(a).
Docket No. WEVA 82-24
Fact of violations
This docket concerns four citations issued to the respondent in
December 198D, for (1) failure to submit an escape and evacuation plan
to MSHA, (2) failure to submit a plan for emergency medical assistance,
(3) failure to provide a deenergization device on a machine, and (4)
failure to provide adequate illumination in locations of the preparation
plant. The parties stipulated that the violations occurred, and therefore
all of the citations are AFFIRMED.
Gravity
The parties stipulated that Citation No. 918012 was serious, but
that the probability of harm occurring as a result of the remaining three
citations was minimal or moderate.
Negligence
All of the citations resulted from the respondent's failure to
exercise reasonable care, and this amounts to ordinary negligence.
History of prior violations
The parties agreed that for purposes of this docket, respondent
has a history of no prior citations of sections 75.1101-23(a), 75.1713,
or 77.207, and three prior violations of section 75.523.
Docket No. WEVA 81-504
This docket concerns a section 107(a) imminent danger order issued
by MSHA Inspector Edward M. Toler, on December 9, 1980, charging the
respondent with an alleged violation of mandatory safety standard
30 CFR 77.701, for failure to properly ground a water pump (Ex. P-1).
In support of the violation, MSHA presented the testimony of Inspector
Toler. He confirmed that he inspected the mine on the day in question
and that he issued the citation after determining that the frame ground
wire on the pump was not connected to a ground. The condition was
detected after he observed slate picker Fred Brewer being shocked from
contacting the pump. Mr. Brewer stated that he had received a shock
from the pump when he attempted to prime it, and the pump was being
used to pump water to the tipple. A company electrician accompanying
him on the inspection confirmed the violation and discovered that the
ground was not connected. The electrician advised him that he was not

1182

aware of the condition, and Mr. Toler stated that he could find no evidence
that the monthly electrical examinations had been made, but he conceded
that mine operator Davis was not at the mine. The inspector conceded
that such examinations ·are generally conducted by visual examinations
rather than the dismantling of the equipment. The inspector confirmed
that abatement was achieved within 45 minutes or an hour of the issuance
of the order (Tr. 8-24).
Mine owner and operator Winford Davis testified in defense of the
citation. He testified that the problem with the pump was not with the
grounding unit, but rather, with the power cable coming to the pump
ground. He was unaware of the fact that the ground wire had come loose,
but conceded that the slate picker advised him of a "slight shock" when
he touched the pump. The condition was abated in a matter of minutes,
and he has qualified electricians on the site to take care of such problems.·
He had no knowledge of the condition because it could not be detected
by visual examination, but he acknowledged that monthly checks were required 9
and he surmized that this was being done. Mr. Davis also alluded to some
problems with the local power company t..s, power system (Tr. 24-37).
Fact of violation
Upon consideration of the testimony concerning this violation, I
conclude and find that MSHA has established a violation of the cited
mandatory safety standard. Section 77.701, requires the grounding of
metallic frames, casings, and other enclosures of electric equipment.
I conclude that the testimony of the inspector established that the water
pump in question was no~ properly grounded, and that this constitutes
a violation of the cited standard. Accordingly, Citation No. 918017
is AFFIRMED.
Gravity
I conclude and find that this citation was extremely dangerous.
The slate picker in question was observed receiving a shock from the
water pump which was not properly grounded. Mine operator Davis confirmed
that the slate picker had advised him that he was "slightly shocked"
when he touched the pump. However, what may be a "slight shock" one day
may well be a fatal .one the next.
Negligence
I conclude and find that the condltions cited as a violation should
have been detected by .the mine through .the required electrical inspections.
While it may be true that the condition was caused by a loose ground wire
which was not readily observable~ testing of the equipment during the
required examinations would probably have revealed·the cited condition.
Under the circumstances, I conclude that' the respondent failed to exercise
reasonable care and was negligent.

1183

Good faith abatement
The condition was corrected in some 45 minutes after the issuance
of the withdrawal order, and compliance was achieved by reconnecting the
loose ground wire.
History of prior violations
The solicitor stated that for the 24 month period prior to the
issuance of the instant citation on December 9, 1980, respondent had
been assessed for three prior violations of section 77.701 (Tr. 135).
Docket No. WEVA 81-505
This docket concerns eight citations served on the respondent during
November and December 1980, charging the respondent with five violations
of mandatory safety 30 CFR 77.506, and one violation of sections 75.302-1,
75.301, and 77.701. One citation was issued pursuant to section 104(d)(l)
of the Act, and seven were section 104(d)(l) "significant and substantial
unwarrantable failure withdrawal orders.
Inspector Toler confirmed that he inspected the mine on November 18,
1980, and issued section 104(d)(l) Citation No. 916590, citing a violation
of section 75.302-1, because a ventilation line curtain where mining was
takirg place was not installed for a distance of at least 10 feet from
the face (Ex. P-2). He measured the distance in question and found
that the curtain was approximately 35 feet from the face. The mining
machine was in operation and mine management should have been aware of
the condition (Tr. 38-42).
Mr. Toler believed that the conditions were hazardous because the
whether was cold, the mine was extremely dusty, and it has a history of
methane. There was a likelihood of an explosion, and seven people
working at the face would have been affected by the hazard (Tr. 42).
On cross examination, Mr. Toler conceded that there had never been
a fire or explosion at the mine, but that the presence of methane has
been confirmed by test analysis of air samples taken in the mine. He
also confirmed that there was an excessive amount of dust suspended in
the atmosphere on the day in question, and that the ventilation requirement~
of the approved plan were violated. The purpose of maintaining the
curtain 10 feet from the face is to sweep away noxious gases and dust
from the face area (Tr. 43-49). Abatement was achieved within 15 minutes
and the curtain was extended to the required distance toward the face
(Tr. 50).
Inspector Toler confirmed that he also issued withdrawal order
916591 on November 18, 1980, citing a violation of section 75.301
(Ex. P-3). He did so after determining that the face ventilation in
the No. 1 room, 014 No.l section where a continuous miner was operating

1184

and mining coal was inadequate. The ventilation was measured with an
anemometer and smoke tube and no measurement could be made as there was
no movement of the smoke, and .2 percent methane was present at the
last roof bolt from the working face. Section 75.301 requires 3,000
cubic feet of air a minute at the end of the ventilation curtain (Tr. 5052).
Mr. Toler stated that Don Davis was operating the mining machine,
and since he was part of mine management, he should have been aware
of the ventilation plan requirements. Lack of ventilation presented
a hazard of
methane, and with the dust in suspension, and an
was likely (Tr. 53). Seven men would have been affected, and the violation
occurred in the same area as Citation No. 916590 (Tr. 54).
On cross-examination, Mr. Toler confirmed that the order issued
after the curtain was extended the required distance to abate the
citation be issued, but the required amount of ventilation could not be
induced. He explained that the curtain was not wide enough and he described
it as "a piece of junk". Although he noticed the condition of the curtain
as it was being installed, he said nothing about it and then issued the
order (Tr. 56). However, at the time, it was his understanding that the
curtain in question was the same one installed to terminate the
citation (Tr. 57).
Mr. Toler stated that abatement was achieved after additional line
curtain was brought into the mine, and repairs were made to insure that
it extended far enough (Tr. 59).
--

Mr. Toler confirmed that he issued section 104(d)(l) closure order
No. 918015 on December 9, 1980, citing a violation of section 77.701,
after observing that electrical equipment in the mine preparation
was not provided with frame grounding for the metal frames and enclosures
(Ex. P-4). He closed down all of the preparation plant electrical equipment.
He detected the violation after discovering that a 440 A.C. electric motor,
with three phases and a ground did not have the required four wires,
with one connected to the ground lug. He also determined that none of
the plant motors were grounded because the grounding wire from the
to the transformer station was not connected, and therefore, no grounding
could be maintained within the plant (Tr. 61-62).
Mr. Toler believed that the conditions cited should have been
detected through the monthly electrical inspections. The conditions
constituted a shock hazard, and it was likely that two men would have
been exposed to this hazard. The plant is exposed, and the rain and snow
contributed to the hazard (Tr. 64).
Mine operator Winford Davis -testified that he believed the grounding
system for the plant in December 1980 was adequate to preclude any shock
hazards. He attributed the violation to a loose neutral wire behind
the switch box panelling which was not visible. The wire was actually

1185

cut, but all of the equipment was grounded through the plant neutral
grounding system. In order to abate the citation, individual wires had
to be installed from each piece of equipment directly to the transformer.
The tipple was 40 years old, and it had to be completely rewired.
He had not been previously advised by the plant electrician that the
grounding was faulty (Tr. 67-71).
On cross-examination, Mr. Davis conceded that he ~as aware that
monthly electrical examinations must be made and that the equipment
must be tested. However, he is not an electrician (Tr. 72).
MSHA Inspector Harold E. Newcomb confirmed that he issued order of
withdrawal number 0640145 pursuant to section 104(d)(l) of the Act on
December 10, 1980 (Ex. P-5). He cited a violation of section 77.506
when he found that proper overload and short circuit protection was not
provided for the No. 12 conductor cable supplying power to the 480 volt
A.C. clean coal elevator located on the third floor of the plant. The
fuses protecting the circuit were "bridged out" with stranded wire.
Mr. Newcomb stated he has a B.S. degree in electrical engineering and
confirmed that he conducts MSHA electrical inspections and assists in
"electrical problems". He testified that a 25-amp fuse should have been
protecting the circuit, rather than the No. 8 stranded wire, which probably
provided 45 or 50 amps. The original fuse had at some prior time blown
out and someone replaced it with the stranded wire which is not an approved
fuse device. A proper fuse would have deenergized the circuit in the
event of an overload, but the wire would not and the circuit could have
overheated and melted the wire (Tr. 74-77).
Mr. Newcomb stated that the monthly electrical examination should
have revealed the fuse condition, and he believed the hazard in question
presented a fire or electrical shock hazard to at least one employee,
and the prior citation concerning lack of proper grounding contributed
to the gravity. The condition was abated after a proper sized fuse was
purchased for the circuit in question (Tr. 78). He also confirmed that
Mr. Davis conceded to him that the plant was "electrically run down",
but Mr. Davis made no statement that he was aware of the fuse condition
in question. A qualified electrician, however, should know that a fuse
should not be replaced with a piece of wire (Tr. 82), but anyone could
have replaced the fuse with a piece of wire (Tr. 83).
Mr. Newcomb confirmed that he also issued section 104(d)(l) orders
of withdrawal Nos. 0649146, 0640147, and 0640148 on December 10, 1980,
citing violations of section 77.506. The first citation was issued because
overload and short circuit protection was not provided for the No. 12-4
conductor cable extending from the main plant switch box to the 480
volt water pump and coal belt located on the third floor. The circuit
was protected with a 200-amp fuse, which is not the proper size in that
it was too large. The second citation issued after he found the fuses
on the power cable supplying 480 volts a.c. t0 the 10 horsepower vibrator
had been bridged out with a piece of wire. A 20 amp fuse should have
been used. The third citation also involved a fuse which had been bridged

1186

out with a piece of wire on the circuit for the No. 10-4 conductor cables
supplying power to the 15 H.P. circulating pump. The proper fuse was
one of 45 amp capacity, and the stranded wire did not provide this.
All of the citations were issued for failure to provide proper overload
and short circuit protection (Exhs. P-6 through P-8; Tr. 86-95).
Mr. Newcomb stated that the cited conditions concerning the fuses should
have been discovered by mine management through the required monthly
electrical examinations. He also believed that the conditions cited
presented shock and fire hazards.
MSHA Inspector Michael L. Deweese confirmed that he is an electrical
inspector and that he issued section 104(d)(l) withdrawal order 876569
on December 10, 1980, at the preparation plant (Exh. P-9), He cited
a violation of section 77,506 after finding that overload and short circuit
protection was not provided for the No. 12 wire supplying 220 volts to
the "gas pump" located on the second floor. Three 200 amp fuses were
being used to protect the circuit, and 20 amps is the proper size. The
condition was hazardous in that in time, the circuit could have become
overloaded and the resulting short circuit caused by the failure of the
fuses to function properly could cause a fire or shock hazard to one person.
The operator 1 s monthly electrical examinations should have detected the
condition (Tr. 98-101).
On cross-examination, Mr. Deweese stated that Mr. Davis conceded
that the plant was in a run-down electrical condition, but he did not
state that he knew the cited condition existed. Mr. Deweese had no
idea how long the over-sized fuse had been in the equipment, and indicated
that it would take about a minute to change it (Tr. 105).
Mine Operator Winford Davis testified in regard to the aforementioned
five electrical citations concerning improper overload and short circuit
protection. He stated that the company regularly purchases proper sized
fuses for use by its employees, and they are kept in the supply house.
Fuses are supposed to be stocked for emergencies, and employees are
instructed to stop by the supply house and obtain them if they are needed.
They were also authorized to purchase them at a local hardware store. Mr.
Davis stated further that the tipple in question was originally constructed
in 1941 and 1942, and at the time of the MSHA inspection the plant still
had the original wiring. Practically all of the electrical equipment
in the plant had to be replaced and money was in short supply at the time.
Fuses were not expensive, but switch boxes and line starters were.
All of the cited conditions were eventually abated (Tr. 106-109).
He had no idea that improper fuses were being used and they too were
replaced with proper fuses (Tr. 110).
Fact of violations
I conclude and find that MSHA has established by a preponderance of
the evidence that each of the violations cited in this docket occurred
as charged in the citation and orders issued by the inspectors. The
testimony and evidence adduced by MSHA supports each of the citations
and orders issued, and they are all AFFIRMED.

1187

Gravity
I conclude and find that all of the citations in question in this
case were serious violations. The electrical citations presented
possible shock and fire hazards, and the others presented mine ventilation
hazards as well as possible methane and coal dust explosions or fires.
Negligence
I conclude and find that the respondent was negligent in failing to
discover the cited conditions which resulted in the issuance of the citation
and orders in this case. Properly conducted pre-shift and on-shift
examinations of the mine, the plant, and the electrical equipment in
question would have detected the cited conditions.
Good faith compliance
Although it is true that the respondent corrected and abated all
of the conditions and practices cited in this case, several of them almost
immediately, the fact is that they were abated as a result of withdrawal
orders issued by the inspectors. In any event, there is no evidence
of any lack of good faith compliance on the part of the respondent.
History of prior violations
The solicitor stated that for the 24-month period prior to the
issuance of the citations in question in this case, the respondent had
one prior assessed violation of section 75.302-1, two for violations of
section 75.301, three for violations of section 77.70l~and five for
violations of section 77.506.
Docket No. WEVA 81-600
MSHA Inspector Thomas B. Marcum testified that he issued section 104(d)(2)
withdrawal orders 917653 and 917657, on March 2 and 4, 1981, during a
regular inspection of the mine (Ex. P-10 and P-12). The first order cited
a violation of section 75.807, after he found that an 800 foot long
voltage cable from the No. 6 belt head to the section was not hung or
placed properly so as to protect it from damage. The cable was a 4,160
volt cable, and it was lying on the mine floor alongside the section
mantrip roadway, and it had been run over by the man trip in several areas,
and he observed the tracks where it had been run over. The roadway was
used daily by the three shifts coming and going. He believed that the
cable had been on the roadway for some time, and the operator should
have been aware of its location because the roadway is traveled everyday,
and it should have been detected during any pre-shift examination. The
cable should have been hung on J-hooks, and the failure to do so presented
a shock hazard in the event the cable became damaged (Tr. 118-122).
On cross-examination, Mr. Marcum confirmed that most of the cable
in question was properly hung on J-hooks, but that the cited 800 foot
portion was not. The man-trip vehicle is a rubber tired vehicle, and

1188

the cable is insulated with armored-shell steel which provides high
protection. He has never seen this type of cable being penetrated by
running over it with rubber tired equipment, and the cable was the main
power source coming from the outside underground. He saw no J-hooks
installed along the places where the cable was lying, and no one explained
to him why it was not hung properly (Tr. 123-127).
With regard to the second order, Mr. Marcum stated that he cited a
violation of section 75.518 after discovering that the S & S scoop charger
for the 014 Section was not provided with fuse protection in that a fuse
had been bridged out with a wire (Tr. 127). The wire was installed alongside
a fuse but he did not know whether the fuse was blown out or not.
Even if the fuse were working, the presence of the wire next to it was not
proper because this would permit more current to flow through the cable.
He believed the condition constituted a shock or burn hazard, and in the
event of a fire or smoke, the men on the section would be exposed to
a hazard (Tr. 130-131). Mr. Marcum stated that the fuse was located
inside the scoop battery charger, and he discovered the condition when
he found that the charger lid only had one bolt in it when it should
have had three. He opened the lid and found the condition in question.
He conceded that he had sometimes bridged fuses in the same manner when
he worked as a miner, but that a new fuse was promptly installed to
replace the defective one (Tr. 132).
Gravity
I conclude and find that both of the citations which have been affirmed
were serious violations. While it is true that the caQle in question was
constructed of very durable material .and showed no visible signs of
damage, it was nonetheless. lying on a main travelway where men and equipment passed by on a daily basis coming and going from the mine. Further,
the inspector saw evidence that the cable had been run over by the mantrip,
and even though it was rubber-tired and not likely to penetrate the cable,
such a practice is serious. As for the bridged fuse on the scoop charger,
this presented a possible shock and fire hazard because the circuit it served
was improperly protected.
Negligence
Both citations resulted from the respondent's failure to take
reasonable care. The cable was in full view of personnel coming and
going from the section, and the fuse condition should have been detected
during the required examinations, particularly since the missing lid
bolts which led to the discovery of the condition by the inspector were
plainly visible.
Good faith compliance
The cited conditions were abated after the issuance of the orders,
and the respondent demonstrated good faith in achieving compliance.

1189

History of prior violations
The solicitor indicated that the respondent had three prior assessed
violations of section 75.807, and no prior violations of section 75.518.
Size of Business and Effect of Civil Penalties on the Respondent's Ability
to Remain in Business. (Applicable to all Dockets).
The parties have stipulated that the respondent is a small mine
operator, and that its annual coal production has been approximately 87,000
tons. With regard to the question of respondent's current financial
condition, including the effect of any civil penalties on its ability
to remain in business, respondent presented the testimony of its owner,
and his testimony follows below.
Mine Operator Winford Davis testified that he began mining in 1964,
that the Marie No. 1 Mine was initially started in 1971, and since that
time this has been his only active mining operation. However, the mine
ceased to operate on December 29, 1981, and it has not been an actively
producing mine since that time. He testified that during the years prior
to 1974, the mine was profitable, and he conceded that his "before taxes"
profits in 1975 was "a little over $1 million", but that since that time
the mine has lost money. The profits from his operation in 1974 was used
to purchase new equipment and to go expand the mine. Income for the mine,
in terms of profit, for the years 1975 and 1976, was approximately $300,000,
before taxes, but the mine lost $11,000 in 1977.
Mr. Davis testified that during ·the period April through September 1977,
the mine was flooded, and no coal was produced. A UMWA strike in November 1977,
also affected coal production, and the strike lasted for about 90 days, or
until February of 1978. Although flood insurance covered the larger
portion of flood damage, he still lost approximately $1.8 million in
equipment, and had to borrow money to replace it. The mine was also
flooded on three occasions during 1978 and 1979, and that curtailed coal
production even further. In addition, while his mine is not a union mine,
organizing efforts to unionize the mine during November 1980, resulted in
vandalism and other trouble which also cut into his production. He
absorbed the flood losses for 1979 because he was afraid to file further
flood claims. for fear that his insurance would be cancelled, and the
mine was down for three months while the water was pumped out. As a
result of all of these events, his losses for each of the years 1978 and 1979
was a half-a-million dollars per year. Similar losses were encountered in
1980 because of labor problems.
Mr. Davis identified his accounting firm and stated that he has
retained them since 1974 to keep his books. Work is being performed on
the report ending April 30, 1981, but he indicated that he has been
unable to pay the firm for their accounting work since prior to April 1981,
and the firm has filed for an extension for him to pay his taxes for the
year 1981. Since he has been unable to pay his accountant, he felt that

1190

he could not call upon him to testify in these proceedings. Mr. Davis
indicated that he presently owes money to a great number of creditors,
and some of these debts are as old as 1978. Since he has been in business
for some 22 years, his creditors are being patient with him, but some
have been creditors since 1974. He produced a copy of his accountant's
report, dated April 30, 1981, and it is a part of the record.
Referring to his latest accountant's report, Mr. Davis testified
that the net loss for the Davis Coal Company for the first four months
of 1981 was $191,443.47, and while he has not been provided with additional
accountant's reports for the subsequent periods, he estimated his company's
losses as $500,000 for the calendar year 1981, and he lost approximately
the same amount for each of the years during
1978 through 1980.
Current indebtedness for the company is bewteen $2.3 and $2.5 million,
and the largest creditor is the Pikeville National Bank and Trust Company,
which holds a note for an original amount of $750,000, for a loan made in
1979. The balance due is now $700,000, and it was reduced by $50,000
through the sale by the bank of a continuous mining machine which it had
repossessed. The proceeds from the sale of this machine were applied
by the bank to reduce his current note liability. In addition, he testified
that within the last year additional equipment had been removed from the
mine and sold to settle company debts. The Ingersoll-Rand Company
repossessed two mining machines, three shuttle cars, a scoop, and a feeder,
all of which they intend to sell at public auction to settle a debt of
$360,000 which his company owes to that company. All of this equipment
is located at Ingersoll-Rand's storage area in Charleston, and he no
longer has it. In addition, the Long-Airdox Company met with him two weeks
ago in an attempt to work out an agreement for payment bf several roof
bolters.
Mr. Davis stated that the mine ceased operation in December 1981
because he ran out of money, and he had no funds to pay his miners. Since
that time the company has generated no income, and the only bank account
it has is a checking account with the Pikeville Trust Company, and it
has a deficit balance. During the year 1981, and part of 1982, he has
put over $100,000 of his own personal money into the company in an attempt
to keep the company going. Neither he nor his family have received
any income from the company during 1982, but he still works for the company
in an attempt to settle his debts or negotiate additional capital to begin
mining again.
Referring to his personal income tax statements which he had with
him, Mr. Davis testified that for the year 1980 he and his wife had a
joint gross income of $79,632, and for the year 1981 their joint gross
income was $51,373. He still pays the phone bill from his own funds for
the phone at the mine office, and other than two night watchmen which
he personally pays to protect the equipment still in the mine, the company
has no other employees. He pays the watchmen a combined salary of $250
a week from his own personal funds, and while' he wishes to get back into

1191

the mining business, he indicated that he cannot do this until he receives
additional capital and pays off his debts. As an example, he ~ndicated
that he would need an immediate $15,000 just to have the power turned on
at the mine by the local utility company. He still owes the company
$5,000 for past utility bills, and they require an additional $10,000
as a deposit before the power is turned on again. In addition, he would
also have to pay back taxes amounting to $18,000, and royalties, which
are in arrears, before he can think about resuming mining.
Mr. Davis stated that while he has contemplated filing for bankruptcy, he has tried to avoid it up to this time, and that he requires
approximately $100,000 to start up mining again. He also alluded to the
fact that he could not make anymore monthly payments of $4000 to $5000 which
he had been making to MSHA to satisfy past assessed violations, and
that as a result, the solicitor 1 s Arlington, Virginia, office instituted
collection proceedings against him within the past year and attached
coal shipments he had made to the United Coal Company to collect $8500.
Conceding that the total amount of civil penalties initially assessed
by MSHA in the instant dockets amounts to approximately $32,773, Mr. Davis
stated that he recognizes his obligation to pay the penalties. However,
he indicated that he has no assets or cash to pay these penalties, and
if he were forced to pay, it would certainly have an adverse affect on
his ability to stay in business. As for any suggestion that he sell some
of his equipment to pay these assessments, he indicated that the liens
held by the bank, as well as his state tax liabilities and debts, would
absorb any revenue resulting from the sale of his equipment. Mr. Davis
stated that when the mine was producing, they worked fiye days a week
on two production shifts and one maintenance shift, and that he normally
employed 50 miners. However, they are no longer working at the mine
(Tr. 164-195).
On cross-examination, Mr. David confirmed that there are still
several closure orders outstanding on the mine. He estimated the current
value of the equipment still at the mine as $500,000, and indicated
that he has no interests in any other coal companies. Although Davis
Coal Company owns the stock of a tipple facility (Burning Springs Collieres)
where he used to load his coal, it is no longer operating and it is in
fact the tipple plant immeidately connected to the Marie No. 1 Mine.
It is the same tipple plant where some of the citations in these proceedings
were served. Mr. Davis confirmed that he has been attempting to negotiate
with a bank for loans to resume active mining. He has no other employments,
but may consider going into the building contracting business, but he does
not contemplate going back into the coal mining business unless he can
raise the necessary capital.
Discussion
I agree with the holding of the former Interior Board of Mine
Operations in the case of Robert G. Lawson Coal Company, 1 IBMA 115,
117-118 (1972), a case decided under the 1969 Coal Act, where it was
held that:

1192

We view the provisions of section 109(a)(l)
as manifesting an intent by Congress to require
a balancing process in arriving at an appropriate
penalty to be assessed in any given case. Application
of the criteria of section 109(a)(l) requires
weighing the importance of imposing pecuniary
penalties, as a measure of deterring insufficient concern
for the health and safety of miners, against other
deterrents specified in the act, such as closure orders,
The amount of a monetary penalty imposed should be
sufficiently high to deter any laxity of vigilance
on the part of an operator to keep his mine in compliance with the Act. In our view, however, the imposition
of a penalty which would cripple an operator's ability
to continue his production of coal without a counterbalancing benefit to the safety of miners would not
be appropriate.

*

*

*

*

*

*

*

*

*

*

*

We do not view the civil penalty assessment procedure
as a tool to force closure of mines; we look upon it as
an auxiliary tool to bring about compliance,

*

*

*

*

*

*

*

*

*

*

*

We believe Congress intended a balanced consideration
of all statutory factors, including the size ~f mine and
the ability to remain in business, to permit assessments
which would be equitable and just in all situations but
which would not have the effect of drastically curtailing
coal production or employment of miners to the ultimate
detriment of the public interest.

*

*

*

*

*

*

*

*

*

*

*

Where numerous violations are found and cited during a
tour of inspection, the aggregate amount of the proposed
assessments, even though each separate violation may be
assessed at a nominal value, may be an amount beyond
the operator's ability to pay, and thus, for no other
reason than this, may be unreasonable. In such cases
it is incumbent upon an Examiner and this Board to look at
the total amount and impact of the monetary penalty in
arriving at a fair assessment.
The former Board followed its Lawson Coal reasoning with respect
to the question of the effect of civil penalties on small operators in
two subsequent decisions, Newsome Brothers, Ihc., 1 IBMA 190 (1972),
and Hall Coal Company, 1 IBMA 175 (1972). I have applied this rationale
on several occasions in deciding cases under the 1977 Mine Act, and these

1193

decisions have since become finalized as Commission decisions. See:
MSHA v. Fire Creek Coal Company, Docket BARB 79-3-P, etc., April 5, 1979;
MSHA v. G & M Coal Company, Dockets::SE :79=128,and:Dockets SE 81~12,.etc.,
November 19, 1980 and April 7, 1981.
It is no secret to anyone that the Davis Coal Company has been the
subject of several prior civil penalty proceedings before this Commission
and its Administrative Law Judges. In MSHA v. Davis Coal Company,
Docket Nos. 78-627-P, etc., March 7, 1980, the Commission, on its own
motion, directed review of ten cases in which the judge had approved
settlements pursuant to Rule 2700.30(c). Upon review of the record
in those cases, the Commission, over the vigorous dissent of Commissioner
Lawson, found no basis to conclude that the judges erred in approving
the settlements, and their decisions were all affirmed.
Com:missicner Lawson 1 s displeasure with the affirmance of the settlements in question was based on his belief that the approval of a 90%
reduction from the original civil penalties was unsupported by any credible
evidence that Davis Coal Company was in such "dire" financial condition
as to justify such drastic penalty reductions. Commissioner Lawson
observed that the company was not required to come forward with any current
financial information to determine what, if any, effect the payment of
the initially proposed civil penalties would have had on Davis 1 ability
to continue in business. Scrutinizing Davis 1 business operations for
a time span covering 1976 to 1979, Commissioner Lawson took particular
note of the fact that Davis was not required to file audited financial
statements or tax returns to establish any business losses supporting
a finding that the company could not afford to pay the full assessment
amounts. He was also disturbed with the asserted lack -0f consideration
given to Davis' history of prior vio!ations and the lack of any discussion
dealing with the deterrent effect of those violations.
I am not unmindful of Commissioner Lawson's concerns with respect
to the issues raised in his dissent in the previous Davis cases. However,
as the presiding Judge in the cases before me for decision, I am constrained
to apply the facts of record in any decisions that I render in connection
with these cases, including the civil penalty assessments that are warrant~\d
on the basis of those facts. Just as Commissioner Lawson saw fit to
dissent in the previous cases, and just as the other Judges adjudicated
their cases on the basis of the evidence and facts presented to them
during the course of the hearings, so too will I decide these cases.
It should be noted at the outset that the instant cases do not concern
settlement proposals agreed to by the parties. In most of these cases,
respondent Davis Coal Company does not contest the fact of violations,
and has admitted that the violations occurred. In three of the dockets,
testimony was presented by both sides, and all of the citations in those
cases have been affirmed. Further, in each of the cases, either the parties
have stipulated to all of the statutory criteria found in section llO(i),
except for the effect of the penalties on th~ respondent's ability to
remain in business, or I have made findings on these issues. The crucial
question presented in all of these dockets is the appropriate civil
penalties which I should assess in these dockets, taking into ·account all
of the statutory criteria found in the Act, and in particular the question
of respondent's ability to pay and the effect of any civil penalties on
its ability to remain in business.

1194

It is clear that in litigated civil penalty proceedings, the
determination of appropriate civil penalty assessments for proven
violations is made on a de novo basis by the presiding judge and he is
not bound by any assessment method of computation utilized by MSHA's
Assessment Office, Boggs Construction Company, 6 IBMA 145 (1976);
Associated Drilling Company, 6 IBMA 217 (1976); Gay Coal Company, 7 IBMA
245 (1977); MSHA v. Consolidated Coal Company, VINC 77-132-P, IBMA 78-3,
decided by the Commission on January 22, 1980.
In the instant proceedings, the initial civil penalty assessments
which appear as part of the petitioner's initial pleadings and civil
penalty proposals in the form of "assessment worksheets" as exhibits
to the proposals, reflect proposed penalty amounts derived from either
the application of "points" assessed for each of the statutory criteria
set out in section llO(i) of the Act, or from a "special assessment"
made pursuant to Part 100, Title 30, Code of Federal Regulations, It is
clear that I am not bound by those initial assessments, and the assessments
which I have imposed have been made after full disclosure of all of the
facts, and in particular evidence concerning the respondent's present
financial condition and ability to pay.
The record adduced in this case reflects that the mine has been
closed since December 1981, and is no longer actively producing coal,
Petitioner's counsel confirmed the fact that the mine is in a "B" status,
which means that MSHA considers
that it is active but not producing
coal. Counsel also indicated that since the mine has been closed, MSHA
inspectors are no longer inspecting the mine, no production is going on,
and far as MSHA knows, no power has been supplied to the mine since its
closure (Tr. 159-160).
With regard to the respondent's financial condition, the unrebutted
testimony of the mine operator reflects that the Davis Coal Company is
on the brink of bankruptcy, that it is presently unable to resume active
coal production because of the lack of additional capital, that some of
its mine equipment has been repossessed and sold at auction to satisfy
debts, that some equipment has been attached and removed from the mine
by another creditor and is awaiting sale to satisfy debts, and that the
remaining equipment at the mine is encumbered by a personal note in excess
of $500,000 held by a bank which advanced the money to purchase it. In
addition, with the exception of two security guards being paid personally
by the mine owner to protect the equipment from theft and vandalism,
no one is working at the mine and the normal workforce of 50 miners have
all been laid off since the mine closed approximately seven months ago. ~/
After careful review of all of the evidence adduced in these proceedings,
I conclude and find that the imposition of the full amount of the initial
civil penalty assessments proposed by MSHA in these dockets, totalling
approximately $32,773, would have a further adverse impact on the respondent's
ability to reopen the mine and continue its c'oal mining business. Considering the fact that the respondent is a small operator and is in
serious financial difficulties, as attested to by the unrebutted credible
~/ On June 16, 1982, petitioner's counsel advised me that the
respondent has in fact now filed for bankruptcy.

1195

evidence adduced herein, I find that the imposition of the proposed
civil penalties would, in the aggregate, jeopardize respondent's ability
to remain in business. While it may be argued that, in view of the
respondent's past history of violations, which reflects a poor compliance
record, as well as a marginal mining operation, it would be better off
for the respondent to stay out of the coal mining business, that is a
judgment that I prefer not to make. As the principal enforcer of the
Act and its mandatory safety and health standards, the petitioner has
at its disposal ample statutory authority through the enforcement process
to assure future compliance should the respondent resume production, or in
the alternative, to close the mine down for non-compliance.
In addition to the financial condition of the respondent, and aside
from the seriousness of some of the conditions or practices cited as
violations in these dockets, I take particular note of the fact that none
of the violations issued in these proceedings resulted in any injuries
to miners; nor did they result in any mine fires or accidents (Tr. 146).
In addition, in all instances, the respondent promptly corrected the
conditions or practices cited, and in many cases respondent demonstrated
extraordinary compliance by immediately correcting the conditions brought
to its attention by the inspectors. Under the circumstances, I have also
considered these factors, in addition to the effect of the initial
assessments on the respondent's business, in assessing civil penalties
for all of the violations which have been affirmed.
Penalty Assessments
In view of the foregoing findings and conclusions, respondent is
assessed civil penalties for the violations which have been established
as follows:
WEVA 80-565
Citation No.

Date

06 77798
0677799
0677861
0677862
<:677 863
0677865
0673584
0673585
0673591
0673592
0673593
0673594
0673596
0673597

11/30/79
11/30/79
12/04/79
12/04/79
12/04/79
12/06/79
3/06/80
3/06/80
3/11/80
3/11/80
3/17/80
3/17/80
3/17/80
3/17/80

30 CFR Section
75.517
75.517
75.313
75.1722
75.1722
75.316
75.512
75.300-4(a)
75.703
75.200
75.512
75.508
77.502-2
77.800-2

1196

Assessment
$25
25
25
15
50
50
25
30
20
60
60
25
25
25
$460

WEVA 81-106
30 CFR Section

Citation No.

Date

910981
910982
910983
910984
910985
910986
910987
910988
910989
910990
910991
910992
910993
910994
910995
911000

4/24/80
4/24/80
4/24/80
4/25/80
4/28/80
4/28/80
4/28/80
4/28/80
4/28/80
4/30/80
4/30/80
4/30/80
4/30/80
4/30/80
4/30/80
5/08/80

75.324
75.305
75.303
75.1704
75.515
75.701
75.400
75.1722(a)
75.503
75.503
75.1107
75.503
75.605
75.604
75.1107
77. 400 (a)

Assessment
$15
15
15
10
10

20

so

20
20
20
15
15
30
25
20
40
$340

WEVA 81-249
Citation No.
910319
911658
911659
911660
912802
912803

30 CFR Section
7/23/80
7/23/80
7/23/80
7/23/80
7/30/80
7/30/80

75.316
75.400
75.403
75.313
75.400
75.1722(b)

Assessment
$30
20
25
15
30
40
$160

WEVA 81-377
Citation No.

Date

30 CFR Section

9915076
9915114
9915115
9915116

1/15/81
2/17/81
2/17/81
2/17/81

70.207(a)
70.207(a)
70.207(a)
70.207(a)

Assessment
$20
15
15
15
$65

WEVA 81-429
30 CFR Section

Citation No.

Date

912726

11/06/80

75.205

Assessment
$30

WEVA 81-449
Citation No.

Date

918334
9915203
9915266
9915267
9915268

2/17/81
3/17/81
4/13/81
4/13/81
4/13/81

30 CFR Section

1197

75.503
70.207(a)
70.208(a)
70.208(a)
70.208(a)

Assessment
$25
35
20
20
20
$120

1198

WEVA 81-459
Citation No.

Date

917622
917623
918335
918336
918337
918338
918339
918340
917627
917628
917629
917630
917631
917632
917633
917634
917635
917636
917637
917638

2/17/81
2/17/81
2/17/81
2/17/81
2/17/81
2/17/81
2/17/81
2/17/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81

3b CFR Section

75.313
75.503
75.400
75.400
75.503
75.503
75.313
75.503
75.515
75.1725(a)
75.904
75.400
75.503
75.1107-16(b)
75.523-2(c)
75.1725(a)
75.503
75.904
75.1725(a)
75.400

Assessment
$10
20
30
30
15
15
15
15
15
20
60
100
30
20
15
15
10
50
20
25
$530

WEVA 81-460
Citation No.

Date

917639
917640
917641
917643
917644
917645
917646
917649
917650
917651
917652
917654
917655
917656
917658
917659
917660
917741
917742

2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/24/81
2/27/81
2/27/81
2/27/81
2/27/81
2/27/81
3/02/81
3/02/81
3/02/81
3/04/81
3/04/81
3/04/81
3/04/81
3/04/81

30 CFR Section
75.514
75.1722(a)
75.1722(a)
75.904
75.1725(a)
75.1105
75.326
75.516
75.516
75.515
75.807
75.807
75.516
75.514
75.1100-2(e)
75.515
75.1100-2(e)
75.515
75.515

Assessment
$35
40
30
25
20
30
25
20
20
10
25

20
25
30
20
25
20
30
30
$480

WEVA 81-461
Citation No.

DATE

917743
917744

3/04/81
3/05/81

30 CFR Section
75 .1725 (a)
75.1725(a)

1199

Assessment
$20
20

WEVA 81-461 (cont.)
Citation No.

Date

917745
917746
917747
917748
917749
917750
917751
917752
917754
917755
917756
917757
917758
917759
917760
917761
917762

3/05/81
3/05/81
3/05/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/06/81

30 CFR Section
75.515
75.1722(a)
75.515
75.516
75.516-2(c)
75.517
75.1722(a)
75.515
75.807
75.200
75.515
75.516-2(c)
75.807
75.ll00-2(e)(l)
75.1722(a)
75.1722(a)
75.515

Assessment
$20
25
25
15 .
15
15
75
65
20
60
20
25
25
25
20
60
25
$575

WEVA 81-462
Citation No.

Date

917763
917764
917765
917766
917767
917768

3/06/81
3/06/81
3/06/81
3/06/81
3/06/81
3/17/81

30 CFR Section
75.400
75.400
75.5.15
75.1722(a)
75.200
77.1?05(1)

Assessment
$30
30
15
45
40

WEVA 81-506
Citation No.

Date

916587
918330

11/18/80
2/12/81

30 CFR Section
77.506
77 .1109 (a)

Assessment
$35
25
$60

WEVA 81-601
Citation No.

Date

9U888

6/02/81

30 CFR Section
75.316

Assessment
$15

WEVA 82-25
Citation No.

Date

918561
918566

5/11/81
6/24/81

30 CFR Section
75.403
75.400

1200

Assessment
$25
65

WEVA 82-25 (cont.)
30 CFR Section

Citation No.
918567
918568
918570
9915346
9915347
9915348

6/24/81
7/07/81
7/09/81
8/13/81
8/13/81
8/13/81

75.516
75.1725(a)
77. 205 (a)
70.208(a)
70.208(a)
70.208(a)

Assessment
$20
20
15
10
10
10
$175

WEVA 82-24
Citation No.

Date

918010
918011
918012
918013

12/08/80
12/08/80
12/08/80
12/09/80

30 CFR Section
75.1101-23(a)
75.1713
75.523
77. 207

$20
15
60

WEVA 81-504
Citation No.
918017

30 CFR Section
12/9/80

77. 701

Assessment
$250

WEVA 81-505
Citation No.
916590
916591
918015
0640145
0640146
0640147
0640148
876569

30 CFR Section
11/18/80
11/18/80
12/09/80
12/10/80
12/10/80
12/10/80
12/10/80
12/10/80

75.302-1
75.301
77. 701
77. 506
77. 506
77 .506
77 .506
77.506

$ 95
100
85
90
90
95
95

WEVA 81-600
Citation No.
0917653
0917657

30 CFR Section
3/02/81
3/04/81

75.807
75.518
TOTAL

=--

1201

$ 85
95
$180
$5740

ORDER
Citation No. 917642, February 24, 1981 (Docket WEVA 81-460), was
vacated by MSHA prior to the filing of its civil penalty proposals, and
it is therefore DISMISSED (Tr. 151-152).
Citation No. 917753, March 6, 1981 (Docket WEVA 81-461), was also
vacated by MSHA prior to the filing of the civil penalty proposals,
and it is also DISMISSED (Tr. 153; Exh. A).
Respondent IS ORDERED to pay the civil penalties assessed by me
in these dockets, in the amounts shown above, totalling $5740, within
thirty (30) days of the date of these decisions, and upon receipt of
payment by the petitioner, these proceedings are DISMISSED.

~~Kout~~
Administrative Law Judge

Distribution:
Paul E. Pinson, Esq., P.O. Box 440, Williamson, WV 25661 (Certified Mail)
Covette Rooney, Esq., U.S. Departmen~ of Labor, Office ~f the Solicitor,
3535 Market Street, Philadelphia, PA 19104 (Certified Mail)

1202

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),

rJUN 28198'2

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 79-290-M

Petitioner,
MSHA CASE NO. 42-01482-05001
v.
MINE:

Lema Draw S & G Pit

SAN JUAN COUNTY HIGHWAY DEPARTMENT,
Respondent.

Appearances:
Katherine Vigil, Esq., Office of Henry C. Mahlman, Associate Regional
Solicitor, United States Department of Labor~ Denver~ Colorado
for the Petitioner,
Bruce K. Halliday, Esq., San Juan County Attorney, Monticello, Utah
for the Respondent.
Before:

Judge John J. Morris
DECISION

The Secretary of Labor, on behalf of the Federal Mine Safety and Health
Administration, charges respondent, San Juan County Highway Department, with
violating Title 30, Code of Federal Regulations, Section 56.9-2 J:./, a safety
regulation adopted under the Federal Mine Safety and Health Act, 30 u.s.c. 801
2!.~·

After notice to the parties a hearing on the merits was held in Monticello,
Utah on August 20, 1981.

1/

The cited regulation provides as follows:
56.9-2

Mandatory. Equipment defects affecting safety shall be corrected
before the equipment is used.

1203

ISSUES
The issues are whether respondent is subject to the Act; whether it
violated the regulation, and, if so, what penalty is appropriate.
SUMMARY OF THE EVIDENCE
The 10 acre Lems Draw sand and gravel pit is owned by the United States
Government and leased to San Juan County, a political subdivision of the State
of Utah. The lease is managed by the Bureau of Land Management (Tr 6, 13,
21-22, 28).
On the date of the inspection MSHA representative Kenneth Joslin was told
by respondent's truck driver that its Ford diesel truck #32 would jump out of
low gear. This would allow the truck to runaway on a down grade (Tr. 13).
On the same occasion a woman truck driver trainee told the inspector that
the brakes on her truck were inadequate (Tr. 12). This portion of the citation
was later withdrawn as a supervisor and the MSHA inspector road tested the
truck. They concluded that the trainee excessively pumped the brakes causing
the air to bleed off. The brakes were adequate (Tr. 16).
The inside door latch on the driver's door of the truck was broken (Tr,
17)

0

DISCUSSION
The uncontroverted evidence shows the truck gear was defective and the door
latch was broken.
Respondent contends that it is not subject to the Act, that it is not a
mine operator, and the proposed penalty is excessive.
Respondent's contentions concerning liability under the Act have all
been ruled contrary to respondent's views in Island County Highway Department,
2 FMSHRC 3227 (November, 1980). Respondent has cited Island County in its brief
but has failed to demonstrate why the decision is not applicable in the factual
settings presented here. The citation should be affirmed.
CIVIL PENALTY
Respondent further contends that the proposed civil penalty is excessive.
Section llO(i) of the Act [30 U.S.C. 820(i)J provides as follows:
The Commission shall have authority to assess all
civil penalties provided in this Act. In assessing civil
monetary penalties, the Conunission shall consider the
operator's history of previous violations, the appropriateness of such penalty to the size of the business of the
operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.

1204

In reviewing the facts I note that respondent abated the defective
conditions and there is no prior adverse history. In addition, the record does
not reflect whether the proposed penalty of $66 considered the later withdrawal
of that portion of the citation relating to defective brakes. In view of the
low gravity of the violations and in considering the statutory criteria~ I
conclude that a penalty of $40 is appropriate.
Based on the foregoing findings of fact and conclusions of law I enter the
following:

ORDER

1.

Citation 335924 is affirmed.

2.

A penalty of $40 is assessed.

Law Judge
Distribution:
Katherine Vigil, Esq., Office of the Solicitor
United States Department of Labor
1961 Stout Street, 1585 Federal Building
Denver, Colorado 80294
Bruce K. Halliday, Esq.
San Juan County Attorney
P. O. Box 850
Monticello, Utah 84535

*U.S. GOVERNMENT PRINTING OFFICE:

1982-0-J61-6J8/4J72

1205