.JUNE 1996

COMMISSION DECISIONS
06-05 - 96
06-19 - 96
06-20 - 96
06-20-96

Sec. Labor on behalf of James Johnson and
UMWA v. Jim Walter Resources, Inc.
Blue Bayou Sand & Gravel, Inc.
United States Steel Mining Co.
Mechanicsville Concrete Inc.

SE
93-127-D
CENT 93-238-M
WEVA 92-783
VA
93-145-M

Pg .
Pg.
Pg.
Pg.

841
853
862
877

WEST 93-169
WEVA 95-262-C
CENT 95-265-M
WEST 95-512-M
SE
95-459
LAKE 95-378-D
WEST 94-661-M
WEST 94-251-M
CENT 95-261-M

Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg .
Pg .
Pg.

887
890
892
904
906

CENT 96-72-DM
WEST 96-3

Pg . 970
Pg . 1 018

KENT 96-96-D

Pg. 1054

SE
93-182-D
CENT 93-238-M
LAKE 95-229-M

Pg . 1 057
Pg. 1059
Pg. 1061

WEST 95-282-DM
PENN 95-479-DM

Pg. 1072
Pg . 1087

WEST 96-130-D

Pg. 1103

WEVA 92-15-R
WEST 95-254
WEVA 93-146-B

Pg. 1119
Pg. 1125
Pg. 1131

ADMINISTRATIVE LAW JUDGE DECISIONS
06-03 - 96
06-03 - 96
06-07-96
06- 1 0-96
06-14-96
06-17-96
06-17-96
06-18-96
06-19 - 96
06-20 - 96
06-20-96
06-21 - 96
06-21-96
06-25 - 96
06-26-96
06-26 - 96
06-28-96
06-28 - 96

Energy West Mining Company
UMWA Local 1058 v. Consolidation Coal
Leo Journagan Constr uction Co.
De Atley Company, Inc.
Jim Walter Resources, Inc.
Linda S. Sparks v. Old Ben Coal Co.
Cogema Mining Incorporated
Barrick Bullfrog Incorporated
Higman Sand and Gravel, Inc.
Sec. Labor on behalf of Irineo G. Beltran
v. Terrazas, Incorporated
S & M Construction Incorporated
Sec. Labor on behalf of Andy Howard, Jr.
v. Bruce Young & Yogo, Inc.
Sec. Labor on behal f of Carroll
Johnson v. Jim Walter Resources
Blue Bayou Sand and Gravel
Northern Illinois Service Company
Donald S. Wallace v. Barrick Goldstrike
Mines, Inc.
William F. Metz v . Wimpey Minerals, etc.
Sec . Labor on behalf of Arthur R.
Olmstead v. Knife River Coal Mining

913

919
933

951

ADMINISTRATIVE LAW JUDGE ORDERS
06-03-96
06-04-96
06-06 - 96

Southern Minerals, Inc., et . al.
Basin Resources Incorporated
Consolidation Coal Company

i

JUNE

1996

Review was granted in the following case d.uring the month of June:

Clyde Perry v. Phelps Dodge Morenci, Docket No. WEST 96-64-DM.
Amchan, May 14, 1996)

{Judge

Secretary of Labor v. Cannelton Industries, Inc., et a l , Docket No.
WEVA 94-381.
(Judge Hodgdon, April 29, 1996)
Secretary of Labor v. Cyprus Cumberland Resources Corp., Docket No.
PENN 95-75.
(Judge Feldman, May 7, 1996)
Review was denied in the following cases during the month of June:
Secretary of Labor, MSHA v. Energy West Mining Company, Docket No.
WEST 93-169.
{Judge Manning, June 3, 1996)
Secretary of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 93-318-R,
etc.
(Judge Amchan, May 15, 1996)

*Secretary of Labor, MSHA v. Thunder Basin Coal Company, Docket No.
WEST 94-239-R was dismissed based on Thunder Basin's motion to withdraw.

ii

COMMISSION DECISIONS

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

June 5, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES JOHNSON
and
UNITED MINE WORKERS OF
AMERICA

Docket No. SE 93-127-D

v.
JIM WALTER RESOURCES, INC.

BEFORE: Holen, Marks and Riley, Commissioners'
DECISION
BY THE COMMISSION:
In this discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge
William Fauver found that Jim Walter Resources, Inc. ("JWR'') violated section 105(c) of the
Mine Act, 30 U.S.C. § 815(c),2 when it disciplined James Johnson because he refused to remove

1

Chairman Jordan has recused herself in this matter. Commissioner Doyle participated
in the consideration of this matter but resigned from the Commission before its final disposition.
Pursuant to section l 13(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 823(c), we have designated ourselves a panel of three Commissioners to exercise the powers of
the Commission.
2

Section 105(c)(1) provides in part:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination against or

S41

a longwall shearer and install roof support. 15 FMSHRC 2367 (November 1993) (ALJ). For the
reasons set forth below, we affirm the finding of discrimination and vacate and reassess the civil
penalty.

I.
Factual and Procedural Background
JWR operates the No. 7 mine, an underground coal mine in Brookwood, Alabama. On
March 13, 1992, Johnson, a member of the owl shift crew for the No. 1 longwall, was assigned to
move an unproductive longwall shearer from the face through Crosscut A and down the No. 3
entry. 15 FMSHRC at 2367-68. The longwall had most recently advanced past Crosscut A,
which connected the Nos. 3 and 4 entries. G. Ex. 4. The Department of Labor's Mine Safety
and Health Administration ("MSHA") considered "Crosscut A-type" crosscuts to be gob and
subject to roof falls because of the substantial pressures exerted by the advancement of the
longwall. 15 FMSHRC at 2373-74. MSHA had a policy prohibiting travel through such
crosscuts until additional roof support had been installed in accordance with an approved
supplemental roof control plan. Id MSHA communicated that policy to union safety
committeemen in quarterly safety meetings. Id. at 2374; Tr. 19-20.
The normal route for removing the longwall or other large equipment was through
Crosscut B. 15 FMSHRC at 2374. The supplemental roof control plan approved by MSHA
required installation of additional roof support before longwall machinery was moved through
Crosscut B. Id.; Tr. 60-61, 94. Moving the longwall shearer through Crosscut A required
maneuvering the equipment around a 90 degree turn. Tr. 25. On March 13, however, JWR
chose to move the shearer through Crosscut A, notwithstanding the additional difficulty, because
the entry to Crosscut B was dangered off. 15 FMSHRC at 2374. As a consequence, cribs
installed in Crosscut A during the normal course of mining were removed to allow sufficient
space for moving the shearer. Id. at 2374-75; Tr. 58-59.
When Johnson arrived at Crosscut A, he overheard Tommy Boyd, a United Mine
Workers of America ("UMWA") safety committeeman, ask Danny Watts, the evening
supervisor, if there was a plan to correct roof conditions in Crosscut A before miners traveled
through the area. 15 FMSHRC at 2368; Tr. 63-64, 84-85. Johnson observed that roof had fallen

otherwise interfere with the exercise of the statutory rights of any
miner . .. because such miner .. . has filed or made a complaint
under or related to this [Act] including a complaint notifying the
operator . . . of an alleged danger or safety or health violation in a
coal or other mine ....
30 U.S.C. § 815(c)(l).

842

on the stageloader in the No. 4 entry, roof bolts were missing near the stageloader, there was a
brow, a crack near the intersection of Crosscut A and the No. 3 entry, there were no timbers, and
two cribs had been removed. 15 FMSHRC at 2368; Tr. 68, 85-86; G. Ex. 4. After observing the
roof conditions, Johnson stepped under the No. 1 longwall shield. Tr. 85. 3
Watts told Boyd that if he had a problem he should call Larry Vines, the longwall
manager. 15 FMSHRC at 2368. Boyd replied that, if he called anyone, it would be MSHA. Id.
Watts then asked the owl shift longwall crew members what they were going to do. Tr. 89.
When no one replied, he ordered them to shovel the beltline in the No. 4 entry. Id. The miners
traveled to the beltline and began shoveling. 15 FMSHRC at 2369; Tr. 90.
Alvin McMeans, the face boss for the No. 1 longwall, called Johnson from the beltline to
Crosscut B. 15 FMSHRC at 2369; Tr. 90. McMeans asked Johnson why he thought Crosscut A
was unsafe. 15 FMSHRC at 2369; Tr. 66, 90-91. Johnson replied that cribs had been taken
down, roof bolts were missing, the area was gob, and that MSHA had previously cited miners for
traveling through such crosscuts. 15 FMSHRC at 2369-70. McMeans asked Johnson, "If I
asked you to work in the area, what would you say?" Id. at 2375; Tr. 67. Johnson replied that he
would be afraid to ~ork in the area and that he would have to "withdraw under [his] individual
safety rights."4 15 FMSHRC at 2370, 2375. McMeans instructed Johnson to resume shoveling.
Tr. 92.
After McMeans questioned each member of the longwall crew, he met with Paul Phillips,
the mine manager, and discussed conditions in Crosscut A. 15 FMSHRC at 2370. Phillips then
met with Safety Committeeman Boyd at the intersection of Crosscut B and the No. 3 entry and
asked Boyd to accompany him to the area the miners thought was unsafe. Id.; Tr. 147-48. Boyd

3

The condition of the roof in Crosscut A gave rise to a separate action. On March 13,
1992, as a result of an inspection made pursuant to section 103(g) of the Mine Act, 30 U.S.C.
§ 813(g), JWR received a citation alleging a violation of 30 C.F.R. § 75.202(a) (1995). ·
15 FMSHRC at 2372. JWR contested the citation and the matter proceeded to hearing before
Judge Fauver. Finding that the roof conditions in Crosscut A were hazardous and required
additional support, the judge affirmed the citation. 15 FMSHRC 432, 434 (Mm-ch 1993) (ALJ).
JWR filed a petition for review of the judge's decision, which the Commission denied.
Accordingly, the judge's decision became a final decision of the Commission 40 days after its
issuance. 30 U.S.C. § 823(d)(l). The record of that proceeding before the judge was
incorporated by reference into the record of this proceeding. 15 FMSHRC at 2372. The
transcript of that hearing is referred to as "Roof Tr."
Section (i) of the labor agreement i~ force at the mine, entitled "Preservation of
Individual Safety Rights," provides in part: "No Employee will be required to work under
conditions he has reasonable grounds to believe to be abnormally or immediately dangerous to
himself .... " R. Ex. 1, at 1.
4

843

stated that he would travel through the No. 4 entry but not the No. 3 entry. 15 FMSHRC at
2370; Tr. 148. Entry No. 3 had been dangered off the previous day because some timbers were
missing. 15 FMSHRC at 2368; Tr. 88-89. Phillips explained that they could not travel through
the No. 4 entry because the head gate drive had been "shoved against the rib," roof bolts were
missing, and there was no travelway. 15 FMSHRC at 2370; Tr. 148. Approximately 75 feet of
the No. 4 entry had been dangered off. 15 FMSHRC at 2373.
The other crew members then joined Boyd and Phillips. Tr. 149. Phillips told the miners
they would build cribs, set timbers in two different locations, and hang curtains from the inby
pillar in Crosscut A to the No. 1 longwall shield. 15 FMSHRC at 2371; Tr. 149-50. Boyd stated
that they did not have a plan to do that work. 15 FMSHRC at 23 71. Phillips instructed
McMeans to bring the miners to the No. 4 beltline to shovel and then to bring each miner to meet
with him individually. Tr. 151 -52.
Johnson testified that Phillips asked him, "Ifl asked how to make that place safe, what
are you going to do?" and that he had replied, "How do you make gob safe?" 15 FMSHRC at
2371, 2375; Tr. 92. Phillips told Johnson to go to work and "make the area safe." 15 FMSHRC
at 2375; Tr. 173. WheQ. Johnson refused, Phillips ordered him to get on a bus to go to another
area to work. 15 FMSHRC at 2375-76; Tr. 155.
On the following day, Johnson was charged with insubordinate conduct and given notice
of a five-day suspension with intent to discharge. 15 FMSHRC at 2372. After a meeting
between management and union representatives, that action was modified to a two-day
suspension. Id Johnson filed a discrimination complaint with MSHA and the Secretary filed the
present complaint on Johnson's behalf, pursuant to section 105(c)(2) of the Mine Act, 30 U.S.C.

844

§ 815(c)(2). 5 The Secretary proposed that a civil penalty be assessed against JWR in the range of
$2,000 to $2,500. The UMWA intervened in support of the Secretary's position.
The judge found that Johnson's work refusal constituted protected activity under section
105(c) of the Mine Act 15 FMSHRC at 2376. He concluded that Johnson had a reasonable and
good faith belief that Crosscut A was unsafe, that an MSHA-approved supplemental roof control
plan was required to make the area safe, and that Johnson had given reasonable and sufficient
notice of his safety concerns to management. Id. The judge concluded that JWR had taken
adverse action against Johnson by giving him a five-day notice of suspension with intent to
discharge, suspending him for two days, and twice isolating and interrogating him, and that such
action amounted to discrimination in violation of the Act. Id. at 2376-77. The judge assessed a
civil penalty of $5,000, noting that JWR had "a substantial history of violations of§ 105(c) of the
Act," accumulating $5,286 in delinquent civil penalties in the 24-month period preceding the
instant violation. Id. at 2378.
The Commission granted JWR's petition for discretionary review, which challenged the
judge's finding that Johnson had engaged in a protected work refusal and the judge's civil
penalty assessment. The Commission subsequently heard oral argument.

5

Section 105(c)(2) provides in part:
Any miner ... who believes that he has been discharged,
interfered with, or otherwise discriminated against by any person
in violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary shall
forward a copy of the complaint'to the respondent and shall cause
such investigation to be made as he deems appropriate. . . . If upon
such investigation, the Secretary determines that the provisions of
this subsection have been violated, he shall immediately file a
complaint with the Commission ... alleging such discrimination or
interference and propose an order granting appropriate relief.

30 U.S.C. § 815(c)(2)

845

IL
Disposition
A.

Protected Work Refusal

A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by proving he engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity. Secretary on behalfof Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev'd on other grounds,
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary on behalf
ofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981 ). The operator may
rebut the prima facie case by showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity. Pasula, 2 FMSHRC at 2799-800.
If the operator cannot rebut the prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it is also was motivated by the miner's unprotected activity and
would have taken the ~dverse action for the unprotected activity alone. Id.; Robinette, 3
FMSHRC at 817-18; s~e also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th
Cir. 1987).
The Mine Act grants miners the right to complain of a safety or health danger but does
not expressly grant the right to refuse to work under such circumstances. Nevertheless, the
Commission and the courts have inferred a right to refuse to work in the face of a perceived
danger. See Secretary on behalfof Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 519-21 (March
1984), aff'd, 780 F.2d 1022 (6th Cir. 1985); Price v. Monterey Coal Co., 12 FMSHRC 1505,
1514 (August 1990) (citations omitted). A miner refusing work is not required to prove that a
hazard actually existed. See Robinette, 3 FMSHRC at 812. In order to be protected, work
refusals must be based upon the miner's "good faith, reasonable belief in a hazardous condition."
Id.; Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989). The complaining miner has the
burden of proving both the good faith and the reasonableness of his belief that a hazard existed.
Robinette, 3 FMSHRC at 807-12; Secretary on behalfof Bush v. Union Carbide Corp., 5
FMSHRC 993, 997 (June 1983). A good faith belief"simply means honest belief that a hazard
exists." Robinette, 3 FMSHRC at 810. This requirement's purpose is to "remove from the Act's
protection work refusals involving frauds or other forms of deception." Id.
JWR claims the judge erred in finding that Johnson had engaged in a protected work
refusal. JWR Br. at 5. JWR contends the judge mischaracterized Johnson's work refusal as his
refusal to move the shearer rather than his refusal to install roof support. Id. at 7, 10. It asserts
that Johnson's refusal to install roof support was unreasonable and unprotected because hazards
are inherent to mining and he was adequately qualified to perform the work. Id. at 7-10. JWR
argues that, even if the refusal were protected, it lost that status when management took action to
determine the nature of the hazards and to direct miners who routinely installed roof support to

846

correct them. Id. at 5. The Secretary claims the work of installing roof support was connected to
removing the shearer and that the judge analyzed whether Johnson's refusal to enter Crosscut A
to install roof support was protected. S. Br. at 9 n.4. He also contends that substantial evidence
supports the judge's determinations that Johnson had a reasonable, good faith belief that
Crosscut A was unsafe to work in, that Johnson adequately communicated that belief, and that
JWR did not adequately address Johnson's safety concerns.6 Id. at 10-18.
We conclude substantial evidence supports the judge's determination that Jolmson's work
refusal was protected. Preliminarily, the judge did not fail to recognize the work refusal at issue
was Johnson's refusal to install roof support. In finding that the work refusal was protected, the
judge (quoting Phillips' order to Johnson to make the area safe by installing roof support) stated,
«Johnson, on reasonable, good faith grounds, believed Crosscut A was unsafe to work in, and
that an MSHA-approved plan was needed 'to make it safe."' 15 FMSHRC at 2376. The judge
also considered evidence relevant to Johnson's refusal to install roof support, noting that Johnson
was not a roof control expert, did not know exactly how to make the area safe, and had
reasonable grounds to rely on his safety committeeman's opinion that a plan was needed. Id.
Moreover, substantial evidence supports the judge's determination that Johnson's refusal
to install roof support.was based on a reasonable and good faith belief that Crosscut A was
unsafe and that an approved plan was necessary to make it safe. Johnson testified that, although
he installed roof support in normal conditions, he considered the conditions in Crosscut A to be
dangerous and abnormal, and that he did not know how to support the roof safely or "whether
[management] knew how to support the top." Tr. 95-96, 106-08, 118, 121-22. Johnson heard the
roof popping and "taking weight." Roof Tr. 71. He observed that roof bolts were missing, roof
had fallen and cribs had been removed. Tr. 85-86. He could see there was a crack as well as a
brow in the roof and that there were no timbers. Id. On many occasions, Johnson had witnessed
roof falls in other forward crosscuts, sometimes extending to the No. I longwall shield. Roof Tr.
76. Johnson knew that MSHA considered a forward crosscut to be gob and had cited miners who
had traveled through such an area. 15 FMSHRC at 2373; Tr. 66-67, 91. Johnson's concerns
were confirmed and shared by his safety committeeman, who believed that an approved

6

The UMWA did not file a brief before the Commission.

847

supplemental roof control plan was necessary before work could proceed in the area. 7 15
FMSHRC at 2373; Tr. 84-85, 151.
Johnson was not a roof control expert. 15 FMSHRC at 2376; Tr. 136-37. In addition, he
had reason to doubt whether management knew how to support the roof, given the unusual
circumstances of moving a large piece of equipment through an area of gob and the conflicting
opinions of his immediate supervisor, who believed the area was safe enough to work in, and
Phillips, who believed that additional support was necessary. 15 FMSHRC at 2374-75; Tr. 6970, 146-47.
Furthermore, substantial evidence supports the judge's determination that Johnson
adequately communicated his safety concerns to JWR. 15 FMSHRC at 2376. When Foreman
McMeans asked Johnson why he believed the area was unsafe, he replied that the crosscut was in
the gob, cribs had been removed, roof bolts were missing, and he knew that MSHA had cited
miners for traveling through a forward crosscut. Tr. 65-67, 85, 91. Johnson told Phillips that he
did not know how to make the area safe. 15 FMSHRC at 2375; Tr. 92.
Once a determination
is made that a miner expressed a good faith, reasonable concern
\
about safety, the analysis shifts to an evaluation of whether the operator addressed the miner's
concern "in a way that his fears reasonably should have been quelled." Gilbert, 866 F.2d at
1441; see also Bush, 5 FMSHRC at 997-99; Thurman v. Queen Anne Coal Co., I 0 FMSHRC
131, 135 (February 1988), aff'd, 866 F.2d 431 (6th Cir. 1989); Braithwaite v. Tri-Star Mining, 15
FMSHRC 2460, 2463-64 (December 1993). A miner's continuing refusal to work may become
unreasonable after an operator has taken reasonable steps to dissipate his fears or ensure safety.
Bush, 5 FMSHRC at 998-99.
Substantial evidence supports the judge's determination that JWR failed to adequately
address Johnson's reasonable safety concerns. As the judge found, in response to Johnson's
statement that he did know how to make the area safe, Phillips "did not give Johnson specific

7

JWR argues that the judge erred in finding that Johnson had reasonably relied on
Boyd's opinion that a plan was necessary because Johnson testified that he did not have a
personal opinion on whether a plan was required. JWR Br. at 9-10. Substantial evidence
supports the judge's determination. Under the labor agreement in force at the mine, when an
employee and management disagree on whether a·condition is hazardous, at least one safety
committeeman is required to review the condition. R. Ex. 1, Art. III, Sec. (i), ~ (2). If the safety
committeeman agrees with management that hazardous conditions do not exist, the miner is
required to perform the work. Id If the safety committeeman and management disagree and the
matter involves an issue of federal mandatory health or safety regulations, the appropriate federal
agency is contacted to settle the dispute. Id. at~ 3. Thus, in resolving disputes involving
allegedly hazardous conditions, miners were required to defer to the opinions of their safety
committeemen.

848

orders as to how the roof should be supported." 15 FMSHRC at 2375. Rather, Phillips only
stated, "I am telling you to go and make the place safe." Tr. 153-54, 173. Phillips had a prior
discussion with Johnson and other crew members regarding installation of additional support in
Crosscut A. 15 FMSHRC at 2371. No supplemental written plan for supporting the area,
however, had been prepared by JWR's engineers. Id. at 2373; Tr. 160-61, 177-78, 180-81.
Moreover, that discussion did not address Johnson' s concern that miners had previously been
cited for traveling through a forward crosscut and that a plan approved by MSHA was necessary
to make the area safe. Nor did JWR make an effort to contact MSHA to determine whether an
approved plan was necessary. 15 FMSHRC at 2376-77; Tr. 187-88.
In sum, substantial evidence supports the judge's determination that Johnson' s work
refusal was protected and that JWR discriminated against Johnson in violation of section I 05(c)
of the Act.
B.

Assessment of Civil Penalty

JWR argues that the judge erred in assessing a civil penalty of $5,000. JWR Br. at 10. It
contends the judge failed to set forth sufficient findings supporting his conclusion that JWR had
a "substantial history" of violations of section 105(c) and that, in any event, he should have only
considered past violations of section 105(c) involving similar factual circumstances. Id. JWR
also asserts the judge erred in basing the assessment on his finding that, in the preceding 24month period, JWR had accumulated $5,286 in delinquent penalties. Id. at 11 . JWR submits
there is no evidence of delinquent penalties in the record and that it is aware of no such penalties.
Id. The Secretary argues the judge properly considered JWR's complete history of violations,
including previous violations of section 105(c), but acknowledges that he did not allege that JWR
had delinquent penalties. S. Br. at 22-26 & n.17.
The Commission's judges are accorded broad discretion in assessing civil penalties under
the Mine Act. Westmoreland Coal Co. , 8 FMSHRC 491 , 492 (April 1986). The Commission
has cautioned, however, that the exercise of such discretion is not unbounded and must reflect
proper consideration of the penalty criteria set forth in section l lO(i) of the Mine Act, 30 U.S.C.
§ 820(i). Id., citing Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (March 1983), aff'd, 736
F.2d 1147 (7th Cir. 1984). Assessments "lacking record support, infected by plain error, or
otherwise constituting an abuse of discretion are not immune from reversal . . . ·." U S. Steel
Corp., 6 FMSHRC 1423, 1432 (June 1984). The judge must make findings of fact on the criteria
that "not only provide the operator with the req\lired tnotice as to the basis upon which it is being
assessed a particular penalty, but also provide the Commission and the courts ... with the
necessary foundation upon which to base a determination as to whether the penalties assessed by
the judge are appropriate, excessive, or insufficient." Sellersburg Stone, 5 FMSHRC at 292-93.
We conclude that JWR received adequate notice of the judge's consideration of its
history of previous violations as well as his basis for doing so and that we have been provided
with a sufficient foundation for review. Although the judge did not specifically indicate which

849

violations of section 105(c) he relied upon, the record contains a complete 24-month citation
history, submitted in response to the judge's request, as well as a list of section 105(c) cases that
were brought to the judge's attention in the parties' post-hearing briefs and correspondence. Tr.
210; S. Post-Hrg Br. at 14-1 5; G. Ex. 6; JWR Post-Hrg Br. at 23-24 & Attach. JWR-3; letters
dated September 2 and 7, 1993.
Furthermore, the judge did not abuse his discretion by considering JWR's entire violation
history, rather than limiting his consideration to only those violations of section I 05(c) involving
similar factual circumstances. Section 11 O(i) provides in part that in assessing civil penalties,
"the Commission shall consider the operator's history of previous violations .... " 30 U.S.C.
§ 820(i). As the Commission held in Secretary on behalfof Carroll Johnson v. Jim Walter
Resources, Inc., 18 FMSHRC 552, 557 (April 1996), the language of section l lO(i) does not
limit the judge's consideration of an operator's history of violations to factually similar
violations. The Commission has explained that '"section 11 O(i) requires the judge to consider
the operator's general history of previous violations as a separate component when assessing a
civil penalty. Past violations of all safety and health standards are considered for this
component."' Id., quoting Peabody Coal Co., 14 FMSHRC 1258, 1264 (August 1992)
(emphasis added). Thus, the judge did not err in his consideration of JWR' s history of previous
violations.
\

The judge abused his discretion, however, in basing the assessment, in part, upon JWR's
alleged delinquency in the payment of penalties. An operator's delinquency in payment of
penalties is not one of the criteria set forth in section 11 O(i) of the Mine Act for consideration in
the assessment of penalties. Accordingly, we vacate the civil penalty assessed by the judge. See
Dolese Bros. Co., 16 FMSHRC 689, 695 (April 1994); Turner Bros. Inc., 6 FMSHRC 805, 806
(April 1984).
In the circumstances of this case and in the interest of judicial economy, we reassess the
penalty. See, e.g., Southern Ohio Coal Co., 4 FMSHRC 1459, 1465-67 (August 1982);
Westmoreland, 8 FMSHRC at 492-93. JWR did not dispute the judge's findings on the other
statutory penalty criteria. Based upon those findings and upon our holdings, including that
consideration of an alleged delinquency in the payment of penalties is incorrect, we conclude that
a civil penalty of $2,500 is warranted.

8 50

m.
Conclusion
For the foregoing reasons, we affirm the judge's determination that JWR discriminated
against Johnson in violation of sectio~ 105(c) of the Mine Act, vacate the civil penalty, and order
JWR to pay a penalty of $2,500.

Arlene Holen, Cbmmissioner

851

Distribution

David M. Smith, Esq.
Maynard, Cooper & Gale, P.C.
1901 Sixth Avenue North
2400 AmSouth/Harbert Plaza
Binningha.rn,AL 35203
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Barry Woodbry, Esq.
United Mine Workers of America
900 15th St., N.W.
Washington, D.C. 200'05
R. Stanley Morrow, Esq.
Jim Walter Resources, Inc.
P.O. Box 133
Brookwood, AL 35444
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite l 000
Falls Church, VA 22041

852

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K ST REET NW, 6TH FL.OCR
WASHINGTON, O.C. 20006

June 19, 1996

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

v.

Docket No. CENT 93-238-M

BLUE BAYOU SAND AND ORAVEL, INC.

BEFORE: Jordan, Chairman; Holen, Marks and Riley, Commissioners 1

DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves a citation alleging a
significant and substantial ("S&S") violation of30 C.F.R. § 56.14101(a) (1995)2 and a
withdrawal order, issued under section 107(a)3 of the Mine Act, 30 U.S.C. 817(a), alleging that

1

Commissioner Doyle participated in the consideration of this matter but resigned from
the Commission before its final disposition.
2

Section 56.14101(a) provides in part:

Minimum requirements. (1) Self-propelled mobile equipment shall be
equipped with a service brake system capable of stopping and holding the
equipment with its typical load on the maximum grade it travels ....
(3) All braking systems installed on the equipment shall be maintained in
functional condition.
3

Section 107(a) of the Mine Act provides in part:

If, upon any inspection or investigation of a coal or other mine which is
subject to this [Act], an authorized representative of the Secretary finds that an
imminent danger exists, such representative shall determine the extent of the area

853

defective brakes on a haulage truck created an imminent danger. Administrative Law Judge
Avram Weisberger concluded that the operator violated the standard but that the violation was
not S&S and did not present an imminent danger. 16 FMSHRC 1059, 1064-67 (May 1994)
(ALJ). For the reasons that follow, we reverse and remand.

I.
Factual and Procedural Back~und
Blue Bayou Sand and Gravel, Inc. ("Blue Bayou") operates an open-pit sand and gravel
mine in Arkansas. 16 FMSHRC at 1059; Tr. 12. On April 28, 1993, Larry Slycord, an inspector
from the Department of Labor' s Mine Safety and Health Administration ("MSHA"), and his
supervisor, Billy Ritchey, conducted a regular inspection of the mine. 16 FMSHRC at 1060; Tr.
10. Inspector Slycord observed a loaded 22-ton Euclid haulage truck traveling out of the pit and
motioned to the driver, William Jewell, to stop the truck. 16 FMSHRC at 1062-63; Tr. 135.
Slycord informed Jewell that he wanted to test the service and parking brakes. 16 FMSHRC at
1063. Jewell replied that the brakes did not work and that he used the transmission to hold the
truck. Id.
\

Inspector Slycord directed Jewell to drive to a nearly level area and motioned to him to
stop the truck. Id. Slycord and Ritchey heard an exhaust of air as if brakes had been applied but
observed that the truck continued to roll without hesitation, eventually coming to a stop. Id. at
1063, 1066. The truck was tested again with the same result. Id. at 1063 . Inspector Slycord
issued Citation/Order No. 4116491 alleging an imminent danger and an S&S violation of section
56.14101(a). Id. at 1064, 1066; Tr. 181. Slycord and Ritchey directed Jewell to park the truck,
permitting him first to unload it into a nearby hopper in preparation for the brake repair. 16
FMSHRC at 1065; Tr. 181-82. Subsequently, Inspector Slycord modified the citation by
changing the likelihood of injury designation from "reasonably likely" to "highly likely." Tr.
143-44; Gov't Ex. I at 2, 3. Blue Bayou contested the citation and order.
Following an evidentiary hearing, the judge concluded that Blue Bayou had violated
section 56.14101 (a) but that the violation was not S&S. 16 FMSHRC at 1066-67. The judge
explained that, although the violation contributed to the hazard of the truck hitting and injuring a
person, the reasonable likelihood of injury had not been established. Id. at 1066. The judge also
determined that the record failed to establish such an event was imminent. Id. at 1064-65. He

of such mine throughout which the danger exists, and issue an order requiring the
operator of such mine to cause all persons, except those referred to in section
[I 04(c)], to be withdrawn from, and to be prohibited from entering, such area Wltil
an authorized representative of the Secretary determines that such inuninent
danger and the conditions or practices which caused such imminent danger no
longer exist.

854

emphasized that the inspector, after becoming aware of the defective brakes, permitted the truck
to be driven down a grade to unload. Id. at 1065. Accordingly, the judge dismissed the
withdrawal order, modified the citation, and assessed a civil penalty of $50, based in part on his
findings of low gravity and low negligence. Id. at 1067, 1069.
The Commission granted the Secretary's petition for discretionary review, which
challenged the judge's S&S and imminent danger determinations.

II.
Disposition4
A.

Significant and Substantial

The Secretary claims substantial evidence does not support the judge's determination that
the violation was not S&S. PDR at 1. He asserts the judge erred in finding that a reasonable
likelihood of injury had not been established because there was evidence the truck could roll into
the hopper and fall down a 20- to 30-foot-high bank; truck drivers have been killed at other
mines because trucks without brakes have gone over bump blocks and into hoppers; people
working along the road would be endangered by the truck; and mobile equipment accidents cause
more fatalities than any other hazard in the mining industry. Id. at 11-14. Blue Bayou contends
the judge correctly determined the violation was not S&S because the truck had operated in the
cited condition for many months; bump blocks and moWlds of dirt added a degree of safety to
operation of the truck; the truck normally operated at speeds of only 3 or 4 miles per hour; and it
had no history of accidents. Blue Bayou Br. at 18-19.
The S&S terminology is taken from section 104(d)(l) of the Mine Act, 30 U.S.C.
§ 814(d)( 1), and refers to more serious violations. A violation is S&S if, based on the particular
facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature. Cement Div., Nat 'I Gypsum Co.,

4

Blue Bayou requests that the Commission review the judge's finding of violation for
the instant citation as well as for two other citations involving the defective brakes. Blue Bayou
Br. at 2, 15-17, 19-20. The Mine Act and the Commission's procedural rules provide that the
Corn.mission's scope of review is limited to issues raised in the petition for discretionary review.
30 U.S.C. § 823(d)(2)(A)(iii); 29 C.F.R. § 2700.70(f) (1995); see, e.g., Chaney Creek Coal Corp.
v. FMSHRC. 866 F.2d 1424, 1429 & n.7 (D.C. Cir. 1989). Blue Bayou raised its challenge to the
judge's decision in its response brief, filed after the deadline for filing a petition had passed. See
30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). Accordingly, we address only the S&S and
imminent danger issues raised by the Secretary.

855

3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January1984), the
Commission further explained:
In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of Labor must
prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question will be of a
reasonably serious nature.

Id at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th
Cir. 1995);Austin Power, Inc. v. Secretary ofLabor, 861F.2d99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. US. Steel Mining Co., 7 FMSHRC 1125, 1130 (August
1985).
The first and s~pond elements of the Mathies criteria have been established. 16
FMSHRC at 1066. The issue on review is whether the judge erred in concluding the Secretary
failed to establish the reasonable likelihood of an injury-producing event.
The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163
(November 1989) ("R&P"), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). While we do not lightly overturn a judge's factual findings and credibility resolutions,
neither are we bound to affirm such determinations if only slight or dubious evidence is present
to support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th
Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are
guided by the settled principle that, in reviewing the whole record, an appellate tribunal must
also consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, ~88 (1951).
In concluding the Secretary failed to establish the third Mathies element, the judge
determined there was a mound of dirt at the track ·hoes and a bump block at the hopper, the truck
normally traveled at a speed of under 10 m.p.h., and there were no steep grades or significant
traffic on the road. 16 FMSHRC at 1066-67.

5

A track hoe loads dirt from the pit into the truck. Tr. 15.

856

The overwhelming weight of the evidence, however, detracts from the judge' s
conclusion. Inspector Slycord observed the loaded truck operating without brakes at a pit work
site with grades as high as 10%. Tr. 16, 110, 117. To dump its load into the .bopper, the truck
was driven in reverse down a 40-foot-long road with a 3- to 4-foot decline to the hopper area. Tr.
110, 117. Both Slycord and Ritchey testified that, if the transmission had failed, the driver
would have no means of stopping the truck. Tr. 121, 184. Slycord testified that, if the driver had
to swerve to avoid a person or obstruction, the truck could have plunged into the hopper and
down a 20- to 30-foot-high bank into the plant area, fatally or seriously injuring the driver. Tr.
118-21, 127. Slycord testified that the plant operator who stands in the area beside the hopper,
construction workers working beside the road, and other drivers would also have been
endangered. Tr. 22, 111-12, 114-16, 118, 127-28. On the day of the inspection, another haulage
truck was using the road and there were three other vehicles that could use or cross the road. Tr.
111, 127. We consider these particular facts surrounding the violation against the backdrop of
Inspector Ritchey's testimony that mobile equipment accidents are the leading cause of fatalities
in the mining industry.6 Tr. 186.
The evidence relied upon by the judge is insubstantial compared to the body of record
evidence and does not establish that an accident would not be reasonably likely to occur.
Although there was a bump block at the hopper, it may not have been sufficient to stop the truck
from falling into the hopper. Ritchey testified that fatalities have occurred at other ~ines when
trucks with malfunctioning brakes have rolled over bump blocks and into hoppers. Tr. 185-86.
Ritchey also testified that, even if the 22-ton truck was going slowly, it could "drive right over" a
pickup truck, crushing its driver. Id. Blue Bayou's assertions, that the company had no history
of accidents and that the truck had been operated in the cited condition for many months without
incident, are not dispositive of a finding that the third Mathies element has not been established.
See Buffalo Crushed Stone, Inc., 16 FMSHRC 2043, 2046 (October 1994). Accordingly, we
reverse the judge's determination that the Secretary failed to establish the third Mathies element.
See id. at 2045-47.

6

Commissioner Holen notes that, under the Commission's precedent, Inspector
Ritchey's testimony to the effect that mobile equipment accidents are the leading cause of
fatalities in the mining industry is irrelevant. The Commission has long held that an S&S
determination is based on the particular facts surrounding the violation. E.g., Peabody Coal Co.,
17 FMSHRC 508, 511-12 (April 1995); Eagle Nest, Inc., 14 FMSHRC 1119, 1122 (July 1992).
In Lion Mining Co., the Secretary argued that the judge erred, when determining whether a roof
control violation was S&S, in failing to consider that roof falls are the leading cause of fatalities
in mines. 18 FMSHRC _,slip op. at 3, No. PENN 94-71-R (May 23, 1996). The Commission
unanimously rejected the Secretary's argumen~ and explained, "The Commission has held that an
S&S determination must be based on the particular facts surrounding the violation, including the
nature of the mine." Id. at 5, citing Texasgulf, Inc., 10 FMSHRC 498, 501(April1988).

8 57

Although the judge did not expressly consider the fourth Mathies element, the evidence is
undisputed that an injury resulting from the truck's involvement in an accident would be serious
in nature. Inspector Slycord testified that, in the event of an accident, the truck driver could have
experienced broken bones, head injury, or death, the plant operator could have been crushed to
death, and another driver using the haul road could have been killed. Tr. 126-28.
Viewing the record as a whole, we find that substantial evidence does not support the
judge's conclusion that Blue Bayou's violation of section 56.14101(a) was not reasonably likely
to result in an injury. Accordingly, we reverse the judge's determination that the violation was
not S&S.
B.

Imminent Dan~er

The Secretary argues that the judge erred in vacating the imminent danger order and in
failing to address evidence establishing an imminent danger. PDR at 6-10. He also claims the
judge committed legal error when, relying on the inspector's permitting the truck to be unloaded,
he found that danger was not inuninent. Id. at 10-11. Blue Bayou responds, in essence, that the
judge correctly detemtlned the record does not support a finding of imminent danger. Blue
Bayou Br. at 17-19. It\~So emphasizes that Inspector Slycord initially designated the likelihood
of injury on the order as "reasonably likely" and only changed it to "highly likely" to justify the
withdrawal order. Id. at 18.
Section 30) of the Mine Act defines an imminent danger as "the existence of any
condition or practice in a coal or other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice can be abated." 30 U.S.C. § 8020).
Adopting the reasoning of the U.S. Courts of Appeals, the Commission has "refused to limit the
concept of imminent danger to hazards that pose an immediate danger." R&P, 11 FMSHRC at
2163, citing Freeman Coal Mining Co. v. Interior Bd. ofMine Op. App., 504 F.2d 741 (7th Cir.
1974). See also VP-5 Mining Co. , 15 FMSHRC 1531, 1535 (August 1993); Island Creek Coal
Co., 15 FMSHRC 339, 345 (March 1993). Rather, the Commission has stated that "an imminent
danger exists when the condition or practice observed could reasonably be expected to cause
death or serious physical harm to a miner if normal mining operations were permitted to proceed
in the area before the dangerous condition is eliminated." R&P, 11 FMSHRC at 2163, quoting
Eastern Associated Coal Corp. v. Interior Bd. ofMine Op. App., 491 F.2d 277, 278 (4th Cir.
1974) (emphasis omitted). The Commission has explained that "[t]o support a finding of
imminent danger, the inspector must find that th~ hazardous condition has a reasonable potential
to cause death or serious injury within a short period of time." Utah Power & Light Co., 13
FMSHRC 1617, 1622 (October 1991) ("UP&L").
In reviewing an inspector's finding of an imminent danger, the Commission must support
the inspector's finding "unless there is evidence that he has abused his discretion or authority."
R&P, 11 FMSHRC at 2164, quoting Old Ben Coal Corp. v. Interior Bd. ofMine Op. App., 523
F .2d 25, 31 (7th Cir. 1975) (emphasis omitted). An inspector abuses his discretion, making a

858

decision that is not in accordance with law, ifhe orders the immediate withdrawal of miners in
circwnstances where there is not an imminent threat to safety. UP&L, 13 FMSHRC at 1622-23.
An inspector is granted wide discretion because he must act quickly to remo':'e miners from a
situation he believes is hazardous. Island Creek, 15 FMSHRC at 346-47.
We conclude that the judge erred in determining that an imminent danger did not exist
because the inspector allowed the truck to be unloaded before the brakes were repaired. The
judge found the inspector's action inconsistent with enforcement of an imminent danger order.
Record evidence indicates the truck was unloaded with caution to facilitate repair of the brakes.
Tr. 181-82. As the Commission stated in Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (August
1992), although some "imminently dangerous conditions may require abatement that poses a
degree of unavoidable risk to miners[, t]he fact that such actions are necessary to abate a
condition . .. does not mean that the condition does not pose an imminent danger."
Further, although the judge articulated the proper standard for imminent danger, he failed
to apply it. The judge did not examine whether the inspector abused his discretion by issuing the
withdrawal order. The inspector made a reasonable investigation of the surrounding facts. See
Island Creek, 15 FMSHRC at 346. The record reveals that Inspector Slycord observed the 22ton truck operating without brakes at a pit work site with grades up to 10%, being driven in
reverse on a decline to the hopper. Tr. 16, 110, 117. The inspector also testified there was a 20to 30-foot drop from the bank where the hopper is located to the plant area below. Tr. 120-22.
Slycord noted that, in addition to the truck driver, people in other vehicles were using or could
use the road, a plant operator was working at the hopper, and construction workers were beside
the road. Tr. 22, 111-12, 114-16, 118, 127-28. The inspector articulated his concern that these
people would have been endangered in the event the driver could not control the truck, e.g., if the
driver had to swerve suddenly, or if the transmission had failed, leaving no way to stop the truck.
Tr. 118-23, 127. The bump block at the hopper may not have prevented the cited truck from
rolling into the hopper. Tr. 121-23, 184-85. In addition, the truck was dangerous even at slow
speed and could cause a fatality in the event of collision. Tr. 185-86.
The subsequent modification of the citation from "reasonably likely" to cause injury to
"highly likely" does not diminish evidence that it was the inspector's belief at the time he issued
the order that an imminent danger existed. Inspector Slycord explained that he modified the
citation to correct a mistake. Tr. 144.
It was reasonable for the inspector, in evaluating the particular circumstances at issue in
this case, to conclude that an imminent danger existed. The evidence does not allow any other
conclusion than that the inspector did not abuse his discretion in issuing the imminent danger
order. Accordingly, we reverse the judge's determination.

8 59

III.
Conclusion
For the foregoing reasons, we reverse the judge's S&S and imminent danger
determinations. We remand for reassessment of the civil penalty consistent with this decision. 7
See, e.g., Gatlif!Coal Co., Inc., 14 FMSHRC 1982, 1989 (December 1992).

'.

Arlene Holen, Commissioner

Marc Lincoln Marks, Commissioner

s C. Riley, Commissioner

7

We note that, in his penalty assessment, the judge found low gravity and low
negligence based on evidence that work necessary to repair to the brakes was minor. 16
FMSHRC 1067. We caution the judge against relying upon such evidence on remand. Cf
Southern Ohio Coal Company, 13 FMSHRC 912, 919 (June 1991) (operator's failure to make
minor repairs was aggravated conduct).

860

Distribution
Avram Weisberger, A.L.J.
Office of Administrative Law Judges
2 Skyline, I 0th Floor
5203 Leesburg Pike
Falls Church, VA 22041
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 516
Arlington, VA 22203
David J. Potter, Esq.
901 North State Line A venue
Texarkana, TX 75501 -5268

861

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET N.W., 6TH FLOOR
WASHINGTON, O.C. 20006

June 20, 1996

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

Docket No. WEV A 92-783

UNITED STATES STEEL MINING
COMPANY, INC.

BEFORE: Jordan, Chairman; Holen, Marks and Riley , Commissioners 1

DECISION
BY: Jordan. Chairman; Holen and Riley, Commissioners
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U .S.C. § 80 l et seq. (1994) ("Mine Act" or "Act'·), is before the Commission for the
third time and raises the question of whether a violation by United States Steel Mining Company
("U.S. Steel'') of a trolley wire transportation safeguard issued under 30 C.F.R. § 75. 14032 was
significant and substantial ("S&S").3 In the decision now before us, Administrative Law Judge
William Fauver concluded that the violation was S&S. 16 FMSHRC 1189 (May 1994) (ALJ).
The Commission granted U.S. Steel's petition for discretionary review, which challenges the
judge's S&S determination. For the reasons that follow, we affirm the judge's decision.

1

Commissioner Doyle participated in the consideration of this matter but resigned from
the Commission before its final disposition.
2

Section 7 5 .1403, entitled "Other safeg\,\ards," provides:
Other safeguards adequate, in the judgment of an
authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials shall be
provided.

3

The S&S terminology is taken from section 104(d)(l) of the Mine Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a .. : mine safety or health hazard .... "
862

I.
Factual and Procedural Background
The facts of this case are fully set forth in the Commission's first decision.in this matter,
15 FMSHRC 2445 (December 1993), and are summarized here. Id. at 2445-46. On May 23,
1989, James Bowman, an inspector with the Department of Labor's Mine Safety and Health.
Administration ("MSHA"), issued U.S. Steel a safeguard notice at its Gary No. 50 Mine, an
underground coal mine in Wyoming County, West Virginia. Id. The notice required that, to
prevent de-energizing of track equipment, all trolley wire be installed without excessive kinks,
bends, and twists. Id. at 2446. It also required that the trolley wire be installed within a gauge
where anti-swing devices could be used on all equipment. Id. On February 4, 1992, MSHA
Inspector Gerald Cook~ inspected the 5K track entry in a track-mounted jeep. Id. The trolley
pole disengaged and caused the jeep to lose power 15 times. Id. Cook determined that the
causes of the trolley pole disconnections were kinks in the wire and a wide gauge between the
track and wire. Id. lnspector Cook issued U.S . Steel a citation for violation of the safeguard and
designated the violation S&S. Id.; Gov't Ex. 1. U.S. Steel contested the violation and proposed
civil penalty. 15 FMSHRC at 2446.
The judge rejected U.S. Steel's contention that the safeguard was invalid and found that
the cited conditions violated the safeguard. 15 FMSHRC 452, 457 (March 1993) (ALJ). In
concluding that the violation was S&S, the judge stated that the test was "whether the violation
presents a substantial possibility ofresulting in injury or disease .... " Id. at 456 (emphasis in
original). The Commission granted U.S. Steel's petition for discretionary review, which
challenged the judge's determinations that the safeguard was valid and that the violation was
S&S.
The Commission affirmed the judge's ruling that the safeguard was valid and that U.S.
Steel violated it. I 5 FMSHRC at 2447-48. The Commission concluded, however, that the judge
erred in his S&S analysis by applying a "substantial possibility" test. Id. at 2448. The
Commission remanded the case for proper application of the third element of the S&S test set
forth in Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), whether there was a reasonable
likelihood that the hazard contributed to would result in an injury. 15 FMSHRC at 2448
(emphasis added).
On remand, the judge determined that "reasonable likelihood," as used in the third
element of the Mathies test, does not mean proof that an injury was "more probable than not."
4

Inspector Gerald Cook is incorrectly identified in the transcript and by the judge as Earl
Cook. Compare Tr. 51-52; 15 FMSHRC 452, 453 (March 1993) (ALJ); PDR at 2 (erroneous
references to Earl Cook) with Gov't Ex. 1 (citation signed by Gerald Cook); S. Br. at 3 n.2
(noting erroneous references). Earl Cook was the U.S. Steel official to whom Inspector Bowman
issued the notice to provide safeguard. Tr. 22; Gov't Ex. 3.

863

16 FMSHRC 829, 831-32 (April 1994) (ALJ). He certified this ruling for review by the
Commission. Id. at 832-33. The Commission denied review and directed the judge to issue a
final disposition pursuant to its remand instructions. 16 FMSHRC 1043, 1044 (May 1994).
In the decision on review, the judge rejected U.S. Steel's view that "reasonable
likelihood" means "more probable than not." 16 FMSHRC at 1190. He concluded that an S&S
violation is not to be defined "in terms ofa percentage of probability." Id. at 1190-9l(citation
omitted). The judge concluded that violation of the safeguard was S&S, concluding that the
reliable evidence supported Inspector Cook's testimony that, taken as a whole, the hazards
presented by the violation made it reasonably likely that serious injuries would result. Id. at
1193.
II.
Disposition
U.S. Steel argues that, to satisfy the third Mathies element, the Secretary must prove that
it was ..more probable . .. than not" that the hazard contributed to by the violation will result in
an injury. PDR at 5. ·µ.s. Steel also argues that substantial evidence does not support the
judge's S&S determination. Id. Jn its view, the disconnection of a pole from the trolley wire
does not contribute to a "discrete safety hazard,"5 and it was not reasonably likely that the cited
condition could result in an injury. Id at 5-6.
The Secretary argues that the judge applied the "reasonable likelihood" element of
Mathies and properly concluded the violation was S&S. S. Br. at 6-12. He emphasizes that the
Commission has never held that "reasonable likelihood" requires a showing that it is " more
probable than not" that injury or illness will occur. Id. at 7. He contends that such a construction
is inconsistent with the Mine Act, its legislative history, and Commission case law. Id. at 7-12.
The Secretary also argues that substantial evidence supports the judge's determination that the
violation was S&S. Id. at J 2-13.
Under the Commission's test, a violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Div., Nat'! Gypsum Co., 3
s U.S. Steel thus also argues that the viol~tion is not S&S because the Secretary failed to
prove the second element of the Mathies test, i.e., whether there was a safety hazard contributed
to by the violation. Review of the second Mathies element, however, is not before the
Commission. U.S. Steel did not raise the second Mathies element in its first petition for review
in this matter and the Commission remanded the proceeding to the judge only for proper
application of the third element, 15 FMSHRC at 2448. The judge's jurisdiction was therefore
limited to that issue. See Ronny Boswell v. National Cement Co., 15 FMSHRC 935, 937 (June
1993).

8 64

FMSHRC 822, 825-26 (April 1981). In Mathies , 6 FMSHRC at 3-4, the Commission further
explained:
In order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in question
will be of a reasonably serious nature.
See also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power.
Inc. r. Secretary ofLabor, 861 F.2d 99, 103-04 (5th Cir. 1988) (approving Mathies criteria). An
evaluation of the reasonable likelihood of injury should be made assuming continued normal
mining operations. US. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). The
Secretary bears the burden of proving that a violation is S&S. See, e.g., Peabody Coal Co., 17
FMSHRC 26, 28 (January 1995), citing Union Oil Co. of Cat, 1 I FMSHRC 289, 298-99 (March
1989).
A. Whether the Judge's S&S Analysis Was Erroneous

We agree with the judge that the third element of the Mathies test does not require the
Secretary to prove it was "more probable than not" an injury would result. See 16 FMSHRC at
1190-93. The legislative history of the Mine Act indicates Congress did not intend that the most
serious threat to miner health and safety, an imminent danger, be defined in terms of "a
percentage of probability." S. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative
History <~lthe Federal Mine Safety and Health Act of I 977, at 626 (1978). We do not find error
in the judge's conclusion that, because an S&S violation under the Mine Act is less serious than
an imminent danger, it is also not to be defined in terms of percentage of probability. 16
FMSHRC at 1191. Furthermore, Commission precedent has not equated "reasonable likelihood"
with probabi lity greater than 50 percent. A "more probable than not" standard would require the
Secretary, in order to prove a violation is S&S, to prove it is likelier than not thaJ the hazard at
issue will result in a reasonably serious injury. We reject such a requirement.
U.S. Steel relies on ajudge's decision in Texasgulf, Inc., 9 FMSHRC 748, 759-61, 763
(April 1987) (ALJ), to the effect that "reasonably likely" must be regarded as synonymous with
"probable." PDR at 5. Although the Commission affirmed the judges's determination that the
violation was not S&S, it did not endorse the judge's probability analysis. Texasgulf, Inc., 10
FMSHRC 498, 500-04 (April 1988). The Co~ission specifically declined to revisit the S&S
test, as set forth in Nat 'l Gypsum and Mathies. Id. at 500 n.4.

8 65

Accordingly, we conclude that the judge did not err when he found that the term
"reasonable likelihood" does not mean " more probable than not." 16 FMSHRC at 1193.
B. Whether Substantial Evidence Supports the Judge's S&S Conclusion
We conclude substantial evidence supports the judge's determination that the violation
was S&S. 6 Inspector Cook cited 15 hazardous locations. Gov't Ex. I. The area in \Vhich the
violation occurred was lower in height than other areas of the mine and was uneven, with grades
and swags, increasing the likelihood of injuries resulting from a disconnected trolley pole. 16
FMSHRC at 1193. When a trolley pole disengages, the vehicle is deenergized, resulting in an
immediate loss of lights, communication, and electrically powered brakes. Id. Much of U.S.
Steel's equipment has electrically powered brakes. Tr. 15. Although the operator represents that
its vehicles have a hydraulic brake backup system (PDR at 5), Inspector Cook testified that he
had never seen a jeep with hydraulic brakes stop after the trolley pole disengaged. Tr. 102-03.
Inspector Bowman similarly testified that he had issued many citations for failing hydraulic
braking systems. Tr. 122. Further, a vehicle that lost its lights at a dip in the track would not be
seen by drivers of other vehicles. 16 FMSHRC at 1193. A vehicle without communication
would be unable to report its location to the dispatcher or request assistance. See Tr. 127; PDR
at 5.
In addition, disengaged trolley poles can dislodge or strike rocks in the roof. 16
FMSHRC at 1193. The rocks may strike miners or cause sparks that could ignite methane. Id.
See also Tr. 15, 58-59, 102. Inspector Bowman testified that this mine liberated approximately
two million cubic feet of methane in a 24-hour period. Tr. 16. Moreover, the record indicates
that disconnected trolley poles, even with anti-swing devices, are capable of causing injury,
including breaking an arm, if a miner reaches out for the pole. Tr. 112, 119; see also Tr. 15.
We are unpersuaded by U.S. Steel's argument that an injury-producing event is not
reasonably likely because the vehicle is deenergized for only 15 to 20 seconds until the operator
replaces the pole. PDR at 5; Tr. 125. Taken together, the loss of brakes, lights, and
6

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(l). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as a<lequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163
(November 1989), quoting Consolidated Edison (;o. v. NLRB, 305 U.S. 197, 229 (1938). While
we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present to support
them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984);
Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by
the settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

866

communication for even 15 to 20 seconds supp011 the judge's conclusion that an injury was
reasonably likely to occur. We reject U.S. Steers argument that the violation was not S&S
because Cook completed his journey through the mine without taking action to eliminate the
hazard. PDR at 6. Immediate abatement of a violation is only required when the condition
observed results in a withdrawal order. Citations, on the other hand, even those designated S&S,
"fix a reasonable time for the abatement of the violation." 30 U.S.C. § 8 l4(a). We also reject
U.S. Steel's contention that the Secretary failed to prove the violation was S&S because he
offered no evidence that anyone has ever been injured by a pole equipped with an anti-swing
device disengaging from a trolley wire. PDR at 6. The fact that injury has been avoided in the
past or in connection with a particular violation may be "fortunate, but not determinative."
Ozark-Mahoning Co., 8 FMSHRC 190, 192 (February 1986).
III.

Conclusion
The judge did not err in applying the "reasonable likelihood" test set forth in the third
element of Mathies. and substantial evidence in the record supports the judge' s conclusion that
the violation was S&S. Accordingly, we affirm the judge's determination that U.S. Steel's
violation was S&S.

Arlene Holen, Commissioner

~es C. Riley, Commissioner ~,,. . :-:,:.: · ... ··.· ., ····

867

Commissioner Marks, concurring in result:
My colleagues have concluded that the violation in issue was "significant and
substantial," ("S&S"). I agree and concur in that result. However, I vigorously disagree with the
majority ' s refusal to consider the core issue, i.e., that there is a compelling need to provide a
clear, unambiguous interpretation of the statutory term "significant and substantial."
In reaching their conclusion, the m8:jority has applied the so-called "Mathies test," which
is an amplification of the Cement Div., Nat'! Gypsum Co., 3 FMSHRC 822 (April 1981)
decision, wherein the Commission enunciated its interpretation of S&S. After careful
consideration of this matter I have concluded that the Commission majority in both Nat 'l
Gypsum and Mathies Coal Co., 6 FMSHRC 1 (January 1984) erred, and that the time for reexamination of this vital issue is long overdue.
The procedural history of this U.S. Steel case is, in many ways, illustrative and indicative
of the chronic enforcement and adjudicative quagmire that has been spawned since the ill
conceived Nat 'f Gypsum decision was issued. The violation in this case was issued on February
4 , 1992. Since that time, the case has been before the judge and the Commission three times! In
each instance the issue'felated to the third element of the Mathies test which requires the
Secretary to prove that "a reasonable likelihood that the hazard contributed to will result in an
injury." Mathies, 6 FMSHRC at 3-4.
Because that phrase is manifestly ambiguous, and because U.S. Steel argued for a
different interpretation, the judge attempted to set forth a clarifying interpretation of both the
statutory language and the Commission's decisions by posing "a practical and realistic question
[,] whether the violation presents a substantial possibility of resulting in injury or disease, not a
requirement that the Secretary of Labor prove that it is more probable than not that injury or
disease will result." 15 FMSHRC 452, 456 (March 1993) (ALJ) (emphasis in original) (citations
omitted). U.S. Steel objected and filed a petition for discretionary review, which was granted.
The Secretary, however, considered the judge' s formulation to be an attempt "to use more
familiar language that reflected the Commission's practical application of the test." S. Br. at 18.
Clinging to the shopworn status quo, and apparently without revisiting the merits of the
underlying problem, i.e., that the third Mathies element is seriously deficient, the _Commission
responded by concluding that the judge erred, and by instructing him to apply the "reasonable
likelihood" Mathies standard. 15 FMSHRC 2445, 2448 (December 1993).
On remand the judge determined that the parties continued to be sharply divided in their
interpretations of the third Mathies element and that "[T]he Commission has not resolved this
issue." 16 FMSHRC 829, 830 (April 1994) (ALJ). He went further:
The parties' conflict is understandable because the term 'reasonable
likelihood ' may convey different meanings. To U.S. Steel, the word 'likelihood'
governs, and the term 'reasonable likelihood' means ' more probable than not. ' To

868

the Secretary, the word 'reasonable' modifies 'likelihood' to mean a reasonable
potential, not 'more probable than not.'

Id. The judge then proceeded to analyze that issue and concluded that "the term 'reasonable
likelihood' as used in the Mathies test does not mean 'more probable than not."' Id. at 832.
Recognizing the importance of that ruling, the judge then took the unusual step of certifying his
ruling to the Commission for interlocutory review. Id. at 832-33.
Regrettably, the Commission declined yet another opportunity to consider this important
issue. The Commission refused to grant the review, 1 and directed the judge "to issue a final
disposition, on the existing record, pursuant to the Commission's previous remand instructions."
16 FMSHRC 1043, l 044 (May 1994).
On remand, the judge quickly complied, reiterating his previous conclusions rejecting the
'·more probable than not" for:mulation urged by U.S. Steel and also concluding that the record
supported the issuing inspector's conclusion that "the hazards presented by this violation made it
reasonably likely that serious injuries would result." 16 FMSHRC 1189, J 193 (May 1994)
(ALJ).
Once again U.S. Steel sought discretionary review seeking a ruling clarifying the
meaning of the Commission's third Mathies element. U.S. Steel's arguments squarely raise the
issue: what does reasonable likelihood mean? They urge a "more probable than not" meaning.
PDR at 4-5. The Secretary defends the judge's rejection of the U.S. Steel argument. S. Br. at 67. Thus, the Commission is again presented with the opportunity to better explain, and more
clearly interpret, the statutory term of"significant and substantial." Unfortunately, my
colleagues have opted not to confront the obvious, which is, that the words used in the third
Malhies element are not serving our nation's miners, the regulated, or the regulators very well.
The majority has chosen to narrowly dispose of the controversy in this case and to pass on this
opportunity to provide clear direction to all potential litigants as well as to the Commission's
judges who have grappled with this issue since the Commission issued its two decisions.
Accordingly, I find it necessary to disassociate myself from such a resolution. In the past
year-and-one-half, the Commission has reviewed several cases that raised the very same
question:

1

Although the Secretary opposed interlocutory review on procedural grounds, he
explicitly stated that he "agrees with the judge that the legal issue presented is an important one."
S. Opp'n at 3.

869

what does reasonable likelihood mean? Moreover, since Mathies issuance in 1984,
approximately 47 Commission decisions involving S&S have been issued. 2 Of those 47
decisions, over 93% of the cases related to the third Mathies element It must be emphasized
that this high level of litigation has resulted, llotfrom co11fusio11 regardillg tlte meaning oftfze
statutory terms, but from the confusion created by the Commissio11 's own terms which purport
to set forth a framework for the uniform enforcement and adjudication of S&S violations.
Notwithstanding the foregoing, in the twelve years that have passed since the issuance of
Mathies, the Commission has responded by merely clutching to the same ineffective words.
That "strategy" has failed. As such, I believe the reasonable and appropriate Commission
response to this compelling indication of widespread confusion and uncertainty, is to end the
pretense that no problem exists -- confront the problem and find language that interprets S&S in
a clear, unambiguous way.

To that end I continue to believe that the wisest course of action would have been to defer
decision in this case, and to have invited the litigants, as well as industry and union intervenors to
fully brief and orally argue this vital issue with a view toward crafting a clear interpretation of
S&S. Unfortunately, my colleagues did not support that approach. However, because the parties
in this action continue to dispute the meaning of the third Mathies element, I render my present
view on this issue. No~withstanding the following, however, I remain ready and willing to
consider the differing vi'ews of the aforementioned parties because I believe the S&S analysis can
only benefit from such varied input.
As I indicted above, I have concluded that the Commission's present interpretation of the
statutory term "significant and substantial" is wrong. My conclusion is based on several factors,
not the least of which is the Mine Act itself and the compelling legislative history. Also of great
assistance is the incisive and prescient dissent of Commissioner A.E. Lawson in the Nat'!
Gypsum case.
Everyone agrees that the Act does not define the term "significant and substantial." Nor
does the Act contain language that sets limitations on the breadth of the violations that are to be
considered S&S, beyond the fact that Congress expressly stated that S&S violations do not
include conditions that have been determined by the Secretary to constitute an imminent danger.
30 U.S. C. § 814(d)( 1). Also of significance is the fact that the Act does not contain the disputed
language found in the Commission,s third and forth Mathies test, that requires the Secretary to
prove that the violation in issue poses a r easona ble Jikelihood of serious injury.· That is a
burden that the Congress expressly rejected!
Absent a determination that the meaning of S&S is clear on its face, a determination I am
unwilling to make, the primary basis for determining Congressional intent includes an
examination of the legislative history. In this case the evidence of that intent is clear and

2

Additionally, the number of S&S related petitions for discretionary review filed during
this time period, but denied, is unknown because no record of denied petitions is maintained.

870

convincing. The S&S language in the Mine Act was taken directly from section 104(c)(1) of the
predecessor Federal Coal Mine Health and Safety Act of 1969. 30 U.S.C. § 801 et seq. (1976),
which had been the subject of important litigation before the Department of ~he Interior' s Board
of Mine Operations Appeals ("Board"). That litigation was expressly discussed in the Senate
Committee Report accompanying the Mine Act. Thus, the intended meaning of S&S in the Mine
Act is readily available and precisely set forth :
The Interior Board of Mine Operations Appeals has until recently taken an
unnecessarily and improperly strict view of the 'gravity test' and has required that
the violation be so serious so as to very closely approach a situation of 'imminent
danger.' Eastern Associated Coal Corporation. 3 IBMA 331 (1974).
The Committee notes with approval that the Board of Mine Operations
Appeals has reinterpreted the 'significant and substantial' language in Alabama
By-Products Corp .. 7 IBMA 85, and ruled that only notices for purely technical
violations could not be issued under Sec. 104(c)(l). The Board there held that ' an
inspector need not find a risk of serious bodily harm, let alone death ' in order to
issue a notice under Section 104(c)( 1). The Board's holding in Alabama byProducts Co17Joration is consistent with the Committee's intention that the
unwarranted failure citation is appropriately used for all violations, whether or not
they create a hazard which poses a danger to miners as long as they are not of a
purely technical nature. The Committee assumes, however, that when ' technical'
violations do pose a health or safety danger to miners, and are the result of an
' unwarranted fai lure' the unwarranted failure notice will be issued.
S. Rep. No.181 , 95th Cong., l st Sess. 31 ( 1977), reprinted in Senate Subcommittee on Labor,

Committee on Human Resources, 95th Cong., 2d Sess., Legislative Histo1y of the Federal Mine
Safety and Health Act of 1977. at 619 (1978) ("Legis. Hist.").
In the referenced, overruled Eastern Associated Coal case, the Board had concluded that
violations designated S&S had to pose a "probable risk of serious bodily harm or death." 3
IBMA at 334. Subsequently, the Board reversed itself and concluded that the S&S terms:
when applied with due regard to their literal meanings, appear to bar issu~ce of
notices under section l 04(c)( 1) in two categories of violations, namely, violations
posing no risk of injury at all, that is to say, purely technical violations, and
violations posing a source of any injury which has only a remote or speculative
chance of coming to fruition. A corollary of this proposition is that a notice of
violation may be issued under section 104(c)(I) without regard for the seriousness
or gravity of the injury likely to result from the·hazard posed by the violation, that
is, an inspector need not find a risk of serious bodily harm, let alone of death.
Alabama By-Products, 7 IBMA at 94. As indicated, that holding was cited with approval in the
Senate Committee Report. Legis. Hist. at 619. The Alabama By-Products decision also

871

contained a separate opinion by Administrative Judge Howard J. Schellenberg, Jr. wherein he
concurred in result by expressly joining his colleagues in concluding that the Board's prior
interpretation of section I 04(c ), as stated in Eastern Associated Coal, "was in _error."
7 IBMA at 97. He then indicated "I would have preferred to adopt as a guideline, ... tbat·the
pertinent phrase be interpreted to mean, ' a reasonable risk of danger to the safety or health of the
miners."' Id. His comment is important, because it draws a bright line on what Alabama ByProducts did not hold!
Thus, in citing with approval the Board's Alabama By -Products holding, the task of
determining Congressional intent regarding the meaning of S&S became rather straightforward.
It clearly did not mean, as urged by Judge Schellenberg, "a reasonable risk of danger to the
safety or health of the miners." 7 IBMA at 97. Yet that is essentially the formulation ultimately
adopted by the majority in Nat 'l Gypsum!
Apart from the Commission' s failure or refusal to follow clear legislative direction, the
Nat '/ Gypsum interpretation of S&S is based on misguided concerns that were, and continue to
be, unfounded. The majority expressed its serious concern that maintaining the Alabama ByProducts interpretation of S&S, as urged by the Secretary, would result in almost all violations
being charged as S&S\ Nat'l Gypsum, 3 FMSHRC at 825. Commissioner Lawson dashed that
concern by citing oral argument concessions that indicated that only 62% of all coal mine
violations cited prior to consideration of the Nat 'l Gypsum case were characterized as S&S. Id.
at 835 (Lawson, A. , dissenting). During that time period the Alabama By-Products S&S rule of
construction was in effect!
The Nat'! Gypsum majority also expressed grave concern that by maintaining the
Alabama By-Products S&S construction, future enforcement under section I04(e) of the Mine
Act, 30 U.S.C. §814(e), would result in "continual shutdown" of the mines. Id. at 826-27.
Commissioner Lawson exposed the hollowness of that concern by quoting the Secretary's
position regarding the "pattern" violation authority under section 104(e):
The Secretary hasn ' t issued a notice yet. The Secretary hasn' t issued a
withdrawal order based on a notice of pattern yet. We haven' t got a case that
presents that yet and I don' t believe the Commission should engage in this
unwarranted speculation that the National Gypsum invites you to do, that we will
not be able to effectively administer the Act if this definition of significant and
substantial is adopted.
Id. at 837 (Lawson, A. , dissenting) (citations omitted). Those words were uttered approximately
16 years ago. However, they are no less accurate today, as I am unaware of any section 104(e)
enforcement, and certainly have not seen any cases seeking review of a section 104(e) violation.
But more to the point, is Commissioner Lawson's reaction to the majority's unfounded
apprehension that an adverse effect upon section 104(e) enforcement would result from a
continuation of the Alabama By-Products interpretation of S&S:

872

What this demonstrates about the enforcement of section l 04(e) of the Act
may well raise one' s eyebrows, but it can hardly be maintained, given this record,
that any operator has reason to fear a 104(e) based closure of its min~. The
adoption of all-encompassing rules to be applied to cases not yet--perhaps never-to be before us is both judicially premature and the unwise rendering of a
judgment in a vacuum, before any experience or factual context exists within
which to make such a decision. We should not promulgate rules for deciding nonexistent cases which are not now and may never be before us.
Id. at 838 (Lawson, A., dissenting).

Indeed, 15 years after those words were written, they continue to have vitality. That
demonstration of solid judgment and impressive 20120 forward vision, is only surpassed by
Commissioner Lawson's caution to the majority regarding the effects of their newly minted
interpretation of S&S:
As a foundation for meaningful analysis, I can discern no improvement which will
result from this alteration of the existing procedure, and no benefit accruing to
either the inspector, the miner, or the mine operator. Unless the production of
litigation is our goal, I confess that I can ascertain no purpose to this redefinition.

Id. at 839-40 (Lawson, A., dissenting).
I am in total agreement with that insightful statement! The Commission's Nat 'l Gypsum/
Mathies interpretation of S&S has neither clarified nor facilitated a uniform application of S&S.
To the contrary, the present ambiguity only serves to fuel a constant stream of unnecessary
litigation that results in a diminished level of Congressionally mandated protection to our
nation 's miners and puts an unacceptable financial strain on operators and the government. The
recently decided Power Operating Co., 18 FMSHRC 303 (March 1996), presents a vivid
demonstration.
In that case, the Secretary cited Power Operating Company ("Power") for a violation of
30 C.F.R. § 77.l 710(a) (1995)3 and charged S&S. 18 FMSHRC at 304. The Department of
Labor' s Mine Safety and Health Administration ("MSHA") inspector observed ~ miner steam
cleaning a rock truck with a device (steam jenny) that delivers water under high pressure. Id.
The miner was not wearing goggles, and his face was splattered with black material that the
inspector believed to be dirt and grease. Id. Power did not dispute the foregoing, but challenged

3

Section 77 .1710( a) states:
Protective clothing or equipment and face-shields or
goggles shall be worn when welding, cutting, or working with
molten metal or when other hazards to the eyes exist.

873

the S&S charge. Id. The judge concluded that the violation was not S&S. 16 FMSHRC 591,
607 (March 1994) (ALJ). Although he determined that an injury to the eye was reasonably
likely to"occur, he concluded that "the record does not establish[ ] any evidence regarding the
level of severity of an injury occasioned by cont~ct of the materials with an eye. Id. The
Secretary appealed and the Commission ruled that the judge erred in failing to conclude that the
injury to the eye was reasonably likely to be serious. 18 FMSHRC at 306. The Commission
majority (myself included) relied upon testimony of the inspector, that had not been considered
by the judge, which set forth the inspector's opinion as to the seriousness of the likely injury.
Id. at 306-07. Although I had no difficulty concluding that the facts of that case clearly
established a S&S violation, I do not believe that Congress ever intended or expected that
inspectors, judges or Commissioners possess medical skills and knowledge sufficient to make
such fine distinctions as to the specific degree of injury. However, because of the ambiguity of
the third and forth Mathies elements, Power was able to persuade one judge and one
Commissioner that such is the burden of the Secretary.4 In my opinion that issue should never
have been litigated -- it was not even a close call. However. because the existing interpretation
of S&S provides room for the fly -specking myopia noted below, operators have effectively been
encouraged to do so.
\

4

That all eye injuries are not ipso facto serious is evidenced by the
Secretary's own regulations for the reporting of accidents, injuries, and
illnesses set forth at 30 C.F.R., Part 50. Sections 50.20-3(a)(5)(i)&(ii) set
forth the criteria for differentiating, for purposes of eye injuries, between
first aid and medical treatment. First aid encompasses irrigation of the
eye, removal of foreign material not imbedded in the eye, and the use of
non-prescription eye medications. 30 C.F.R. § 50.20-3(a)(5)(i). Medical
treatment encompasses removal of imbedded foreign objects, use of
prescription medications, and other professional treatment. 30 C.F.R.
§ 50.20-3 (a)(5)(ii). First aid is characterized as 'one-time
treatment, and any follow-up visit for observational purposes, of a
minor injury' (emphasis added). 30 C.F.R. §50.2(g). It appears .
that the potential injury here could well fall into the category of
eye injury characterized by the Secretary as minor (one requiring
only first aid) and which need not even be reported to MSHA on its
Mine Accident, Injury, and Illness Report Form 7000-1. 30 C.F.R.
§§ 50.2, 50.20. Thus, I disagree with my colleagues that the only
possible conclusion is that forcibly propelled 'dirt, grease or hot
water striking the eye is reasonably likely to cause reasonably
serious trauma.' Slip op. at 4.

Power Operating, 18 FMSHRC at 308 (Doyle, J., dissenting).

874

Interestingly, this precise problem was also anticipated by Commissioner Lawson. 5
Enough is enough! Fairness dictates that we in the Commission better serve the interests
of miners, mine operators and the Secretary of Labor. Therefore, I conclude that the
interpretation of S&S, as understood and applied prior to the Nat 'l Gypsum decision, should be
restored. It was a faithful implementation of clear Congressional intent. 6

Marc Lincoln Marks, Commissioner

The majority's tampering will add to the statute words oflimitation
which will require every mine inspector to make judgments, not only as to
the 'likelihood' of the effects of the hazard, and the 'reasonable[ness]' of
that 'likelihood' but will as well demand medical predictions to be made
as to whether a hazard will result in an injury or illness of a 'reasonably
serious' nature. Must the inspector henceforth determine, not only
whether the roof is safe or unsafe, but whether the unconscious miner who
is the victim ofa rooffall has suffered 'merely' a concussion, or a
fractured skull? Would only the hazard in the latter case, under the
majority's rationale, be one which is significant and substantial?

Nat'l Gypsum, 3 FMSHRC at 833 (Lawson, A., dissenting) (emphasis supplied).
6

Notwithstanding this present conclusion, I restate that I remain open to revisit this issue
after it has been thoroughly briefed and argued.

875

Distribution

Billy M. Tennant, Esq.
U.S. Steel Mining Company
600 Grant Street, Room 1580
Pittsburgh, PA 16219
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

Administrative Law Judge William Fauver
.·
·.

Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

876

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

June 20, 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 93-145-M

V.

MECHANICSVILLE CONCRETE, INC.
t/a MATERIALS DELIVERY

BEFORE: Jordan, Chairman; Holen. Marks and Riley, Commissioners 1

DECISION
BY: Jordan, Chairman; Holen and Riley, Commissioners
This civi l penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act,, or "Act"), raises the issues of whether a judge
on his own initiative can designate a violation of a mandatory safety standard to be significant
and substantial ("S&S")2 and whether the judge' s penalty assessment for the violation was
proper. Administrative Law Judge Arthur Amchan concluded that a violation by Mechanicsville
Concrete, Inc. t/a Materials Delivery ("Mechanicsville" ) of 30 C.F.R. § 56.141 OO(b) ( 1995)3 was
S&S, although the Secretary' s citation had not contained that allegation, and assessed a penalty
of$200. 16 FMSHRC 1444, 1449-52 (July 1994) (ALJ). The Commission directed review sua

1

Commissioner Doyle participated in the consideration of this matter but resigned from
the Commission before its final disposition.
2

The S&S terminology is taken from section 104(d)(l) of the Mine Act, 30 U.S.C.
§ 814(d)( 1), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard ...."
3

Section 56.141 OO(b) provides:
Defects on any equipment, machinery, and tools that affect
safety shall be corrected in a timely mann'?r to prevent the creation
of a hazard to persons.
·

877

sponre of the judge's S&S determination (see section 113(d)(2)(B) of the Act, 30 U.S.C.
§ 823(d)(2)(B))4 and granted Mechanicsville's petition for discretionary review only to the extent
it requested review of the penalty. For the reasons that follow, we reverse the judge's S&S
determination and affirm his penalty assessment.
I.

Factual and Procedural Background
Mechanicsville owns and operates the Branchville pit, a sand and gravel mining
operation in Southampton County, Virginia. 16 FMSHRC at 1445. On May 10, 1993, Charles
Rines, an inspector from the Department of Labor's Mine Safety and Health Administration
("MSHA"), conducted an inspection of equipment at the mine, including a front-end loader.
Id at 1449-50. The vehicle, which could lift and transport more than three tons of material per
bucketful, was used to mine sand and gravel, move raw material to the preparation plant for
processing, and load processed materials into customers' trucks. Tr. I 84-85, 93, 97-98. 5
Inspector Riri((S observed that the windshield wiper and blade were missing from the
vehicle. 16 FMSHRC\at 1450. Accordingly, he issued a citation, pursuant to section 104(a) of
the Mine Act, 30 U.S.C. § 814(a), alleging a violation of section 56.14100(b). 16 FMSHRC at
1450; Gov't Ex. 7. Jnspector Rines did not allege the violation was S&S. Id.
The judge found that Mechanicsville violated the regulation by failing to have a
windshield wiper arm and blade on the front-end loader. 16 FMSHRC 1451. In addition, the
judge determined that the violation was S&S, concluding that he had the authority under section
105(d) of the Mine Act, 30 U.S.C. § 815(d), to "find an 'S&S' violation sua sponte ... ." 16
FMSHRC at 1452. The Secretary had proposed a civil penalty of $50; the judge assessed a civil
penalty of $200 for the violation. Id.

4

Section 113 (d)(2)(B) provides in relevant part:
[A]fter the issuance of a decision of an administrative law judge,
the Commission may in its discretion . . . order the case before it
for review . . . . The Commission shall state in such order the
specific issue of law, Commission policy, or novel question of
policy involved.

5

The hearing was conducted on March 22 and 23, 1994. "Tr. I" refers to the March 22
hearing transcript; "Tr. II" refers to the March 23 hearing transcript.

878

II.
Disposition
The Secretary asserts that the judge did not have authority to find a violation S&S where
the citation issued by the Secretary did not allege an S&S violation. S. Br. at 3-8. He argues that
his enforcement responsibility .and authority under the Mine Act are exclusive and that the
judge's action was, in effect, an attempt to review the Secretary's enforcement decision. Id. at 57. The Secretary argues that the judge assessed an appropriate penalty. Id. at 9-10.
Mechanicsville does not take a position on the judge's authority to find a violation S&S
where the Secretary has declined to do so. Mechanicsville contends, however, that the judge
improperly enhanced the penalty. M. Br. at 4. It submits that the judge erred in denying its
motion to strike certain evidence of prior violations. Id.
A. Whether the Judge Had Authority to Find the Violation S&S
We agree wi~h the Secretary that the judge erred in determining on his own initiative that
the violation was S&S. The Mine Act confers enforcement authority upon the Secretary.
Thunder Basin Coal Co. v. Reich, 127 L. Ed. 2d 29, 36, 40 (1994). Under section 103(a) of the
Act, 30 U.S.C. § 813(a), the Secretary's representatives are required to make frequent inspections
of mines and to investigate whether operators are in compliance with the requirements of the Act.
Section 104(a) delegates to the Secretary authority to issue citations for violations of the Act or
any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to the
Act. Sections 104(d)(l) and 104(e), 30 U.S.C. § 814(d)(l) and (e), expressly provide that the
Secretary possesses authority to designate a violation S&S. See Consolidation Coal Co., 6
FMSHRC 189, 191-92 (February 1984) (inspector's S&S findings under section 104(d)(l )). The
Commission adjudicates disputes under the Mine Act (see sections 105 and 113 , 30 U.S.C.
§§ 815 and 823); the Commission has no enforcement responsibility under the Act. See Thunder
Basin, 127 L. Ed. 2d. at 36. The Commission does not have authority to inspect mines,
investigate violations, or issue citations. The Commission has concluded that its administrative
law judges are not authorized representatives of the Secretary and do not have authority to charge
an operator with violations of section 104 of the Mine Act. Mettiki Coal Corp. , 13 FMSHRC
.
760, 764 (May 1991).
The Supreme Court has held that an administrative agency has virtually wrreviewable
discretion in making decisions not to take particular enforcement action relating to its statutory
or regulatory authority. Heckler v. Chaney, 470 U.S. 821, 831-32 (1985); see Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 538 (D.C. Cir. 1986). The Commission has recognized that
the Secretary's discretion to vacate citations is unreviewable. RBK Construction, Inc., 15
FMSHRC 2099, 2101(October1993). We perceive no material difference between the
Secretary's discretion on the one hand to vacate a citation and his discretion on the other hand
not to issue a citation in the first instance or not to designate a citation as S&S. In making his

8 79

sua sponte determination, the judge essentially made a prosecutorial decision to designate the
citation as S&S in the first instance--an exercise of enforcement authority reserved for the
Secretary--along with an adjudicatory determination to affirm that designation. In so doing, the
judge, contrary to the Mine Act's statutory scheme, usurped the Secretary's role of enforcing the
Mine Act.

The judge claimed authority to designate Mechanicsville's violation S&S based on
section l 05(d) of the Mine Act, which gives the Commission authority to affirm, modify, or
vacate a citation. 6 The Commission has held that section 105(d) permits a judge to modify a
citation or order so long as the essential allegations necessary to sustain the modified
enforcement action are contained in the original citation or order. Consolidation Coal Co., 4
FMSHRC 1791, 1793-94 (October 1982). The Commission emphasized that the judge did not
add new findings to create a 104(d)(l) citation. Id. at 1796. By contrast, the Commission has
overturned a judge's modification of an imminent danger withdrawal order issued under section
107(a) of the Mine Act, 30 U.S.C. § 817(a), to a failure to abate withdrawal order issued under
section 104(b) of the Act, 30 U.S.C. § 8l4(b). Mettiki, 13 FMSHRC at 764-65. The
Commission reasoned that the modification was not appropriate because the judge added new
findings to create a see.tion 104(b) order. Id. at 765. The Commission emphasized that findings
necessary to establish an imminent danger order were different from findings required to
establish a section l 04(b) order. Id. Here, the judge similarly erred by adding a new finding and
conclusion, i.e., that the violation posed a hazard to employees that was reasonably likely to
result in a reasonably serious injury7 and was therefore S&S. 16 FMSHRC at 1450-52.

6

Section 105(d) states, as pertinent:
[T]he Commission shall afford an opportunity for a hearing (in
accordance with section 554 of title 5 [U.S.C.], but without regard
to subsection (a)(3) of such section), 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.

7

Our dissenting colleague relies on the fact that, in responding to statement 1O.B. on the
citation form, "Injury or Illness could reasonably be expected to be," the inspector checked the
box indicating "Fatal." Slip op. at 7-8. Commissioner Marks fails to acknowledge that, in
responding to statement IO.A., "Injury or Illness ... (is)," the inspector checked the box
indicating "Unlikely." In order to establish the ·third element of an S&S determination, Mathies
Coal Co., 6 FMSHRC 1, 3-4 (January 1984), requires "a reasonable likelihood that the hazard
contributed to will result in an injury."

880

B. Whether the Judge Erred in His Penalty Assessment
In contested civil penalty cases, the Mine Act requires that the Commission make an
independent penalty assessment based on the statutory criteria of section 11 O(i) of the Act, 30
U.S.C. § 820(i). Sellersburg Stone Co., 5 FMSHRC 287, 291 (March l 983), aff'd, 736 F.2d
1147, 1152 (7th Cir. 1984). The Commission has explained that "[t]he determination of the
amount of the penalty that should be assessed for a particular violation is an exercise of
discretion by the trier of fact. This discretion is bounded by proper consideration of the statutory
criteria and the deterrent purpose underlying the Act's penalty assessment scheme." 5 FMSHRC
at 294 (citation omitted).

In reviewing a judge's penalty assessment, the Commission must determine whether the
penalty is supported by substantial evidence and is consistent with the statutory penalty criteria. 8
While "a judge's assessment of a penalty is an exercise of discretion, assessments Jacking record
support, infected by plain error, or otherwise constituting an abuse of discretion are not immune
from reversal . . .. " US. Steel C01p., 6 FMSHRC 1423, 1432 (June 1984).
The judge found that Mechanicsville's history of violations warranted assessment of a
substantial penalty. 16 FMSHRC at 1452. Mechanicsville claims the judge erred in basing his
penalty assessment in part on violations set forth in Gov't Exs. 9 through 12. M. Br. at 4.
Mechanicsville asserts that these exhibits should have been stricken, pursuant to its motion made
at hearing, because they were not produced by the Secretary pursuant to Mechanicsville's
discovery requests. Id.
We conclude that the judge did not err in refusing to strike the exhibits. The citations
therein were relevant to the issue of the operator's history of violations. Section l l O(i) sets forth
the operator's history of previous violations as a factor to be considered in assessing a civil
penalty. As the judge c01Tect1y noted, all but one of the citations were listed in the Secretary's
prehearing report, which indicated they might be introduced. Tr. II 13-14, 16-17; S. Resp. to

8

The Commission is bound by the substantial evidence test when reviewing an
administrative law judge's factual determinations. 30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to
support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11FMSHRC2159, 2163
(November 1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). While
we do not lightly overturn a judge's factual findings and credibility resolutions, neither are we
bound to affirm such determinations if only slight or dubious evidence is present to support
them. See, e.g. , Krispy Kreme Doughnut Corp. v. NLRB, 732 F.2d 1288, 1293 (6th Cir. 1984);
Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir. 1980). We are guided by
the settled principle that, in reviewing the whole record, an appellate tribunal must also consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

881

Notice ofHr'g at 5. There was no showing of prejudice. See Materials Delivery, 15 FMSHRC
2467, 2469 (December 1993) (ALJ) (three citations in the exhibits had previously been litigated).
15 FMSHRC at 2469; Tr. II 17. Moreover, Mechanicsville, which was represented by counsel,
asked the judge to strike the exhibits only after they had been admitted into evidence without
objection. Gov't Ex. 9 (Tr. I 118); Gov't Ex. 10 (Tr. I 129); Gov't Ex. 11(Tr.I132); Gov't Ex.
12 (Tr. I 138-39). Failure to object to an offer of evidence when the offer is made waives on
appeal any argument against its admission. l John W. Strong et al., McCormick on Evidence §
52, at 200 (4th ed. 1992); see In Re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1864 (November 1995), appeal docketed, No. 95-1619 (D.C. Cir. Dec. 28,
1995).
Mechanicsville does not dispute the judge's other penalty criteria findings, including high
negligence and high gravity. 16 FMSHRC at 1452. Accordingly, we conclude that the assessed
penalty was within the judge's discretion and is supported by substantial evidence.

III.
Conclusion
For the foregoing reasons, we conclude that the judge lacked authority to find, sua
sponle, that Mechanicsville's violation was S&S and we reverse the judge's conclusion that the
violation was S&S. We affirm the judge's assessment of a $200 civil penalty.

Arlene Holen, Commissioner

C..~~
es C. Riley, Commissioner

882

~

Commissioner Marks, concurring in part and dissenting in part:
The majority has determined that the judge does not have the authority to conclude that a
violation is significant and substantial when the Secretary has failed to formally make such a
charge. I disagree and dissent on this issue.
In reaching their conclusion, the majority stresses that the Act gives the Commission no
enforcement responsibility and that the Commission has no authority to investigate or inspect
mines, issue citations, or charge operators with section 104 violations. Slip op. at 3. I don't
disagree generally with that statement. However, 1 find those observations irrelevant to the
analysis.

My colleagues veer off the rails by concluding that the judge's action in this case was
essentially "a prosecutorial decision to designate the citation as S&S in the first instance--an
exercise of enforcement authority reserved for the Secretary ... " and that in doing so he
"usurped the Secretary's role of enforcing the Mine Act." Slip op. at 3-4. They go further,
concluding that the judge "erred by adding a new finding and conclusion, i.e., that the violation
posed a hazard to employees that was reasonably likely to result in a reasonably serious injury
and was therefore S&S." Slip op. at 4. They are v.Tong.
As long recognized by the Commission, and as apparently understood today by the
majority, the Commission's holding in Consolidation Coal Co., 4 FMSHRC 1791 (October
1982), reflected a recognition that section 105( d) of the Act authorizes the judge to modify
citations "so long as the essential allegations necessary to sustain the modified enforcement
action are contained in the original citation or order." Slip op. at 4. For reasons explained
below, I conclude that is precisely what occurred in this case, i.e., the judge's ruling is based on
allegations contained in the original citation. Therefore, I find that the judge acted within his
authority and in accordance with his duty as an administrative law judge when he concluded that
the subject violation was S&S.
The violation in issue was one of five separate violations charged by the Secretary on
May 10, 1993, and ultimately sustained by the judge. All five violations related to the highly
dangerous condition of the cited front-end loader. In addition to the citation on review, which
was issued because the sole windshield wiper arm and blade was missing, the loader was also
cited for: a broken windshield and right side glass; an inoperable parking brake; an inoperable
horn~ and an inoperable back-up alarm. In all citations, except the windshield arm/blade citation,
the inspector checked the S&S box on the citation form. The inspector testified that he did not
check the S&S box on the windshield arm/blade citation because it was not raining at the time
of his inspection. See Tr. I 105-06, 166.
The majority,s conclusion on this issue is totally reliant upon the fact that the inspector
checked "no" next to the S&S box on Citation No. 4085282. Gov't Ex. 7 (statement 1O.C.).
However, the majority fails to recognize that, on the same citation, in response to statement

883

·'
....

.·

1O.B., "Injury or Illness could reasonably be expected to be," a check appears in the box
indicating "FATAL." Gov ' t Ex. 7 (statement 10.B.) (emphasis supplied). Thus, in this case, the
Secretary came before the judge charging that the violation could reasonably be expected to be a
fatality. At the hearing before the judge, this charge was supported by unrefuted testimony from
the inspector that rain and early morning dew on the windshield causes a "distorted view of
everything in front of you." Tr. I 104-05. 1 Moreover, the inspector testified that the loader is
operated in the early morning and when it is raining. Id. at 105. Significantly, on crossexamination the inspector refused to agree that there was no likelihood of an accident resulting
from the violation. Id. at 204-06.2 Thus, the record before the judge included: the Secretary's
charge that the violation could result in an injury reasonably expected to be fatal; the testimony
of the inspector, refusing to agree on cross-examination, that there was no likelihood of an
accident; and most importantly, the inspector' s testimony that he would have checked the box
designating the violation S&S if it had been raining at the time of citation. Given the foregoing,
I conclude that the judge had both a duty and obligation to rectify what was a misapprehension of
law by the inspector. 3

1

The inspector's testimony on cross-examination further establishes the dangerous
condition of the loader at the time of citation:
The windshield was broken in several places. That affected the vision of the
operator that was operating that piece of equipment. It was spider-webbed in
front of it. You got an illusion whenever you would look through this broken
glass.
Tr. 1 170.
2

In a purported defense of the dangerous condition of the loader, the operator' s counsel
callously challenged whether a miner would actually be killed by the loader because the ground
was sandy, not hard asphalt, and because the loader was two feet above the ground. Tr. I 165-66,
207-09, 223.
· 3

The Commission case law is well settled. In evaluating whether a violation is S&S it is
necessary to consider the violation in the context of "continued normal mining operations." U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984); see also Monterey Coal Co., 7 FMSHRC
996, 1001-02 (July 1985). "The operative time frame for determining if a reasonable likelihood
of injury exists includes both the time that a violative condition existed prior to the citation and
the time that it would have existed if normal mining operations had continued." Rushton Mining
Co., 11FMSHRC1432, 1435 (August 1989), citing Halfway, Inc., 8 FMSHRC 8, 12 (January
1986), and U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). Here, the testimony
established that the loader was used in rainy conditions. Tr. I 105.

884

The administrative law judge has the duty to determine whether the evidence ofrecord supports
the Secretary's charge. But for his belief that the absence ofrain at the time of citation restricted
him from formally charging S&S, the Secretary's inspector and principal witness clearly
indicated that he believed the violation was S&S. The judge's authority is not limited to either
agreeing with the levels of gravity charged by the Secretary or determining that the Secretary's
charges of gravity should be diminished. The judge also has both the duty and authority to
determine, in view of the record, that the gravity of the charges made by the Secretary should be
increased. The Secretary clearly supports this view.
To the extent that the judge determines that the evidence presented at the hearing
indicates that the gravity of a particular violation is higher than that initially
determined by the Secretary, the judge can properly consider this evidence in
evaluating the gravity of the violation for purposes of assessing an appropriate
civil penalty.
S. Br. at 9.
That is precisely what the judge did in this case. The record clearly indicates that the
Secretary believed the gravity of the violation to be S&S but for his inspector's misapprehension
of the breadth of the law.
The majority also intimates that no basis for the S&S conclusion exists in this case. See
Slip op. at 4 (different findings required). I disagree. In this case the evidence in the record is
adequate to determine that all Mathies elements were satisfied. See Mathies Coal Co.,
6 FMSHRC l, 3-4 (January 1984). Moreover, as the Secretary acknowledges, "the penalty
criterion of gravity encompasses the same factors or evidence evaluated in determining whether a
violation is significant and substantial." S. Br. at l 0 n.7, citing Quinland Coals, Inc., 9
FMSHRC 1614, 1622 n.11(September1987).
For the foregoing reasons, I dissent and would affirm the judge's cone

Marc Lincoln Marks, Commissioner

885

Distribution

Robert A. Blackwood, III, Esq.
3054-A Berk.mar Drive
Charlottesville, VA 2290 l
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Arthur Amchan
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite I 000
Falls Church, VA 22041

886

ADMINISTRATIVE LAW JUDGE DECISIONS

·,

..
"

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

JUN 3 1996
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 93-169
A.C . No. 42-01994-03614

v.
Cottonwood Mine
ENERGY WEST MINING COMPANY,
Respondent
DECISION AFTER REMAND
Before:

Judge Manning

This case is before me pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. (1988) ("Mine Act") following a remand from the Commission.
18 FMSHRC 565 (April 1996).
In its decision, the Commission affirmed the determination of former Commission Administrative Law
Judge John J. Morris that an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA") did not
abuse his discretion in issuing a failure to abate order of
withdrawal under section 104(b) of the Mine Act. The Commission
vacated Judge Morris's penalty assessment, however, and remanded
the case for reconsideration of that issue. Id. at 571.
The citation involved in this case states that respirable
dust samples taken by Energy West Mining Company ("Energy West")
showed an average concentration of 2.2 milligrams of respirable
dust per cubic meter of air, in violation of 30 C.F.R.
§ 70.100 (a) .
The health standard requires that the average
concentration be maintained at or below 2.0 milligrams. Energy
West conceded that it violated section 70.lOO(a) as alleged in
the citation but disputed that the violation was significant and
substantial ("S&S") and challenged the failure to abate order
issued by the MSHA inspector.
At the hearing, Judge Morris granted the Secretary's motion
to amend the citation to delete the S&S allegation based on evidence that the miners exposed to the respirable dust were wearing
airstrearn helmets.
16 FMSHRC 835, 837 (April 1994). The judge
found that these helmets "provid[ed ) a virtually dust-free air
supply to miners, reducing respirable dust exposure to insignificant levels." Id. at 843. The condition described in the cita-

887

tion was not abated within the time set in the citation. The
inspector determined that an extension of _the abatement time was
not warranted and he issued a failure to abate order. The judge
determined that the inspector did not abuse his discretion in
issuing the failure to abate order. Id. at 844. Judge Morris
assessed a civil penalty of $3,000 based on his finding that the
gravity of the violation was high, given the risk of pneumoconiosis and that such violations are generally considered to be S&S.
Id. at 850.
In its decision, the Com.mission affirmed the judge's decision with respect to the failure to abate order. 18 FMSHRC at
571. The Commission noted that the judge granted the Secretary's
motion to delete the S&S allegation because the miners were wearing airstream helmets and were thereby provided with a virtually
dust-free air supply.
Id. The Commission stated that the judge
did not indicate whether he considered this evidence when he
determined that the violation was of high gravity or when he
assessed the civil penalty. Id. On that basis, the Commission
vacated the penalty and remanded the case for consideration of
that evidence and the assessment of an appropriate civil penalty.
This case was assigned to me on April 25, 1996. By order
dated April 29, I asked the parties to confer for the purpose of
reaching agreement on the narrow issue remanded by the Commission.
In response, the parties e ntered into the following
stipulation:
1. The gravity of the violation was low
because the miners affected were wearing personal protective equipment which provided "a
virtually dust-free air supply to miners, reducing respirable dust exposure to insignificant levels. " For this reason, the Secretary
did not consider the violation significant
and substantial.
2. Since the gravity of the violation ·
was low, and the findings in the Judge's decision issued in April 1994 about the other
statutory factors for assessment of the civil
penalty for the violation were not at issue
before the Commission and are not at issue on
remand, an appropriate civil penalty for
Citation 3850746 is $850.00.
Joint Stipulation at 2 (citations omitted}. The parties stated
that they entered into the agreement, in part, to conserve the
resources of the Commission and the parties, and they request
that I issue a final decision assessing a civil penalty of
$850.00 without further proceedings.

88 8

Based on my consideration of the decisions of Judge Morris
and the Commission, the record in this case, and th~ parties'
joint stipulation, I concluded that the proffered agreement
contained in the joint stipulation is appropriate under the
criteria set forth in section llO(i) of the Mine Act.
Accordingly, the parties' proposal set forth in their Joint
Stipulation is ACCEPTED, the citation is MODIFIED to show that
the gravity of the violation was low, and Energy West Mining
Company is ORDERED TO PAY the Secretary of Labor the sum of
$850.00 within 40 days of the date of this decision.

Richard W. Manning
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 1600, Denver, co 80202-5716
(Certified Mail)
Timothy M. Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania
Ave., NW, Washington, DC 20004-2595 (Certified Mail)

RWM

889

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

JUN 3 1996.
UNITED MINE WORKERS OF AMERICA
LOCAL 1058, DIST. 31,
Complainant
v.

COMPENSATION PROCEEDING
Docket No . WEVA 95-262-C
Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
FINAL ORDER
Before:

Judge Fauver

This proceeding concerns a complaint for compensation
pursuant to th~ first sentence of § 111 of the Federal Mine
Safety and Health Act of 1977, 30 U.S . C . § 801, .e..t. ~·
A decision on liability was entered on April 3, 1996.
Without waiving any right to seek review of that decision, the
parties have stipulated the amount of compensation due under the
liability decision.
WHEREFORE IT IS ORDERED THAT:
1. Within 30 days of this Order, Respondent shall pay to
Complainant the amounts of compensation and interest stipulated
through May 30, 1996, for the benefit of the miners named in the
stipulation, plus interest accruing from May 30, 1996, until the
date of payment.
2.
This Order and the Decision of April 3, 1996 ,. constitute
the judge's final disposition of all issues in this proceeding.

ll)~~v~

William JC:;v~r
Administrative Law Judge

890

Distribution:
Judith Rivlin, Esq., United Mine Workers of America, . 900 15th
St., N.W., Washington, D.C. 20005 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company,
1800 Washington Rd., Pittsburgh, PA 15241 (Certified Mail)
\mca

;·.

·.
·\

891

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LA~ JlJ>GES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 95-265-M
A.C. No. 23-02068-05509
Journagan Portable #12 MO

LEO JOURNAGAN CONSTRUCTION
COMPANY, INC. ,
Respondent
SECRETARY OF L{\BOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 96-53-M
A.C. No. 23-02068-05510-A

v.

Journagan Portable #12 MO
JAMES M. RAY, Employed by
LEO JOURNAGAN CONSTRUCTION
COMPANY, INC. ,
Respondent
DECISION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, D~nver, Colorado, for
Petitioner;
Bradley S. Hiles, Esq., Peper, Martin, · Jensen,
Maichel & Hetlage, St. Louis, Missouri, for
Respondents.

Before:

Judge Amchan
Findings of Fact
Respondents' failure to deenergize the crusher

On March 28, 1995, 'MSHA representative Michael W. Marler
conducted an inspection of Leo Journagan Construction Company's
portable crusher No . 12 in southwestern Missouri. While Marler
was at the site, rocks became stuck in the crusher. Marler and
892

Journagan's superintendent, James "Mike" Ray, drove to the top
of a hill, just above the crusher (Tr. 247-48) 1 • When the
inspector approached the crusher, he observed Journagan· employee
Steve Catron trying to unjam the rocks so that the crusher could
operate again (Tr. 31-32).
Catron was straddling the crusher with his feet resting on
metal plates located two inches above the jaws of th~ crusher.
He was wearing a safety belt with a lifeline that was tied to a
catwalk railing above him. Catron was using a five to six foot
long metal bar to dislodge the rocks in the crusher (Tr. 32-33,
162-66, 187-88, 234, 294) . The crusher was approximately
six feet four inches in depth (Tr. 294 ) . The jammed rocks
extended up two feet from the bottom of the crusher (Tr. 296).
Although the crusher was not on, the electrical power to the
crusher was not shut off and locked out. Earlier, when Catron
and the crusher operator, Keith Garoutte, began to unjam the
crusher they turned off the crusher controls and locked out the
power at the generator trailer. However, to determine whether
the crusher would work, Garoutte restored power to crusher
(Tr . 18 2 - 8 3 ) .
After the power was restored, Catron tried to move the rocks
and then moved back from the crusher jaws. Garoutte watched him
from a vantage point uphill at the doorway of the shed containing
the crusher controls (Tr. 162-66, Exh. R-5). When Catron moved
back from the jaws of the crusher, he would detach his safety
belt from the catwalk railing and step up on the grizzly, 2 which
was located on the opposite side of the crusher jaws from the
catwalk. He would then reattach his safety belt to a point above

I credit Mr. Ray's testimony that he went to the crusher
with the inspector, over Inspector Marler's testimony that Ray
was at the crusher when he arrived {Tr. 96). I conclude that Ray
would have a better recollection of his activities on the day in
question.
1

The grizzly is a flat metal plate with openings to
separate smaller rock from larger rock (Tr. 187, Exh. R-5).
The grizzly was about 1-~ feet above the metal plate on which
Mr. Catron was standing (Tr . 295).
2

893

and behind him . Catron then signaled or told Garoutte to start
the crusher {Tr. 192-195, 203, 225, 233-34). Garoutte entered
the control shed and turned on the crusher.
Inspector Marler issued Respondent Citation/Order
No. 4329462 alleging that the failure to lock out the power to
the crusher posed an imminent danger under section 107(a) of the
Act, and a "significant and substantialn (S&S) violation of
section 104(a) of the Act and 30 C.F.R. §56.12016. This
regulation states:
Electrically powered equipment shall . be deenergized
before mechanical work is done on such equipment.
Power switches shall be locked out or other measures
taken which shall prevent the equipment from being
energized without the knowledge of the individuals
working on,_ it ...
\

A $4,000 civil penalty was proposed by MSHA against
Journagan and a $1,500 penalty against Mike Ray, pursuant to
section llO{c) of the Act.
Although Ray may not have seen Catron straddling the crusher
until Inspector Marler saw Catron, Journagan had tried before to
dislodge rocks from the crusher with the machine energized
(Tr. 169). Catron had dislodged rocks under these conditions
even before Ray became his supervisor (Tr. 170). This was
apparently a standard practice of Leo Journagan Construction
Company. Ray had seen Catron try to dislodge rocks from the
crusher with the machine energized 8 months earlier--in the
presence of another MSHA inspector (Tr. 266-68).
Superintendent Ray disagreed with Marler that the · failure to
deenergize the crusher posed a hazard to Catron or that it violated the standard, because Catro~ was tied off with a safety
belt (Tr. 97-99). However, he immediately went to the generator
trailer and deenergized the crusher.
Miners working beneath rocks in the crusher's hopper
After Mr. Ray shut off the power to the crusher, he and
Inspector Marler climbed up onto the catwalk just below the
crusher. When they reached the catwalk they observed miners
894

Catron and Garoutte inside the crusher removing rocks from the
machine. Above the miners, the crusher's hopper was 3/4 full
with slightly more than a truckload of rock sitting at ~n angle
of 35 degrees to the horizontal (Tr. 207-08, 281) . 3 The rocks,
which extended to within a foot of the miners, ranged in size
f r om dust-like particles to stones two inches in diameter
{Tr . 55-56, 195).
There was no physical barrier between the rocks and the
crusher. Inspector Marler advised Ray that he considered this
situation to pose an imminent danger to Catron and Garoutte due
to the likelihood that the rocks would slide into the crusher on
top of them (Tr. 63-66) . Ray argued that the rock pile in the
hopper was stable. However, he immediately complied with the
order and welded a piece of steel to the end of the grizzly in
order to prevent rocks from sliding into the crusher.
Later Marler committed the imminent danger order to writing
as Citation/Order No. 4329463. It al l eged a violation of
30 C . F.R. § 56 . 16002(a). That standard provides:
Bins, hoppers, silos, tanks , and surge piles, where
loose unconsolidated materials are stored, handled
or transferred shall be(1) Equipped with mechanical devices or other
effective means of handling materials so that
during normal operations persons are not required
to enter or work where they are exposed to
entrapment by the caving or sliding of materials

I have credited Mr. Ray's estimation of the slope over that
of Mr . Catron's 25 - 26 degrees (Tr. 212). Although Catron was in
a b etter position to observe the slope of the rocks, Mr. Ray
appears to have superior ability by virtue of his education and
training to estimate the angle at which the rocks l ay. Mr.
Marler did not measure the slope (Tr. 108) .
The quantity of rock in the feeder was estimated by Keith
Garoutte to be approximately 25-30 tons (Tr. 340).
3

895

The citation was characterized as "S&S" and a $4,500
penalty was proposed against Leo Journagan Construction Company.
Additionally, a $1,500 penalty was proposed against Mr.· Ray
pursuant to section llO(c) of the Act .
Although Ray did not order Catron and Garoutte into the
crusher he knew they would climb down into the machine (Tr . 287).
It was not uncommon for Journagan employees to remove rocks from
a crusher with rocks overhead and it was not the company practice
to install a barrier between the miners and the rocks in the
hopper (Tr. 345).
Respondent Journagan violated the Act in failing to
deenergize the crusher before allowing an employee
to work above it .
Respondents' first argument is that section 56.12016 is
inapplicable to this case because its employees were not performing "mechanical work" within the meaning of the standard
(Tr . 269).
It further contends that the standard only applies
to situations in which miners are exposed to a hazard of
electrocution or electrical shock.
I conclude that the term "mechanical work" must be construed
broadly in a manner consistent with the purposes of the statute.
Therefore, I find that it includes any work that enables electrically-powered equipment to operate in the manner in which it is
intended to operate.
Loosening jammed rocks so that the crusher jaw will move is
"mechanical work." To conclude otherwise would suggest that,
even if Mr. Catron had not been protected by a safety belt and
even if the controls to the crusher been left unprotected, no
violation of the regulation would have occurred.
Respondent, relying on the decision in Phelps Dodge
Co:r::porat j on v. FMSHRC, 681 F. 2d 1189 (9th Cir. 1982), argues
that section 56.12016 cannot be cited in situations where the
only hazard is danger of being injured by moving machinery. This
decision was followed by a Commission judge in Arkhola Sand &
Grayel. Inc., 17 FMSHRC 593 (ALJ April 1995).

896

The Ninth. Circuit found that § 56.12016 (then numbered
§55 .12-16) did not address hazards arising from the · acc.idental
movement of machinery because it appears in a subpart· entitled
nElectricity" and because the.other regulations in that subpart
address only the hazard of electrical shock. I decline to follow
fhelps Dodge, a decision to which the Commission has never
acceded~.

The dissenting opinion of Circuit Judge Boochever, 681 F.2d
at 1193, is far more compelling. He found that the plain
language of the standard was clear and unambiguous and saw no
reason to qualify its application on account of the title of the
subpart in which the regulation was placed.
I also agree with
the dissent that the Commission should def er to an agency interpretation of the standard which appears to better effectuate the
purposes of the Act, than one limiting its reach to situations in
which there is , a danger of electrical shock.
The fact that miner · Catron was tied off at almost all times
when he was above the energized crusher is not relevant to the
issue of whether the standard was violated. Section 56.12016
requires that electrically powered equipment be deenergized
before mechanical work is done--regardless of what o.t her precautions are taken, to protect employees working on the equipment
or to prevent reenergizing of the machinery, Ozark -Mahoning
Company, 12 FMSHRC 376, 379 (March 1990) . Thus, I find that
Leo Journagan violated the cited regulation.
The violation was not significant and substantial
The Commission test for a "S&S" violation, as set forth in
Mathies Coal Co., supra, is as follows:

' I n Ozark-Mahoning Company, 12 FMSHRC 376 (March 1990), the
Commission affirmed a citation issued under §56.12016 in a
situation in which miners were exposed to the danger of moving
machinery, rather than electrical shock. In that case, it does
not appear that the operator argued that the standard applies
only to electrical hazards or made the Commission aware of the
Court of Appeals decision in Phelps Do~ge.

897

In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
I conclude that there was not a reasonable likelihood that
the hazard contributed to by Journagan's violation would result
in injury. Miner Catron was tied off to a catwalk railing above
him while trying to pry the jammed rocks loose . Moreover, the
crusher controls were turned off while he was working. Operator
Keith Garoutte was standing at the doorway of the control shed
watching Catron. This makes it unlikely that anyone else would
activate the crusher while Catron was standing over it .
While tied off, Catron could only fall 1-~ to 2 feet
(Tr. 81-82, 190, 254). If Catron fell this distance he could not
have gotten caught between the jaws of the crusher, one of which
moves and one of which is stationary (Tr. 84). His feet could
possibly have brushed the movable jaw (Tr. 190, 254).
Even if the miner's feet touched the moveable jaw, it is
unlikely that he would be hurt--even if the jaw moved.
The jaw
moves much further at the bottom of the crusher than at the top.
At the top of the crusher the jaw moves only about an inch
(Tr. 254-55}. The jaw also takes a few seconds to move once it
is activated (Tr. 264).
Catron did unhook his safety belt when he stepped up to the
grizzly and it is possible that
could have fallen while
switching positions. It is also possible that the crusher could
have been activated at such a moment due to misunderstandings
with Garoutte or due to an electrical fault. However, I conclude
that such possibilities do not ~ake injury reasonably likely.

ne

898

Superintendent Ray is not subject to civil penalty
under section llO(c) of the Act
Section llO(c} of the Mine Act provides that, whenever a
corporate operator violates a mandatory safety or health
standard, any agent of the operator who "knowingly authorized,
ordered, or carried out such violation" shall be subject to civil
penalty. The Commission has held that a violation under section
llO(c) involves aggravated conduct, not ordinary negligence,
Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (August 1994).
While Mr. Ray clearly had reason to know that his employees
would be working on the crusher without it being deenergized, I
conclude that his conduct was not aggravated. The procedure
employed by miners on the day of the inspection and implicitly
condoned by superintendent Ray was Journagan's normal procedure
(Tr. 169-170). It was not a practice initiated by Ray (Tr. 170).
More importantly, I find that Ray had a reasonable good .
faith belief that miners were adequately protected by wearing a
safety belt that was tied off above them. Mr. Catron was tied
off for all but a very brief period, during which it was very
unlikely he would fall and that the jaw of the crusher would
move. I therefore vacate the penalty proposed under section
llO(c) with regards to Citation No. 4329462.
A $500 Civil Penalty is Assessed against Leo Journagan
Construction Company for its violation of §56.12016
Section llO(i) requires consideration of the following
six criteria in assessing a civil penalty under the Act:
Size of the operator: Leo Journagan is a relatively small·
mine operator. Other things being equal, this would support a
smaller penalty than for a large ·operator.
Effect on the operator's ability to stay in business: The
parties stipulated that the proposed penalties would not compromise Journagan's ability to continue in business (Tr. 11).

899

Good Faith demonstkated in rapidly abating the citation:
The civil penalty should account for the fact that superintendent
Ray immediately deenergized the crusher when ~nformeq of the
violation by inspector Marler.
Previous History of Violations: The Secretary introduced,
as it does in every civil penalty case, a computer printout
purporting to show the number of penalties assessed against
Respondent and those paid (Exh . P-1) . This document indicates
that between March 28, 1993 and March 27, 1995, Journagan paid
$4,124.00 in civil penalties for 23 violations. One of these
penalties was assessed for a citation which alleged a violation
of section 56.12016 for failure to lock out a conveyor belt
(Tr. 171-72, 302).
Exhibit P-1 is of no value to me in assessing a civil
penalty. I do not know whether Respondent has more violations
than one would \ reasonably expect for an operator its size, less
violations or about the same number. There has been no
suggestion made as to how the information in this summary is
relevant to assessing a penalty in the instant case.
However, I conclude the prior violation for failure to lock
out the conveyor is relevant. A somewhat higher penalty should
be assessed on account of this citation.
Negligence: Respondent was negligent in allowing miners to
work over the crusher when it was not deenergized and locked out.
However, its negligence was "moderaten given the effective precautions it did take to prevent injury. Furthermore, Respondent
was apparently under the impression from a prior MSHA inspection
that its' procedure complied with the Act (Tr. 201-02, 266-68).
Gravity: Given the fact that Mr. Catron was tied off, except
when moving from the crusher to the grizzly, injury was very
unlikely to occur. However, it was possible and, if it occurred,
an injury was likely to be very serious, or fatal. First, there
was a chance that Mr. Catron could fall or enter the crusher and
that Mr. Garoutte could activate it due to miscommunication. The
facts of my recent decision in ptillwater Minipg Company,
18 FMSHRC 34, 35-36 (ALJ 1996) present just such a situation.
In Stillwater, a miner misunderstood the instructions of his
partner and closed a chute gate on him, fracturing his pelvis.

900

Another case indicating the seriousness of th~ hazard
presented by the instant violation is Price Construction. Inc.,
7 FMSHRC 661 (ALJ Melick 1985). There, the failure to lock-out
the power to the rollers of a crushing machine, and miscommunication between miners resulted in the traumatic amputation of
the legs of an experienced miner.
The Secretary has also alleged that the violation created a
danger that Mr. Catron would be injured by the bar he was using
to pry the rocks in the crusher. Inspector Marler contends that
if the crusher started, the bar could snap or that Catron could
have fallen on the bar and been impaled. I am not persuaded that
such a hazard existed.
Assessment: Having considering the penalty criteria in
section llO(i), I assess a $500 civil penalty for this violation.
Ihe Secretary has not established a violation
of section 56.16002(a)
In order to establish a violation of § 56.16002(a) the
Secretary must establish that miners Catron and Garoutte were
"exposed to entrapment by the caving or sliding of materials
. . . . " I conclude that the Secretary has failed to do so. The
fact that the miners were working downhill from a hopper filled
with 25-30 tons of rock does not establish that the material
might cave-in or slide on top of them.
Materials tend to move until they obtain a slope at which
they will stop moving, sometimes referred to as the "angle of
repose." The Secretary has no~ established that the rocks in
the hopper had not reached the angle of repose. In fact,
Respondent's evidence tends to prove that the rocks would not
slide.
Inspector Marler did not measure the angle at which the
rocks lay in the hopper {Tr. 108). I have credited Mr. Ray's
testimony that the rocks were at an angle of about 35 degrees
from the horizontal, which is ~enerally regarded a relatively

901

flat slope 5 • ~ also credit Ray's testimony that prior to the
time that the miners entered the crusher, the action of the
feeder to the hopper had flattened the angle to one at which the
rocks would not move further (Tr. 273-281).
I further note that 35 degrees is one degree steeper than
the slope required by OSHA to protect workers in excavations
dug in the least stable type of soil, 29 C.F.R. Section
1926.652(b) (1), and Table B-1. This indicates that a slope of
35 degrees would generally not expose employees to entrapment by
caving or slidi~g.
The rocks in the hopper extended to within a foot or two of
the crusher (Tr. 61, 195, 220). When removing rocks from the
crusher, Catron and Garoutte threw the smaller stones on the pile
in the hopper and stacked the larger rocks (Tr. 340-41). However, I find the record insufficient to establish that whatever
alterations thfs made in the slope of the rocks created a hazard
to the miners.
It was not Respondent's general practice to install a
barrier between rocks in a hopper and miners working to unjam a
crusher (Tr. 345). It is unclear from this record what the
general industry practice is with regard to barricading rocks
in a hopper which has already flattened the slope of the rocks.
If the record established that industry practice was to
barricade the rocks in the hopper in a situation like the instant
one, I would be likely to find that .Respondent violated section
56.16002(a). Such evidence would indicate that a reasonably
prudent mine operator would recognize a danger from sliding or
caving materials, see Ideal Cement co .. , 12 FMSHRC 2409 (November
1990). However, on the instant record, I am unable to draw such
an inference and conclude that a violation of this standard has
not been established.

Although photographic exhibits P-2 and P-3 indicate that
the rocks in the hopper were at a fairly steep angle, it has not
been established that these photos accurately depict the slope of
the rocks (Tr. 108, 229-231, 283).
5

902

OEDER

Citation No. 4329462 is AFFIRMED as a non-S&S violation of
the Act. A $500 civil penalty is assessed against Leo Journagan
Construction Company for this violation.
The penalty proposed for James Michael Ray under section
11.0(c) of the Act on account of Citation No. 4329462 is VACATED.
Citation No. 432946~ and the penalties proposed therefor
against Leo Journagan Construction Company and against James
Michael Ray are VACATED.
Leo Journagan Construction Company shall pay the assessed
$500 civil penalty within thirty days of this decision.

Ar~a~i£~

Administrative Law Judge
Distribution:
Margaret Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)
Bradley s. Hiles, Esq., Peper, Martin, Jensen, Maichel
and Hetlage, 720 Olive St., 24th Floor, St. Louis,
MO 63101 (Certified Mail)

/lh

903

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
~··.

1730 K STREET NW, 6TH FLOOR
WASHINGTON, O.C.

20006

June 10, 1996

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-512-M
A. C. No. 10-01900-05505

v.
Plant No. 4
DEATLEY COMPANY,
INCORPORATED,
Respondent
ORDER VACATING DEFAULT
DECISION APPROVING SETTLEMENT
ORDER OF DISMISSAL
Before:

Judge Merlin

This case is before me pursuant to Commission order dated
April 17, 1996.
On March 21, 1996, the operator filed a letter requesting
relief from an order of default which was issued on February 7,
1996. The basis for the operator's request is that a settlement
was reached prior to the order of default, but that the person
responsible for the case resigned and his replacement was unaware
of the settlement motion. As a result, the operator did not sign
the settlement motion until after the default was issued.
On April 1 , 1996, the Solicitor filed a response to the
operator's request for relief, recommending that the matter be
remanded to the undersigned and stating that the Secretary
opposed the reopening of the final order.
On April 29, 1996, I issued an order direct~ng the Solicitor
to either file the agreed upon settlement motion or submit a
brief supporting his opposition to reopening.
In that order I
found that the operator's statements constituted grounds for
relief from default. See, RB Coal Company, 17 FMSHRC 2153
(November 1995) .
On May 16, 1996, the parties filed a joint motion to approve
settlement for the one violation in this case. A reduction in
the penalty from $1,019 to $570 is proposed.
I have reviewed the
documentation and representations in this case and conclude that

904

j, .

the proffered settlement is appropriate under the criteria set
forth in section llO(i) of the Act .
In light of the foregoing, i t is ORDERED that the default
dated February 7, 1996, be and is hereby VACATED.
It is further ORDERED that the motion for approval of
settlement is GRANTED, and the operator having paid, this case is
DISMISSED.

Paul Merlin
Chief Administrative Law Judge

Distribution:

(Certified Mail)

Matthew L. Vadrial, Esq . , Office of the Solicitor; U.S. Department
of Labor, 1111 Third Avenue, Suite 945, Seattle, WA
98101
Mr. Max S. Jensen, Office Engineer, DeAtley Company, Inc., 3665
Snake River Avenue, P. 0. Box 648, Lewiston, ID 83501
/gl

905

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

JUN 1 4 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . SE 95-459
A.C. No. 01-01401-04102

v.

No. 7 Mine
JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

William Lawson, Esq . , U. S. Department of Labor,
Office of the Solicitor, Birmingham, Alabama for
Petitioner;
R. Stanley Morrow, Esq . , Jim Walter Resources,
Inc., for Respondent.

Before: Judge Fauver
This is a civil penalty case under § lOS(d) of the Federal
Mine Safety and health Act of 1977, 30 U.S.C. § 801, .e.t. ~·
The central issues are the validity of a§ 104(d) (2) order
and the appropriate civil penalty if a violation is found. The
order alleges accumulations of combustible m~terials i~ a 3,500
foot belt entry and charges a significant and substantial
.
violation of 30 C.F.R. § 75.400 and an unwarrantable failure to
comply with the standard.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the subst antial, reliable,
a nd probative evidence establishes the Findings of Fact a nd
fur ther findings in the Discussion below:
FINDINGS OF FACT
1.

Respondent operates No. 7 mine, which produces coal for

906

sales in or substantially affecting interstate commerce.
2. On June 8, 1995, MSHA Inspector John Terpo inspected the
West A belt line of the No. 7 mine. Inspector Terpo observed
substantial accumulations of loose coal, coal dust and float coal
dust. At least 32 rollers were turning in combustible
accumulations, and 12 of them were totally submerged in coal
dust. Three other rollers were locked up and "extremely hot to
the touch." Tr. 96-99. At the section's 7th discharge point,
the accumulations averaged 2 feet deep for about 300 feet . The
bottom belt was running on top of the accumulations at this
location . Two bottom rollers were missing between the No. 26 and
No . 28 brattices, allowing the belt to run on the belt's metal
structure, which was "extremely hot with the [accumulations]
present." Tr. 96-99.
3. Inspector Terpo observed that no one was doing cleaning
work on the be,lt line and the book entries for the pre - shift
examination stated that the belt line was clear for work . The
two previous pre-shift entries indicated that the area needed
cleaning and rock-dusting.
4. Inspector Terpo issued four citations for accumulations
of combustible material on the two section belts that dumped onto
the West A belt, for failing to maintain the West A belt line in
safe operating condition, and for failing to conduct an adequate
pre-shift examination . Govt . Exhibits 1, 2, 3, and 6 .
5 . The four citations are final. In a settlement, the
citations in Exhibits 1 and 3 were modified to reflect that
''four" persons were affected by the violative conditions.
6. Inspector Terpo also issued Order No. 31949:1.7, under §
104(d) (2) of the Act, charging a violation of 30 C.F:R. § 75.400
for extensive combustible accumulations in the West A belt entry
and preventing operation of the ,West A belt line until the cited
violative condition was abated .
Respondent assigned about 20
miners to clean up the accumulations. The abatement work was
completed in about seven hours and the order was terminated.
DISCQSSION WITH FURTHER FINPINGS . AND CONCLUSIONS

Respondent called no witnesses, and offe red no exhibits.

907

·.
·=

There is no dispute of the violative accumulations of combustible
materials at the cited locations in the West A belt . line entry.
The case turns on the sufficiency of the government's evidence to
prove that the accumulations constituted a \\significant and
substantial" violation and an "unwarrantable" failure to comply
with§ 75.400 within the meaning of§ 104(d) of the Act.
The safety standard involved, 30 C. F.R. § 75.400, is a
reprint of a statutory standard, which provides:
Coal, dust including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
As the Commission has recognized, this standard was enacted
to prevent the '~ell-recognized hazards of accumulations of
combustible materials in coal mines:
***The goal of reducing the hazard of fire or
explosions in a mine by eliminating fuel sources is
effected by prohibiting the accumulation of materials
that could be the originating sources of explosions or
fires and by also prohibiting the accumulation of those
materials that could feed a fire originating elsewhere
in the mine.
Black Diamond Coal Co .. 7 FMSHRC 1117, 1120 (1985 ) (citing Q.lQ.
Ben Coal Co . , 1 FMSHRC 1954, 1957 (1979); and Old Ben Coal Co.,,
2 FMSHRC 2806, 2808 {1980)). The hazards associated with mine
fires and explosions are well documented and actually
precipitated the enactment of the Mine Act. ~ H.R. ~ep. No .
95-312, 95th Cong . , 1st Sess. 6 (1977), reprinted in Legislative
History at 361362; and S . Rep . No. 95-181, 95th cong . , 1st Sess .
(1977), reprinted in Legislative History at 592.
A Significant and Substantial violation
The Commission has held that a "significant and substantial
violation," as used§ 104(d) of 'the Act, is a violation that
presents a "reasonable likelihood that the hazard contributed to
will result in an injury of a reasonably serious nature."
90 8

Cement Division. National Gypsum Co., 3 FMSHRC 822, 825 (1981};
Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984).
Respondent contends that, since there is no evidence of an
injury resulting from a belt fire at this mine, the violation was
not "significant and substantial." However, the Secretary is not
required to prove an actual injury. "Reasonable likelihood" of
injury is sufficient, and this is satisfied by the "common sense
conclusion that a fire burning in an underground coal mine would
present a serious risk of smoke and gas inhalation to miners who
are present." Buck Creek Coal. Inc. v. Secretary of Labor, 52
F.3d 133,135 (7th Cir. 1995 } . The Secretary is not required to
show that a mine fire was probable, but need only show that the
violation provided substantial fuel to propagate a mine fire or
explosion should one occur and that such propagation would be
"reasonably likely" to result in injury. The uncontested
evidence shows substantial combustible accumulations that could
propagate a min,e fire or explosion and cause death or serious
injury. In addition, the evidence of ignition sources, such as
hot rollers and hot rubbing points against a steel structure,
shows that if the violative conditions continued unabated they
were reasonably likely to result in a fire and injury. For both
reasons, I find that the accumulations constituted a "significant
and substantial" violation.
An Unwarrantable Violation

The Commission has held that an "unwarrantable" violation,
as used in§ 104(d) of the Act, is a violation due to "aggravated
conduct constituting more than ordinary negligence." Emery
Mining Corp., 9 FMSHRC 1977 {1987 ) . Relevant issues include such
factors as "the extent of a violative condition, or the length of
time that it existed, whether an operator has been placed on
notice that greater efforts are necessary for compliance, and the
operator's efforts in abating the violative condition." Peabody
Coal Company, 14 FMSHRC 1258, 1261 {1992).
Inspector Terpo identified in the order and in his notes the
numerous areas in which he observed combustible accumulations
along the 3,500 foot belt line . At one location, the
accumulations averaged about 2 reet deep for 300 feet, with 32
rollers turning in coal dust and 12 of those rollers being
totally submerged in coal dust. The bottom belt was rubbing on
909

the top of the accumulations and the bottom rollers were running
totally submerged in coal dust. The accumulations .cited can only
be described as extensive, and obvious to anyone concerned with
safety.
Inspector Terpo and UMWA Safety Committee Chairman Phylar
testified that the accumulations were so extensive that they
probably existed for at least several shifts. Respondent offered
no evidence disputing their testimony, which is supported by the
extent of work needed to abate the violation, i.e., about 20
miners doing clean up work for 7 hours.
The abatement work was prompt, but this must be considered
in relation to the withdrawal order, which stopped the belt line
until the accumulations were removed. There was no evidence of
clean up work at the time the order was issued.
had received repeated notices that greater
efforts were necessary to comply with § 75.400. In numerous
contacts with Respondent, MSHA had discussed the continuing
problem of its failure to comply with § 75.400. Many of those
discussions had occurred in the same quarter in which the subject
order was issued. The UMWA, as well, brought the continuing
problem of accumulations to management's attention. The repeated
prior notices of violations of §75 . 400 are also shown by
Respondent's compliance history, which shows that in the two
years preceding the subject order Respondent was issued 291
citations and orders charging violations of § 75.400. As of
March 27, 1996, nearly all of the citations and orders had· become
final (by payment of the penalties or by becoming uncontested,
final penalty orders) .
Responden~

The facts fully sustain the inspector's finding of an
"unwarrantable failure" to comply with § 75.400.
Civil Penalty
Section llO(i) of the Act provides the following six
criteria for assessing civil penalties:
(1) Operator's history of previous violations
The No. 7 mine has a very poor record of violations of
91 0

.,

§75.400. Its two year history prior to the subject order
indicates that violations of § 75.400 actually increased. From
June 8, 1993, through June 7, 1994, Respondent was issued 123
cita.t ions and orders charging violations of § 75. 400. The number
of charges increased to 168 for the subsequent year. In nearly
all of the cases, the charging citations and order have become
final.
Respondent's repeated violations of § 75.400 is consistent
with its overall compliance history under the Mine Act, which is
very poo.r.
(2) Whether the operator was negligent
Respondent's repeated violations of § 75.400, the numerous
complaints and bi-monthly reports made by the UMWA to management
regarding the belt lines, the frequent discussions MSHA had with
mine managemen~ prior to issuing the subject order, and the ongoing litigation resulting from violations on the belt lines
"should have engendered in the operator a heightened awareness of
a continuing accumulation problem." Mid-Continent Resources.
~' 16 FMSHRC 1226, 1232 (1994).
Instead, Respondent showed no
improvement .
The accumulations in the instant case were obvious,
extensive, and dangerous and no one was working on the violative
conditions at the time the inspector examined the area. I find
that Respondent's negligence was high, and demonstrates a serious
disregard for the safety of its miners.
(3) The gravity of the violation
The seriousness of the violation is underscored by the fact
that 32 rollers were turning in coal dust accumulations up to two
feet deep. Twelve of the 12 rollers were totally submerged in
the accumulations. Three rollers were locked up creating
friction sources, and in places the conveyor belt was rubbing
against the steel belt structure. The stuck rollers and rubbing
points on the structure were "extremely hot" to the touch . I
find that the gravity of the violation was high .

911

"·~

·.·

:·:

Assessment of a Penalty
Respondent's prior history and the instant violation
demonstrate a serious disregard for the safety requirement to
prevent combustible accumulations in an underground coal mine.
Respondent's repeated violations of § 75.400 indicate that there
has been no deterrent effect from prior civil penalties.
Considering Respondent's very poor compliance history, the
need for an effective deterrent, and the six statutory criteria
as a whole, I find that a civil penalty significantly greater
than the $7,000 proposed by the Secretary should be assessed.
Accordingly, I find that a civil penalty of $15,000 is
appropriate for the violation proved in this case.
CONCLUSIONS OF LAW
1.

Respondent's No. 7 mine is subject to the Act.

2. Respondent violated 30 C.F.R.
Order No. 3194917.
ORDER
1.

§

75.400 as charged in

Order No. 3194917 is AFFIRMED.

Respondent shall pay a civil penalty of $15,000 within
30 days of this Decision.
2.

0'~~v~

William Fauver
Administrative Law Judge

Distribution:
William Lawson, Esq., U.S. Department of Labor, Office of the
Solicitor, Suite 150, Chambers Building, High Point Office
Center, 100 Centerview Drive, Birmingham, AL 35216 (Certified
Mail}

R. Stanley Morrow, Esq., Jim Walter Resources, Inc., Mining
Division, P .O. Box 830079, Birmingham, AL 35283-0079 (Certified
Mail}
nt
912

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

JUN 1 7 1996
LINDA S . SPARKS,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. LAKE 95-378-D
MSHA Case No. VINC CD 95-03

OLD BEN COAL COMPANY,
Respondent

Central Cleaning Plant Mine
DECISION

Appearances:

Linda S. Sparks, .£1.:Q .ae., Steeleville, IL,
·for the Complainanti
Thomas A. Stock, Esq., Crowell & Moring,
Washington, D.C., and William A. Miller, Esq.,
Zeiger Coal Holdling Company, Fairview Heights,
IL, for the Respondent.

Before: Judge Weisberger
Statement of the Case
This case is before me based upon a Complaint filed by
Linda S. Sparks, pursuant to Section 105(c) of the Federal Mine
Safety and Health Act of 1977 (The Act). In the Complaint,
Sparks alleges, in essence, that Old Ben Coal Company {Old Ben)
unlawfully discriminated a?ainst her by placing her in its
Chronic and Excessive Absenteeism Program ("C & E program"), in.
retaliation for her having complained about the condition of
steps leading up to the gob scrapper truck that she had operated.
Old Ben filed an Answer. Old Ben subsequently moved to amend
its Answer, and the motion was granted at the hearing held on
March 12, 1996. 1

0ld Ben also filed a motion for an order compelling Sparks to
fully comply with a previously issued pre-hearing order. At the
hearing, Old Ben was allowed to interview Sparks' witnesses' whose
1

913

Findings of Fact and Di scussion
I .

Analysis

The principles governing analysis of a discrimination case
under the Mine Act are well established. A miner establishes a
prima facie case of prohibited discrimination by proving that he
engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula y. Consolidation Coal Co., 2 FMSHRC
2786, 2797-2800 (October 1980), rey'd on other grounds. sub nom.
Consolidation Coal Co . y. Marshall, 663 F.2d 1211 (3d Cir. 1981 ) ;
Secretary on behalf of Robinette y. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred, or that the adverse action was in no part motivated by
protected activity. Pasula, 2 FMSHRC at 2799-2800.
If the
operator cannoh, rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. Pasula, 2 FMSHRC at 2800; Robinette, 3 FMSHRC
at 817-18; see also Eastern Assoc. Coal Cor:poration. y . United
Castle Coal Co., 813 F.2d 639, 642 (4th Cir. 1987).
A.

Protected Activities

Old Ben operates a central cleaning plant located in Randol f
County Illinois, wherein coal from underground mines is cleaned
and processed. Sparks started to work at this plant on May 22,
1977. Subsequently, on December 27, 1993, she was evaluated by
Robert Cash, the general surface manager, for a position as an
operator of a gob srapper truck ("gob truck"). Sparks, whose
height is only about five feet, had difficulty negotiating the
step to access the cab of the gob truck . The step cons1sted of a
metal bar suspended by a chain from the truck. According to

i dentity had not previously been divulged by Sparks.
the motion to comply is moot, and is denied.
Old Ben also had filed a motion i n limine .
Old Ben's motion in limine was withdrawn.

914

Accordingly,

At t he hearing,

Sparks, the step was "a good two and a half, three, four feet"
below the platform of the cab. (Tr. 105). Sparks complained to
Cash, and on subsequent occasions, about her difficulty getting
in and out of the cab and asked that an additional step be
provided. Sparks indicated that Cash responded by telling her
that there was no reason why she could not do the job, and she
became an operator of the gob truck . Sparks continued to
complain about the steps to Cash, and to an MSHA inspector, Gene
Jewell who worked in the Sparta, Illinois, MSHA office. Spark
testified that subsequent to December 27, she had to take several
days off from work because of the difficulty getting up and down
the cab of the truck.
Sparks indicated that in the period between 1993 and 1995,
she went to the MSHA off ice in Sparta to make various safety
complaints. Among the safety complaints she made to MSHA were
the following:
(1) In 1994, Sparks' shoes and clothes, which had been
left on the site, became soaked on the 2nd shift when a
fire in the area was extinguished with water. When
Sparks reported for work on the 3rd shift, she was
provided with replacement work shoes that were too
large and she was unable to work in them;
(2) The lack of an adequate berm on the gob hill;

2

(3) the lack of a lock inside the women's shower which
had resulted in a construction worker entering the
women's shower while Sparks was showering 3 ; and
(4) that a boss had threatened her life.

2According

to Sparks she also had communicated this concern to
her supervisor, Larry Seacrest, at a safety meeting at the end of
February 1995.
3According

to Sparks, when she reported this incident to Cash,
he laughed, and told her that she should have chased the intruder
out with a broom.
915

,•

..

I find that all the above complaints constituted protected
activities.
On January 5, 1995, while descending from the cab of the gob
truck, Sparks fell and injured her right breast and her left
wrist. She described these injuries as being very painful. She
subsequently underwent four surgeries, and was told by her
treating physician not to work. Sparks was off from work for
28 days. I find that all these actions were within the scope of
protected activities.
B.

Adverse Action and Motiviation.

On or about February 10, 1995, Old Ben notified Sparks that
she was being placed in step 1 of the C & E program. The notice
advised her that failure to maintain an absentee rate below
9 percent for the next 12 months may result in her being moved
to the next st~p of the C & E program i . e., a one day suspension
without pay, and that continued cronic and excessive absentism
may result in suspension with intend to discharge. Since
placement in the C & E program could result in loss and pay, I
find that placement in this program constituted an adverse
action. It must next be determined whether there was any nexus
between the engagement of Sparks in protected activity, and her
being placed in the C & E program.
According to Bill Patterson, who · was the general manager of
operations at the central cleaning plant in the period at issue,
the C & E program was instituted about 10 years ago.
According
to the program, if the rate of an employee's noncon- tractual
absence 4 exceeds 9 percent, and there have been at least two
occurrences during the previous six months, then an employee is
to be placed in the program and given a written warning. The C &
E program further provides as follows: "If an employee· works one
year from the date of his or her last step with an absentee rate
below 9 percent, this employee will be removed from the program."
(Exhibit R-3, par. 8).

'In essence, non-contractual absence is defined in the C & E
program as absences due to, inter .al.ia, injuries, but that
contractual vacation, and personal and sick leave are excluded.
91 6

·'

From December 16, 1993 thru December 29, 1994, Sparks did
not have any ~sences from work as defined in the c & E program .
On December 30, 1994, Sparks was absent, as defined in the c & E
program, when she attended the funeral of a fellow miner.
In
addition, commencing January 5, 1995, she was absent, as defined
in the C & E program, for 28 days. As defined in the c & E
Program, this constituted an absentee rate of 12 . 75%.
In essence, Sparks alleges that her absence subsequent to
January 5, 1995, was not her fault, as it was caused by her
injury, which was in turn was caused by an unsafe step leading up
to the gob truck. Patterson,· who was responsible for all actions
taken against emplyees under the C & E program, and Cash, who
administered the program relative to Sparks, indicated that her
placement in the program was automatic, and would have been taken
regardless of her safety complaints.
It is not ,for this forum to decide the propriety or
legality of th~\ c & E program, nor whether it constituted sound
management . Nor is this the proper forum to decide whether there
were extenuating circumstances which, based upon principles of
fairness, should have excluded Sparks from being placed in the
C & E program.
There is no evidence that Sparks received any disparate
treatment in being placed in the C & E program based upon her
protected activities. There is no evidence that Sparks had been
singled out, or that other employees with similar absentee rates
were excluded from the program. I find that Sparks had not
established that her placement in the C & E program was not based
upon Old Ben's application of the C & E program ~riteria to her
absentee rate, but rather was motiviated, in any part, by her
protected .activities.
I find that Sparks ras not established any
causal nexus between her protected activities, and the action
taken by Old Ben. For these reasons, I find that Sparks has
failed to establish that she was ,discriminated against in
violation of Section lOS(c) of the Act.

91 7

II.

OEDER

It is ORDERED that the Complaint be DISMISSED, and that this
case be DISMISSED.

~Weisberger

t

Administrative Law Judge

Distribution:
Linda S. Sparks, 607 West Chardon, Steeleville, IL 62288
(Certified Mail)
Thomas A. Stock, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, . N.W., Washington, D.C. 20004-2595 (Certified Mail)
William A. Miller, Esq., Zeigler Coal Holding Company,
50 Jerome Lane, Fairview Heights, IL 62208 (Certified Mail)
/ml

918

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

JUN l 7 1996'
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 94-661-M
A.C. No. 48-01148-05512

v.

Irigaray/Christensen Project

COGEMA MINING, INC., (COMIN)
(Formerly TOTAL MINERALS
CORPORATION) ,
Respondent
SUMMARY DECISION
Before:

Judge ¢etti

On September 20, 1993, Jack Miller, an employee of an independent roofing contractor was fatally injured when he inadvertently walked backwards and fell off the edge of a 19-foot high
roof to the ground below. At the time of the accident Mr. Miller
was applying water-proof roofing material '(top coat) with a
roller on Respondent's administration/office building located on
Respondent's surface mine premises. The building was little more
than a quarter of a mile from that area of the mine site where
well holes had been drilled into a vacuum bearing zone and water
and oxygen injected to mobilize the uranium deposit on site.
I

MSHA investigated the accident and (in addition to citing
the victim's employer, the independent roofing contractor) issued
a citation charging Respondent, the mine operator, with the failure to provide Miller with the hazard training require~ by 30
C.F.R. § 48.31.
The citation describes the violation as follows:
The hazard instruction given to employees of
Dave Loden Construction, a contractor hired
to apply waterproofing materials to the roof
of the administration building, did not contain explicit information concerning or regarding safety hazards which may be encountered while working on· the roof. Specific
regulations requiring the use of· a safety
belt or harness and life line while working
in an area where a danger of falling exists
was not discussed with the contractor. A
contractor employee suffered s ·evere injuries

91 9

when he fell from the roof of the administration building on 9/20/93.
The cited standard, 30 C. F . R . § 48 . 31 in pertinent part
reads as follows:
(a) Operators shall provide to those
miners, as defined in § 48.22(a) (2) (Definition of miner) of this subpart B, a training program before such miners commence their
work duties. This training program shall
include the following instruction, which is
applicable to the duties of such miners:
(1) Hazard recognition and avoidance;
The referenced § 48 . 22(a) (2) defines "miner" for purposes of
the cited standard § 48.31, as follows:
(2) Miner means, for purposes of § 48.31
(Haz.ard training) of this subpart B, any
pers0n working in a surf ace mine or surface
areas of an underground mine. This definition includes any delivery, office, or scientific worker, or occasional, short- term
maintenance or service worker contracted by
the operator, and any student engaged in
academic projects involving his or her extended presence at the mine.
(Emphasis
added).
II

The primary issues in this case is whether or not the
independent contractor's employees applying water-proofing to the
roof of the mine's administration building were "occasional,
short-term maintenance or service workers contracted by the
operator . " For the reasons that will be discussed below, I find
that they were miners for purposes of § 48 . 31 (Hazard training).
Said employees come within the meaning of .the definition of
miners set forth in subsection 48.22(a) (2) .
It is undisputed
that hazard training instructions given by COMIN to the Contractor's roofers did not discuss or · specify the use of safety belts
and lin es when working near the edge of the relatively flat 5 , 000
square foot roof 1 where there existed the danger of falling.
III

The roof of the administration/off ice building consisted of
5,000 square feet of corrugated metal with a five degree slope to
allow drainage of water.
(Joint Ex. B).
920

III

The parties have filed cross motions for summary decision
and filed joint stipulations of fact.
Un~er stipulation No. 14
the parties incorporate by reference certain portions of MSHA's
Accident Investigation Report prepared by Mine Safety and Health
Inspectors Roger G. Nowell and Lloyd Ferran. The stipulated factual portions of that accident report, Ex. B, reads as follows:
GENERAL INFORMATION
At approximately 1635 hours on Sunday, September 20, 1993,
Jack Miller, age 54, SSN 4317 (victim), was injured when he inadvertently walked backward off the edge of the administration/
office building roof while applying roofing material (topcoat)
with a roller. Miller fell approximately 5.50 m (19 ft) to the
ground below and sustained a skull fracture along with several
broken bones. He later died on October 4, 1993, while undergoing
treatment at the Casper Wyoming Medical Center.
The Irigaray/Christensen Project, owned and operated by
Total Minerals . Corporation, was located 52 miles southeast of
Buffalo, Johnson County, Wyoming. Two individual well fields had
been identified and developed with accompanying mill processing
plants. Well holes have been drilled into the uranium bearing
zone and water and oxygen injected to mobilize the uranium
deposit in site. The solution is then pumped to the processing
facility and through an ion exchange system. The spent fluid was
then passed through sand filters and recycled back into the ~n
jection holes. The resulting yellow-cake product was trucked out
of state to enrichment facilities.
Operating officials were:
Dave Lode n Construction
Dave Loden, Owner
Bill Edwards, Project Superintendent
Total Minerals corporation
Charles J. Foldenauer, Manager of Wyoming Operations
William Chapman, Radiation Safety Officer
Total employment was 35 employees, working two, twelve hour
shifts, seven days a week.
C.F.R. 30, Part 48 training had been fulfilled by the company under a training plan approved October 7, 1991, with subsequent updates and attachment letters to change key personnel.
Hazard training under part 48.31, had been given to the contractor's employees.

921

The victim was working as a construction roofing laborer for
Dave Loden Construction, a contractor hired by Total Minerals
corporation, to weatherproof the roof of the administration/
office building.
The last regular inspection of this operation was conducted
on May 25, 1993.
On September 20, 1993, at 1710 hours, William Chapman,
Radiation Safety Officer, Irigaray/Christensen Project, notified
the MSHA, Rapid City, South Dakota Field Office, via telephone,
that a non-fatal fall of person accident had occurred to a contractor hired to weatherproof the administration/off ice building
roof at the Irigaray Mine. The call was recorded on the answering machine due to the time of day.
An investigation was initiated on September 22, 1993, by the
Rapid city, South Dakota Field Office.
PHYSICAL FACTORS INVOLVED
The admini~tration/office building was constructed primarily
of metal, including the roof area of approximately 5000 square
feet.
The corrugated roof section was provided with a five
degree slope to allow water drainage. The roof where the victim
fell was located over the laboratory. This roof adjoined the
administration/office building's roof at the southeast corner,
creating a dog leg or two areas of roof at right angles. The
roof edge was 6 m (19 ft) above the ground. Only materials
necessary to weatherproof the roof were present on the roof.
Weather was not considered to be a factor in the accident.
September 20, 1993, was a sunny day and approximately 72 degrees
and calm.
DESCRIPTION OF ACCIDENT
Weatherproofing work was started on Sunday, September 19,
1993.
Bill Edwards, Project Superintendent and William Jennings,
Roofer, were getting the roofing materials and rollers on the
roof and taping seams of corrugated roof steel.
Jack Miller, age 54, SSN 4317, (victim), and Martin Edwards,
both laborers, reported at the mine office on September 20, 1993,
at 0858 hours, read and signed the company hazard training form
and climbed to the roof of the administration/office building.
Bill Edwards, Project Superintendent, assigned the men to continue with the taping and application of topcoat, a weatherproofing
sealant material .
This work progressed normally throughout the day . At
approximately 1635 hours, Miller, who was using his personal
roller equipped with an aluminum 1.83 m (6 ft) handle, was

922

applying topcoat while walking backward toward the edge of the
roof. Miller was talking to Edwards at this time and was giving
advice on how to apply the material without missing any spots.
When Miller stopped talking, Edwards looked up and saw Miller
trying to regain his balance at the roof edge. Miller then fell
to the ground.
The other employees were told of Miller's fall and all proceeded to the ground to render assistance.
Bill Edwards went into the administration/office building
and told Bill Chapman, Radiation Safety Officer for Total Minerals Corporation of the accident. Chapman immediately dialed 911
and notified the Wyoming Medical Center in Casper, Wyoming, who
dispatched a lifeflight helicopter.
First aid was rendered to Miller, who remained coherent.
Miller was treated for possible shock and was constantly talked
to until the arrival of lifeflight at approximately 1720 hours.
Miller's injuries included a skull fracture, broken and
dislocated left knee cap, broken left leg,. broken right shoulder,
broken nose and . jaw bone and fractured left wrist along with
numerous scrapes and bruises.
An interview with Miller at the hospital, confirmed the
statements made by his fellow workers. Miller had looked over
his right shoulder to ascertain how far he was from the roof edge
while talking to Martin Edwards and didn't realize he was on the
adjoining section of roof approaching the edge. Miller stated it
was a critical misjudgment on his part and the first accident he
had in 30 plus years of roofing experience.
Miller, victim, succumbed to his injuries while undergoing
treatment at the Casper Wyoming Medical Center on October 4,
1993.

IV
In addition to the above stipulated factual information, the
parties have filed the following stipulations:
PARTIES' JOINT STIPULATION OF FACTS
The Secretary of Labor and the Respondent, by their
undersigned counsel, stipulate and agree, as follows:
1. On September 23, 1993, . the Mine Safety and Health
Administration (hereinafter "MSHA") issued Citation No. 4337819
to Total Minerals Corporation (hereinafter "TMC") at the Irigaray/Christensen Project Mine for an alleged violation of 30
C.F.R. § 48.31 (Hazard Training). TMC has since changed its

9 23

corporate name to COGEMA Mining , Inc., (hereinafter, "COMIN") .
Said citation has been timely contested by the Respondent.
2. At the time of the issuance of citation No. 4337819,
COMIN (then named TMC) was the operator of the Irigaray/
Christensen Project Mine , MSHA I.D. No. 48-01148.
3 . currently, COMIN, is the operator of the Irigaray/
Christensen Project Mine, MSHA I.D. No. 48-01148 .
4. If, by hearing or on appeal, the Federal Mine Safety and
Health Review Commission and/or any other federal court finds
that a violation of the Federal Mine Safety and Health Act of
1977, 30 u.s . c . §§ 801, et~ ("the Act" ) occurred with regard
to citation No . 4337819, COMIN agrees to abide by the court's
ruling, subject to any appeal or assertion of other legal rights.
5 . At the time of the alleged violation, TMC was engaged in
the production of uranium in the United States by in- situ leaching, and its p~oduction operations affect in~erstate commerce.
\

6. At the ~ time of the alleged violation , TMC was subject to
the jurisdiction of the Act .
7.
matter .

The Administrative Law Judge has jurisdiction in this

8 . The subject citation was properly served by a duly authorized representative of the Secretary upon an agent of Respondent on the date and place stated therein , · and may be admitted
into evidence for the purpose of establishing its issuance, and
not for the truthfulness of any statements asserted therein. The
citation is attached as Exhibit A.
9. The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic.
10. The proposed penalty of $5,000.00 will not affect Respondent's ability to continue in business.
11. Citation No . 4337819 was abated by TMC by holding a
company/contractor safety meeting on September 23 , 1993, during
which the job was analyzed and pertinent safety regulations
applicable to the job were discussed. The operator demonstrated
good faith in abating the alleged violation .
12. TMC was a small mine operator, with 115,134 hours of
production in 1993.
13. Citation No. 4337819 states the following as the reason
for the citation:
924

The hazard instruction given to employees of
Dave Loden Construction, a contractor hired
to apply waterproofing materials to the roof
of the administration building, did not contain explicit information concerning or regarding safety hazards which may be encountered while working on the roof. Specific
regulations requiring the use of a safety
belt or harness and life- line while working
in an area where a danger of falling exists
was not discussed with the contractor. A
contractor employee suffered severe injuries
when he fell from the roof of the administration building on 9/20/93 .
14. Roger G. Nowell, Mine Safety and Health Inspector , and
Lloyd Ferran, Mine Safety and Health Insp~ctor, prepared an
Accident Investigation Report, released January 11, 1994 . The
parties hereby stipulate and adopt the facts and information
contained o n ly under the fo llowing headings of said report:
General Information, Physical Factors I n volved, and Description
of the Acciden~. The information and allegations contained under
the headings Conclusion, Violations, and Recommendations are not
adopted as fact by the parties. The specific portions adopted by
the parties are attached hereto as Exhibit B, which is incorporated her ein by reference.
15. The off ice/administration building where Loden Construction was performing its roofing duties, and where the accident
occurred, is located more than a quarter - mile from t h e mining
site/injection wells. See Irigaray Project General Location Map,
attached hereto as Exhibit c, and incorporated herein by reference .
16 .
Exhibit D, attached hereto and incorporated herein by
reference, is the MSHA-approved hazard training form read and
signed by Jack Miller, and the other members of the Loden Construction crew, on September 20 , 1993, prior to beginning work on
the roof of the mine administration/office building.
17 . Other than the MSHA-approved hazard training .described
in paragraph 16, no hazard training regarding the inherent dangers of roofing was provided to Jack Miller by TMC in regards to
Miller ' s work on the mine administration/office roof.
18. MSHA issued Citation No. 4337819 to Dave Loden Construction for an al l eged violation of 30 C.F.R. § 56.15005 (safety
belts and lines) . Said citation was uncontested and the fine has
been paid.

925

v
Exhibit c, incorporated by reference in Joint Stipulation
No. 15 is the Irigaray Project General Location Map.
EXHIBIT

R. 77 W.

ic
g
0

~

NIT 10

PERMIT TO MINE NO. 4 78 BOUNDARY

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SECTION 4

SECTION 5

---- -1"--..:.~------ - --

•

SECTION 8

SCCTiO

._.

_____ _

9

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T.

45

N.

I

I

.•,,

l
I SECTION 9
- - - - - ------i- - - - - -

•'

SE:CT/ON 8

S£CTION I 7

COGEMA
P.o . eox 730

IRIGARAY

•

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,,---

I SE:CTION 16
I

•

v

Mining, Inc.
Wlll..S , WY IJl.6

PROJECT

GENERAL LOCATION MAP

926

VI
Exhibit D, incorporated by reference in stipulation No. 16
is the MSHA approved hazard training form read and signed by Jack
Miller and the other roofing contractor employees.
It reads as
follows:
TOTAL MINERALS CORPORATION
HAZARD TRAINING - VALID FOR ONE YEAR
Pursuant to § 48.31 of 30 C.F.R. Parts 48, you must be given
Hazard Training at least once every 12 months, before entering or
working on this property. The training provided herein is intended to inform you of the potential hazards that may exist on
this property.
Failure to follow these instructions may result
in forfeiture of entrance privileges.
1.

Hazard Recognition and Avoidance

A.

If you are a visitor, you enter at your own risk and must
report to the posted office area.

B.

If you are a visitor you must be accompanied by a Total
Minerals employee while on the mine site.

c.

If you are a contractor working on the property, you must
report to the Total Minerals Supervisor in charge, before
proceeding.

2.

Emergency and Evacuation Procedures

A.

If there is a fire, exit the area by the nearest door.

B.

If a supervisor or other site personnel requests you use the
telephone, it can be found in the main office area. Use the
posted emergency phone numbers as directed.

c.

If an accident occurs near you, give first aid and call for
the supervisor responsible for your clearance and have him
instruct you on the emergency procedures to be used.

3.

Radiation Hazards

:~
·..

Designated restricted areas exist in the plant and wellf ield
buildings, which are controlled for the purpose of protection
of individuals from exposure to radiation and radioactive
materials.
Low level radiation may exist in these areas.
The following rules apply to all restricted areas:
A.

No smoking, eating or drinking.
.·.-;

92 7

..,

B.

Avoid handling of yellowcake, resin or the interiors of pipes
and tanks.

C . All individuals must survey themselves at one of the monitoring stations and not exceed the posted limit, before they can
leave. Instruction will be provided by the mine site personnel
you are accompanied by.
4.

Health and Safety Standards, Safety Rules and Safe Work
Procedures .

A.

The following protective equipment will be worn at all times
except when in the office areas: Hard hat, hard toed shoes,
safety glasses, and where needed, ear protection.

B.

Never look directly at electric arc o~ gas welding operations
without the proper personal protective equipment .

c.

Obey all signs and postings .

D.

Do not wal~ under suspended loads.

E.

Stay clear of operating equipment .

F.

Do not get on or off moving equipment.

5.

Respirator Devices

A.

It is very unlikely that as a visitor or contractor you will
be asked to use a respirator.
In the event that a request is
made, follow the instructions of the mine site personnel .

6.

Understanding Procedures

A.

"I have read and understand the above hazard training procedures and will comply with these procedures while on the
mine site property. "

\

9-20-23

/s/

Date

Jack Miller
Signature of Visitor
Loden Const
Company Represented

VII
DISCUSSI ON
Respondent's assertion that the independent contractor ' s
employees working on the roof of the office/administration

928

building at the mine site were not miners for purposes of § 48.31
because they were not working "in" a surface mine is rejected.
It is stipulated that the Irigaray Project is a surface mine
engaging in the production of uranium.
(Stipulation No. 5 and
Ex. B) .
Based on the mine map, the office/administration
building is clearly located within the mine's boundaries.
(Ex.
C).
The map shows the office/administration building is located
between the mine processing plant and the evaporation ponds. The
building is located a little more than a quarter-mile from the
injection wells, the extraction area.
(Stipulation No. 15 and
Ex. C). With the office/administration building location between
the evaporation ponds and the processing plant, it is clearly
located on mine property, near mining activities.
As defined in section 3(h) (1) of the Federal Mine Safety and
Health Act of 1977 (Act) 30 U.S.C. § 802(h) (1) a mine includes
not only an area of land from which minerals are extracted but
includes among other things appurtenant structures and thus, in
this case, the surface mine includes the administration building .
located about a quarter of a mile from the area where the uranium
was being extracted from the earth. Based on the record before
me, I find the contractor's employees working on the roof of the
office/administration building were working in a surface mine.
They were working in the surface mine kno~n as the Irigaray/
Christensen Project Mine, MSHA I.D. No. 48-01148. Thus they were
miners within the meaning of subsection 48.22(a). The contractor's employees were "occasional short-term maintenance" workers
within the meaning of that subsection. Consequently, the operator of the mine was in violation of 30 C.F.R. § 48.31 as it is
clear the hazard training instructions given by the mine operator
were inadequate because it did not specify the use of safety
belts and lines when working near the edge of the roof where
there existed the danger of . falling.
SIGNIFICANT AND SUBSTANTIAL ISSUE

There still remains the question of whether the violation
was significant and substantial (S&S) .
The S&S terminology is taken from section 104(d) (1) of the
Act and refers to more serious violations. A violation is S&S
if, based on the particular fact$ surrounding the violation,
there exists a reasonable likelihood that the hazard contributed
to will result in an injury or illness of a reasonably serious
nature.
Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825-26
(April 1981).
In ~athies Coal Co., 6 FMSHRC 1 (January 1984),
the Commission further explain~d:
·
In order to establish that a violation of
a mandatory safety standard is significant
and substantial under National Gypsum, the
929

Secretary of Labor must prove: (1) the
underlying violation of a mandatory safety
standard; (2) a discrete safety hazard-- that
is, a measure of danger to safety--contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in
question will be of a reasonably serious
nature.
Id. at 3-4 (footnote omitted).
See also Buck creek Coal, Inc. v .
FMSHRC, 52 F . 3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Secretary of Labor, 861 F2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).
In United States Steel Mining Company, Inc . , 7 FMSHRC 1125,
1129 (August 1985), the Commission emphasized that in determining
whether a violation is S&S, it is the contribution of the violation of the standard to the cause and effect of a hazard that
must be significant and substantial. The Commission stated:
w~ have emphasized that, in accordance
with \ the language of section 104(d) (1), it is
the contribution of a violation to the cause
and effect of a hazard that must be signif icant and substantial .
U.S. Steel Mining
Company, Inc . , 6 FMSHRC 1866, 1868 (August
1984); U. S. steel Mining company, Inc., 6
FMSHRC 1573, 1574-75 (July 1984).
(Emphasis
in the original) .

See also U. S . Steel Mining Co., Inc., 6 FMSHRC 1866 at 1868
(1985) when the Commission again states:
In ou~ decisions we have emp~asized that,
in line with the language of Section
104(d) (1), 30 u.s.c. § 814(d} (1), it is the
contribution of a violation to the cause and
effect of a hazard that must be significant
and substantial.
(Emphasis in original).
The Commission has consistently held that in cases decided
under National Gypsum and Mathies, and U. S . Steel I, S&S
determinations have been based u~on the particular facts
surrounding the violation in issue, E.g., Texasgulf , Inc., 10
FMSHRC 498, 500-01 (April 1988).
In reviewing the particular
facts surrounding this case it is noteworthy that the mine
operator was dealing with experienced professional roofers.
The
victim, Mr. Miller, age 54, had more than 30 years of roofing
experience without an accident. · The parties stipulated that an
interview with Miller at the hospital, confirmed the statements
made by his fellow workers. Miller had looked over his right
shoulder to ascertain how far he was from the roof edge while

9 30

·.

talking to Martin Edwards and didn't realize he was on the
adjoining section of roof approaching the edge. Miller stated it
was a critical misjudgment on his part and the f irs·t accident he
had in 30 plus years of roofing experience.
Upon review of the record and the stipulations in this case,
I conclude that under the particular facts of this case the
contribution of the mine operators violation of § 48.73 to the
cause and effect of the hazard of an experienced roofer falling
from the relatively flat roof is speculative and the evidence
does not persuasively establish that the contribution was significant and substantial. The Petitioner has the burden of proof
and a fair evaluation of the record leads me to conclude the
preponderance of the evidence in this case fails to establish
that the contribution of the mine operator's violation of § 48.31
to the cause and effect of the hazard of falling off the roof
under the facts of this case was significant and substantial contribution. Consequently, the S&S designation should be deleted.
It is obvious from the record that the major contribution to
the hazard of falling off the roof was by .far, the failure of
Miller's employer, the independent roofing contractor to instruct, train arid make sure his roofers complied with the provisions of 30 c.F.R. § 57.15005.
It was the violation of that
safety standard, not § 48.31 that significantly and substantially
contributed to the hazard of falling from the roof of the building.
Perhaps the mine operator could also have been charged with
the violation § 57.15005 but the mine operator was not so charged
in this case. What the mine operator was charged with is not
giving the roofers adequate hazard training regarding "(1) Hazard
training and avoidance," specifically not discussing with the
roofers the need to use a safety belt or harness and lifeline
while working near the edge of the relatively flat roof of the
office/administration building.
It is also noteworthy that under the stipulation facts it is
clear that Miller did not even know he was near the edge of the
roof where the hazard of falling existed. Consequently, assuming
(the stipulation record does riot establish one way or the other)
that Miller had training and the equipment from his employer, the
roofing contractor and had every intention of complying with MSHA
and OSHA requirement that he "tie off" while working near the
edge of a roof he was nevertheless unaware he was in an area
where he was required to "tie off."
PENALTY
In assessing a civil penal_ty I am required by the Mine Act
to consider the statutory criteria set forth in section llO(i) of
the Act. That section states in pertinent part:

931

[T]he commission shall consider the operator's history of previous violations, the
appropriateness of such penalty to the si.z e
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.
With respect to this penalty criteri~ the parties stipulate
that the size of the business of the mine operator was small,
with 115,134 hours of production in 1993; that the MSHA proposed
penalty would not affect Respondent's ability to continue in
business; that the operator demonstrated good faith in timely
abating the violation. The inspector evaluated the mine operator's negligence as " moderate" and I see no basi s for evaluating
it any higher than that in this case. The citati on indicates the
number of persons affected as one. With respect to gravity, this
unlikely fa l l of an experienced roofer from a re l atively flat
roof unf ortunab~ly did happen and resulted in death. Upon consideration of the statutory criteria in § llO(i) I f i nd a civil
penalty of $200.00 is appropriate under t he facts of this case
for the Respondents violation of the cited safety standard,
§ 48.31.
ORDER
On the basis of the foregoing findings and conclusion , it is
ORDERED that Citation No. 4337819 be and is modified by deleting
the S&S designation and, as so modified, this citation is
affirmed. It is further ORDERED THAT RESPONDENT PAY a civil
penalty of $200.00 to the Secretary of Labor within thirty (30)
days of this decision and order.
Upon receipt of payment, this
matter is dismissed.

Au st F . cetti
Administrative Law Judge
Distribution :
Susan J . Eckert, Esq., Office of the Solicitor, U.S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Ma il)
Sean P. Durrant, Esq . , OMOHUNDRO, PALMERLEE & DURRANT, 130 South
Main Street, Buffalo, WY 82834
(Certified Mail)
/sh

932

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

JUN 1 8 \996
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 94-251-M
A . C. No. 26-02184-05514
Bullfrog Mine Underground

BARRICK BULLFROG, INCORPORATED
Successor to LAC BULLFROG INC.,:
\ Respondent
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-129 - M
A. C . No. 26-02184-05520 A
Bullfrog Mine Underground

TIMOTHY HARTER, employed by,
BARRICK BULLFROG INCORPORATED
Successor to LAC BULLFROG INC . ,:
Respondent
DECISION
Appearances:

Jeanne M. Colby, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California, and P~ul A. Belanger, Conference and
Litigation Representative, Mine Safety and Health
Administration, U.S. Department of Labor,
Vacaville, California, for Petitioner;
Charles W. Newcom, Esq. , .and Andrew W. Volin,
Esq ., Sherman &. Howard, L.L.C., Denver, Colorado,
for Respondents.

Before :

Judge Hodgdon

933

These consolidated cases are before me on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor,
acting through his Mine Safety and Health Administration (MSHA),
against LAC Bullfrog, Inc. , 1 and Timothy Harter pursua nt to
sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820. The petitions al l ege that the
company violated sections 50.10, 57 . 3200 and 57.3401 of the
Secretary's mandatory health and safety standards, 30 C.F.R .
§§ 50 . 10, 57.3200 and 57.3401, and that Harter, as an agent of
the company, knowingly carried out the violations of sections
57.3200 and 57 . 3401. The Secretary seeks penalties of $73,000.00
against the company and $16,500.00 against Harter . For the
reasons set forth below, I find that the company violated the
regulations, and that Harter knowingly carried out the violations
of sections 57.3200 and 57.3401; I assess penalties of $71,500.00
and $5,000 . 00, respectively.
A hearing ,was held on February 12 - 15, 1996, in Henderson,
\
Nevada.
In addition, the parties filed post-hearing briefs in
these matters.
BACKGROUND

The Bullfrog gold mine in Beatty, Nevada, has both an open
pit and an underground section. The underground section consists
of a series of horizontal passages, called "drifts," heading off .
of a main dec l ine, which follow the ore vein . The drifts are
identified and distinguished by their elevation in meters and the
direction that they head.
Mining in the underground section is carried out by the
underhand cut and fill method. Mining in a drift is advanced by
blasting until the vein runs out. Any ore left on the ribs is
then mined by \\slab rounds" as the miners retreat out of the
drift. When this has been accomplished, the drift is
\\backfilled" with a concrete mix. . Another dr i ft may be cut
underneath the filled drift with the backfill servin g as the roof
of t he new drift.

Between the issuance of the citations and order in this
case and the hearing, LAC Bullfrog, Inc., was purchased by
Barrick Bullfrog, Inc.
(Tr. 6-10.)
1

934

Sometime between the cessation of mining operations on
Friday, May 28, 1993, and the beginning of operations on Tuesday,
June 1, 1993, 2 a ground fall occurred in the 990 North drift . 3
Larry Phillips was assigned to "muck outn the ground fall with a
front-end loader. The "muckn was loaded into a 16-ton truck
located at the entrance to the drift. The truck was driven by
Matt Riddle/Mertz . 4
When Phillips did not come out of the drift after indicating
to Riddle/Mertz that he was finished, Riddle/Mertz walked into
the drift to see what was delaying him. Riddle/Mertz discovered
that the front-end loader had been engulfed by a second ground
fall.
Rescue attempts were futile.
Phillips was found dead at
the rear of the loader.
MSHA Mine Inspector Stephen A. Cain was assigned to
investigate the accident. As a result of his findings, he issued
the order and two citations at issue.
MSHA Special Investigator Dave Brabank conducted an
investigation of the accident during August and September 1993
for the purpose of determining whether any of the violations had
been knowingly committed by any agents of the company. Based on
his conclusions, the Secretary filed civil penalty petitions
against Timothy Harter and William F . Lucas, under section llO(c)
of the Act, 30 U.S.C. § 820(c), for the alleged violations of
sections 57.3200 and 57.3401. 5
2

Monday, May 31, was the Memorial Day holiday .

3 Because of a slight change of elevation in part of it, the
990 N drift was also known as the 994 N drift. To avoid
confusion, it will be referred to as the 990 N drifl throughout
this decision.
4

Sometime between June 1, ·1993, and the hearing, Riddle
changed his last name from Riddle to Mertz. Thus, while the
testimony refers to Matt Riddle, he testified as Matt Mertz. To
avoid confusion, he will be referred to as Riddle/Mertz.
5

At the request of the Secretary, the· civil penalty
petiti on (Docket No. WEST 95-130-M) against William F . Lucas was
dismissed by an Order of Dismissal on January 19, 1996.

835

FINDINGS OF FACT AND CQNCLUSIQNS OF LAW
Citation No. 4138 306

Citation No. 4138306 alleges a violation of section 50.10 of
the Regulations because the first ground fall was not reported to
MSHA. 6 Section 50.10 provides, in pertinent part, that: "If an
accident occurs, an operator shall immediately contact the MSHA
District or Subdistrict Office having jurisdiction over its
mine." Section 50.2(h), 30 C.F.R. § 50.2(h), lists 12 types of
incidents which are to be considered accidents under the
Regulations. Among them, section 50.2(h) (8), 30 C.F.R.
§ 50.2(h) (8), states that an accident is "[a]n unplanned roof
fall at or above the anchorage zone in active workings where roof
bolts are in use; or, an unplanned roof or rib fall in active
workings that ~mpairs ventilation or impedes passage."
It is the ~ompany's position, that the first ground fall
\
consisted of material that Ralph Crowley took down from the lef t

6

The citation alleges that:
An unplanned fall of ground occurred above the

anchorage point of 6 ft. split set bolts (approx. 12-16
bolts) in heading 990 N sometime over the weekend of 528-93 to 6-1-93. Approx. 50 tons of material fell from
hanging wall side of drift to center (arch) of drift
and approx. 20 ft. from face of heading . Fall of
ground was not reported to MSHA immediately as required
by Part 50. A second fal l of ground occurred on 6-1 -93
resulting in a fatal accident while original fall of
ground that occurred over the weekend was being mucked
out in preparation for back filling of drift.
Company
officials (Tim Harter and Bill Lucas) observed roof
fall that occurred over weekend on 6-1 - 93 while making
rds.
Information gathered from company officials
stated that they thought personnel had to be trapped or
injured before fall of ground was reportable to MSHA.
(Pet . Ex. 5, at 12-13.)

936

rib when he was mucking out the 990 Non May 27, 1993, and that
since it came from the rib and not the roof and did not impair
ventilation or impede passage, it was not reportable.
{Resp. Br.
at 19-21.)
This argument, made for the first time in the brief,
is rejected.
It is based solely on the following statements by Crowley.
In his statement to Inspector Brabank, Crowley was asked if
material was falling from the back or left rib on May 27. He
responded: "Yes from the left rib.
I took the big hunk down, the
one I was worried about, there was still small materia l fa l ling;
enough that you wanted to keep your eye on it."
{Pet. Ex. 16a,
at 84-85.) At the hearing, Crowley testified:
Q. Mr. Crowley, were you mucking in the 994/990 North
drift near the end of May 1993?
A.

Yes.

Q. And was there any material in between the brow and
the face along the left rib?
A.

Yes .

Q.

And did you clean all of that material out?

A.

No, I didn't.

Q. You indicated in a statement to MSHA that you had
concerns about the material there on the left rib; is
that correct?
A.

Yes .

Q.
Is the location of the material about which you
spoke to MSHA being concerned about, is the location of
that material -- where was it; in between the face and
the brow or on the other side of the brow, away from
the face?

937

.;

:·'.

A.

It was between the face and the brow.

(Tr. 676-77.)
No one, including Crowley, testified that the "big hunk"
Crowley took down on the 27th was the five to six truckloads of
material that Riddle/Mertz took out of the mine on June 1.
Furthermore, there is absolutely nothing in the evidence to
support the conjecture that the materia l that Crowl ey referred to
and the ground fall were one and the same.
On the other hand, Harter, when interviewed by Inspector
Cain on the day of the incident, stated that the initial roof
fall that occurred over the weekend was "14 ft. high approx. Not
sure how deep and 8-10 ft . in length."
(Pet. Ex. 2, at pp. 3940; Tr. 97.)
Harter testified that "[i]n that portion, in the
smaller area where it was 13 by 13, we found a pile of material.
That's the fi~st ground fall that -- ."
(Tr. 552-53 . ) Clearly,
the first grourtd fall included part of the roof.
All of the evidence in the case refers to a ground fall . 7
No witness suggested that it was a rib fall rather than a roof
fall.
If the Respondent had raised this issue earlier in this
proceeding than its post-hearing brief, the evidence might have
been more specific. However, I am satisfied that this was a roof
fall at or above the anchorage zone and thus was required to be
reported immediately .
Since the company officials professed not to understand that
this was a reportable accident until they were so advised by the
inspectors investigating the fatal accident, it is not disputed
that they did not report it immediately. Accordingly, I conclude
that by not doing so, the Respondent violated section 50.10 .
The inspector found this violation to result from "high"
negligence on the part of the company. As noted above, all of
the management officials at the mine claimed that they did not
understand that a roof fall at or above the anchorage points was
a reportable accident. They thought that a roof or rib fall was

7

The parties stipulated that "a ground fall
the fatal ground fall) had occurred."
(Tr. 14.)

938

(different from

only reportable if ventilation was impaired or passage was
impeded . David McClure, the Mine Superintendent, testified that
when he told this to Inspector Cain, the other MSHA inspector
with them, Inspector Inman, agreed with him.
Inspector Inman did
not testify and I nspector Cain could not recall whether such a
conversation took place.
The Secretary argues that the standard is clearly written
and that confusion about its requirements is not a defense.
It
is plainl y not a defense to whether a violation was committed,
but I find that it does affect the degree of negligence. No
evidence intimates that mine management was completely unaware of
the .reporting requirement, or that they u n derstood it but
deliberately did not report t he accident. Nor was there any
evidence that the company had been previously advised of the
requirement and was still professing ignorance . Clearly, by
the i r responses to Insp ect or Cain they had some familiarity with
the regulation.
I find that management's misunderstanding of the regulation
was not so egregious as to amount to "high" negligence.
Consequently, I conclude that the company was "moderately"
negligent in not reporting the first ground fall.
Ci tation No. 4138 3 07 and Order No· 4038308
The same facts are involved in the violations alleged in
Citation No. 4138307 and Order No . 4038308, which were issued
pursuant to section 104(d) (1) of the Act, 30 U . S . C. § 814(d) (1) . 0

8

Section 104(d)l) provides:

If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds
that there has been a violation of any mandatory health
or safety standard, and if he also finds that, while
the conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or
health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator t o

939

Citation 4138307 states that section 57 . 3200 was violated. 9

fn 8 cont.
comply with such mandatory health or safety standards, he
shall include such finding in any citation given to the
operator µnder this Act.
If, during the same inspection or
any subsequent inspection of such mine within 90 days after
the issuance of such citation, an authorized representative
of the Secretary finds another violation of any mandatory
health or safety standard and finds such violation to be
also caused by an unwarrantable failure of such operator to
so comply, he shall forthwith issue an order requiring the
operator to cause all persons in the area affected by such
violation, except those persons referred to in subsection
(c) to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of
the Secre~ary determines that such violation has been
abated.
\
9

The citation states:

An unplanned fall of ground occurred sometime
during the weekend from 5-28-93 to 6-1-93 approx. 20
ft. from the face on hanging wall side of 990 N drift .
This fall of ground in 990 N was observed by two
supervisors (Tim Harter & Bill Lucas) on 6-1-93 at
approx. 8:45 a.m. while making examination rounds of
headings. Anywhere from 2 to 6 sixteen ton haul truck
loads of material were involved in ground fall.
According to interview statements by both supervisors
cracks were observed adjacent to fall of ground on
hanging wall side of drift 990 N while they were
performing examination. Effected [sic] ground was not
taken down or supported prior to Lawrence Phillips
being directed by supervisor, Bill Lucas to muck out
fallen material in preparation for backfilling 990 N
drift. While Lawrence Phillips was mucking out 990 Na
subsequent ground fall occurred at approx. 9:30 a.m.
from hanging wall side which fatally injured Lawrence
Phillips. The subsequent ground fall was approx. 30
ft. in length, 12-14 ft. in height and 6-8 ft. in depth
and buried the ST-6C Wagner LHD that was being used to
940

That section provides: "Ground conditions that create a hazard
to persons shall be taken down or supported before other work or
travel is permitted in the affected area. Until corrective work
is completed, the area shall be posted with a warning against
entry and, when left unattended, a barrier shall be installed to
impede unauthorized entry."
Order No. 4138308 charges a violation of section 57.3401. 10
The section requires, in pertinent part, that "(a] ppropriate
supervisors or other designated persons shall examine and, where
applicable, test ground conditions in areas where work is to be
performed, prior to work commencing, after blasting, and as
ground conditions warrant during the work shift."
It is undisputed that Harter and Lucas visually examined the
area of the first ground fall, as well as the rest of the left
rib in the drift, but did not test the ground conditions any

fn 9 cont .
muck out 990 N drift.
This area 990 N was not posted against entry while
being mucked out in preparation for backfilling. This
is an unwarrantable failure.
(Pet. Ex . 5, at 1-2.)
10

The order states:

On 6-1-93 at approx. 8:45 a.m . supervisors Tim
Harter and Bill Lucas performed an examination of
ground fall in 990 N drift that had occurred sometime
over the weekend from 5/28/93 to 6/1/93. During
examination both supervisors stated they had observed
cracks in roof and rib area adjacent to fall of ground.
Neither supervisor performed any testing of ground
conditions in area prior to ' assigning Lawrence Phillips
to muck out ground fall material in preparation for
backfilling drift. As subsequent ground fall occurred
fatally injuring Lawrence Phillips. This is an
unwarrantable failure.
(Pet. Ex. 5, at 3.)

941

where. Nor did they take down any ground along the left rib or
support or re-.support any ground along the left rib. Further,
they did not post a warning against entry into the area or
install a barrier to impede unauthorized entry. The Respondent
argues that the visual examination was sufficient to comply with
the regulations .
I find that it was not.
In Asarco, Inc., 14 FMSHRC 941 (June 1992), the Commission
discussed both of these regulations . With regard to section
57.3401, it noted that "[t]he standard does not specify how
testing for loose ground is to be performed, nor has the
Secretary described t he procedure or set forth guidelines in her
Program Policy Manual or other interpretive material . " Id. at
947. The issue in Asarco was whether adequate testing had been
performed.
The Commission went on to state that "[t]he purpose
of section 57.3200 is to require elimination of hazardous
conditions . The fact that there was a ground fall is not by
itself sufficient
to sustain a violation. Rather the Secretary
\
is required to prove that there was a reasonably detectable
hazard before the ground fall."
Id. at 951.
In this case, however, the issue is not whether adequate
testing was performed, but whether testing was required to be
performed. The Commission did not discuss in Asarco what the
phrase "where applicable" with regard to testing means .
Nevertheless, in cases such as this,
[w]hen faced with a challenge to a safety standard on
the grounds that it fails to provide adequate notice of
prohibited or required conduct, the Commission has
applied an objective standard, i.e . , the reasonably
prudent person test. The Commission recently
summarized this test as \'whether a reasonably prudent
person familiar with the mining industry and the
protective purposes of the standard would have
recognized the specific prohibition or requirement of
the standard." Ideal Cement Co., 12 FMSHRC 2409, 2416
(November 1990) .
Id. at 948.
The following facts were available to Harter and Lucas when
they examined the 990 N after the first ground fall: (1) a ground

942

fall of an area of the rib and roof 14 feet high, eight to ten
feet in length and of an undetermined depth had occurred; (2)
somewhere between two and six 16-ton truckloads of material had
fallen; (3) prior to the fall, the area had been supported with
split sets, plates and wire mesh; (4) ground conditions in the
mine were difficult because the ground was weak; 11 and (5) ground
falls happened frequently in the mine.
When viewing the requirement that "where applicable" ground
conditions should be tested through the eyes of a reasonably
prudent person, I find that the above facts should have lead such
a person to determine that testing was applicable. While a
visual examination may have been sufficient if conditions in the
drift had not changed, in this case they had changed
significantly. Based on the changed conditions, I conclude that
more than a visual examination, i.e., testing, was required .
In reaching this conclusion, I reject Respondent's arguments
that nothing appeared to have changed at the exact place where
the second ground fall occurred, and that there was no way to
test the ground conditions. The Respondent asserts that the
first and second ground falls were separated along the rib by 10
to 20 feet and, therefore, that the two were not linked.
Unfortunately, the evidence on the exact location of the two is
less than precise .
Inspector Cain and Nevada State Inspector Tomany both
testified that they believed that the two ground falls ran into
each other. However, they did not go all the way down the drift,
nor could they see the face of the drift from where they were in
the drift, so that it is possible that all they saw was the
second fall and that the first fall was farther in the drift.
Only Harter and Lucas actually saw the first ground fall.
They both estimated that the two falls were separated by about 10
to 20 feet.
However, Harter also drew a diagram of the ground
falls, (Pet. Ex. 2a), on the day it occurred, which appears to
:·

Elvin Hansen, a roof bolter with 20 years of mining
experience, described ground conditions as "(p]robably the worst
ground I've seen."
(Tr. 377.) Other witnesses described it
similarly.
11

,.·

943

show them if not actually touching, then within two or three feet
of each other . Further, the Respondent's scale diagram of the
drift, (Resp. Ex. A), shows that there were 30 feet ·from the toe
of ramp to the face and that the second fall extended past the
toe of the ramp toward the face by several feet. Perhaps
significantly, the diagram does not show the distance of the
first fall from the face, but Harter and Lucas agreed that it was
20 feet .
Based on this evidence, I find that the two falls were
separated by 10 feet or less. When a ground fall of the
magnitude of the first fall has occurred, one would have to be
very indifferent to the safety of miners to conclude that the
fall area needed to be tested, but the area within 10 feet of it
did not . Therefore, I conclude that the separation between the
two falls made no difference in the Respondent's duty to test . 12
For this reason, I also reject the claim of Harter and Lucas
that they did nbt need to test the crack observed in the area of
the second fall 'b ecause it did not appear to have changed since
the first time they observed it. The first fall changed
conditions so that a visual examination was no longer sufficient.
The Respondent argues that the loose nature of the rock in
the mine makes it difficult to test ground conditions with a
scaling bar.
(Resp. Br. at 6.) However, a scaling bar is not
the only method of testing ground conditions, as the Commission
noted in Asarco. Id. In that case, testing with a jumbo drill
was approved. I do not accept that a visual examination was all
that could have reasonably been done in this instance.
For the same reasons that the Respondent violated section
57 . 3401, I conclude that it also violated section 57.3200.
Because it performed no testing, it is not possible to . say what
further action should have been taken either in supporting the
ground or taking it down. However, at a minimum, the area of the
first ground fall, which had previously been supported, should
have been re-supported. Furthermore, it is undisputed that the
Respondent neither "posted" the 990 N drift after the first
ground fall nor barricaded it.

This conclusion would hold true even if the two falls had
been separated by 20 feet.
12

944

It may be that if the Respondent had tested the ground and
supported or taken down any hazardous conditions, the second
ground fall still would have occurred in view of its nature and
size. Nonetheless, the fact that the fall may have been
unpredictable did not relieve the company of its obligation to do
everything possible to insure miner safety based on the facts
available to it at the time.
In this case, the company did
nothing.
Significant and Substantial
Both of these violations were alleged to be "significant and
substantial . " A "significant and substantial" (S&S) v i olation is
described in Section 104 (d) (1) of the Act as a violation "of such
nature as could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard." A violation is properly designated S&S "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. 11 Cement
Division, National Gypsum Co., 3 FMSHRC 822, 825 {April 1981).
1

\

In Mathies Coal Co., 6 FMSHRC 1, 3 - 4 (January 1984), the
Commission set out four criteria that have to be met for a
violation to be S&S. See also Buck Creek Coal, Inc. v . FMSHRC,
52 F.3d 133, 135 {7th Cir. 1995); Austin Power, Inc . v .
Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin
Power, Inc . , 9 FMSHRC 2015, 2021 (December 1987) (approving
Mathies criteria) . Evaluation of the criteria is made in terms
of 11 continued normal mining cperations. 11 U.S. Steel Mining Co.,
Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation.
Texasgulf,
Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio ·coal Co.,
9 FMSHRC 1007 (December 1987) .
In this case, there can be little doubt that these two
violations contributed to a measure of danger to safety, i.e., a
ground fall; that there was a reasonable likelihood that a ground
fall would result in an injury; and, that there was a reasonable
likelihood that the injury would be serious.
In fact, that is
exactly what happened. The Respondent does not even bother to
address this issue in its brief. Consequently, I conclude that
these two violations were "significant and substantial."

945

Unwarrantable Failure
Inspector Cain found that both of these violations resulted
from the company's unwarrantable failure to comply with the
Regulations. The Commission has held that "unwarrantable
failure" is aggravated conduct constituting more than ordinary
negligence by a mine operator in relation to a violation of the
Act.
Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987);
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December
1987) .
"Unwarrantable failure is characterized by such conduct
as 'reckless disregard,' 'intentional misconduct,' 'indifference'
or a 'serious lack of reasonable care.' [Emery] at 2003-04;
Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189, 193-94 (February
1991) ." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994).
The Respondent argues that there was no unwarrantable
failure regarding these violations because
no one at ' the mine had any knowledge of conditions, or
reason to believe of conditions, that should have
precluded sending Phillips into the drift.
Instead,
the evidence showed that the mine had a reasonable and
good faith belief under the circumstances that the
regulations were being complied with and that it was
safe for Phillips to muck out the drift so it could be
backfilled .
(Resp. Br. at 30.)
The company misses the point.
It was not sending Phillips
into the drift which constituted the unwarrantable failure.
It
was the failure to make sure that the drift was safe for him to
enter by testing the ground conditions and supporting or taking
down hazardous ground as necessary which was unwarrantable. No
one at the mine had any knowledge of conditions that should have
precluded sending Phillips into ~he drift because Harter and
Lucas made only a cursory attempt to ascertain what the
conditions were.
In view of the facts available to Harter and Lucas at the
time they examined the drift, their belief that they were
complying with the regulations by doing no more than visually
examining the drift was unreasonable. Their dereliction in not

946

making further attempts to test ground conditions and to support
it or take it down was inexcusable. At best, it reflected
indifference or a serious lack of reasonable care; at worst it
amounted to reckless disregard of the safety of miners .
Accordingly, I conclude that the company's violations of sections
57 . 3200 and 57.3401 resulted from an unwarrantable failure to
comply with the regulations.
Sect ion l l O(c )

Harter faces personal liability under section llO(c) of the
Act for having "knowingly" violated sections 57.3200 and
57.3401. 13 I find that by not testing ground conditions after
the first ground fall and not taking down or supporting hazardous
ground, Harter knowingly carried out the violations of those two
sections.
The Commission set out the test for determining whether a
corporate agent ·'r,ias acted "knowingly" in Kenny Richardson, 3
FMSHRC 8, 16 (January 1981), aff'd, 689 F . 2d 623 (6th Cir. 1982),
cert. denied, 461 U.S. 928 (1983), when it stated: "If a person
in a position to protect safety and health fails .to act on the
basis of information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted knowingly
and in a manner contrary to the remedial nature of the statute."
The Commission has further held, however, that to violate section
llO(c), the corporate agent's conduct must be "aggravated," i.e.
it must involve more than ordinary negligence. Wyoming Fuel Co . ,
16 FMSHRC 1618, 1630 (August 1994); BethEnergy Mines, Inc., 14
FMSHRC 1232, 1245 (August 1992); Emery Mining Corp., 9 FMSHRC
1997, 2003-04 (December 1987).
In this case, Harter was aware of the f i rst ground fall, was
aware that the area of the first ground fall had been supported
prior to the ground fall, was aware of the weak ground conditions

13

Section llO(c) provides, in pertinent part : "Whenever a
corporate operator violates a mandatory health or safety standard
. . . any director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such violation
. . . shall be subject to the same civil penal ties . . . that may
be imposed upon [the operator]
"

947

in the mine, and was aware of the numerou s grou nd falls that had
already occurr.ed. Yet he took no action to prevent a further
ground fall by testing and taking down or supporting hazardous
ground. He took no action because he stated that a visual
examination indicated nothing had changed from the previ ous times
that he had been in the drift.
If there had been no first ground fall, his examination
might have been sufficient. However, the ground fa l l was
obviously a significant change, and his failure, as general mine
foreman, to take any preventative action in the face of this
change amounted to more than ordinary negligence.
I find that
this was aggravated conduct within the meaning of the cases cited
above, and accordingly, I conclude that Harter knowingly carried
out the violations of sections 57.3200 and 57.3401 and is,
therefore, personally liable under section llO(c) .
\

CIVIL PENALTY ASSESSMENT

The Secretary has proposed the following penalties for the
violations in these cases: $3,000.00 for the company's violation
of section 50 . 10, $40,000 . 00 for the company's violation of
section 57 . 3200, $30,000 . 00 for the company's violation of
section 57.3401, $9,500 . 00 for Harter's knowing violation of
section 57.3200, and $7,000.00 for Harter's knowing violation of
section 57.3401. However, it is the judge's independent
responsibility to determine the appropriate amount of penalty, in
accordance with the six criteria set out in section llO(i) of the
Act, 30 U.S.C. § 820(i).
Sellersburg Stone Co. v . FMSHRC, 736
F . 2d 1147, 1151 (7th Cir . 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).
In connection with the six criteria, the parties stipulated
that the Bullfrog mine is a large mine, that payment ·of the
assessed penalties would not affect the company's ability to
remain in business, and that the mine demonstrated good fait h by
timely abating each of the violations .
While the mine had no history of having received previous
citations for the same offenses, there is some question as to the
accuracy of this, particularly with regard to secti on 50.10, in
view of the fact that mine management was not fully awar e of all
of the types of accidents required to be reported. The mine's

948

history of violations indicates that from June 1991 through June
1993, 33 citations had been issued for violations of the
Regulations, including the ones at issue here. Thi·s is not a
large amount. On the whole, I conclude that the mine's history
of violations does not provide a basis either for increasing or
decreasing the penalties proposed by the Secretary.
I find the gravity of these violations to be very serious.
The fact that they resulted in a fatality says it all.
I include
in this finding the violation of section 50.10 since if the first
ground fall had been reported promptly, an MSHA investigation may
have halted further work in the drift and prevented the second
one.
In addition, the operator was highly negligent in
committing the violations of sections 57.3200 and 57.3401 .
Taking all of these factors into consideration, I conclude
that the penalties of $40,000.00, for the violation of section
57.3200, and $30,000.00, for the violation of section 57.3401 are
appropriate.
I'n view of my finding that the company was
"moderately" rather than "highly" negligent in connection with
the violation of section 50.10, I will reduce that penalty to
$1,500.00 .
Only gravity, negligence and history of violations, of the
six penalty criteria, are directly applicable to an individual.
No evidence that Harter knowingly committed any other violations
was offered.
In his case, the negligence and gravity are the
same as for the company.
The effect of the penalty on the company's ability to remain
in business and appropriateness to the size of the business can
be applied to an individual by analogy. Unfortunately, no
evidence was presented to show the effect of the proposed penalty
on Harter's ability to support himself or his family, if he has
one, or to demonstrate the appropriateness of the penalty to his
income. Nonetheless, I find that, the proposed penalty of
$16,500.00 would have a much greater effect in such areas on
Harter, than the proposed penalty of $73,000.00 would have on the
company.
Taking all of these factors into consideration , I conclude
that a penalty of $5,000 . 00 should be assessed against Harter.

949

ORDER
Citation No. 4138306 issu ed to the company is MODIFIED to
reduce the degree of negligence from "high" to "moderate," and is
AFFIRMED as modified . Citation No . 4138307 and Order No. 4138308
and the civil penalty petition alleging that Timothy Harter
knowingly carried out the violations in the citation and order
are AFFIRMED .
Accordingly, Barrick Bullfrog, Inc., is ORDERED TO PAY a
civil penalty of $71,500.00 and Timothy Harter is ORDERED TO PAY
a civil pena l ty o f $5,000.00 within 30 days of the date of this
decision.
On receipt of payment these proceedings are DISMISSED .

~~~~

Administrative Law Judge

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Room 1110, San Francisco,
CA 94105-2999 (Certified Mail)
Charles W. Newcom, Esq., Andrew W. Volin, Esq., Sherman & Howard
L . L.C., 633 17th St., Suite 3000, Denver, CO 80202 (Certified
Mai l)
/lt

950

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

JUN 1 9 1996

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 95-261-M
A.C. No. 39-00993-05514

I

HIGMAN SAND AND GRAVEL, INC. ,
Respondent

Docket No. CENT 95-267-M
A.C. No. 39-00993-05515
Docket No. CENT 96-30-M
A.C. No. 39-00993-05516
Screener Plant #1

DECISION
Appearances:

Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Jeffrey A. Sar, Esq . , Baron, Sar, Goodwin,
Gill & Lohr, Sioux City, Iowa, for
Respondent.

Before:

Judge Amchan
Findings of Fact

On July 18, 1995, MSHA representative Lloyd Ferran inspected
Respondent's sand and gravel mine in the southeast corner of
South Dakota. Two Higman employees were at the mine, Mark
Rasmussen, the foreman, who was feeding the hopper to the plant
with a front-end loader and Eldon Seely, who was loading customer
trucks with another front-end loader. Neither miner accompanied
Mr. Ferran as he inspected the plant area.

951

Docket No. CENT 95-261 - M
Citation No. 4643516. unguarded chain drive and tail pulley
When inspecting the hopper feed conveyor, Inspector Ferran
discovered a chain drive and a self-cleaning tail pulley which
were not guarded. They were located underneath the hopper in an
enclosed area. There were doors that could close off the area
in which the drive and pulley were located, but these doors were
open on July 18. Inspector Ferran observed a shovel and fresh
foot prints near the tail pulley, which led him to conclude that
a miner had been in the area while the conveyor belt was running .
Foreman Rasmussen greased equipment in the area every morning
before turning on the equipment (Tr. 11-23, 169, 317-26, 372-73) .
Ferran issued Citation No. 4643516 to Respondent, alleging
a significant ~nd substantial (S&S) violation of 30 C.F.R.
§56.14107(a). \~his regulation requires the guarding of moving
machine parts that can cause injury. Section 56.14107(b) , on
which Respondent relies in challenging the citation, exempts
moving parts that are at least seven feet away from walking or
working surfaces.
The inspector required termination (abatement} of the
citation by the next morning, July 19, 1995 . When he arrived
at the worksite on the 19th, Foreman Rasmussen advised him that
he had been instructed not to abate this or any other citation
issued on July 18. Ferran waited until noon, then issued section
104(b) withdrawal Order No. 4643528 and left the worksite
(Tr. 24 -26) .
The next morning, July 20, 1995, the inspector returned and
found the plant operating. No action had been taken to terminate
the citation. After some discussions involving Respondent,
Ferran and MSHA's headquarters o+fice in Denver, the plant shut
down about noon. Respondent terminated the violations by
replacing the entire plant with other equipment (Tr. 30-33) .
Respondent violated §56 .14107(a)
The issue regarding the unguarded chain drive and tail
pulley is whether they could "cause injury" within the meaning of
§14107(a}, or whether there were seven feet away from walking or

952

working surfaces, and thus exempt from the guarding requirement
under section 56.14107(b).
Respondent contends the regulation was not violated because
the only person who ever came within seven feet of the unguarded
chain drive and tail pulley was Foreman Rasmussen. More
importantly, it argues that Rasmussen only was in this area
before turning on the moving equipment. Each morning before
turning on the equipment he greased it and shoveled under the
tail pulley (Tr. 326). Nevertheless, exposure to moving parts
and injury was possible.
Although Rasmussen's normal procedure may have made injury
unlikely, I believe that reliance on his practices does not
preclude injury--particularly from the unguarded tail pulley.
Rasmussen was asked if he ever shoveled while the tail pulley
was in operation. He responded, "You can't, cannot. You'd end
up with your arm when the shovel went in there." (Tr. 326).
I understand this to mean that you ordinarily do not shovel
while the tail pulley is moving because it is dangerous . I infer
that a situation may arise where material may build up under the
tail pulley while it is running. Under such conditions, one must
either turn all the equipment off or shovel with the pulley
running; otherwise, the conveyor belt will tear.
The record does not indicate that Respondent had a work
rule preventing shoveling when the machinery was in operation.
When Ferran visited the same site a month later, Rasmussen was
on vacation and Eldon Seely was in charge of the worksite.
The equipment was running (Tr. 175). Although, this was
different equipment than that cited in July, it convinces me
that Mr. Rasmussen's routine did not eliminate the possibility
that someone might be injured by the unguarded tail pulley.
I
therefore find a violation of the standard.
The Secretary has not established that the violation was S&S
The Commission test for a 11 8&8 11 violation, as set forth in
Mathies Coal Co. , supra, is as follows:

953

In order to establish that a violation of a
mandatory_ safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove: (1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
I conclude that given the fact that Mr. Rasmussen was
normally the only person to enter the area in which the chain
drive and tail pulley were located, and that he routinely did
so only before the equipment was turned on, that it was not
reasonably likely that the hazard would have resulted in injury
in the normal course of mining operations.
Section 104(b) Order No . 4643528 is affirmed
Upon discovering a failure to abate, an inspector must apply
a rule of reason in determining whether to issue a section 104(b)
order or to extend the abatement date, Martinka Coal Co . ,
15 FMSHRC 2452 (December 1993) .
I conclude that Inspector Ferran
acted reasonably in issuing the instant order.
On July 18, the inspector reviewed the citations and time
allotted to terminate them with Foreman Rasmussen. The latter
did not indicate that he would be unable to abate the citations
in the time period allowed by Ferran. On July 19, Rasmussen did
not tell the inspector that he needed more time to abate, he told
him that Respondent would not abate (Tr. 34-35). Moreover, on
July 20, when Respondent decided to comply with the abatement
requirements of this and other citations, it was able to do so
within a matter of hours.
I assess a $150 ciyil penalty for Citation No. 4643516
and Order No. 4643528
The Secretary proposed a penalty of $240 for the instant
citation and order.
I assess a $150 penalty on the basis of the
penalty assessment criteria in section llO(i) of the Act.

954

Given the fact that I deem the violation to be "non-s&s,u
I believe a penalty of $50 would be appropriate for the original
citation , taking into account the low likelihood ot i njury
(gravity) , the low degree of negligence of the original violation, the fact that Respondent is a small mine operator and the
absence of an indication that Respondent has a poor record of
MSHA compliance in the past.
The parties have stipulated that
the proposed penalties will not compromise Respondent's ability
to continue in business (Tr. 5).
I deem the degree of negligence to be low because I believe
that Respondent did have a reasonable good faith belief that its
procedures adequately protected its miners from the unguarded
moving machine parts. However, when a mine operator decides to
ignore the abatement requirement in an MSHA citation, it does so
at the risk that the citation will be upheld and that it may be
assessed much higher penalties for its failure to abate.

The sixth \ ~actor in assessing penalties under sec.t ion 110 (i)
is the good faith of the operator in rapidly abating a violation
once it is brought to its attention. When an operator refuses to
abate, and the original citation is affirmed by the Commission,
the provisions of section llO(b) , providing for a civil penalty
of not more than $5,000 for each day during which the violation
continues, should be considered. In this case, I deem it appropriate to assess an additional $50 penalty for Respond~nt's
failure to have abated the violation by the beginning of the work
day on July 19 and July 20, 1995.
Citation No. 4643517; Inadea,uate handrails on
an elevated platform
On July 18, Inspector Ferran observed an engine located on
a platform 11-12 feet above ground level . Mr. Rasmussen climbed
up a ladder each morning to turn on the engine and in the evening
to turn it off . Although there was a handrail and midrail on the
part of the platform furthest from the engine, the side of the
platform between the ladder and the engine was unguarded for a
horizontal distance of 1-1/2 feet . On the opposite side of the
p l atform , a distance of two feet horizontally was unguarded
(Tr . 3 6 - 41 ) .

955

Ferran issued Respondent Citation No. 4643517, alleging an
This regulation
requires that handrails be provided and maintained on elevated
crossovers, walkways, ramps and s~airways.
I find that the
regulation is applicable. The platform provided access to the
engine and therefore was an elevated walkway within the meaning
of the standard .

ns&S" violation of 30 C.F.R. Section 56.11002.

I conclude further that the Secretary has est ablished a
violation, but not a S&S . It is possible, as claimed by
Inspector Ferran, that a miner could trip and fall off the
unprotected portion of the platform . However, I find that it
was not reasonably likely. The only task to be performed by
miners on the platform was to turn on the engine at the middle
of the platform.
It is therefore unlikely that one would
accidently approach the unguarded portions of the edge of the
platform and fall off.
Penalt~ Assessment for Citation No. 4643517 and

section 104(b) Order No. 4643529
The Secretary proposed a $292 penalty for this citation and
the section 104(b) order issued when Respondent initially refused
to abate the citation . I assess a $150 penalty for reasons that
are essentially the same as those considered with regard to the
previous citation and order 1 •
Given the assessment criteria, other than good faith rapid
abatement, I would assess a $50 penalty for the original
citation.
I would note, with regard to the negligence factor,
that Respondent did have a reasonable belief that its employees
were adequately protected from injury and that the platform was
in the same condition as when it was purchased (Tr. 327-29).
With respect to gravity, although injury was unlikely,· the likely
result of an accidental fall of 11-12 feet would be death or
serious injury.

My consideration of the penalty criteria is essentially
the same for all the citations in these dockets unless
specifically noted. Similarly, · rny analysis as to the validity
of the section 104(b} orders will not be repeated unless it
differs from that concerning Order No. 4643528.
1

956

As with the previous citation and order, I believe that
the appropriate penalty for Respondent's unwillingness to abate
within the time period allowed by Inspector Ferran ·is a $50
per day additional penalty for both July 19, and J~ly 20, 1995.
Therefore, considering the lack of good faith in rapidly abating
the original citation, I assess a total penalty of $150 for
Citation No. 4643517 and Order No. 4643529.
Citation No. 4643518: Unguarded V-belt(s)
On the engine located on the elevated platform discussed
above were two unguarded v-belts. One, the direct drive belt,
was located on the side of the engine, right at the edge of the
platform, approximately 1-~ feet about the platform. It is
clearly shown in the photographic Exhibits, G-3.
The other unguarded belt was on the engine's alternator and
was 19cated at the front of the engine, near the start/stop
button about 3-1/2 feet off the ground . It can be seen in the
bottom photograph of Exhibit G-3 and in Exhibit G-4 (albeit
mounted upside down) .
Inspector Ferran issued Respondent Citation No. 4643518
which states:
The v belt on the direct drive unit was not guarded
adequately to prevent accidental contact with the pinch
point. This hazard was approximately one foot off the
landing, and extending to 1 ~[.] employee (sic) are in
this area on a daily basis starting and stopping the
motor.
The citation initially alleged a non-S&S violation of
§56.14107(a), but was modified on July 20, 1995, to allege an
"S&su violation.
Inspector Ferran exhibited a great deal of confusion in
describing this citation at hearing. At first, he testified that
the citation referred to the direct drive belt . Then he recanted
and testified that the citation referred to the alternator belt
(Tr. 51-62). The inspector conceded that the direct drive belt
does not require a guard because its location precludes employee
contact while it is moving (Tr. 70) .

957

The Secretary's counsel moved at hearing to amend the
citation to allege a violation with respect to both belts
(Tr. 64-65). Respondent opposed the motion, moved to dismiss the
citation and moved to exclude Exhibit G-4, which depicts the
alternator belt.
The citation clearly describes the direct drive belt. I
find no violation of section 56.14107(a) with respect to this
belt. Aside from Inspector's Ferran's concession, the record
establishes that the belt was started and stopped from the ground
and that it was not moving when Foreman Rasmussen was on the
elevated platform to start the engine 2 (Tr. 339-42, 375-76).
It is a close question as to whether I should allow the
Secretary to amend Citation No. 4643518 to include the alternator
belt. Respondent claims prejudice in that it was not on notice
from the language of the citation that the absence of a guard on
the alternator ,belt was an issue in this proceeding.
Ferran
claims that he discussed this belt with Rasmussen during the
inspection (Tr . 69). Rasmussen testified that Ferran never
mentioned the alternator belt to him (Tr. 339). I credit
Rasmussen's testimony in this regard, because it is corroborated
by the language of the citation itself.
The Commission's procedural rules do not address amendment
of pleadings. Therefore, the Commission looks for guidance to
the Federal Rules of Civil Procedure and particularly Rule 15,
Cyprus Empire Corporation. 12 FMSHRC 911, 916 (May 1990) . The
portion of Rule 15 that is relevant to the instant proceeding
starts with the third sentence of Rule lS(b}:
If evidence is objected to at the trial on the ground
that it is not within the pleadings, the court may
allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the
action will be subserved the~eby and the objecting
party fails to satisfy the court that the admission of
such evidence would prejudice the party in maintaining

To start the direct drive belt Rasmussen pushed the clutch
with a pole from the ground. To turn the belt off, he pulled a
string attached to the clutch from ground level (Tr. 339-342).
2

958

the party's action or defense upon the merits. The
court may . grant a continuance to enable the objecting
party to meet such evidence.
~

J. Moore, Moore's Federal Practice Par. 15.14, 20 ALR Fed

448.
When Respondent's counsel prepared for the hearing, he did
not discuss the alternator belt with either Foreman Rasmussen or
Harold Higman, Jr., part-owner of Respondent (Tr. 338, 396-397).
Nevertheless, I conclude that Respondent is not substantially
prejudiced by the amendment. Mark Rasmussen was familiar enough
with the alternator belt to adequately defend Respondent against
the allegation that the absence of a guard violated section
56.14107(a ) .
Rasmussen testified that the alternator belt is recessed
approximately three inches inside the housing of the front of
the motor, but was not completely inside the housing . He was
able to recognize the location and configuration of the belt from
Exhibits G-3 and G-4. He testified that a miner would "have to
try hard" to get caught in the belt. Finally, when asked if he
could lean up against the metal housing without "getting in
trouble with the belt," Rasmussen responded, "I could but I don't
know about the next guy . . . . " (Tr. 343}.
I conclude that Respondent had a sufficient opportunity,
through Rasmussen,
to prove that the alternator belt was either
adequately guarded or posed no hazard to miners without a guard .
Therefore, I conclude that Respondent was not materially
prejudiced by the amendment, which is granted so that the
citation includes an allegation of lack of guarding of the
alternator belt. Further, I conr.lude that the record clearly
establishes a violation of section 56 .14107 (a} with r .e gard to
this belt.
In allowing the amendment, I have also considered that while
the violative equipment was removed from service by Respondent,
it is possible that it will be returned to service. Given the
lack of material prejudice to Respondent from the amendment, I
believe the purposes of the Ac~ are best served by imposing a
legal requirement to guard the alternator belt if this equipment
is used again.

959

Citation No. 4643518 is affirmed as a non - S&S violation
and a $50 civil penalty is assessed.
Section 104(b) Order No. 4643530 is vacated
The record is insufficient to establish that there was a
reasonable likelihood of injury resulting from Respondent's
failure to guard the alternator belt. The belt was partially
recessed in the housing of the engine motor and exposure to the
belt was limited to the brief period of time that Rasmussen or
another miner would turn the engine on or off (Tr. 42, 343).
I
therefore find the violation to be non-S&S.
Respondent was also issued section 104(b) Order No. 4643530,
for its refusal to terminate this citation. Since the citation
does not accurately describe the violative condition, Respondent
cannot be fairly held accountable for its failure to immediately
guard the alternator belt. I therefore vacate Order No . 4643530.
Having considered the penalty criteria in section l lO(i),
I assess a $50 ~ivil penalty for Citation No . 4643518. I n
assessing such a low penalty, I have placed great weight on the
fact that it is not clear the violation was even detected by
Inspector Ferran, which I think indicates that Respondent's
negligence in not guarding the alternator belt was very low .
My consideration of good faith attempts at abatement and gravity
are included in my discussion of the "S&S" issue and the section
104{b) order.
Citation No.4643519: Opening i n coyer o f a
self-cleaning tail pull~
Inspector Ferran observed a two-foot by nine-inch opening in
the cover of a self cleaning tail pulley on the stacker conveyor
(Tr . 74-86, Exh . G-5). He then issued Citation No. 4643519 to
Respondent alleging a non-S&S violation of section 56.14107(a).
This citation is affirmed. Although there were no grease
fittings inside the opening of the cover, it was possible for a
person to trip, fall and get a hand in the tail pulley .
Moreover, although cleaning under this pulley was u sual ly done
with a front-end loader, it could have also been done wi th a
shovel (Tr . 345 - 49).

960

Ferran also issued section 104(b) Order No. 4643531 for
Respondent's failure to timely abate this citation. Taking into
account the small likelihood of injury, I conclude that a $25
civil penalty is appropriate for the initial citation. An
additional $50 is assessed for the two days that the violation
continued after termination was required for a total penalty of
$75.
Citation No. 4643522 : Failure to provide records
of continuity and resistance tests
On July 18, Inspector Ferran asked Foreman Rasmussen to
show him the continuity and resistance records of the plant's
electrical grounding systems.
No such records were provided to
Ferran, although some records of continuity and resistance tests
were kept at Respondent's offices in Akron, Iowa, eight miles
from the Richland Pit. I credit Inspector Ferran's testimony
that he was not told about the records at Akron (Tr. 218).
Ferran iss·ued a non-S&S citation alleging a violation of
section 56.12028.
That standard requires that continuity and
resistance testing of grounding systems be performed after
installation, repair, and modification; and annually thereafter.
It provides further that the most recent test results shall be
provided to an inspector upon request.
I conclude that the standard requires that the mine operator
bring the test results to the mine site, if the Secretary's
authorized representative so requests. An operator who insists
that the inspector travel elsewhere is in violation of the
regulation. Moreover, I conclude that Respondent did not fiave
results of resistance and continuity tests performed in the
previous year on the grounding systems at Richland because none
had been performed.
On July 20, 1996, Inspector Ferran assisted Rasmussen in
terminating the citation by helping him perform the continuity
and resistance tests. Rasmussen testified that he "had kind of
forgotten how to do it" (Tr. 350-51).
Ferran discovered that one of the grounding wires on the
motor junction box had been disconnected (Tr. 92). Rasmussen
believed the wire may have become detached in the early spring of

961

1994 when the motor had been repaired in Akron (Tr. 351). There
is no indication that any other event occurred after the spring
of 1994 that would have knocked the grounding wire loose.
I infer that had continuity and resistance testing been
performed since that repair work, the detached ground wire would
have been detected. Moreover, if records of continuity and
resistance tests performed within the year prior to the
inspection were in Respondent's files at Akron, copies could have
been produced at hearing. I infer from the failure to produce
such records that there were no such records for the year prior
to July 18, 1995.
I assess a $25 penalty for Respondent's initial failure to
provide records that complied with the requirements of the
standard. I assess $25 for each day that it persisted in this
refusal, for a total penalty of $75 for Citation No. 4643522 and
104(b) Order No. 46435532. This assessment does not take into
account the gra~ity of Respondent's failure to perform continuity
tests on its equipment within the year prior to the inspection.
I decline to assess such a penalty since the Secretary did not
cite for failure to perform the test. I note, however, that the
failure to test created a situation where inadequate grounding of
the equipment was allowed to persist and posed serious potential
hazards.
Citation No. 4643524: Failure to conduct
workplace examinations
On July 18, Inspector Ferran issued Citation No. 4643524
alleging a violation of section 56.18002(a). That regulation
requires that a competent person examine each working place at
least once each shift in order to detect safety hazards.
Mr. Rasmussen told the inspector that he performed such
examinations but that he kept no records of his examinations
(Tr. 97-98). Ferran concluded that if daily workplace examinations were being performed, he would not have found the
number of violations that he detected (Tr. 102}.
I vacate this citation and credit Mr. Rasmussen's testimony
that he examined all working places each day when he greased
the equipment (Tr. 352-53). The fact that Ferran found a number
of violative conditions may be the result of Respondent's belief

962

that the conditions cited were not violations, rather an
indication that workplace examinations were not performed.
Citation No. 4643525: Absence of Berms on
ramp leading to the hopper
On the first day of the inspection, Ferran observed
Mr. Rasmussen feed the hopper with his model 980 Caterpillar
Front-End Loader. There was a short ramp to the hopper which
had no berms on either side.
When feeding the hopper, the front
wheels of the vehicle were five to six feet above the floor of
the pit and only a foot or foot and a half from the edges of the
ramp (Tr. 104-110).
Ferran cited Respondent for a violation of section
56 . 9300(a). That regulation provides that:
Berms or guardrails shall be provided and maintained
on the ba'n ks of roadways where a drop off exists of
sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.
Inspector Ferran believes that the ramp presented a hazard
because it was at a three or four percent grade and because the
loader's bucket was raised 8-10 feet in the air when feeding the
hopper (Tr. 106-109). Both Mr. Rasmussen and Harold Higman, Jr . ,
dispute the inspector's contention that there was a danger of the
loader tipping due to the absence of berms (Tr. 355-356, 392396) .

Higman, who has significant experience operating such
vehicles, opined that the incline of the ramp and the
differential in .height between the wheels is insufficient to
cause the loader to tip over (Tr. 396). I conclude that the
opinions of Respondent's witnesses on this issue have at least
equal validity to those of Mr. Ferran. Therefore, I find that
the Secretary has not established that a drop off of sufficient
grade or depth to cause an accident existed and I vacate this
citation.

963

Docket No. CENT 95-267-M
Citation No. 4643513: Failure to notify MSHA prior to
commencement of intermittent operations
Respondent also received Citation No. 4643513 alleging that
it violated section 56.1000. That standard requires an operator
to notify MSHA of the actual or approxi mate date that mine
operations will commence. The standard requires that the notification include the mine name, location, the company name,
mailing address, person in charge, and whether the operations
will be continuous or intermittent.
In challenging this citation, Respondent asserts that it was
not required to notify MSHA of commencement of operations at the
Richland Pit in 1995 because the pit had never been closed down
the previous fall. Nevertheless, I conclude that Respondent is
subject to the "notification requirement contained in section
56 . 1000.
Vice-President Harold Higman, Jr., conceded that Respondent
reports to MSHA that Richland is an intermittent operation
(Tr. 404-05).
I consider Respondent estopped from asserting
otherwise. By virtue of its status as an intermittent operation,
the Richland Pit is generally subjected to only one inspection
per year, rather than the two inspections it would receive if it
were a continuous operation, MSHA Program Policy Manual, section
103.
MSHA proposed a $50 civil penalty for this violation.
I
assess a $20 penalty. The penalty must account for the fact that
Respondent was issued a citation for a violation of the same
requirement in 1994. However, it should also reflect ~hat most
of the information required was conveyed to Inspector Ferran by
Mr. Rasmussen in early 1995 .
Sometime prior to April 1, 1995, Inspector Ferran
encountered Mr. Rasmussen at Respondent's pit near Volin,
South Dakota (Tr . 117). Rasmussen informed the inspector that
Respondent would start mining at a site near Richland in April
and gave him directions to the pit (Tr. 234-5).

964

It appears that Respondent resumed its full-time production
operations at Richland in May or June 1995 (Tr. 370-71). Since
the date on which this occurred depended upon the weather, it
appears that when Rasmussen informed Ferran that he would start
in April, he provided virtually all the information required by
the standard. The gravity of the violation was therefore very
low and I assess a penalty of $20.
Citation Nos. 4643513 and 4643520: failure of miners
to wear seat belts while operating front-end loaders
OD July 18. 1995
On July 18, 1995, Inspector Ferran observed both foreman
Rasmussen and ~iner Eldon Seely operating their front-end loaders
while not wearing a seat belt (Tr. 119-20, 124-25). He issued
Citation Nos. 46435~3 and 4643520, alleging S&S violations of
30 C.F.R. Section 56.14130(g), as a result.
Rasmussen\ was feeding the hopper with his loader, which also
had weak service brakes (Tr. 121). Seely was using his loader
primarily to load customer trucks (Tr. 125). I affirm these
violations as S&S violations and assess civil penalties of $100
for each of these citations.
Anytime a driver operates in an occupational setting without
a seat belt, there is a reasonable likelihood of an accident
resulting in serious injury. Thus, I find the gravity of these
violations to be high.
I also find the negligence of Rasmussen,
which is imputed to Respondent, to be high.
If supervisors do
not feel compelled to observe MSHA's safety regulations, it is
likely that their subordinates will be lax in complying with them
as well. If a mine operator expects its employees to comply with
the Act, it is essential that its foremen set an example and
comply with MSHA's requirements.
Docket No. 96-30-M
Citation No. 4643521: First Aid Training
On July 18, Ferran asked foreman Rasmussen and miner Eldon
Seely if either had been train~d in first aid. Rasmussen showed
him a card issued by Respondent indicating that his first aid
training had expired a month earlier. The inspector thereupon

965

issued Citation No. 4643521, alleging a violation of 30 C.F.R.
Section 56 . 18010 {Tr. 132). This regulation states that:
Selected supervisors shall be trained in first aid.
First aid training shall be made available to all
interested employees.
Mr. Rasmussen did have some sort of first aid training
several times prior to July 1995 (Tr. 360-61). This training
primarily concerned cardio-pulmonary resuscitation (CPR), rather
than other facets of first-aid (Tr. 382) 3 •
I vacate the citation because the regulation only requires
that some degree of first aid training be provided to supervisors, which I conclude Mr. Rasmussen received. The standard
does not specify the details of the first aid training or require
any periodic retraining or any demonstration that the supervisor
learned or reme,mbered anything from the training. The standard
also does not require an active first aid card.
I do not believe that such requirements can be extrapolated
from section 56.18010. If MSHA wants to assure that there is a
supervisor present at every metal/non-metal surf ace mine who is
competent to administer first-aid, it will have to revise its
regulations.
Citation No. 4643526; Inoperative horn on front-end loader
Inspector Ferran determined that the horn on Mr. Rasmussen's
front-end loader was not operable on July 18, 1995 (Tr. 137-39).
He therefore issued Citation No. 4643526 alleging a non-S&S
violation of section 56.14132(a). Although it is rare for
persons or vehicles to come near Mr. Rasmussen's vehicle, it is
possible (Tr. 363-64). Therefore, I affirm the citation and
assess a $25 civil penalty.

With regard to this issue I credit the testimony of Harold
Higman, Jr., that Rasmussen's training included more than CPR
(Tr. 401-02). Rasmussen did not recall such training )Tr. 382).
3

966

Citation No. 4643527: Inadequate service
brakes on front-end loader
Mr. Ferran also determined that the compressor supplying
air to the service brakes of Mr. Rasmussen's front-end loader
was leaking. Due to this leak, the service brakes would not hold
the loader when idling on the ramp to the hopper (Tr. 143-48).
Although Rasmussen normally operates his loader when no
other people or vehicles are around him, he has had occasion to
use his service brakes to stop the loader quickly (Tr. 365).
Thus, I conclude that the Secretary has established a S&S
violation of section 56 .14100(b), as alleged in Citation
No. 4643527.
Rasmussen's vehicle had a problem with slow-reacting brakes
for several months prior to the inspection(Tr. 365, 384-85).
This indicates a considerable degree of negligence on
Respondent's part in letting this condition persist. Given this
negligence and the reasonable likelihood of a serious injury due
to the slowness of the brakes, I assess a $100 civil penalty for
this violation.
Citation No. 4643552: Failure to wear seat belt
at August 1995 inspection
On August 15, 1995, Inspector Ferran returned to the
Richland Pit. Mr. Rasmussen was on vacation and Eldon Seely was
in charge at the mine. Ferran observed another miner operating
Rasmussen's front-end loader without wearing a seat belt
(Tr . 15 2 - S 7 ) .
The driver told Ferran that he had not been told by anyone
that he was required to wear a seat belt (Tr. 153). Ferran
issued Citation No. 4643552 alleging a S&S violation of 30 C.F.R.
56.14l30(g). MSHA subsequently proposed a $102 penalty for this
citation.
I affirm this citation as an "S&S" violation and assess a
$400 civil penalty. The Commission assesses penalties .de. llQ:iQ
after considering the six penalty criteria in section llO(i) of

967

the Act. It is not bound or limited by MSHA regulations or
determinations. regarding proposed penalties, United States Steel
Mining Co .. 6 FMSHRC 1148 (May 1984).
believe that with customer trucks operating at the pit,
there is a reasonable likelihood that failure of the loader
driver to wear a seat belt would result in a serious injury.
Thus, I believe that gravity factor would call for a penalty of
about $100, when combined with consideration of Respondent's
size, good faith in rapidly abating the citation, and the fact
that Higman's ability to stay in business is not affected.
I

However, when consideration is given to Respondent's prior
history of violations and negligence, a considerably higher
penalty is warranted. I believe it would be entirely inconsistent with the purposes of section llO(i) to ignore the
two seat belt citations Respondent had received a month before.
Also, the fact that the driver had not been told that wearing
of a seat belt ·was a condition of his employment establishes a
high degree of riegligence given the recent prior citations.
Therefore, I conclude that a $400 civil penalty is appropriately
assessed.
ORPER
The citations, orders and proposed penalties in these
dockets are resolved as follows:
Docket No. CENT 95-261-M
Citation/Order

Proposed Penalty

4643516/4643528
4643517/4643529
4643518/4643530

$240
$292
$240

Assessed Penalty
$150
$150
$ 50;

citation affirmed;
order vacated
4643519/4643531
4643522/4643532
4643524
4643525

$195
$108
$. 50
$102

968

$ 75
$ 75
Vacated
Vacated

pocket No. CENT 95-267 - M
4643513
4643515
4643520

$ 50
$ 81
$102
DQ~ket ;tlQ,

4643521
4643526
4643527
4643552

$ 20
$100
$100

CENT ~6-3Q-M

$ so
$ 50
$102
$102

Vacated
$ 25
$100
$400

Respondent shall pay the total assessed penalties of $1,245
within thirty (30) days of this decision.

Ar~r<.t-~~

Administrative Law Judge
Distribution:
Kristi Floyd, Esq . , Office of the Solicitor,
U . S. Department of Labor, 1999 Broadway, Suite 1600,
Denver, CO 80202-5716 (Certified Mail)
Jeffrey A . Sar, Esq., Baron , Sar, Goodwin, Gill & Lohr ,
75 0 Pierce St . , P.O. Box 717 , Sioux City, IA 51102
(Certified Mail)

/lh

969

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204l

.JUN 2 0 1996'
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on
behalf of IRINEO G. BELTRAN,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 96-72-DM
MSHA Case No. SC MD 95-02
Chino Mine
Mine I.D. No. 29-00708

v.

TERRAZAS, INCORPORATED,
Respondent
DECISION

Appearances:

Ernest A. Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Complainant;
Matthew P. Holt, Esq., Sager, Curran, Sturgess
and Tepper, Las Cruces, New Mexico, for the
Respondent.

Before:

Judge Koutra13
Statement of the Case

This proceeding concerns a complaint of alleged
discrimination filed by the Secretary against the respondent
pursuant to section lOS(c) (2) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 801 .e.t. ~' on beha~f of
the respondent Irineo G. Beltran, a laborer employed by the
respondent. The respondent is an independent contractor,
who at all times relevant to this proceeding was performing
work at the Chino Mine, a mining operation located in Bayard,
Grant County, New Mexico, and owned and operated by the
Phelps-Dodge Corporation (Phelps-Dodge is not a party to this
proceeding) .
The record reflects that Mr. Beltran was employed by the
respondent from April 5, 1993, through March 21, 1995, as a full
time laborer earning $6.75 per hour. Mr. Beltran filed his
970

initial complaint on April 10, 1995, by mail with the MSHA field
office located. in Albuquerque, New Mexico, and his verbatim
complaint states as follows:
On March 21st 1995 at 12:20 p.m. I was on lunch
break. I was setting inside unit #5 pickup truck,
Cruz Terrazas came to the truck where I was eating
lunch in a very angry mode, and ask me what kind
of shit I was doing. I ask him why? He replied
that kind of shit you are doing is no good. I told
him I could not do any better because the sweeper
was no good. I told him this sweeper is not so safe
to do the job. Cruz then left . In about 2 minutes
he returned, was still very angry and approached me
again. He was saying to me to do a better job then
that or get the fuck out. He was so close to my face
I could feel spit hitting my face. I told Cruz this
sweeper is not safe and I will not continue to operate
it. Cruz ·told Carlos Miranda, another employee, to
get me out of the mine. He repeated very angry over
and over get him out get him out. I feel I should
get back and be payed {sic) for all the time and money
I have spent on gas looking for work.
A supporting statement by laborer Carlos Miranda, included
as part of Mr. Beltran's complaint, states as follows:
On March the 21st at 12:20 p.m. I Carlos Miranda was
having lunch with Mr. Irineo Beltran. When Cruz
Terrazas was telling Mr. Beltran he had to do a better
job then what he was doing or to get the fuck out of
the mine . Mr. Beltran told Cruz he could not do any
better because the sweeper was no good and not safe
to work with. Cruz was very angry with Mr. Beltran
because he want him to do a better job . Mr. Beltran
explained the conditions of the sweeper, but Cruz told
me in a very angry voice to'get this man out of the
mine. Over and over. He was right in Mr. Beltran's
face. Mr. Beltran walked away.
The Secretary initially f i .led a combined Complaint of
Discharge and Application for Temporary Reinstatement on
December 4, 1995, alleging that the respondent unlawfully

971

discriminated against Mr. Beltran by unjustly terminating
him on or about March 21, 1995, "for refusing to work in
unsafe conditions." The Secretary requested (1) a finding
that Mr. Beltran was discriminated against and discharged
for engaging in protected activity, (2) an assessment of an
appropriate civil penalty for the alleged violation, and
(3) Mr. Beltran's temporary reinstatement pending an adjudication of the merits of the complaint.
The respondent filed an answer to the complaint and stated,
in relevant part, as follows:

*** We are of the belief that Mr. Beltran was not
terminated, but instead chose to leave of his own
free will.
He was told to do a ·better job on the
project that he was involved with at the time, or
else to go ahead and go home. We came to the conclusion t 'l;lat Mr. Beltran's choice was to leave his
work site ·r ather than to do a better job.
We would also like to say that Terrazas, Inc. did
not and has not received any correspondence in the
form of citations, or any other that would show
that the Gehl sweeper in question was inspected
and found to be unsafe for operations.
In fact,
Mr. Fred Garcia, MSHA Inspector #00495 was at the
job site in Santa Rita. He inspected the sweeper
and commented on the newness of the equipment and
said as far as he could see the sweeper was fine
and was safely operable.
A temporary reinstatement hearing was held on February 6,
1996, and on February 26, 1996, I issued a decision finding that
the Secretary's complaint was not frivolously filed and ordering
the temporary reinstatement of Mr. Beltran pending a hearing on
the merits of his complaint.
Following my temporary reinstatement decision, the Secretary
filed a second separate complaint on March 12, 1996, alleging
that the respondent unlawfully discriminated against Mr. Beltran
on March 21, 1995, by terminating his employment for .refusing to
work in unsafe conditions, making a complaint under the Act, and
notifying the respondent mine operator or its agent of a danger

972

at the mine. The Secretary requested an order affirming and
making permanent the temporary reinstatement of Mr . . Beltran to
his laborer's position, at the prevailing wage rate and with the
same or equivalent duties, backpay, and employment benefits, with
interest, and payment of all expenses incurred by Mr. Beltran,
with interest, associated with his complaint. The Secretary a l so
requested an appropriate civil penalty assessment for the alleged
violation. On April 15, 1996, the Secretary amended his complaint and requested a civil penalty assessment of $5,000 for the
alleged violation.
The respondent did not file answers to the Secretary's
March 12 and April 15, 1996, complaints and relied on its initial
response and defense made in the course of the initial temporary
reinstatement proceeding.
A hearing on the merits of the complaint was held in
Las Cruces, New Mexico, and the parties appeared and participated
fully therein. \ The parties filed posthearing briefs and I have
considered their arguments in the course of any adjudication of
this matter.
Issues
The issues presented include:
(1) whether the respondent
discriminated against the complainant by terminating his employment for engaging in protected activities, (2) the appropriate
remedies to be applied on behalf of the complainant, and (3) the
imposition of an appropriate civil penalty assessment to be
assessed against the respondent for the alleged discriminatory
conduct. Any additional issues are identified and disposed of in
the course of this decision.

AJ;>plicable Statutory and Regulatory Proyisions
1.

The Federal Mine Safety· and Health Act of 1977,
30 u.s . c. § 301 .e.t ~·

2.

Sections 105 (c) (1), (2), and (3) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815 ( c) ( 1) , ( 2) and {3) .

3.

Commission Rules, 29 C.F.R .

973

§

2700.1, .e.t. .e..e.g_._

Stipulations
The parties stipulated that all of the testimony and
evidence presented during the prior temporary reinstatement
proceeding may be incorporated by reference and considered
by me in the adjudication of the merits of the Secretary's
complaint of discrimination.
The parties further stipulated to the following (Tr. 13-15):
1.

The respondent is an independent contractor
performing work for a mining company, and the
respondent is subject to the jurisdiction of
the Mine Act.

2.

The presiding judge has jurisdiction in this matter.

3.

Mr. Beltran was earning $6.75 per hour and was
working 40 hours a week at the time his employment
with the respondent ceased.

4.

Mr. Beltran seeks backpay from March 21, 1995,
less credit for payment received pursuant to his
temporary reinstatement.

The parties also agreed that the respondent spent $132,145
maintaining and repairing equipment in 1995 (Tr. 333-334).
Procedural Ruling
The Secretary's motion for a default judgment on the ground
that the respondent failed to respond to his second and amended
complaints was denied (Tr. 11).
Petitioner's Testimony and Evidence
Irineo Beltran, the complainant, testified at the temporary
reinstatement hearing that he has worked for the respondent for
two or three years. He stated that he operated the Gehl sweeper
on March 20, 1995, and inspected it before using it. He found
that it was low on hydraulic fuel, had no front or rear
reflectors, no backup alarm, no safety belt, and the left front
tire was flat.
He reported these conditions to Jesus Perez, the

974

general foreman, and Mr. Perez told him to call the mechanic to
start the machine and that Ms. Perez would send som~one to take
c are of the flat tire . Mr. Beltran said he operated the machine,
and inf lated the tire three times during the course of cleaning
up that day (Tr. 107-111).
Mr. Beltran stated that the next day, March 21, 1995,
while eating his lunch in his truck, respondent's Vice President
Cruz Terrazas confronted him about the work that he was performing and told him "to get the fuck out" if he could not do a
better job. Mr. Beltran stated that he told Mr. Terrazas that
the equipment was not safe and offered to prove it to him, but
that Mr. Terrazas replied, "I don't want to hear nothing you say"
(Tr . 111). He stated that Mr. Terrazas then instructed Carlos
Miranda to escort him from the property, told someone in the
security office that he had fired him, and Mr . Beltran left the
property (Tr . 113).
Mr. Beltran testified about his prior experience and
training operating similar equipment, and he explained that the
sweeper flat tire was changed, but the new tire was too big.
When asked if this created a safety problem, he responded as
follows (Tr. 1 1 4-115):

Q.

Does that create a safety problem?

A.

I felt that's not safe to do the work because,
if you run it too fast , you can turn over or
you can hurt somebody.

Q.

What about

JUDGE KOUTRAS:
it too fast?

Excuse me.

What if you didn't run

THE WITNESS:
If you run it· too fast with the big
large tire and one small tire on the right side, you
can turn over.
JUDGE KOUTRAS: What does too fast mean?
y ou run it too fast?
THE WITNESS :

I never r un it too fast.

975

Why would

JUDGE KOUTRAS: If you didn't run it too fast,
would there be a problem?
THE WITNESS:

No.

Mr. Beltran further stated that the sweeper attachment had
one bolt missing and one bolt was four inches too high, and with
an uneven front tire, "it's impossible for you to do the work"
(Tr. 115). He confirmed that he informed Mr. Perez about the
sweeper conditions on March 20, but that Mr. Perez "didn't pay
too much attention to me." Mr. Terrazas was not present at that
time. Mr. Beltran stated that he tried to tell him about the
sweeper conditions on March 21, "but he didn't listen to me, he
just walked away and said I don't want to hear nothing about the
equipment because I bought that equipment brand new and I'm
pretty sure it will work" (Tr. 117).
Mr. Beltran explained the problem of operating the sweeper
with no reflectors and low hydraulic oil. He stated that he was
not a sweeper operator, but was "forced to do the job in the
sweeper" without training or qualifications. He stated that he
had not previously used such a sweeper {Tr. 118}.
On cross-examination, Mr. Beltran testified about his prior
experience operating equipment similar to the Gehl sweeper . He
denied ever being laid off by the respondent (Tr. 121-122). He
also denied any prior reprimands or disciplinary actions against
him (Tr. 124-125) . He explained that he could have done a better
job with another sweeper, but the one he was operating \\was
unsafe to work" (Tr. 129}. He confirmed that he operated the
sweeper 15 hours on Monday and Tuesday, before Mr. Terrazas spoke
with him, but denied that the sweeper was safe and stated that he
operated it because he was told to (Tr. 130). He maintained that
Mr . Terrazas fired him because he got mad when he told him the
equipment was unsafe, and became angrier when he told him the
equipment was no good {Tr. 132) . .
Mr. Beltran confirmed that Mr. Miranda and Anthony Maynes
were present during his encounter with Mr. Terrazas , but that
Mr. Maynes was 75 to 80 feet away and did not hear their conversations (Tr. 133). Mr . Beltran stated that on March 21, he
never refused to work or state that he was not going to do the
job (Tr. 134) .

976

In response to bench questions, Mr. Beltran stated that on
March 20 and 21, he was competent to operate the Gehl sweeper and
had previously operated a similar machine to transport barrels
(photographic Exhibit R-5). He further stated that he had not
previously operated the sweeper in question in this case, but had
operated others in better shape and good condition (Tr. 138-140).
He conceded that he operated the sweeper that he considered was
unsafe, but did so because the general foreman told him he did
not have the time to take care of it and that he was to go ahead
and use it to do the job (Tr. 141). He did not consider parking
the sweeper because he believed he would be fired and needed the
job (Tr. 142-143).
At the hearing on the merits, Mr. Beltran again described
the condition of the sweeper when he inspected it on March 21,
1995. He stated that he operated it with a flat tire for the
entire time he was doing the cleaning work. He then stated that
he first drove , the machine to the shop to put air in the tire and
operated it with a flat tire "because he had to do the cleaning
work" (Tr. 30-3i) . He further stated that he inflated the tire
three times on March 20, in the morning at 7:30, and later at
11:00 a.m . , and 2:00 p.m., because it had a slow leak (Tr. 34).
Mr. Beltran stated that he first saw Mr . Terrazas at
12:20 p . m. , on March 21, 1995, and Mr. Terrazas "told me that the

work that I was doing wasn't worth shit" (Tr. 35). Mr. Beltran
stated that he told Mr. Terrazas that he had a flat tire and no
hydraulic oil in the machine, and Mr. Terrazas "told me he did
not want to hear any more shit about what I was saying" (Tr. 36).
Mr. Beltran denied that he refused to operate the sweeper,
and confirmed that he informed Mr. Terrazas about his belief that
the machine was unsafe because "it was not specified to do that
type of cleaning" because the tire was flat, had no hydraulic
oil, no reflectors, and no backup warning alarm. Mr. Beltran
further believed the sweeper was ,unsafe because he could not
continue to operate it "because of the tire, because, also, it
had no oil, and it was very windy . " He believed the lack of
hydraulic oil would cause the bucket to drop and injure him, and
that the windy conditions presented a hazard because there were
no lights and someone could run. into him from the front or rear
(Tr . 3 6 - 3 7 ) .

977

Mr. Beltran stated that Mr . Terrazas did not offer to put
him on another sweeper or assign him to a different task
(Tr. 41). He stated that the tire that was flat was fixed at
10:00 a.m., on March 21, 1995, when it was replaced by a bigger
tire (Tr . 42). He stated that he operated the machine at five to
six miles an hour, and that another Gehl was operating near him
at the same speed. That machine was behind him picking up the
dirt that he was leaving (Tr. 43).
Mr. Beltran stated that on March 21, 1995, personnel at the
mine security office (not respondent's employees) were
complaining that he was leaving a lot of dirt behind, and he told
them that "I could not do a good job because this sweeper would
not help me to do the good job" (Tr. 45) .
Mr. Beltran stated that he did not quit his job and that
he was fired by Mr. Terrazas and received a discharge slip. He
confirmed that \ he looked for other work, but has never been
called. He stated that he has always worked as a laborer and
that he attended school for five to six days . His job with the
respondent is his only source of income (Tr. 47). He has held
six jobs in the past 40 years, and acknowledged that he considers
himself a complainer "whenever I am issued equipment that I
cannot utilize to perform my work" (Tr. 48).
On cross-examination, Mr. Beltran stated that he was not
trained in the use of the Gehl machine, but he acknowledged his
prior testimony that he used Gehl machines for 7-1/2 years while
in Chicago and that the Gehls used by the respondent are "the
same thing" and that he was trained to park and lock the machine
if it were unsafe (Tr. 51). He acknowledged that he operated
the machine in question for 10 hours on March 20, 1995, and
five hours o~ March 21, and that it would not be unsafe ~s long
as he did not drive it too fast. He confirmed that he never
drove the sweeper too fast and that there were no injuries or
accidents, and that he never complained to any Phelps Dodge
personnel that he was driving any unsafe equipment (Tr. 52-53).
Mr. Beltran confirmed that he knew that an important tour of
the mine was coming and that the respondent was trying to clean
the place up. He acknowledged that Mr. Terrazas was mad at him
because he had left dirt behind while he was sweeping, and
Mr. Beltran commented "that was not my problem" (Tr. 53) . He

978

further confirmed that he told Mr. Terrazas that it was not his
fault, but the equipment's fault, and that Mr. Terrazas did not
accept his explanation and told him to either do a better job
or get out. Mr. Beltran told Mr. Terrazas he could not do a
better job with the sweeper in question, but never refused to
work (Tr. 54).
In response to questions concerning his March 21, 1995,
conversation with Mr. Terrazas, Mr. Beltran stated (Tr. 64-65):

Q.

When we had the hearing in Truth or Consequences,
you heard Cruz testify that the only thing you
said about the machine was that it was junk or no
good; is that right?

A.

To me, that it is not any good or not safe is the
same thing.

Q.

So a~ything that doesn't work as well as you think
it should work is not safe?

A.

If you cannot do the work with the machine that is
designed to do the work, if you cannot do the work
without a machine, how can you do it?

Q.

Therefore it's unsafe?

A.

At this moment, I say, yes.

Q.

Now, you filed a claim for unemployment compensation
benefits, didn't you.

A.

Yes, sir.

Q.

And in that claim, you said that the equipment
was no good; is that right?

A.

The word "no good" or "unsafe," what is the
difference? That's the same thing, isn't it?
When it's not any good, it's not any good .
When it's unsafe, it's unsafe , isn't it?

979

Mr. Beltran confirmed that he was represented by a legal
services attorney at the State unemployment hearing and that
he testified that "the machine I'm using is not working well.
It's not helping me" because of the lack of hydraulic oil. When
asked if he told the hearing judge that the machine was unsafe,
Mr . Beltran stated, "I did not know the meaning of that word in
English, "unsafe." But I know that the word "no good" to me,
whatever doesn't serve any purpose, I just throw it away
(Tr. 71) .
Mr. Beltran acknowledged that in an application for
employment that he filed with the respondent he stated that he
had six years of schooling, but only attended school for six days
(Exhibit R-4). He also acknowledged that he was in error when he
stated in his MSHA complaint that he averaged 20 hours a week in
overtime, and he explained that "perhaps I misunderstood" the
question (Tr. 76-77).
Mr. Beltran acknowledged his signature on a company accident
report of October 4, 1993, indicating that he was driving "the
Gehl" when one of the tires failed.
However, he stated that
he could not recall the incident (Exhibit R-9 ; Tr. 77-78).
He testified about prior statements that he made to an MSHA
investigator indicating that he had not previously operated a
Gehl or other kinds of machinery prior to March 20, 1995, and
that he told Mr. Terrazas that the Gehl was unsafe when he first
started work on the morning of March 21 (Exhibit R-10; Tr. 8485) .

Mr . Beltran stated that "most" employees have complained
about unsafe equipment conditions and have been fired, and he
identified two of them as Carlos Miranda and Daniel Avila
(Tr. 92-93). When asked about his earlier testimony that he
never heard of Mr . Avila, Mr. Beltran responded " could be
somebody else . I don't know" (Tr. 97).
Mr. Beltran stated that the·Gehl sweeper machine that was
brought to the hearing site parking lot for a viewing by the
presiding judge and the parties was not the machine he operated
on March 20 and 21, 1995, because it was machine No. 961 , and he
o p e r ated machine No . 963 (Tr. 353 - 355).

980

Carlos Miranda, formerly employed by the respondent as a
laborer, testified at the reinstatement hearing that he was
present at the job site on March 21, 1995, and heard the conversation between Mr. Beltran and Mr. Terrazas. He stated that
Mr. Terrazas told Mr. Beltran that he was not doing a good job
and Mr. Beltran told Mr . Terrazas that the machine was not
working properly (Tr. 146). Mr. Terrazas then told Mr. Beltran
that "he was going to run him off" and told Mr. Miranda three
times to remove Mr. Beltran from the property (Tr. 147).
Mr. Miranda stated that he normally operated the sweeper in
question and was familiar with it. He stated that he checked
it on Tuesday morning, March 21, and found that one of the tires
had a slow leak, insufficient hydraulic oil, missing front
reflectors, and no turn signals. He then told Mr. Beltran that
he could not use the sweeper "because it wasn't safe to work on
the machine" (Tr. 148-149; 154, 155). He further stated that
Mr. Beltran told Mr. Terrazas that "the machine was not working
correctly," an~Mr. Miranda commented that "they spoke a lot of
words in English, and I didn't know what they were saying"
(Tr. 150). He also confirmed that he was the only person who
heard the entire conversation "because I was the one closest to
them" (Tr. 150). He confirmed that foreman Jesus Perez told him
to report safety complaints to him and not to Mr. Terrazas.
At the hearing on the merits, Mr. Miranda stated that on
March 21, 1995, he and Mr . Beltran were operating the Gehl
sweepers at a speed of five to six miles an hour. He stated that
he was following Mr. Beltran's sweeper and it was leaving "trails
of dirt" behind and that he (Miranda) was cleaning this up as he
followed Mr. Beltran. He stated that Mr. Beltran's sweeper was
leaving dirt behind "because the machine was not working well.
It was unsafe" (Tr. 100). He explained that Mr . Beltran's
sweeper "was not working well" because it was low on hydraulic
oil and needed more speed so that the sweeper could go faster and
pick up the dirt (Tr. 101) .
Mr. Miranda reiterated that he inspected the Gehl sweeper
in question on March 21, 1995, and found it unsafe to operate
because it was low on hydraulic oil, and if the sweeper is lifted
to dump trash, "it could drop down on you, and then you could
tilt forward" (Tr. 103). The sweeper also lacked a seat belt,
and he told Mr . Beltran that it was not safe to operate .

981

Further, low hydraulic oil would also make it difficult to
operate the sweeper directional lever (Tr. 105).
With regard to the Beltran-Terrazas conversation of
March 21, 1995, Mr. Miranda stated that Mr. Terrazas was angry
and that he told Mr. Beltran "that the work he was doing was
not any good" and that Mr. Beltran "told him the machine was not
any good, that it was not safe" (Tr . 108).
Mr . Miranda confirmed that he gave a prior statement to
MSHA a year ago regarding the condition of the sweeper that
Mr . Beltran was operating on March 21, and he acknowledged that
he stated at that time that "the bucket was not straight and,
when sweeping, there would be dirt left on both sides of the
bucket because the bucket was oval. In the mornings, when
started up to use it, and it was just sitting there with no one
in it, it would start to move by itself" (Tr. 112). Mr. Miranda
could not remember that he first told MSHA that "the steering was
okay" (Tr. 112 \ .
Mr. Miranda stated that Mr. Beltran never told Mr. Terrazas
that he was not going to operate the sweeper because it was
unsafe, and he did not remember Mr. Beltran ever refusing to work
on that machine. He responded to further questions regarding his
prior statement to MSHA (Tr . 116-119).
In response to further questions, Mr. Miranda confirmed
that he made a prior statement that was submitted to MSHA with
Mr . Beltran's original complaint and that he stated at that time
that Mr. Beltran told Mr. Terrazas that he could do no better
with the sweeper because it was no good and "not safe to work
with" (Tr. 120; Exhibit R-12). Mr. Miranda confirmed his prior
testimony concerning the condition of the sweeper, and he
reiterated his opinion that it was unsafe on March 21! 1995
(Tr. 125) .
Richard Arzola testified that he was employed by the
respondent from 1992 to 1994, as a foreman, and was Mr . Beltran's
first supervisor. He had no problems with Mr. Beltran's work,
and never had any conversations with Mr. Terrazas. Mr. Arzola
explained the procedure used by employees to report equipment
problems, including the filling out of a preoperational safety
inspection check list. He stated that he would turn the forms in

982

to the off ice at the end of the day and a field mechanic would
take care of the problem. However, if the machine were operable,
it would be operated until repairs were made {Tr. 1?9-132).
Mr. Arzola stated that he was trained to operate a Gehl
sweeper and operated it "off and on because I helped my people."
In his opinion, if a Gehl sweeper were operated with a flat tire,
no seat belt, and no headlights or respirator, there would be
"safety concerns." If the sweeper was "low, extremely low" on
hydraulic fluid, it would work, but not properly, because it
"wouldn't turn the brushes around, and would "cause the employee
to be unable to properly do the job" (Tr. 136-138).
The check list referred to by Mr. Arzola {Exhibit C-5) was
identified as one signed by Carlos Miranda for the machine that
he was operating on March 20 and 21, 1995, and it did not pertain
to the machine operated by Mr. Beltran {Tr. 139).
The form was
offered only for the purpose of demonstrating the type of form
used as an equipment check list (Tr. 142, 146).
Judy Peters, MSHA Supervisory Safety and Health Inspector,
testified at the temporary reinstatement hearing that she
conducted the investigation of Mr. Beltran's complaint and
initially contacted and interviewed Mr. Beltran, Mr. Miranda,
Mr. Vigil, Mr. Terrazas, and other company personnel, and she
confirmed that she either took their statements personally, or
was present transcribing their statements taken by a fellow
inspector (Tr. 66-67).
On cross-examination, Ms. Peters stated that she evaluated
whether or not Mr. Beltran sincerely believed the sweeper was
unsafe by the statements made by Anthony Maynes and Carlos
Miranda. Mr. Maynes stated that Mr. Beltran said that someone
was going to get hurt on the sweeper (Tr. 76) . She stated that
she was not provided with any information that Mr. Beltran had
ever been reprimanded, and she was unaware of his state
unemployment compensation claim until after her investigation
(Tr . 77) .
In response to bench questions, Ms. Peters stated that an
MSHA inspector went to the work site the week the complaint was
filed to inspect the Gehl sweeper in question . However, the only
one he found was being repaired and could not be inspected, and a

983

second one could not be found (Tr. 83-84). No determination was
made as to which sweeper Mr. Beltran may have been operating on
March 21, 1995; because there was some confusion as to the
sweeper serial number and Mr . Beltran was not present to point
it out (Tr . 84) .
Ms. Peters stated that when she interviewed Mr. Beltran he
described in detail several things that were wrong with the
s weeper, including a missing pin, lack of reflectors, an inoperable back-up alarm, and difficulty in controlling the directional
hydraulic controls, and he expressed his fear that the missing
pin might cause him to overturn and that he had to use both hands
on the hydraulic controls (Tr . 85).
Ms. Peters stated that she determined that Mr. Maynes and
Mr. Miranda were present on March 21, when Mr. Terrazas and
Mr . Beltran had their discussions and that they both told her
that Mr . Beltran stated that the machine was unsafe (Tr. 96) .
She further explained (Tr. 101-102):
THE WITNESS: Correct. Two witnesses said that
he did say -- one said he said someone was going to
get hurt on it, and the other one said he said it
was unsafe.
JUDGE KOUTRAS: These witnesses said he said that to
Terrazas or he said that to the two witnesses?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS :

He said that to Terrazas.
To Terrazas?
They witnessed the altercation.

JUDGE KOUTRAS: Both of these people indicate to
you that Mr. Beltran specifically told Mr. Terrazas
that this piece of equipment, in addition to what
else he said here, is, someone is going to get killed
and its unsafe?
THE WITNESS:
JUDGE KOUTRAS:

Somebody is going to get hurt.
Somebody is going to get hurt.

984

THE WITNESS: Right. And the individual that said that
also said that he didn't understand a lot of Spanish,
and he couldn't understand everything that was being
said, but he did understand that he said someone was
going to get hurt, because for most of the conver sation,
evidently, Terrazas and Beltran were speaking Spanish.
Ms. Peter stated that Mr. Terrazas did not state to her that
he fired Mr. Beltran for complaining about safety, but did say
that "he gave him a choiceu (Tr. 104).
At the hearing on the merits, Ms. Peters testified that
during her investigation Mr. Terrazas reviewed Mr. Beltran's
personnel file with her, and it contained an application and two
handwritten notes. She did not make copies of these documents,
and there was no accident report in the file (Tr. 153). She
stated that in April, 1995, MSHA Inspector Alf r edo Garcia
attempted to inspect the Gehl sweeper in question, but he was
unable to confirm whether it was unsafe (Tr. 156) .
Ms. Peters stated that she took statements from Mr. Beltran
on April 18 and 19, 1995, and calculated that the respondent's
history of prior violations for the 24 month period prior to
the alleged violation in this case, from May 1993 through May
1995, consists of five violations. Further, the respondent
worked 73,000 "plusn annual man hours for 1994 (Tr. 159-161 ;
Exhibit C-6).
Ms. Peters stated that in her opinion, a Gehl sweeper that
did not have a seat belt, was low on hydraulic fluid, and had no
lights or reflectors "would indicate it might have been operated
in unsafe conditions, and I believe the ones you didn't name off
was backup alarm and a bolt missing in the sweeper." She stated
that Mr . Terrazas told her that he fired Mr. Beltran .(Tr. 166) .
On cross-examination, Ms. Peters stated that it was never
determi ned whether Mr . Bel tran was operating the Gehl No. 961
or 962, and that "we didn't have a serial number" (Tr. 167).
She stated that Mr. Garcia saw one Gehl on the property, but
i t was being repaired, and it may or may not have been the
one Mr. Beltran was operating qn March 21, or the one that

985

Mr. Miranda was operating.
In any event, Mr. Garcia did not
cite the machine (Tr. 169) .
Ms. Peters stated that after her initial interview with
Mr. Beltran, he called and asked for another interview. He
informed her that he had spoken with Daniel Avila, a mechanic,
and that he told him that low hydraulic fluid could cause the
Gehl control levers to be difficult to operate, and that
Mr. Beltran had a later opportunity to review and sign his
statement (Tr . 170-171).
Ms . Peters identified Exhibit R-10 as Mr. Beltran's
statement of April 18, 1995, and she confirmed that it was a
transcript of the taped interview, as reviewed and corrected by
Mr . Beltran (Tr. 171-172). She explained that the "white outs,"
and handwritten responses were apparently made by Mr. Beltran
and stated "that's the way we got it back" (Tr . 178).
Ms. Peters was recalled and stated that the MSHA complaint
form showing 20 hours a week overtime for Mr. Beltran was filled
out and mailed in by Mr . Beltran. She independently verified
his overtime by reviewing the payroll records provided by
Mrs. Terrazas, and they indicated "four or five hours for the
time period I was given." She did not believe that 20 hours of
overtime for the entire year was unreasonable (Tr. 356).
Ms. Peters stated that several times during her interview
with Mr. Terrazas, he referred to Mr. Beltran's job "termination." She stated that when she requested Mr. Beltran's personnel
file, she saw some handwritten notes, but was not given copies
of any reprimands or accident report involving Mr . Beltran
(Tr. 358) .
On cross-examination, Ms. Peters agreed that Mr. Beltran's
employment "ceased," and regardless of whether it was terminated
by Mr. Beltran or Mr. Terrazas, ~r. Beltran's employment was
"terminated" (Tr. 358) .
Ms. Peters stated that when she interv i ewed Mr. ·Terrazas,
he told her that on March 21, 1995, he gave Mr. Beltra~ a choice
"to do a better job or go to the house," and later in the interview told her that he had given him three choices and wanted
Mr. Beltran "to go slower and do a better job or he could leave"

986

(Tr. 358). She stated that Mr . Terrazas told her when he went
back to the area where Mr. Beltran was eating lunch, they argued
some more, and at that time he gave Mr. Beltran the option to get
on the machine and do a better job, use ~ broom and shovel to
clean the roadways, or get out of the mine. She stated that this
was consistent with Mr. Terrazas' hearing testimony (Tr . 359).
Respondent's Testimony and Evidence
Anthony Maynes, a former employee now working for Phelps
Dodge Mining Company, testified at the reinstatement hearing that
he was operating a scraper on March 21, 1995, and Mr . Beltran
was operating one of two Gehl sweepers that were in operation
that day. Mr. Maynes observed no problems with the sweeper
operated by Mr. Beltran, noticed no difficulties in driving it,
and Mr. Beltran did not complain to him about any problems
(Tr . 172 - 174 ) .
Mr. Maynes stated that he operated the same Gehl sweeper
that Mr. Beltran operated before he left the mine on March 21,
1995, and that he took his time, slowed the machine down, and
finished the job. He observed no machine defects, had no
problem operating it, and there was nothing about it that made
him feel unsafe. He never told anyone that he felt the sweeper
was unsafe, and he acknowledged that he gave a statement to
Ms. Peters during the investigation. He stated that he told
Ms. Peters that he never had any problems with the sweeper. He
stated that he had no conversation with Mr. Beltran concerning
the sweeper, could not recall hearing Mr. Beltran state that the
sweeper was not safe, and he did not tell Ms. Peters that the
sweeper was going to hurt someone (Tr. 175-176).
On cross-examination, Mr. Maynes confirmed that during his
interview with Ms. Peters she took his statement and he read,
initialed, and signed each page, and he recalled that · he told
Ms. Peters that Mr . Beltran stated that the machine "was junk and
stuff," and that •it was unsafe because it was junk" (Tr. 178).
Mr. Maynes stated that he only heard some of the conversation between Mr. Terrazas and Mr. Beltran "because I was
further back," and that "a lot of it was in Spanish, and I don't
speak Spanish" (Tr. 180).

987

At the hearing on the merits, Mr. Maynes stated that he was
unaware of any problems experienced by Mr. Beltran while operating the Gehl sweeper on March 21, 1995. He noticed nothing
wrong with the machine and Mr. Beltran never complained to him
or to anyone else about the machine. He stated that the "safe
operating speed" for the machine was "just take it easy, go slow
and nothing happens. You'll be all right" (Tr. 188). He stated
that he and Mr. Beltran "were going a little bit faster than
usual," and when this happens "the job won't get done right, and
you leave lines of dirt behind" (Tr. 188-189).
Mr. Maynes stated that the conversation between Mr. Beltran
and Mr. Terrazas on March 21, 1995, was mostly in Spanish and
"there were some spots in English" (Tr. 189). He heard
Mr. Terrazas tell Mr. Beltran to "either finish the job, do it
right, or he could leave, and he left" (Tr. 189).
Mr. Maynes never heard Mr. Beltran give any excuse for doing
a bad job, but he has heard him complain about a vehicle being "a
piece of junk," without saying anything specific. Mr. Maynes
stated that he used the sweeper after Mr. Beltran left the site
and he had no problems with it and was aware of no defects. He
did not believe that the machine was junk or unsafe (Tr. 190191) .
On cross-examination, Mr. Maynes stated that he worked for
the respondent for approximately 10 months and never had any
complaints about the equipment that he operated, and this
included excavators, Gehls, backhoes, loaders, and dump trucks
(Tr. 191). He once reported the lack of a backup alarm on a
piece of equipment, and it was repaired, and he explained that
maintenance forms are filled out and needed repairs are reported
to a supervisor (Tr. 193).
Mr. Maynes stated that he and Mr. Beltran were doing "a
sloppy job" by "going too fast" and that Mr. Terrazas told them
to slow down. Mr. Maynes agreed that Mr. Beltran was having a
problem doing the job properly (Tr. 194). He explained that for
sweeping purposes, the machine should be operated at "a couple
miles per hour. You go slow, and it will pick up your dirt"
(Tr. 196). He did not believe ~hat operating at five miles an
hour was too fast.

988

Mr. Maynes stated that Mr. Beltran's comments that "the
equipment was junk, no good and someone was going to get hurt on
it" were not directed at Mr. Terrazas, but were comments made to
him (Maynes) and Mr. Miranda when Mr. Beltran was preparing to
walk to the mine gate to leave the site, and Mr. Terraz as was
not present at that time (Tr. 303-304). Mr. Maynes d enie d that
he changed his prior testimony, and denied that he ever said that
Mr. Beltran's comments concerning the sweeper were directed at
Mr. Terrazas (Tr. 305). Mr. Maynes' prior statement to
Ms. Peters was received in evidence, and it states, in relevant
part, as follows (Tr. 307-308; Exhibit C-8):
After Mr. T told Miranda to drive Beltran to the
gate Beltran came over there and tell me what his side
of the story was.
Most of it was in Spanish and what I under stood was
that Mr. T told him he wasn't doing a good enough job.
Beltran told him it wasn't his fault it was the junk
equipment·.. They were yelling so fast in Spanish I couldn't
understand all of it . Mr. T wasn't just referring to
Beltran not doing a good enough job_, he was telling all
three of us to do a better job.
Beltran just said the equipment was junky and it wasn't
our fault . After that we did do a better job. We did a
real good job . The Gehl he had used was used to finish the
job and no one else complained about it .
What Mr. Beltran would say was that the equipment
was junk, no good, and someone was going to get hurt
on it . He did not specifically say it was unsafe. He
did not say anything specific that was wrong with it.
He would say it was unsafe because it was junk .
Commenting on Mr. Maynes testimony, counsel Burford
responded as follows to a bench ,comment (Tr. 308-309):
JUDGE KOUTRAS: He's testifying today.
I t seems
to me, his testimony is - - you seem to think h e's
changed his testimony. Today he doesn't recollect that
Mr . Terrazas was present when Mr . Beltran made these
statements about the equipment being unsafe , c o rrect?

989

MR. BURFORD: That's correct, based on the
statement, the way I read and interpret it, he's
clarified his statement, and I accept that.
Lillian Medina testified that she was employed by the
Phelps Dodge Company at its Chino Mines as a safety inspector.
She stated that on April 5, 1995, she was with MSHA Inspector
Alfredo Garcia when he came to inspect a Gehl piece of equipment owned by the respondent in response to a complaint. She
accompanied Mr. Garcia to the parking lot, and he inspected the
machine and commented that "it was a pretty new piece of
equipment" and "looks pretty good" (Tr. 200-203).
Mrs. Medina stated that she has made no inquiry as to
whether any safety violations were reported to the mine security
office by Mr. Beltran on March 21, 1995, and no such claims of
any violations were ever brought to her attention (Tr. 210).
She explained t .hat there are 1, 200 employees at the Chino Mines,
which encompasses a 20-mile radius, and that safety complaints
are handled by the mine safety department, and any complaints
by contractors made after hours are turned in to the security
office or a supervisor (Tr . 215-216).
On cross-examination, Mrs. Medina stated that she did not
check the serial number of the piece of equipment inspected by
Mr. Garcia, and it was not tagged out . A sweeper attachment was
by a fence next to the machine, but it was not attached to the
machine (Tr. 21).
Roberto Carreon testified that he has worked for the
respondent for approximately two years, and is a foreman and
supervisor. He has worked with Mr. Beltran and considers him
to be "just like anyone else . " The only problem he had with
Mr. Beltran was that he had to order him to do something and
Mr. Beltran would complain and "was always negative to this"
(Tr . 227) .
Mr. Carreon identified copies of notes he gave to management
stating that Mr. Beltran \\was negative" whenever he receives an
order to do work and requesting that Mr. Beltran be removed from
his crew (Tr. 227-228; Exhibit R-16). He also ident~fied a note
asking a supervisor for permission to no longer work with

99 0

Mr. Beltran. He explained that the request was made because "I
did not want to have the same problem" (Tr. 228).
Mr. Carreon stated that he did not supervise the clean-up
job at the mine site on March 20 and 21, 1995, and never observed
Mr. Beltran operate the sweeper (Tr. 230). He confirmed that he
was present when MSHA Inspector Garcia inspected a Gehl sweeper
and commented that "it was all right" (Tr. 231).
On cross-examination, Mr. Carreon stated that when
Mr. Garcia looked at the machine, the sweeper mechanism was disconnected, and he could not recall if Mrs. Medina was present
(Tr. 233-235 ) . He confirmed that when he wrote the notes
concerning Mr. Beltran he was asking that he be transferred and
not fired.
He confirmed that Mr. Beltran did good work, but
could not recall how long he supervised him (Tr. 242-243).
Cruz Terrazas, respondent's vice-president, testified at the
temporary reinstatement hearing that his company was performing
contractual cleanup work on March 21, 1995, at the Chino Mine,
a copper mine located in Santa Rita and operated by the Phelps
Dodge Company. Mr. Beltran was employed as a laborer and had
worked for his company "on and off" for more than two years.
Mr. Beltran was assigned to operate a Gehl sweeper to clean the
mine parking lot. Mr. Terrazas considered him to be a trained
equipment operator, but did not know who trained him, and he was
not aware of any training records for Mr. Beltran at that time.
Mr. Terrazas considered Mr. Beltran to be a "complainer" who
always found someone else, or the equipment, to be at fault. He
stated that he was unaware of any employees who were fired in
1995 (Tr. 10-18).
Mr. Terrazas stated that he could not recall testifying at
Mr. Beltran's unemployment claim hearing that the sweeper in
question had two uneven tires. He believed that the ·sweeper
operated by Mr. Beltran on March 21, had the same sized tires
and that the sweeper mechanism was a new attachment. He was
not aware that the sweeper had a pin missing or that it leaked
hydraulic oil. He stated that the sweeper was approximately
one year old (Tr. 27-28).
Mr. Terrazas identified Exhibit No. C-1 as a copy of a discharge slip stating that Mr . Beltran was discharged on March 21,

991

1995, and he confirmed that Sammie Vigil, whose signature appears
on the slip, is one of his superintendents. Mr. Terrazas was of
the opinion that Mr. Beltran quit his job (Tr. 28-30).
Mr . Terrazas denied that he had a bad temper, but admitted
that he is impatient . He confirmed that he and Mr. Beltran were
arguing at the time of the March 21, 1995, incident, and stated
that he told Mr. Beltran that he wanted the job done and gave him
the option of using a broom and shovel, rather than the sweeper,
to get the job done.

On cross-examination, Mr. Terrazas stated that he had a
contractual obligation to complete the mine clean up job by the
next day, March 22, 1995, and to remove all of his equipment by
one o'clock. He stated that other employees were using brooms
and shovels to clean up, and he did not believe that this was
unsafe. He stated that no one informed him that there was
anything wrong with the sweeper, and Mr. Beltran simply told him
·that it was an piece of junk that was "not worth a shit." He
further stated t>~at Mr. Beltran said nothing about any missing
pins, hydraulic leaks, or uneven wheels (Tr. 35-39).
Mr. Terrazas stated that the sweeper and the machine to
which it is attached operate at one speed, and if it is operated
too fast, it will not pick up all of the dirt and will leave it
in rows on the ground. He stated that he told Mr. Beltran to
slow down while operating the machine and that he assigned
someone else to operate it after Mr. Beltran quit and left the
work site (Tr. 39-40).
Mr. Terrazas stated that no one advised him that there was
a problem with the sweeper machine and that MSHA inspected it
after the complaint was filed and that it was not "red tagged"
as unsafe. He denied that Mr. Beltran was discharg~d for safety
reasons or out of retaliation for making safety complaints
(Tr. 42-45) .
Mr. Terrazas stated that he was at the work site on
March 21, for approximately 45 minutes and recalled that he
spoke with Mr. Beltran for 10 to 15 minutes. He stated that
Mr. Beltran did not want to hear anything else and kept repeating
that the sweeper machine "was a piece of shit" and that he was
upset and angry (Tr. 45-46). He denied that his employees were

992

afraid to complain to him out of fear of being fired, and stated
that all complaints were to go to their foreman (Tr. 46-51) .
In response to bench questions concerning the company
separation form stating that Mr. Beltran was discharged,
Mr. Terrazas stated that the superintendent who signed it assumed
that Mr. Beltran had been fired because Mr. Beltran told everyone
that this was the case and the form had already been filled out
(Tr. 52-53).
At the hearing on the merits, Mr. Terrazas stated that
Mr. Beltran "was not a very good" employee and that two reprimands were in his personnel file (Exhibit R-16 and R- 17;
Tr. 252) . He explained the process and the forms for disciplining employees, and confirmed that he signed one of the
reprimand forms (Tr. 254-255). He stated that Mr. Beltran
was temporarily laid off on May 10, 1993, and June 4, 1994 ,
for lack of work and rehired (Exhibit R-20, Tr. 257-259) .
Mr. Terraz'a s considered Mr. Beltran to be a satisfactory
employee in 1993, but in 1995 he stated that he "pretty well had
a bellyful of him" (Tr. 259). He explained that "his ability is
there, if he wanted to, but the problem was you sure didn't know
when he was going to work and when he wasn't. That was the
biggest problem" (Tr . 260). He stated that Mr. Beltran never
made any safety complaints to him.
Mr. Terrazas explained what transpired on March 21, 1996
(Tr . 2 61 - 16 3 ) :
A.

Okay. The last day.
It was around noon, and I
don't know what time it was again.
I showed up,
and they were eating lunch. There was Mr. Beltran,
Carlos Miranda and a tall, young kid . He just
testified here - -

Q.

Go ahead.

A.

whatever his name is. Anyway, they were eating
lunch. And I went down there, and there was piles
of dirt where it was supposed to have been cleaned.
I mentioned the fact ·that was definitely not the way
we were going to leave it, and right about that time,

993

Mr. Beltran, he was on the driver's side, he started
complaining about the equipment.
Q.

What were his complaints?

A.

He said that the sweeper wasn't worth a shit, is
what he said. So I told him, I said, Well, I said
the problem is, I said, is that you're going too
fast. He said, No, that's not the problem.
It's
just not worth a shit . '
So I told him, I said, Mr. Beltran, I'm not here to
argue with you.
I'm here to get the job done.
I
said, We need to finish this thing and finish it up
in time. I said, You're going to have a choice.
You've got a choice. You can take this piece of
equipment whether it's worth a shit or not, you take
it and you do the job; you can get a broom and a
shove1 and do the job; or you can leave the job site.
I said, That's completely up to you. And that's what
happened.
I instructed

Q.

What happened?

A.

At that time, he said, Put it on paper.
I said,
No problem.
I said, Go ahead and take him -- I
told Carlos Miranda, Go ahead and take him to the
gate. And he said, I don't need it.
I can walk,
or something to that effect.
So I went around the building, went around the
west side of the building and waited. And he wouldn't
come out, so I made a turn and came back and said,
What are you waiting for? At that time, he went ahead
and started to walk out .

.

Mr. Terrazas stated that Mr . Beltran did not specify what
was wrong with the sweeper, said nothing about a flat tire, and
never told him that it was not safe (Tr. 263). He further stated
that no one told him that the machine was unsafe and he had no
reason to believe that it was unsafe or that Mr. Beltran was
making a safety complaint (Tr. 264) .

994

On cross-examination, Mr. Terrazas stated that Mr. Beltran
quit his job (Tr. 267-268}. He could not recall whether he furnished Ms. Peters with copies of two warning notices given to
Mr. Beltran, or whether he showed them to her during her
investigation. He denied that he went through every document
in Mr. Beltran's personnel file, and stated that his best
recollection is that he gave the file to Ms. Peters (Exhibits
R-17 and R-18; Tr. 274).
Mr. Terrazas stated that he discussed the October 11, 1994,
warning slip that states that Mr. Beltran was "standing around
pickup truck and not working" with Mr. Beltran (Tr. 278-279).
He further stated that he knew about the September 9, 1994,
warning notice which indicates that Mr. Beltran left the mine for
personal business without authorization because the supervisor
asked him if he had been given permission. He did not discuss
this notice with Mr. Beltran (Tr. 280).
Mr. Terra·~as confirmed that he was aware that a miner had a
right to voice ·a safety complaint to his employer without being
discriminated against or terminat ed {Tr. 282). He stated that he
did not inspect the sweeper in question on March 21, 1995, and
that someone else operated it after Mr. Beltran left the mine
(Tr. 285}. Mr. Terrazas stated that when he gave Mr. Beltran
his options, and Mr. Beltran told him to put it in writing, he
construed this to mean that Mr. Beltran chose to leave (Tr. 289).
Mr. Terrazas confirmed that he has fired and hired people
back "over and over again," and if Mr. Beltran had returned the
next day and talked to him he would have given him back his job
(Tr. 294). He believed that Mr. Beltran had an opportunity on
March 21 to tell him about the machine before they began to
argue. He denied that Mr. Beltran tried to expJain what was
wrong with the machine and stated that Mr. Beltran k~pt telling.
him that "It's a piece of shit" (Tr. 295-296). Mr. Beltran never
returned to ask for his job back (Tr . 301).
'

Jesus Perez, respondent's job superintendent, also known as
-chuy," testified that he supervised the cleaning project on
March 20 and 21, 1995, and he told Mr . Beltran that he needed to
operate the sweeper slower to ?Void leaving lines of .dirt behind.
Mr. Beltran operated the sweeper on March 20, and again on

995

March 21, until noon, and never informed him about any safety
problems (Tr . 182-186).
Mr . Perez stated that he was not present on March 21, when
Mr . Terrazas spoke with Mr. Beltran, but he did speak with
Mr. Beltran before he left the mine, and Mr. Beltran told him
that he "wasn 't going to put up with any more shit," and left the
site. Mr. Perez stated that Mr. Beltran mentioned that he would
"get even; that he wasn't going to be treated the way he was
treated" and indicated that he might file a grievance against
Mr. Terrazas (Tr. 187-188).
Mr. Perez stated that some of the foremen believed that
Mr. Beltran was hard to work with and they had problems with his
work (Tr. 190-193; Exhibits R-6 and R-7). Mr. Perez stated that
Mr. Terrazas never said anything to him that would lead him to
believe that Mr. Beltran was terminated for complaining about any
safety issue, and he had no reason to believe that the termination was for re~sons other than Mr. Beltran's unwillingness of
inability to do .the quality of work that was expected of him
(Tr. 194).
On cross-examination, Mr. Perez recalled giving a statement
to an MSHA inspector stating that he would hire Mr. Beltran back
(Tr. 195) . He explained the operation of the Gehl sweeper and
confirmed that there were several cleanup jobs that Mr . Beltran
could have performed on March 21, if he had refused to work on
the sweeper. He did not offer Mr. Beltran any of this work . He
did not believe that two written supervisory complaints against
Mr. Beltran over a two-year period was excessive, and he did not
recall any other complaints (Tr. 199-200).
Mr. Perez agreed that a Gehl sweeper with different sized
tires, a lack of hydraulic fluid, missing or loose attachment
bolts, and missing reflectors would cause a safety problem and
create a hazard for the operator or other people (Tr. 201).
In response to bench questions concerning the discharge slip
reflecting Mr . Beltran's discharge (Exhibit C-1), Mr. Perez
stated that he and project superintendent Vigil had the authority to fire employees . Mr. Per~z did not believe that anyone
fired Mr. Beltran and stated that Mr. Vigil ujust wrote the
paper," but he had no idea why he did so and only saw the

996

discharge slip "after the fact," and did not try to correct it
(Tr. 213-214) .
At the hearing on the merits, Mr . Perez confirmed that
Mr . Beltran was operating a Gehl sweeper on March 21, 1 995,
cleaning the roadway and that he was Mr. Beltran's supervisor .
He stated that the clean up was a three day job and that he spoke
with Mr. Beltran "a couple hours after the cleanup had started."
Mr. Beltran informed him that the sweeper "wasn't sweeping right,
and it was leaving a line, and he couldn't do the job like that"
(Tr. 311). He stated that Mr. Beltran did not tell him about any
sweeper safety defects, or that it was unsafe.
Mr. Perez stated that Mr. Beltran told him that the machine
"needed some hydraulic fluid" and Mr . Perez had "Ruben" check it,
and Mr . Perez believed that hydraulic fluid was added. The next
day, Mr. Beltran was still complaining that the machine "was
still leaving a line," and Mr. Perez told him that he needed to
slow down and ~hat a bend in the sweeper bucket scoop would leave
"a sifting of dirt" (Tr. 311-312). Mr. Perez was not aware of
any safety-related concerns with the machine on March 20 or 21,
1995, and Mr. Maynes operated it for the rest of the day after
Mr. Beltran left, and until 1:00 p.m. the next day without any
problems (Tr. 324).
Mr. Perez confirmed that he was present when MSHA Inspector
Freddie Garcia came to the mine site to inspect the Gehl machines
and other equipment and found nothing unsafe (Tr. 314-316) .
On cross-examination, Mr. Perez stated that he obperved a
Gehl sweeper in the parking lot across from the April 18, 1996,
hearing location, but did not look at it carefully. He stated
that it was the same machine that Mr. Beltran operated on
March 21, 1995, and the same one that Inspector Garcia looked at.
He believed it was the same machine because it had a bent bucket
(Tr. 319). He stated that the machine is numbered 961 and "I
know it was that one" (Tr. 323).
Mr. Perez confirmed that the Gehl machine that he looked at
did not have any headlights, and it was in that condition when
Mr. Garcia inspected it. He also confirmed that he did not look
at the machine on March 20 or 21, 1995 (Tr. 320). He did not
believe that a low level of hydraulic fluid would cause a

997

difficulty in operating the machine controls, but if the fluid
ran out completely, the machine will stop (Tr. 321).
Mr. Perez was not aware of any accidents involving
Mr. Beltran, and if Mr. Beltran were so involved, Mr. Perez would
not necessarily be informed about it and it would be a matter for
the mine safe t y personnel (Tr. 326).
Mr. Perez acknowledged his prior temporary reinstatement
hearing testimony that he could not recall the equipment identification number for the Gehl sweeper that Mr. Beltran operated
on March 21. He explained that in the interim between the
two hearings, he checked his files and time sheets to determine
the machine number (Tr. 328). He confirmed that Mr. Beltran
never complained to him that he was not properly trained on the
Gehl sweeper (Tr. 333).
Ruben R. Gomez, respondent's maintenance mechanic, testified
that he was mechanically familiar with Gehl sweepers and their
hydraulic syste~s. He stated that the Gehl sweepers owned by
the respondent in March 1995, were approximately nine months to
a year old and "were in good shape." He explained the procedure
for adjusting the steering, and if it were out of adjustment, it
could cause di~ficult steering, but would not require the use of
both hands to steer. The speed of the machine is controlled by a
throttle control, and the hydraulic oil capacity is approximately
14 gallons.
He recently field tested a Gehl machine, and it will
run with five gallons low on hydraulic fluid, but may not if its
"very low on hydaulic, we're talking approximately half or less"
(Tr . 3 3 7 - 3 3 8 ) .
Mr. Gomez stated that on Tuesday, March 21, 1995,
Mr. Beltran called because of the low hydraulic fluid, and
Mr. Gomez added fluid. He also repaired two missing safety
chains on the sweeper attachment, and checked the sweeper
adjustment and found t~at it performed properly. Mr. Beltran
also told him about a low tire, ~nd it was aired up to its proper
capacity. He stated that the tire was not changed with a larger
tire because the machine has a standard tire size that will rub
with each other if a bigger tire is installed (Tr. 338-339).
Mr. Gomez stated that he watched Mr. Beltran operate the
Gehl "a little bit too fast," and told him to "run it kind of

998

slow" to provide better sweeper performance. Mr. Gomez stated
that he adjusted the height of the sweeper, but could not resolve
Mr. Beltran's complaint about the bent sweeper bucket. Mr. Gomez
confirmed that a bent or bowed bucket "would cause the sweeper
not to pick up right," but Mr. Beltran did not tell him that he
felt this was dangerous (Tr. 341).
Mr. Gomez stated that Mr . Beltran had used a Gehl with a
sweeper attachment prior to March 21, and he had prior dealings
at another job site with Mr. Beltran when throttle linkage cable
adjustments were made (Tr. 341) . Mr. Beltran never complained to
him about an inoperable backup alarm or missing bolts, and when
Mr. Gomez adjusted the sweeper in question, the bolts were in
place . Mr. Beltran never told him that the Gehl in combination
with the sweeper was dangerous. Mr. Gomez stated that he
inspected the items that Mr . Beltran brought to his attention,
and found nothing that was dangerous {Tr . 343).
On cross - examination, Mr. Gomez stated that equipment maintenance probl ems can also be safety problems and that employees
are required to report these problems to him. He also indicated
that there are occasions when a safety problem may not be a
maintenance problem, and that this would depend on the type of
equipment, and the experience level of the operator (Tr . 344345) . He confirmed that he has operated Gehl sweepers since
1985, and is aware of no condition that would cause an operator
to have two hands on an operating lever (Tr. 345). He confirmed
that prior equipment complaints by Mr. Beltran were reasonable
and that he made the repairs when he was the mechanic on duty
(Tr. 350). He believed all of the equipment concerns he discussed with Mr. Beltran were just maintenance problems which
were resolved, and not safety problems (Tr. 352).
Findings and Conclusions
fact of Violation
In order to establish a prima f acie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish ( 1 ) that he
engaged in protected activity and {2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,

999

2 FMSHRC 2768 (1980), rev'd on other grounds~ llQIIl.
Consolidation Coal Company v. Marshall, 633 F . 2d 1211 (3d Cir.
1981}; Secretary on behalf of Robinette v. United C~stle Coal
Company, 3 FMSHRC 803 {1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
{November 1981), rev's on other grounds~ D.QID. Donovan v.
Phelps Dodge Corp . , 709 F.2d 86 (D.C. Cir. 1983).
The mine operator may rebut the prima facie case by showing
either that no protected activity .occurred or that the adverse
action was in no way motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner it
may nevertheless affirmatively defend by proving that it was
also motivated by the miner's unprotected activities alone.
The operator bears the burden of proof with regard to the
affirmative defense . Hal:Q v. Magma Copper Company, 4 FMSHRC 1935
(1982) . The ultimate burden of persuasion does not shift from
the complainant.. Robinette, supra. ~also Boich v. FMSHRC,
719 F.2d 194 (6th Cir 1983); and Donovan v. Stafford Construction
Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specifically
approving the Commissions's Pasula-Robinette test) . See also
NLRB. v. Transportation Management Corporation, ~~U.S.
76 L.ed.2d 667 {1983}, where the Supreme Court approved the
NLRB's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act.
\

Protected Activity
It is clear that Mr . Beltran had a right to make safety
complaints about the sweeper that he was assigned to operate,
and that these complaints are protected activities which may
not be the motivation by mine management for any adverse personnel action against him. Secretary of Labor ex rel Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rey'd
on other grounds .fillb D.QID . Consolidation Coal Company v. Marshall,
633 F.2d 1211 (3d Cir . 1981), and· Secretary of Labor ex rel
Robinette v. United Castle Coal Co., 3 FMSHRC 803 {April 1981}.
Safety complaints to mine management or a foreman constitutes
protected activity, Baker v. Interior Board of Mine Operations
Appeals, 595 F . 2d 746 (D.C. Cir. 1978}; Chacon, supra. The
miner's safety complaints must be made with reasonable promptness and in good faith, and be communicated to mine management,

1000

MSHA ex rel Michael J. Dunmire and James Estle v. Northern Coal
Company, 4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d
194, 195-96 (7th Cir. 1982); Sammons v. Mine Services Co.,
6 FMSHRC 1391 (June 1984}.
Mr. Beltran's Safety Complaint to the Respondent
When a miner has expressed a reasonable, good faith fear of
a safety or health hazard, and has communicated his complaint to
mine management, management has a duty and obligation to address
the perceived hazard or safety concern in a manner sufficient to
reasonably quell his fears, or to correct or eliminate the
hazard, Secretary v. River Hurricane Coal Co., 5 FMSHRC 1529,
1534 (September 1983); Gilbert v. Sandy Fork Mining Company,
12 FMSHRC 177 (February 1990), on remand from Gilbert v. FMSHRC,
866 F.2d 1433 (D.C. Cir. 1989), rey'g Sandy Fork Mining Co.,
9 FMSHRC 1327 (1987)
I

In a numbe·r of safety related "work refusal" cases, it
has been consistently held that a miner has a duty and obligation to communicate any safety complaints to mine management
in order to afford the operator with a reasonable opportunity
to address them. ~: Secretary ex rel. Paul Sedgmer et al.
v. Consolidation Coal Company, 8 FMSHRC 303 (March 1986); Miller
v. FMSHRC, 687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy.
~' 8 FMSHRC 1034, 1038-40 (July 1986); Dillard Smith v. Reco.
~' 9 FMSHRC 992 {June 1987); Sammons v. Mine Services Co . ,
6 FMSHRC 1391 (June 1984); Charles Conatser v. Red Flame Coal
Company. Inc., 11 FMSHRC 12 (January 1989), review dismissed
Per Curiam by agreement of the parties, July 12, 1989, U.S. Court
of Appeals for the District of Columbia, No. 89-1097.
There is no credible evidence in this case that prior to
leaving the job site on March 21, 1995, Mr. Beltran ever refuseQ
to operate the sweeper because of any perceived safety hazard.
Indeed, the credible evidence establishes that Mr. Beltran
operated the sweeper on March 20 ,· for approximately 10 hours,
and again on March 21, for approximately 5 hours, in spite of
his assertions that the sweeper was not safe to operate.
Further, he unequivocally testified that he never refused to
operated the sweeper.

1001

Although I find that Mr. Beltran never refused to operate
the sweeper, I conclude that the same "work refusal" principles
apply to any complaint that he may have made and that the
Secretary has the burden of establishing that Mr. Beltran in fact
made a safety complaint, that he communicated his complaint to
mine management, that management knew or had reason to know about
the complaint, and that any adverse action against Mr. Beltran
which followed his complaint was the retaliatory and discriminatory result of the complaint.
In short, the Secretary must
establish a nexus between the communicated complaint and any
adverse action which followed. ~: Sandra Cantrall v . Gilbert
Industrial, 4 FMSHRC 1164 (June 1982); Alvin Ritchie v. Kodak
Minina Company. Inc . ,9 FMSHRC 744 (April 1986); Eddie D. Johnson
v. Scotts Branch Mine, 9 FMSHRC 1851 (November 1987); Robert L.
Tarvin v. Jim Walter Resources. Inc . , 10 FMSHRC 305 {March 1988);
Connie Mullins v. Clinchfield Coal Company, 11 FMSHRC 1948
(October 1989).
In a March 22, 1995, statement filed in connection with his
State unemployment compensation claim, Mr. Beltran did not state
that he informed Mr. Terrazas that the sweeper was unsafe to
operate (Exhibit R-4; Temporary Reinstatement Hearing). He
simply states that· "I told him (Terrazas) I can't do any better
because the sweeper is no good." Subsequently, on April 10,
1995, when he filed his discrimination complaint with MSHA,
Mr. Beltran stated that during his March 21, 1995, encounter with
Mr. Terrazas, he told Mr. Terrazas that the sweeper was not safe
and that he would not continue to operate it .
Following the filing of his MSHA complaint, Mr . Beltran was
interviewed by Ms. Peters and two other MSHA special investigators on April 18, 1995, and he gave them a 17 page statement
which he signed and dated November 5, 1995 (Exhibit R-10; Merits
Hearing) . In relating what occurred during his encounter with
Mr. Terrazas, and in response to Mr. Terrazas' admonition that
he do better work, Mr. Beltran stated that "I told him No, !
can't do any better work because the sweeper and the Gehl is no
good .
* * I said No, Cruz I cannot do better work. I refuse to
do the work because I already told you, and I told my foreman,
Chuy Perez, that machine was no good, and I cannot do better."
At the reinstatement and merits hearing, Mr . Beltran testified under oath that he never refused to work, never stated that

1002

he was not going to do the job, and never refused to operate the
sweeper (Tr . 134, 136, 154). I find that Mr. Beltran's testimony
is in direct conflict and contrary to his prior statements to
MSHA, and casts doubts in my mind regarding his credibility.
The only persons who witnessed Mr. Beltran's March 21, 1995,
confrontation with Mr. Terrazas were Mr. Miranda and Mr. Maynes.
MSHA Inspector Peters testified during the reinstatement hearing
that Mr. Miranda told her that Mr. Beltran was trying to tell
Mr. Terrazas that the sweeper was unsafe, and that Mr. Maynes
told her that Mr. Beltran stated to Mr. Terrazas that "someone
was going to get hurt on it," but that Mr. Terrazas would not
listen (Tr. 76, 90) . She later testified that Mr. Miranda and
Mr . Maynes both told her that Mr. Beltran stated that the sweeper
was unsafe (Tr. 96). Still later, she testified that only one
of these individuals told her that Mr . Beltran said the sweeper
was unsafe, and the other individual said that someone could be
hurt. She explained that this individual, who I have concluded
was Mr. Maynes, told her he did not understand a lot of Spanish
and that most of the conversation between Mr. Terrazas and
Mr. Beltran was in Spanish (Tr. 101-102). I find Ms. Peters'
testimony to be inconsistent and contradictory with respect to
what these witnesses may have told her.
Carlos Miranda, in his April 18, 1995, statement to MSHA's
investigator, stated that Mr. Beltran told Mr. Terrazas that
he would not operate the equipment because it was unsafe
(Exhibit R-11, p. 3). In his April 10, 1995, statement filed
with Mr. Beltran's MSHA complaint, Mr. Miranda stated that
Mr. Beltran told Mr . Terrazas that he could not do a better job
because the sweeper was no good and not safe to work with. However, during his sworn merits hearing testimony, Mr. Miranda
init:ally could not recall whether Mr. Beltran refused to operate
the sweeper, but then testified that Mr. Beltran indeed never
refused to operate the machine because it was unsafe (Tr. 116} .
I find Mr. Miranda's testimony c~ntradictory and in conflict with
his prior MSHA statements, and I have serious reservations about
his credibility.
I also take note of Mr. Miranda's inconsistent and contradictory testimony at the reinstatement and merits hearings. He
initially testified that on March 21, 1995, Mr. Beltran told
Mr. Terrazas that the sweeper "was not working properly or

1003

correctly" (Tr. 146, 149). He testified that Mr. Beltran told
Mr. Terrazas "that the machine was not any good, that it was not
safe" (Tr. 108).
In view of Mr. Miranda's unequivocal testimony
and admissions that Mr. Beltran never informed Mr. Terrazas in
his presence that he would not operate the sweeper because it was
unsafe, I find Mr. Miranda's testimony and prior statement that
Mr. Beltran told Mr. Terrazas that the sweeper was unsafe to be
incredible and not believable.
At the reinstatement hearing, Anthony Maynes confirmed
that he gave a statement to Inspector Peters recalling that
Mr. Beltran said that the equipment was "junk and stuff ... No
good, and someone was going to get hurt on it." He further
stated that "Mr. Beltran did not say anything specific that was
wrong with it, he would say it was unsafe because it was junk."
He went on to explain that he heard ~ of the conversation
between Mr. Terrazas and Mr. Beltran, that a lot of it was in
Spanish which .he does not speak, and that the part he recalled
hearing in Engl_ish was when Mr. Terrazas told Mr. Beltran that he
could either leave or stay, and asking Mr. Miranda to escort him
to the gate (Tr. 178-179).
At the hearing on the merits, Mr. Maynes stated that
Mr. Beltran's comments concerning the sweeper were IlQ.t. directed
at Mr. Terrazas, but were comments made to him (Maynes) and to
Mr. Miranda when Mr. Beltran was preparing to leave the site
and Mr. Terrazas was not present at that time (Tr. 303-304).
Mr. Maynes denied that he ever previously stated to Inspector
Peters that Mr. Beltran's comments concerning the sweeper were
directed at Mr . Terrazas (Tr. 305) .
Mr. Maynes' prior statement of April 19, 1995, is a matter
of record (Exhibit C-8; Tr. 307-308). After carefully reviewing
that statement, I cannot conclude that Mr. Maynes lied, or that
his prior testimony was inconsistent or contradictory.
It may
be somewhat confusing, but I fin~ it credible, particularly
with respect to the question of whether Mr. Beltran's statements concerning the condition of the sweeper were directed
at Mr. Terrazas, or were simply stated to Mr . Maynes. Significantly, Mr. Maynes' prior statement begins with a credible
narrative explanation as to what Mr. Beltran told him as "his
side of the story." Further, any suggestion that Mr. Maynes
overheard any remarks by Mr. Beltran directed at Mr. Terrazas

1004

with respect to the condition of the sweeper was disputed by
Mr. Beltran himself when he testified that at the time he spoke
with Mr. Terrazas on March 21, 1995, Mr. Maynes was 75 or BO feet
away and "didn't hear nothing, and he didn't see nothing"
(Tr. 133), and that he (Beltran) told Mr. Maynes that he did not
know why Mr. Terrazas was mad at him {Tr. 132).
In his prior MSHA statement of April 18, 1995, Mr. Beltran
testified that he told Mr. Terrazas that the sweeper was unsafe
"when we started to work in the morning" (Exhibit R-10, pg. 13).
At the temporary reinstatement hearing, Mr. Beltran testified
that his encounter of March 21, 1995, with Terrazas occurred
while he was eating his lunch and that this was the first time he
saw Mr. Terrazas that day (Tr. 111, 131). Mr. Beltran confirmed
that this was the case when he testified at the hearing on the
merits that he first saw Mr. Terrazas at 12:20 p.rn., on March 21,
1995.
I find Mr. Beltran's earlier statement to MSHA that he
told Mr. Terrazas that the sweeper was unsafe at 10:30 a.m., when
he started work to be less than credible and in direct conflict
with his later sworn testimony that he first encountered
Mr. Terrazas after 12:00 p.m. during his lunch break.
Mr. Beltran testified at the reinstatement hearing that
he tried to tell Mr. Terrazas about the sweeper conditions on
March 21, 1995, but that Mr. Terrazas would not listen to him
(Tr. 117). However, at the merits hearing, Mr. Beltran testified
that he told Mr. Terrazas that he had a flat tire, no hydraulic
oil, no reflectors, no backup warning alarm, and that he believed
the equipment was unsafe (Tr. 36). I find this testimony to be
contradictory and inconsistent. On the one hand, Mr. Beltran
claims that Mr. Terrazas would not listen to his sweeper complaints and on the other hand he claims that he specifically
informed Mr. Terrazas about the specific sweeper conditions that
he claims were unsafe.
Mr. Beltran testified that on March 21, 1995, personnel at
the mine security off ice near whe.re he was cleaning complained
that he was leaving a lot of dirt behind the sweeper and that
he told them he "could not do a good job because this sweeper
would not help me to do the good job" (Tr. 45). He did not
claim that he stated anything at that time about the safety of
the sweeper. The security personnel were employees of the mine
operator (Phelps Dodge}, and Mr. Beltran confirmed that he never

1005

complained to any Phelps Dodge employees that he was operating
unsafe equipment (Tr. 52-53).
Mr . Beltran further testified that on March 20, 1995, the
sweeper was low on hydraulic fluid, had no front or rear
reflectors, no backup alarm, no safety belt, and a flat front
tire. He characterized these conditions as "problems" and said
that he reported them to foreman Perez. He stated that Mr. Perez
told him he would call a mechanic to start the machine and that
when he had time, he would send someone to take care of the flat
tire. Mr. Beltran then proceeded to operate the sweeper for the
rest of the shift and inflated the tire three times, all without
further incident (Tr. 109-112). Mr. Beltran did not testify that
he told Mr. Perez that the sweeper was unsafe, and confirmed that
Mr. Terrazas was not at the mine that day.
Foreman Perez testified at the temporary reinstatement and
merits hearings that when he spoke with Mr. Beltran on March 20
and 21, 1995, he told Mr. Beltran that he needed to operate the
sweeper slower to avoid leaving dirt behind. Mr. Perez confirmed
that Mr. Beltran informed him that the machine hydraulic fluid
was low, and Mr. Perez had the mechanic check the machine and
he believed that fluid was added. Apart from this condition,
Mr. Perez testified consistently, and I find credibly, that
Mr. Beltran's principal complaint was that he was unable to do a
good job with the sweeper because it was leaving a line of dirt
behind, and that Mr. Beltran never complained to him about any
sweeper safety defects, and never told him that he believed the
sweeper was unsafe to operate.
Maintenance mechanic Ruben Gomez testified credibly that in
response to a call from Mr. Beltran on March 21, 1995, he added
some hydraulic fluid to the sweeper machine, repaired two sweeper
attachment safety chains, and checked and adjusted the sw~eper
height adjustments. He also put air in one tire, which was low,
but did not change the tire and install a larger one because only
one size fits the machine and a larger tire would rub the tire
close by.
Mr. Gomez stated that he spent 45 minutes with Mr. Beltran
and observed him operating the sweeper "a little bit too fast,"
and told him to slow down in order to obtain better sweeper
performance. He stated that Mr. Beltran also complained about a

1006

bent bucket that was bowed, causing the sweeper "not to pick up
right," but Mr. Gomez did not consider this condition to be
dangerous and Mr . Beltran never indicated that it was.
Mr. Gomez stated that all of the sweeper conditions brought
to his attention by Mr. Beltran were maintenance items that he
took care of, and he did not consider any of them to be safety
problems. He stated that Mr. Beltran never complained to him
about any inoperable backup alarm or missing sweeper bolts, and
that the bolts were in place when he adjusted the sweeper.
Mr. Terrazas consistently testified in these proceedings
that Mr. Beltran never informed him that the sweeper in question
was unsafe to operate on March 21, 1995, and having viewed him
in the course of two hearings, while I find him to be a rather
short-tempered and excitable individual, I nonetheless consider
him to be credible.
At the hearing on the merits and in response to
Mr. Terrazas' testimony that Mr. Beltran only told him that the
sweeper "was junk or no good," Mr. Beltran stated "to me that
it is not any good or not safe is the same thing." He was also
of the opinion that if he could not do the work that the machine
was designed to do, he would consider the machine to be unsafe,
even "at this moment" (Tr. 19).
In short, I can only conclude
that Mr. Beltran would consider any machine not kept in good
operational condition to be ipso facto unsafe. However, I reject
any such notion.
After careful review and consideration of all of the
testimony and evidence in this case, I find less than credible
support for Mr. Beltran's assertion that on March 21, 1995,
he informed Mr. Perez or Mr . Terrazas that he considered the
sweeper to be unsafe, and that he specifically told th~m about
the sweeper conditions that led him to conclude that it was
unsafe. To the contrary, I conclude and find that the thrust of
Mr. Beltran's complaints about the sweeper lies in his communicated belief to Mr . Terrazas that he considered the sweeper to
be less than capable of doing the sweeping job without leaving ·
trails of dirt behind, or more to the point, his belief that
the sweeper was a "piece of shit, or junk." I simply cannot
equate this equipment complaint . communication with an equipment
safety communication. In short, I cannot conclude that

1007

Mr. Beltran communicated a safety complaint to the respondent
within the meaning of the previously cited case law on this
issue.
The evidence establishes that MSHA never inspected the
sweeper, and no citation was ever issued by MSHA citing that
machine.
However, MSHA Inspector Peters was of the opinion that
a Gehl sweeper machine that was low on hydraulic fluid, lacked a
seat belt, lights, reflectors, a backup alarm, and had a missing
bolt might indicate that the machine was unsafe {Tr. 166).
Respondent's foreman Arzola agreed that a Gehl sweeper
operating with a flat tire, and no seat belt or headlights would
present a ''safety concern, and if the hydraulic fluid was
"extremely low," the sweeper brushes would not work or turn
properly, and this would prevent one from doing the job properly
{Tr. 137-138). Superintendent Jesus Perez also believed that a
sweeper with different sized tires, a lack of hydraulic fluid,
missing or loose attachment bolts, and missing reflectors would
cause a safety problem and create a hazard for the operator
(Tr. 201) .
/1

Although the opinions of Ms . Peters, Mr. Arzola, and
Mr. Perez that a sweeper in the condition that they described
would be a safety problem are relevant, the critical question
is whether or not Mr. Beltran informed Mr. Terrazas about the
sweeper conditions that he claims he found on March 21, 1995,
and, if so, whether his belief that the machine was unsafe to
operate that day was reasonable given the conditions under which
it was in fact operated .
Even if I were to find that Mr. Beltran communicated a
scfety complaint to the respondent, based on the credible and
unrebutted testimony of Mr . Perez and Mr. Gomez, I find that the
respondent made a reasonable effort in addressing and correcting
any sweeper mechanical problems. Further, for the reasons which
follow, I conclude and find that Mr . Beltran's belief that
operating the sweeper in question on March 21, 1995, would not
have been safe was unreasonable and not credible.
Ms. Peters testified that . during her investigation of
Mr . Beltran's complaint, Mr. Beltran claimed that he had never
been task-trained to operate the Gehl sweeper (Tr. 93). I have

1008

reviewed a copy of Mr. Beltran's statement of April 18, 1995,
given to two other MSHA investigators, and in the presence of
Ms. Peters, and I find no such claim made at that time by
Mr. Beltran (Exhibit R-10). As a matter of fact, in that
statement, Mr. Beltran states that his laborer's tasks included
"sweeping and a lot of cleanup," and one of the questions asked
by an inspector states, "Q . You said part of you job was to
operate the sweeper. Would you describe the sweeper?"
(Exhibit P-10, pg. 3 ) .
At his reinstatement hearing, Mr. Beltran testified on
direct that he was "forced" to operate the sweeper with no
training or qualification (Tr. 118). I find no credible evidence to support any conclusion that Mr. Beltran was "forced"
to operate the sweeper. The evidence establishes that he
operated it for approximately 15 hours prior to leaving the
mine, and I find credible Mr. Terrazas' testimony that he gave
Mr. Beltran the option of joining other employees in completing
his cleanup jo~ with a broom and shovel.
Mr. Beltran further testified that during his prior 12 years
of working in factories in Chicago, where "they have the same
kind of machine, and I have also trained," he viewed training
films on the operation of the equipment and was trained to lock
it out if it were unsafe (Tr. 114, 134). Further, Mr. Beltran,
on cross-examination, confirmed that he had seven and one-half
years experience on the operation of Gehl equipment in Chicago,
and was trained to use that equipment. Although he asserted that
he had not previously used a sweeper attachment, he admitted that
he had previously used a Gehl bobcat machine, with forklift or
bucket attachments, and that it was the same type of bobcat that
he used at the respondent's operation, and he admitted that he
knew how to use it before he was employed there (Tr. 120).
Mr. Beltran further admitted that on March 20 and 21, 1995,
he knew how to operate the Gehl sweeper, knew where the controls
and brakes were located, and had · previously operated another Gehl
machine "almost the same" (Tr. 137-138, 140). At the merits
hearing, Mr. Beltran testified that the mining company provided
him with safety training at the mine {Tr. 94-95) . Under all of
these circumstances, I find Mr. Beltran's suggestions that he
was at risk by being forced to .operate a sweeper with no prior

1009

training or experience to be contradictory, inconsistent, and
less than credible.
The evidence in this case reflects that Mr. Terrazas
was highly upset when he found that the sweeper operated by
Mr. Beltran was leaving piles of dirt behind, and that during
the ensuring confrontation that took place, Mr. Beltran expressed
his opinions concerning the mechanical condition of the sweeper
in rather colorful terms that escalated Mr. Terrazas' anger and
anxiety level. The evidence suggests that the r esulting piles
of dirt left behind by Mr. Beltran's sweeper may have been caused
by operating the machine too fast, a bend or bow in the sweeper
bucket mechanism, worn brushes, or as found by the state
unemployment hearing officer, a larger sized front tire .
I cannot conclude that the operation of the sweeper with
a bent bucket condition was in and of itself unsafe, and no
evidence was produced to show that it was. This condition may
not have allowed Mr. Beltran to do the job to Mr. Terrazas'
liking, but I cannot conclude that it placed Mr. Beltran at
risk, and he has not contended that it did .
With regard to operating the sweeper too fast, Mr. Beltran
testified at the reinstatement hearing that operating the machine
too fast with one large tire and one small tire posed a risk of
turning over. No such statement was made in his prior April 18,
1995 MSHA investigation statement. Indeed, in that statement
Mr. Beltran stated that the sweeper bolt condition could cause
the sweeper to come loose, posing an accident risk, but not a
turn over, and he does not mention the absence of a seat belt.
I have reviewed Mr. Beltran's prior statement of April 18,
1995, with regard to missing sweeper attachment bolts, and find
that when asked whether this condition would cause him to turn
over, Mr . Beltran responded, "No" (Exhibit R-10, pg. l}. This
is in direct conflict with Ms. Peters testimony that Mr. Beltran
was concerned about over-turning·the machine. As for the sweeper
directional controls, Mr. Miranda's prior April 18, 1995, state ment reflects a "Yes" answer to the question, "[w]as the steering
Okay?" (Exhibit R-11, pgs. 2). Further, I find no credible
evidence that Mr. Beltran would have encountered any other
traffic whi le operating his swe·eper at five to six miles an hour .
Mr. Miranda was operating behind Mr. Beltran sweeping up the d i rt

1010

left behind by Mr. Beltran, and there is no evidence that he was
at risk, and Mr. Miranda never mentioned anything about any
adverse weather· conditions that may have affected the safe
operation of the sweeper.
Mr. Maynes also operated a scraper at the same time as
Mr. Beltran, and operated the sweeper after Mr. Beltran left
the site, and he said nothing about any adverse wind or dust
conditions. Indeed, apart from Mr. Beltran, no other equipment
operators were produced to testify that any weather conditions
adversely affected the safe operation of the equipment used on
March 20 or 21, 1995, and I reject as less than credible
Mr. Beltran's self serving testimony that it did. I find
credible Mr. Maynes' testimony that he continued to operate the
sweeper after Mr. Beltran left the mine site, and that he
completed the job with no safety problems.
I conclude and find that the issue concerning the safe
operation of t~e sweeper was laid to rest when Mr. Beltran
admitted that a'-._ sweeper safety problem would ~ exist if he
operated the sweeper too fast, and he unequivocally insisted that
he never operated it too fast. Testimony by other witnesses
confirmed that the sweeper was operated at five to six miles an
hour, a relatively low speed that I conclude posed no hazard to
Mr. Beltran.
With respect to Mr. Beltran's state unemployment hearing
proceeding, I recognize the fact that his rights in connection
with his qualifications for unemployment benefits are different
from his protected safety rights pursuant to the Mine Act. However, I may nonetheless give deference or weight to the findings
and conclusions of a state hearing officer. .s.e..e.: Chadrich
Casebolt v . Falcon Coal Company. Inc., 6 FMSHRC 485, 495
(February 1984); Dayid Hollis v. Consolidation Coal Company,
6 FMSHRC 21, 26-27 {January 1984) ; Secretary on behalf· of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rey'd
on other grounds .m.W Il.QID. Consolipation Coal Co. V. Marshall,
663 F.2d 1211 (3d Cir. 1981).
The record reflects that Mr. Beltran was represented by
counsel when he was denied unemployment compensation on June 1,
1995, after the hearing officer . concluded that he left his job
with the respondent voluntarily without good cause connected

1011

with his employment (Exh ibit C- 2; Temporary Reinstatement
Hearing) .
I take note of the absence of any safety complaint
allegation in Mr. Beltran's statement of March 22, 1995, in
connection with his compensation claim, and he simply stated
that he told Mr. Terrazas that, "I can't do any better because
the sweeper is no good 11 (Exhibit R-3, Temporary Reinstatement
Hearing) . This is consistent wi t h the credible evidence in the
instant case .
The hearing officer found that on March 21, 1995,
Mr . Beltran complained that the sweeper was not working properly
and that one of his complaints concerning an oversized tire that
caused the sweeper not to be sitting evenly and therefore leaving
a streak in the middle on each pass with the sweeper "appears to
have been substantiated by the record" (Finding No. 1). The
hearing officer further found that Mr . Beltran did not specify
to Mr . Terrazas any particular problems with the machine, and
simply told him "your equipment isn't worth a shit" (Finding
No. 2). This too is consistent with the credible evidence in the
instant case.
In finding that Mr. Beltran failed to establish "good
cause" for voluntarily leaving his job, the hearing officer
concluded that Mr. Beltran "was not confronted with forceful
and necessitous circumstances of such magnitude that he had no
reasonable alternative to leaving his job" (Exhibit C-2; page 3).
I agree with, and give weight to, the hearing officer's
findings that Mr . Beltran informed Mr. Terrazas that he could
not do a better job because the sweeper was no good and "not
worth a shit." I also give weight to the hearing officer's
finding that Mr. Beltran "was not confronted with forceful and
necessitous circumstances," but I do so in the context of my
findings and conclu~ions that the p1evailing circumstances
concerning the sweeper do not support a reasonable belief by
Mr. Beltran that the sweeper was unsafe for him to operate.
I find no credible evidence of prior animus on the part
of respondent's management towards Mr. Beltran. Although
Mr . Terrazas did not consider Mr. Beltran to be a model employee
and considered him to be a complainer about his wor k , Mr. Beltran
t estified that he never had any· arguments with Mr. Terraz as prior
to March 21, 1995 (Tr. 134).

1012

I take note of the fact that in his April 18, 1995, MSHA
statement, Mr. Beltran stated that the respondent ignores safety
complaints. However, in response to follow-up questions as to
how the respondent would address a dump truck that .lost its
oil, Mr. Beltran responded, "[h]e would park the truck or tell
the operator to fix it.n With regard to any potential major
damage if the equipment is continued to be used, Mr. Beltran
stated that "they just park it. They don't do nothing"
(Exhibit R-10, pg. 11). However, the unrebutted testimony of
Mr. Maynes, Mr. Perez, and Mr . Gomez reflects that equipment
repair needs are taken care of when they are reported.
Mr. Beltran's claim that respondent's employees who
complained about unsafe equipment, including Mr. Miranda and
Mr. Abilar, were summarily discharged for doing so (Tr. 92-93}
is not supported by any credible evidence, and I find this was
not the case.
Indeed, in his prior April 18, 1995, statement
to MSHA's special investigators, Mr. Beltran stated that "lots
of people" were terminated by the respondent. However, in
response to a specific question as to whether anyone had ever
been terminated for refusing to operate an unsafe piece of
equipment, he responded, "not that I know of" (Exhibit R-10,
pgs . 15-16).
Although Mr. Miranda's statement of April 18, 1995, to
MSHA's special investigators includes a "yes" answer to the
question of whether anyone else had ever been terminated "for
anything similar to Beltran," Mr. Miranda's explanations reflect
that his brother-in-law was fired for eating his lunch where he
was not supposed to, Mr. Abilar was fired for not having a
doctor's excuse to support a day of sick leave, and Mr. Miranda
was fired for an unexcused absence from work (Exhibit R-11,
pgs. 5-6).
It does not appear that any of these terminations
were safety related, and if one were to accept a conclusion that
the terminations were similar to Mr. Beltran's, one w~uld have.
to conclude that he was terminated for reasons unrelated to any ·
safety complaints.
Mr. Beltran's Employment Termination
The Secretary takes the position that Mr. Beltran was fired
by Mr. Terrazas for voicing a safety complaint about the sweeper,
and that Mr. Terrazas fired him because he was faced with a work

1013

deadline that he had to meet and did not want to take the time
to address Mr . Beltran's concern. Contrary to the Secretary's
position, I have concluded that Mr. Beltran did not communicate
a safety complaint to Mr. Terrazas, and that even if he had,
his complaints were addressed by foreman Perez and maintenance
mechanic Gomez and they did not amount to safety defects that
rendered the sweeper unsafe to operate under the conditions
that prevailed at the time of Mr. Beltran's encounter with
Mr. Terrazas on March 21, 1995.
The Secretary asserts that when a mine operator offers a
miner the choice between the work he has perceived as dangerous,
or no work at all, the operator has in effect fired the miner,
even though the operator has not said so in explicit words.
While this may be true, I cannot conclude that Mr. Beltran's
options were limited to a choice of operating the sweeper in
the manner that he was observed operating it, or "no work"
at all. To the contrary, I find credible and plausible
Mr. Terrazas' testimony that one of the choices he gave
Mr . Beltran wa:,~ to use a broom and shovel and join other
employees who were also cleaning the parking lot. The entire
area that was being cleaned was approximately one acre , which
included the roadways and parking lot (Tr . 33).
Instead of
accepting Mr. Terrazas' offer, which I conclude was not
unreasonable, or offering or agreeing to operate the sweeper
at a lower speed as he was asked to do, Mr. Beltran continued
to engage Mr. Terrazas in further heated conversation over the
condition of the sweeper and challenged Mr . Terrazas to put his
choices in writing. At that point in time, Mr . Terrazas reacted
angrily by instructing Mr. Miranda to escort Mr. Beltran off mine
property, and Mr . Beltran found himself "heading for the gate . "
The Secretary's posthearing assertion that Mr. Miranda
"heard Terrazas fire Beltran (Tr. 109)" is inaccurate . The
evidence reflects that Mr . Terrazas instructed Mr. Miranda to
escort Mr. Beltran off mine property after giving Mr. Beltran the
choices which he did not accept . I find no evidence to support
any conclusion that Mr. Terrazas ' directly stated to Mr. Beltran
that he was fired.
Further, the Secretary's contention that
Mr. Beltran was denied employment with the respondent "as a
r esult of filing a complaint of discrimination with MSHA" is
rejected.
Mr. Beltran's MSHA complaint was filed after his
termination.

1014

At the temporary reinstatement hearing, Inspector Peters
testified that during her investigation Mr. Terrazas did not tell
her that he fired Mr. Beltran for complaining about · safety, and
simply commented that he gave Mr. Beltran "a choice" (Tr . 104).
At the merits hearing, Ms. Peters stated that Mr. Terrazas
informed her that he fired Mr. Bel tran (Tr . 166). However, she
later testified that Mr. Terrazas referred to Mr. Beltran's
~termination" several times, and she concluded that Mr. Beltran's
employment "ceased" and was "terminated" regardless of whether
Mr. Beltran or Mr . Terrazas terminated the employment (Tr. 358) .
She confirmed that Mr. Terrazas' prior statements to her that he
had given Mr. Beltran a choice of getting back on the sweeper and
doing a better job or leaving was consistent with his merits
hearing testimony (Tr. 359).
The respondent takes the position that Mr . Beltran quit
his job voluntarily after refusing Mr. Terrazas ' alternative
choices and opting to leave the mine. However , I have difficulty in reconciling the separation notice signed by respondent's
general superintendent Sammy Vigil which clearly shows that
Mr. Beltran was separated by discharge, effective March 21, 1995
(Exhibit C-2, temporary reinstatement hearing) . The document
reflects a work evaluation of "satisfactory" for Mr . Beltran and
"unsatisfactory" for conduct.
It further reflects that he would
not be re-employed, and the reason for the discharge is shown as
"conduct."
Mr. Terrazas did not deny that the discharge notice was
authentic, and the record reflects that Mr. Vigil had the
authority to discharge Mr. Beltran . Mr. Vigil was not called
by either side to explain the circumstances under which the
notice was issued . Mr. Terrazas suggested that the notice was
filled out after Mr. Beltran informed the mine security personnel
that he had been fired . In the absence of any credible or
probative evidence explaining the discharge note, it remains
unrebutted.
Mr . Terrazas does not deny that one of the options given to
Mr. Beltran was "to hit the gate." In the mining community such
t erms as "hit the gate" and "go to the house" are not terms of
endearment. They usually and commonly connote that one ' s
employment has ceased or terminated.

1015

On the facts of this case, although there is no evidence
of any direct discharge, other than the discharge notice, one
may reasonably conclude that Mr. Beltran was "constructively
discharged." Such a discharge as a result of protected activity
covered by the Mine Act would be illegal. However, a discharge
for unprotected activity would be a matter outside Mine Act
jurisdiction. ~: Phelps Dodge Corporation, 3 FMSHRC 2508, 2516
(November 1981) , where the Commission stated that "the Commission
and its judges have neither the statutory charter nor the
specialized expertise to sit as a super grievance or arbitration
board meting out industrial equity.
It is clear that ary discrimination prohibited by the
Mine Act requires a showing of some nexus to protected activity,
Simpson v. FMSHRC, 842 F.2d 453, 464 (D.C. Cir. 1988). Further ,
in order to establish a successful claim of constructive dis charge pursuant to the Mine Act, Mr. Beltran must show that he
engaged in protected activity and that the respondent retaliated
against him by \ creating or maintaining intolerable working
conditions that · compelled him to leave his job. Rosalie Edwards
v. Aaron Mining. Inc., 5 FMSHRC 2035 (December 1983); Simpson v.
FMSHRC, supra; Ramsey v. Industrial Constructors Corp., 12 FMSHRC
1587 (August 1990) .
\

In view of my findings and conclusions that Mr. Beltran did
not refuse to operate the sweeper, that he failed to communicate
any safety complaint, and failed to establish that operating the
sweeper on March 21, 1995, would not be safe, I conclude and find
that the circumstances under which his job was terminated did not
result from any protected activity on his part, or any retaliation on the part of the respondent.

OEDER
In view of the foregoing findings and conclusions, and
on the basis of the preponderance of all of the credible and
probative evidence adduced in this case, I conclude and find
that the Secretary has not established that the respondent
discriminated against Mr. Beltran in violation of section lOS{c)
of the Mine Act . Accordingly, the complaint IS DISMISSED, and
the claims for relief ARE DENIED.

1016

The respondent's request for an award of its costs and
attorney's fee _ARE .DENIED. The Mine Act does not provide for
such payments.

~.tu~
Administrative Law Judge

Distribution:
Ernest A. Burford, Esq., Office of the Solicitor,
U.S. Department of Labor, 525 Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
Matthew P. Holt, Esq., Sager, Curran, Sturgess and Tepper,
P.O. Box 2065, 201 North Church Street, Las Cruces,
NM 88004-2065 (Certified Mail)

/lh

1017

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

rJUN 2 0 \996

SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRA.TION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . WEST 96-3
A.C . No . 48-0 1 215-03521
Coal Creek Mine

S & M CONSTRUCTION, INC . ,
Respondent

DECISION
Appearances:

Ann Noble, Esq., Office of the Solicitor,
U. S . Department of Labor, Denver, Colorado,
for the Petitioner;
Stephen Kepp, Safety Director , S & M Construction,
Inc., Gillette , Wyoming, for the Respondent .

Befor e :

Judge Koutras

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 1 977, 30 U . S . C. § 820(a), seeking civil penalty
assessments for alleged violations of mandatory trainin g safety
standarjs 30 C.F.R. 48.25 (b) and 48.26 \ a). The respo~dent filed
a timely answer and a hearing was held in Gillette , Wyoming. The
pet i tioner filed a posthearing brief, but the respondent did not.
However, I have considered its oral arguments made on the record
in the course of the hearing, as well as the argument s advanced
by the p etitioner.
I ssues
The i ssues presented in this case are (l} whet her the
conditions or practices cited by the inspector consti t u t e
violations of the cited mandatory safety standards, (2) whether

1018

the alleged violations were "significant and substantial" (S&S),
and (3) the appropriate civil penalties to be assessed for the
violations, taking into account the civil penalty assessment
criteria found in section llO (i ) of the Act.
A;gplicable Statutory and Regulatory Proyisions
1.

The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. § 801 .e..t. ~.,

2.

30 C.F.R.

3.

Commission rules, 29 C.F.R.

§§

48.25(b) and 48.26(a).
§

2700.1 .et.~·

Stipulations
The parties stipulated to the following:
1.

The ~espondent is the owner and operator of the
subject mine.

2.

The respondent is engaged in mining and selling of
coal in the United States, and its mining operations
affect interstate commerce. The mine is subject to
the jurisdiction of the Mine Act.

3.

The Administrative Law Judge has jurisdiction in
this matter.

4.

The subject citations were properly served by a duly
authorized representative of the petitioner upon an
agent of respondent on the dates and places stated
therein, and may be admitted into evidence for the
purpose of establishing their issuance, and not for
the truthfulness or relevancy of any statements
asserted therein.

5.

The exhibits to be offered by respondent and the
petitioner are stipulated to be authentic, but no
stipulation is made as to their relevance or the
truth of the matters . asserted therein.

1019

6.

The respondent demonstrated good faith in abating
the violations .

7.

The respondent produced 3,356,712 tons of coal
in 1994 .

8.

The certified copy of the MSHA Assessed Violations
History (Exhibit P-1) accurately reflects the
history of the mine for the two years prior to the
date of the citations.
Discussion

Section 104(g) (1) "S&sn Order No. 3848781, issued at
5:30 p.m. on February 21, 1995, by MSHA Inspector Herbert A.
Skeens, cites an alleged violation of 30 C.F.R. 48.26(a), and
the condition or practice cited is described as follows:
The following employees have not received the
training required by 30 C.F.R. 48.26: Derward
Lint employed since 5/17/94.
Richard Chesmore employed since 1/17/95
Raymond Holzer employed since 6/24/94
John Milliken employed since 10 /6/94
Bill Morris employed since 5/13/94
Craig Olson employed since 11/29/94
Richard Villmow employed since 6/14/94
Wilbert Williams employed since 5/31/94
Burt Gleason employed since 10/26/94
All of the cited miners were ordered to be withdrawn from
the mine. The order was modified on February 22, 1995, to allow
miners Williams, Villmow, Holzer, and Chesmore to return to work
because they received the required training. Miner Mil:iken was
allowed to return to work on February 23, 1995, after his newly·
employed experienced miner training was documented. Except for
miner Morris, who was no longer employed at the mine, the remaining miners were allowed to return to work on March 10, 1995, when
their newly employed experienced miner training was documented.

1020

The respondent's answer states, in relevant part, as
follows:
This order states 9 employees were inadequately
trained as experienced miners working at Coal Creek
mine. The order states that due to inadequate
training these individuals were reasonably likely
to be injured and that the injury would result in
a fatality.
The least experienced miner had 4 years
practicing his craft. Seven of the 9 have 15 years
experience in their craft. All nine individuals
had current training certificates issued by S&M
Construction . Seven of the nine individuals have
been employed by S&M for more than 4 years and had
received annual training during that time frame.

In .fAQ.t:

The Secretary's regulatory training requirements for miners
working at surface mines and surf ace areas of underground mines
are found in Part 48, Subpart B, Title 30, Code of Federal
Regulations. Section 48.26(a) provides as follows:
(a) A newly employed experienced miner shall
receive and complete training in the program
of instruction prescribed in this section before
such miner is assigned to work duties.
(b) The training program for newly employed
experienced miners shall include the following:
(1) Introduction to work environment . The course
shall include a visit and tour of the mine. The
methods of mining or operations utilized at the
mine shall be observed and explained .
(2) Mandatory health and safety standards. The
course shall include the mandatory health and safety
standards pertinent to the tasks to be assigned.
(3} Authority and responsibility of supervisors
and miners' representatives. The course shall
include a review and description of the line of

1021

authority of supervisors and miners' representatives
and the responsibilities of such supervisors and
miners' representatives; and an introduction to the
operator's rules and the procedures for reporting
hazards.
(4) Transportation controls and communication

systems. The course shall include instruction on
the procedures in effect for riding on and in mine
conveyances; and controls for the transportation of
miners and materials; and the use of mine communication systems, warning signals, and directional signs.
(5) Escape and emergency evacuation plans;
firewarning and firefighting . The course shall
include a review of the mine escape system;
escape and emergency evacuation plans in effect
at the mine; and instruction in the firewarning
signals anq firefighting procedures.
(6) Ground controls; working in areas of highwalls,
water hazards. pits. and spoil banks; illumination
and night work . The course shall include, where
applicable, an introduction to and instruction on
the highwall and ground control plans in effect at
the mine; procedures for working safely in areas of
highwalls, water hazards, pits, and spoil banks, the
illumination of work areas, and safe work procedures
for miners during hours of darkness.
(7) Hazard recognition, The course shall include the
recognition and avoidance of hazards present in the
mine, particularly, any hazards related to explosives
where explosives are used or stored at the mine.
(8) Such other courses as may be required by the
District Manager based on cir.cumstances and conditions
at the mine.
Section l04(g) (1) "S&S" Order No. 3848782, issued at
8:05 a.m., on February 22, 1995, by Inspector Skeens , cites an

1022

alleged violation of 30 C.F.R. 48.25(b), and the cited condition
or practice states as follows:
Judy Gerber and Jack Knoell have not received
new miner training required by 30 C.F.R.
48.25(b) (4) (8), and (12). Gerber has been
employed at the mine since May 11, 1995, and
Knoell since July 11, 1994. Both miners are
to be withdrawn.
Both of the cited miners were allowed to return to work on
February 24, 1995, when their new miner training was documented.
The respondent's answer states, in relevant part, as
follows:
This order states 2 employees were inadequately
trained as inexperienced miners working at
Coal Creek Mine. The order states that due to
inadequate training these individuals were
reasonably likely to be injured and that the
injury would result in a fatality. Gerber, one
of the two individuals, was one of the first
people. hired by S & M at Coal Creek. She received
her inexperienced miner training at the same time
the original hires did -- over a period of days.
She developed into our best, most versatile employee
before taking a temporary leave. And Knoell has
been a heavy machine mechanic for 20 years and
traveled with experienced S & M mechanics when he
first started working at Coal Creek.
30 C.F . R. 48.25(a) requires new miners to receive no less
than 24 hours of prescribed training, and except as otherwise
provided, the training shall be received before they ·are assigned
to work duties. Subsection (b) of section 48.25(a), requires the
training program for new miners .to include the following courses:
(l) Instruction in the statutory rights of
miners and their representatives under the Act;
authority and responsibility of supervisors.
(2) Self-rescue and respiratory devices.

1023

(3) Transportation controls and communication
system.
(4) Introduction to work environment.
(5) Escape and emergency evacuation plans;
firewarning and firefighting.
(6) Ground control; working in areas of
highwalls, water hazards, pits and spoil banks;
illumination and night work.
(7) Health .
(8) Hazard recognition.
(9) Electrical hazards.
(10) First aid.
(11) Explosives .
(12) Health and safety aspects of the tasks to
which the miner will be assigned.
(13) Such other courses as may be required by

the District Manager based on circumstances and
conditions at the mine.
Petitioner's Testimony and Eyidence
MSHA Inspector Herbert A. Skeens testified that he has been
so employed for three and one-half years, and previously worked
in the mining industry for 18 years. He is a high school graduate, attended the MSHA Academy in Beckley, West Virginia, and has
Virginia and Kentucky mine foreman's certificates (Tr. 10-12).
He confirmed that he conducted a ''spot inspection" at the mine
in February, 1995, for the purpose of reviewing the Part 50
reporting and Part 48 training records, and that respondent's
representative Steve Kepp accompanied him. Mr. Skeens described
the mine as an open pit surface ~oal mine, and stated that the
respondent began operating it sometime in April or May 1 994
(Tr. 13) .

1024

Mr. Skeens confirmed that he issued the two contested orders
in question. ~e explained that Mr. Kepp provided him with the
information regarding employee training records, i n~ luding MSHA
training certificate 5000-23 forms. Mr. Skeens stated that he
reviewed the training records for approximately 60 empl oyees, and
he and Mr. Kepp determined their hire dates. Mr . Skeens then
reviewed the training certificates for each employee and found
that the individuals who are named in the orders had not received
the required training. He identified Exhibit P-7 as a training
record Form 50 0 0-23, and he explained the information on the form
and how it is filled out (Tr. 15-20) .
Mr. Skeens stated that it took him approximately 10 hours to
review all of the training records furnished to him by Mr. Kepp.
He explained that the \\hire dates" shown for each cited employee
were obtained from dated training certificates or from information provided by Mr. Kepp . (Mr. Kepp did not dispute any of
the \\hire datesn listed in the orders (Tr. 21) .)
Mr. Skeens. identified Exhibit P-2 as a copy of his order
of February 21, 1995, citing nine employees for lack of training . He stated that these employees should have received newly
experienced miner training. With regard to cited miner Derward
Lint, Mr. Skeens stated the records reflected that he had
received annual refresher training through a contractor with
an approved training program, but had not received any newly
employed experienced miner training. He explained that newly
employed experienced miner training includes three subjects that
are not covered or included in annual refresher training, and he
identified them as hazard recognition, introduction to work
environment, and authority and responsibility of supervisors
and miners' representatives, and explained the course contents
(Tr . 2 2 - 2 5 ) .
Mr. Skeens stated that eight of the nine employees listed
received annual refresher training, but not the proper newly
employed experienced miner training, which would have included
the aforementioned three training course subjects. In short,
they missed these three courses . With regard to one employee,
Bur t Gleason, he could find no records indicating that he had
any training (Tr. 26). Further , there were lapses of a week to
six months from the hire dates of some of the employees until
they were trained, and he testified to the hire dates and

1025

training dates for cited employees Lint, Chesmore, Holzer,
Milliken, Morris, Olson, Villmow, and Williams {Tr. 26-28).
In support. of his gravity findings associated with the
February 21, 1995, order, Mr. Skeens stated as follows
(Tr. 2 9 - 3 0) :
Q.

Okay. You indicated on the citation form that
an injury was reasonably likely. What did you
mean by that?

A.

Go ahead.

Q.

How did you come to that conclusion?

A.

Well, any miner that doesn't have the proper training is considered to be a hazard to themselves and
a hazard to others. These subjects that we discussed
earlier are pertinent to a miner's health and safety.
Going .out there and not knowing anything about the
mine site, the mine conditions, the traffic patterns,
the blasting rules, the blasting procedures, the
authority and responsibility of the supervisors,
those types of things could easily lead to an accident.

Q.

And you said that injury might be fatal.
you come to that conclusion?

A.

Well, with just the hazards associated with that
mine. You've got high walls 60 to 80 feet in
height. You got people working underneath them;
working above them; working close to them; spoil
banks. You've got the conditions of the mine that
a person could drive off that high wall if they
didn't know where he was.

How did

There's a lot of work before daylight hours,
a lot of work after dark. I know when you're out
there if you don't know where you are, you better
make sure, because you could run off of a high wall
face.

1026

Mr. Skeens defined a "significant and substantial" violation
as "a violation of health or safety standard, and that violation
is reasonably likely to result in injury or illness, and that
injury or illness would be of a reasonably serious nature"
(Tr. 31) .

Mr. Skeens stated that the mine has a complicated work
schedule with four crews reporting for work between the hours of
4:00 a.m. and 10:00 a.m., and working different shifts, but he
could not explain the work schedule and indicated that work might
be taking place around the clock at any given time (Tr. 30).
Mr. Skeens stated that he based his "high" negligence finding on the fact that during a prior inspection in November, 1994,
he issued two section 104{g) (1) orders, and during a close-out
conference and other discussions with Mr. Kepp, and possibly
other management persons, compliance with Part 48 was discussed
(Tr. 31, 52).
Mr. Skeens · reviewed a copy of a settlement decision issued
by Commission Judge Manning on October 26, 1995, and he
identified two November 28, 1994, orders citing a violation of
section 48.26(a) and a mechanic for not receiving newly employed
experienced miner training, and a blaster for not receiving
hazard training required by section 4~.31 (Tr. 32, 35).
With regard to the order he issued in this case on
February 22, 1996, Mr. Skeens confirmed that he based the order
on the fact that his review of Training Forms 5000-23 indicated
that cited miners Gerber and Knoell had not received all of the
required training. He identified the three missing training
segments as introduction to work environment, hazard recognition,
and health and safety aspects of tasks assigned (Tr. 35).
Mr. Skeens stated that he did not determine the job
positions held by each of the eleven employees that he identified in his orders as lacking the required training. He stated
that "some of these people are what I call utility; they do a
lot of different things" (Tr. 37). He stated that Richard
Villmow was a front-end loader operator, but "could very well end
up doing mechanic work on it if something happened to the loader.
He has observed Mr. Villmow steam cleaning or washing the loader,
and doing maintenance work. He stated that "most of these

1027

employees, if something happens, then they're required to pitch
in and help the mechanic or do another job task." He stated
that Mr. Chesmore is a mechanic, and he has observeq Mr. Lint
operating a pan scraper several times. He believed that
Ms. Gerber worked in the coal handling plant in the control room
or performing clean-up duties. He also believed that people
working in the large plant could be at any plant location at any
time (Tr. 38).
Mr. Kepp took issue with Mr . Skeen's testimony regarding the
job tasks in question. He stated that Mr . Lint was a welder and
would not be operating a scraper. He stated that Ms. Gerber's
primary job was truck driver, but conceded that she could be
engaged in clean-up duties if the plant was not running coal
(Tr. 39-41). Mr. Skeens did not dispute Mr. Kepp's information,
and Mr. Kepp agreed that an employee needed to be trained
regardless of his job task or assignment (Tr. 41).
On cross-e~arnination, Mr. Skeens identified the contractor
who trained one 'of the cited employees as "S & M Construction,
Inc.," and he confirmed that this company had an approved training plan (Tr. 42). In reviewing the records of the individuals
identified in Order No. 3848781, he found other training
certificates for different types of training, such as annual
refresher or task training, but he was not sure that S & M
Construction, Inc . , provided that training (Tr . 42).
Mr. Skeens stated that there is a difference between
training provided by a contractor and a operator because they
have different training plans, even though they may be similar.
He explained that a contractor employee who goes to work for a
mine operator must be trained by that operator. He confirmed
that Mr. Lint had received contractor training, and that except
for Mr. Lint and Mr. Gleason, the other employees received annual
refresher training "in an untimely manner" from the Coal Creek
Mine operator. If these employees were working for the
contractor, they should have been.trained under the contractor's
plan (Tr. 44) .
Mr. Skeens stated that he was not sure about the length of
time required for training. He was of the opinion that taking
30 to 45 minutes for experienced miner training could be "cutting
it a little short, and it would depend 'on the individual miner,
11

1028

the trainer, and the mine policy (Tr. 45). Mr. Skeens agreed
that if a miner is absent from the mine site for any period of
time, he cannot receive training and he would not be exposed to
the particular hazards at that mine (Tr. 47).
Mr. Skeens confirmed that the "employed since" dates for
each of the listed cited employees only refers to the dates they
started work at the Coal Creek Mine, and one cannot infer from
the dates shown that these were the first dates they started
working at a coal mine performing their particular job tasks
{Tr. 48).
In response to further questions, Mr. Skeens stated that
task training for anyone working in a mine must be given before
commencing a new task, and that a newly employed experienced
miner must receive training before commencing any work duties.
Newly employed persons, regardless of experience, have to be
trained the day they are hired (Tr. 50) .
When asked to reconcile one of his prior violations of
November, 1994, concerning a blaster who had not received hazard
training, where he nonetheless made a gravity finding that he
would not be exposed to a fatal injury, Mr. Skeens explained that
the cited individual (Hansen) was an experienced blaster who was
comprehensively training at other mines, but not at the mine
where he was performing duties when the violation was issued.
Mr. Skeens characterized the lack of mine specific hazard
training as "a technicality" (Tr. 53).
In response to further questions concerning the jobs
performed by the cited employees, Mr . Skeens and MSHA counsel
stated as follows {Tr. 54-56):
THE COURT:
In the case at hand now, with the
exception of one or two people, you really don't
know .what these other people did in terms of their
jobs?
THE WITNESS:
I can't recall what they did.
I
know I've observed each one of them at one time or
another. Some are mechanics, some are dozer operators,
loader operators, heavy equipment operators is most of
them.

10 29

THE COURT: Do you have any information as to
what the ~ccident record is at this mine operation?
Have they had accidents? Have they had fatalities?
Do you know what their profile might be?
MS. NOBLE: No. We have statistics as to the
number of violations this mine and several other
mines in this area, which we intend to introduce.
But as to accident rates, I don't have those available
here. I don't have any reason to think that their
accident rate is any higher than mines in this
location
in this area.

*

*

*

*

*

*

THE COURT: What kind of situation results in
fatal accidents?
MS. NOBLE:

What kind would result?

THE COURT: Yeah. Someone working under a high
wall? And if he's not trained in high wall recognition,
that's the kind of situation you're testifying to?
MS. NOBLE:

Yeah.

THE COURT: Is there any information that any of
these individuals were required to work under a high
wall?
MS. NOBLE:

No.

Larry L. Keller testified that he is the manager/supervisor
of the MSHA field office in Gillette, Wyoming, and tha~ he is
Inspector Skeen's supervisor . He testified as to his experience
and training, including service as an inspector from 1972 to
1978. He confirmed that he visited the mine in question in June
and November, 1994, accompanying inspectors who were inspecting
the mine. He confirmed that he attended a conference with
Mr. Kepp in connection with the section l04(g) (l) orders that
were issued during the November, 1994, inspection and that he and
Mr. Kepp discussed "cross-over training from S & M Construction,

1030

Incorporated, three digit contractor number to the seven digit
mine identification number as a mining operator and entity"
(Tr . 5 8 - 61 ) .
Mr. Keller stated that S & M Construction, Inc . . is a local
contractor engaged in highway construction projects, road construction , and "probably pipe laying." A part of that company,
S & M Construction, Incorporated, has a seven digit mine
operator's entity number and is the operator of the mine. The
construction company can provide all of the training required
of a miner who works at the mine except for the three of four
training items, such as the introduction to work environment,
duties and responsibilities of the foreman, and miners' representatives at the mine site, and some additional hazard type
training. A contractor cannot provide this training for the
mine operator (Tr. 62-63).
Mr. Keller stated that the respondent had approximately
50 employees in 1994 and produced 3,000,000 tons of coal, and in
1995 the mine produced approximately 8,000,000 tons. MSHA's

prior history computer print-out for the mine for the period
January, 1994, through January, 1996, reflects 72 violations
(Tr. 64) .
On cross - examination, Mr. Keller confirmed that on
November 27, 1994, MSHA training specialist Judy Tate from the
McAlester, Oklahoma office, conducted a review of training
records at the mine and no violations were issued as a result of
this review. He stated that Ms. Tate was not authorized to issue
any citations and reviewed Part 48 training records and Part 50
accident reporting records for completeness . She would probably
bring any errors to his attention, and he would probably send
someone to the mine to check the matter (Tr. 69-73).
In response to a question as to how an inspector · can reasonably conclude that lack of training will result in a fatality if
he does not, on a case-by-case basis, determine the hazard
exposure for the particular individual, Mr. Keller responded as
follows (Tr. 74-75):
THE WITNESS: Through the years, the statistics
in the mining industry has shown this agency that newly
employed inexperienced miners suffer more injuries and

1031

have suffered more fatalities in this industry than
older, more experienced employees.
Therefore, we base a lot of those type of determinations on the gravity of what our experience. has
been in this industry , and what our experience has been
in compiling the information that would require mine
operators to present to us.
THE COURT: That's an inexperienced miner
you're talking about?
THE WITNESS:

Basically, yes, inexperienced.

THE COURT: Let's take an experienced miner . An
experienced miner who hasn't had hazards recognition,
statutory rights of miners and introduction to work
environment . My first question is, is that likely to
be a fatality in all cases?
THE WITNESS: No, not in all cases. He's
probably experienced through his work history. Each
one of those things are individual, anyway. He
probably knows what those hazards are, basically,
but going from one mine site to another on those
three open topics, we're asking -- each mine presents
unique hazard in itself.
THE COURT:

Right.

THE WITNESS: Each mine has traffic rules that are
different from a previous mine . Or different mines,
their blasting signals could be different. If he's
gained all that experience at a particular mine, his
association to those hazards is probably pretty
knowledgeable just what he gained by being there.
Mr. Keller acknowledged that an inspector who issues
training citations based on his review of records would have no
way of knowing whether an employee is knowledgeable about his
work environment or whether he can recognize a hazard unless he
speaks with the employee. He stated that in cases where an
entire mine is under 104(g} withdrawal because of training, it

1032

would be impossible to interview every miner and the inspector
must assume that the mine operator cannot provide what was not
done during any training (Tr . 76).
Inspector Skeens was recalled by the petitioner. and he
confirmed that when he issued Order No. 3848781 concerning the
newly employed experienced miners, he explained to Mr. Kepp that
the employees in question needed newly employed experienced miner
training, including the three courses previously mentioned,
rather than the annual refresher training that their training
certificates indicated they received. He stated that Mr. Kepp
did not indicate to him that any of the nine individuals had
taken the three missing courses (Tr. 79-80).
Respondent's Testimony and Evidence
Stephen Kepp testified that he has served as the
respondent's safety director for five years, is a certified MSHA
surface instru~tor, and holds Wyoming State surface mining foreman's papers . He also holds a bachelor's degree in accounting
and a master's degree in business administration. He has
16 years of mining experience and is aware of MSHA's training
and paperwork requirements that are his responsibility as safety
director (Tr. 82).
Mr . Kepp stated that S & M Construction was awarded the
contract to operate the mine over eight other companies because
of its continuously improved safety record. There have been
three lost-time accidents since the respondent has operated the
mine, and there have been no lost time accidents since
October 28, 1995 (Tr . 83).
Mr. Kepp stated that the employees cited in Order
No. 3848781 are all experienced in their crafts, are aware of
their surroundings, and are knowledgeable of any hazards that
may exist in the course of performing their duties. He did not
believe that any of them presented a hazard to themselves or to
others (Tr. 85).
Mr. Kepp discussed the experience level of the cited
employees as follows (Tr. 83-85):

1033

... Derward Line is a welder; he has 15 years of
experience. Dick Chesmore has 19 years . of experience
working - - he is a plant mechanic. That's how. he's
classified; he has 19 years of experience. He has
17 years with Amax Coal at Belle Ayr Mine. Very
knowledgeable individual, and very, very safety
conscious.
Ray Holzer is a dozer operator. He has been
with S & M Construction since the company was founded
ten years ago. He has 25 years of experience as a
dozer operator. John Milliken is a blade operator
with 20 years of experience . And has been with
S & M Construction since March of 1987. Bill Morris
is a welder; he has four years of experience, and has
been with S & M since 1992.
Craig Olson is another blade operator, with
11 years q f experience. He is our finished blade
operator , meaning that his skills are extremely high.
Richard Villmow has 18 years of experience as an
equipment operator. He's operated several pieces
of equipment for S & M while out at Coal Creek.
Bill Williams is 72 years old. He has four years of
experience with S & M Construction as an equipment
operator. He currently operates a 627 Caterpillar
scraper. Burt Gleason is a plant mechanic with
16 years of experience . And I believe that experience
was from Exxon's Rawhide Mine here in the basin.
\

Mr. Kepp stated that Mr . Knoell is a mechanic who received
the proper training when he arrived at the mine, but it was not
documented . He indicated that Mr. Knoell was escorted for the
first several days so he could learn the roads to the pits where
the machines might be working. Judy Gerber was one of· the first
individuals hired, and she was trained on the e quipment, and was
part of a mine tour when she was ·informed of mine areas that may
present hazards. She is the daughter of another construction
company owner and she has been around construction equipment all
of her life (Tr. 86).
Mr. Kepp stated that Lint, Holzer, Milliken, Morris, Olson,
Villmow, and Williams had annual refresher training provided by

1034

S & M Construction,

the contractor , and it was similar to the
training provided by S & M Construction, the operator of the
mine. He stated that every employee who starts out _at t he mine
is escorted around so that he knows the roads and traffic
patterns, and they each must watch a hazard training film which
covers all topics , except the responsibility of supervisors and
miners' representatives. However, he could not state with
certainty that the topic was covered with newly employed
individuals (Tr. 86-87).
On cross-examination, Mr. Kepp stated that he is in charge
of safety for both the mine operator part and contractor part of
S & M's operations. His experience includes loading coal trains,
the limited operation of some heavy equipment, and 16 years of
surface coal experience (Tr. 90-92).
Mr. Kepp believed that Mr. Chesmore was very safety
conscious because he was an active participant in a January 1995
refresher train-~ng course. Mr . Kepp also believed that, based on
their experience, the nine cited employees were aware of their
work surroundings and had the ability to recognize hazards.
Further, with the exception of Mr. Villmow, none of the employees
had any lost time accidents (Tr. 94-97).
Mr. Kepp stated that a 20-minute video that is mine specific
to Coal Creek Mine is viewed by the employees, and that one would
"have a good idea of what went on at the mine" by watching the
video. He conceded that simply viewing the video would not cover
all of the training requirements for newly employed experienced
miners or inexperienced miners (Tr. 97).
Mr . Kepp stated that the three training topics previously
mentioned were covered as part of the employee training, but
the training was not documented by preparing a Form 5000 - 23 . He
stated that all personnel who start work at the mine are given a
mine tour, and an equipment operator would be tested and given
hazard training before he is hired and starts work. He confirmed
that the training subject related to the authority and responsibility of supervisors and miners' representatives was not
included as part of the hazard training video, but that it was
"very likely" included as part of the mine tour conducted by him

1035

or a shift supervisor (Tr. 95-100). He also alluded to first day
tours and escorts for Mr. Knoell and other new employees
(Tr. 101) .
Mr. Kepp stated that all of the cited employees. were
"probably" trained in his off ice after the orders were issued,
and that the Forms 5000-23 were then executed and shown to
Inspector Skeens in order to abate the orders (Tr. 102-104, 112).
In response to a question as to why he would need to re-train the
cited employees if they had in fact been trained in the first
place, Mr. Kepp stated that after the prior record reviews by
Ms. Tate, MSHA's training representative, she was not sure of
the kinds of training that needed to be provided and suggested
that he provide newly employed experienced miner training to all
mine employees and that he did so in his capacity as the mine
operator's trainer and that this "would probably get me covered"
(Tr. 104-105).
When asked\ why he had not prepared the 5000-23 Forms for
the cited employees after they were trained, Mr. Kepp stated
that "with respect to these nine individuals, they did have what
I thought was correct and current training forms" (Tr. 105). He
also believed that the employees had been trained by the contractor (S & M) and, although not trained by the mine operator
(S & M) , he believed "all along that these people did have
current training" by "technically the same corporate entity"
(Tr. 107) .
Mr. Kepp believed that the orders issued by Inspector Skeens
were exaggerated because seven of the cited nine employees had
current craft training and had been trained in the introduction
to their work environment, hazard recognition, and the statutory
rights of miners, but conceded that there was no documentation of
this training (Tr. 108).
With regard to the order citing Mr. Knoell and Ms. Gerber,
Mr. Kepp stated that "these people did receive their training. I
just didn't get three boxes checked off on these individuals."
After subsequently filling out the form, the inspector abated the
order (Tr. 112 ) .
Petitioner's counsel agreed that in view of the fact that
the cited employees worked for the contractor and the mine

1036

operator, basically the same company, there may have been
confusion in early November, 1994, regarding the type of training
that was required. However, after the prior orders were issued
in late November, 1994, for the same type of violations, there
was no confusion and Mr. Kepp "should have gotten everything up
to date then and kept it up to date" (Tr. 110). Mr. Kepp
conceded the lack of documentation, and further ·explained as
follows (Tr. 113-114 ):
THE WITNESS: What I've agreed to is that
documentation has not been done and these orders
are exaggerated . They should have been not S and S
citations for failure to document training. That's
my position .
THE COURT: How would the inspector know whether
or not all these people received all this training when
he appear.s at the mine there and starts perusing the
records? ' Did you tell him what you testified to today
about how you thought all these people had been trained.
THE WITNESS: I'm sure at the time -- no, I did
not make any statements along that line.
Mr. Kepp stated that he filled out new training forms to
abate the orders that were issued, and when asked why he simply
did not document the training, rather than re-training the cited
individuals to abate the orders, he responded (Tr. 116-117):
A.

I guess maybe to answer that question, I wanted
to get something established. Something organized
with a pattern such that when I made a statement,
'[y)es, he did receive newly employed experienced
miner training,' it was the steps that I covered,
and I wanted to start with the first individual.
Through and up to today, I do it the same way.

*
Q.

*

*

*

So you wanted to make sure the second time that
you filled it out in . order to terminate the withdrawl order. You wanted to make sure that
everything was really included?

1037

A.

Something I cannot do, something I will not
do is just check off a box and sign the form.
That carries it's own set of penalties, including
personal penalties, and I'm not going to do that.

*

*

*

*

A.

I guess maybe it's just dotting the i's and
crossing the t's.

Q.

So this time you dotted the i's and crossed the
t's, and the withdrawal orders were terminated?

A.

That's correct.
Findings and Conclusions

Fact of Violat 1.ons
Order No. 3848781. The respondent is here charged with a
violation of 30 C.F.R. 48.26 (a ) , because of its alleged failure
to provide newly employed experienced miner training to nine
of its employees. Inspector Skeens testified credibly that he
issued the violation after reviewing the respondent's employee
training records, and comparing their "hire dates" (which are
not disputed) with the available training records. Although
Mr. Skeens found that eight of the cited employees had received
annual refresher training by the respondent in its contractor
capacity, and that one had received no training, he determined
that the refresher training for the eight employees in question
did not include three of the training courses required by section
48.26(a), namely, Introduction to Work Environment, Authority and
Responsibility of Supervisors and Miners' Representatives, and .
Hazard Recognition, as required by section 48 . 26(b) (1), (3), and
( 7 ) (Tr . 2 2 - 2 6 ) .
Inspector Keller explained that the respondent's company
consists of two parts, a road and highway construction contractor
with a three digit MSHA identification number, and a contractor
mine operator with a seven digit MSHA identification number. He
stated that a construction contractor may provide all of the
training required of a miner working at a mine except for the

1038

items that were omitted in this case, and that a contractor
cannot provide this training for the mine operator (Tr. 62-63).
Inspector Skeens testified that when he issued the order
he explained to Mr. Kepp that the cited employees needed newly
employed experienced miner training, including the three omitted
courses, rather than their annual refresher training, and that
Mr. Kepp did not indicate to him that any of them had taken the
three missing courses (Tr. 79-80).
None of the cited miners were called to testify in this
case. Mr. Kepp asserted that seven of the miners had annual
refresher training provided by the respondent in its "Contractor"
capacity, and that it was "similar" to the training provided by
the respondent in its mine operator capacity (Tr. 86). Although
he alluded to a video viewed by nine employees, he conceded that
simply viewing and video would not cover the training requirements in question (Tr. 97).
Although Mr. Kepp maintained that the three training courses
in question were covered as part of employee training, he
admitted that it was not documented by the proper MSHA forms and
that the course dealing with the authority and responsibility of
supervisors and miners' representatives was not part of the
video, but "very likely" a part of a mine tour (Tr. 99). Since
the cited employees were trained by the "contractor," but not the
"mine operator," he believed that they had current training by
"technically" the same corporate entity (Tr. 107).
Mr. Kepp admitted that he did not inform Inspector Skeens
about his belief that the employees had been trained, and he
agreed that he did not document the alleged training that he
claims was given. He believed that the order in question was
exaggerated and that it should have been issued as a non-"S&S"
citation for failure to document training (Tr. 113).
After careful review of all'of the testimony and evidence, I
conclude and find that the petitioner has established a violation
of the cited training standard by a preponderance of the credible
and probative evidence adduced in this case. Accordingly,
section 104(g) (1) Order No. 38~8781 IS AFFIRMED.

1039

Order No. 3848782. The respondent is charged with a
violation of 30 C. F.R. 48.2S(b), for its alleged failure to
provide new miner training for two employees who had worked at
the mine for 8 and 10 months prior to the issuance of the violation on February 22, 1995. The inspector cited the employees
after determining that they had not been trained in three of the
13 courses required by section 48.25(b) (4), (8) and (12), namely
Introduction to Work Environment, Hazard Recognition , and Health
and Safety Aspects of Assigned Tasks .
Inspector Skeens confirmed that he issued the violation
after reviewing the training records provided by Mr. Kepp and
determining that the two cited employees did not receive all of
the required training, namely, the three missing cited training
courses {Tr . 35). He stated that newly employed individuals must
be trained the day they are hired, and must be task trained
before commencing a new task (Tr. SO).
Mr. Kepp asserted that cited employee Knoell received
"proper training" when he arrived at the mine, but that it was
not documented. As for Ms. Gerber, Mr. Kepp stated that she has
been around construction and equipment all of her life, was
trained on the equipment, and was part of a mine tour when she
was informed of mine areas that may present hazards (Tr. 86).
As noted earlier regarding the viewing of a video, Mr. Kepp
admitted that it would not cover all of the training requirements for newly employed inexperienced miners {Tr. 97). He
also alluded to first day tours and escorts for Mr. Knoell and
other new employees (Tr. 101), but none of this is documented
or corroborated and, as previously noted, none of the cited
employees were called to testify. Mr. Kepp conceded the lack
of documentation {Tr. 113 ) .
After careful review of the testimony and evidenee, I
conclude and find that the respondent has not rebutted the
credible testimony and evidence ~dduced by the petitioner in
support of this violation. I conclude and find that the
petitioner has established a violation of the cited training
standard by a preponderance of the credible and probative
evidence. Accordingly, section 104 (g) (1) Order No. 3848782
IS AFFIRMED .

1040

Significant and Substantial Violations
A "S&S" violation is described in section 104{d) (1) of
the Act as a violation "of such nature as could significantly
and substantially contributed to the cause and effect of a coal
or other mine safety or health hazard." 30 C.F.R. § 814(d) (1).
A violation is properly designated S&S "if, based upon the
particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result
in an injury or illness of a reasonable serious nature."
Cement Division. National Gypsum Co., 3 FMSHRC 822, 825 (April
1981) .
In Mathies Coal Co., 6 FMSHRC 3-4 (January 1984), the
Commission explained its interpretation of the term "S&S" as
follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
(1) the underlying violation
of a mandatory safety standard; (2) a discrete
safety hazard--that is, a measure of danger to
safety-contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed
to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of
a reasonably serious nature.
See also Austin Power. Inc. V. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987}
(approving Mathies criteria) .
The question of whether any particular violation . is S&S
must be based on the particular facts surrounding the violation,
including the nature of the mine . involved, Secretary of Labor
v. Texasgulf. Inc., 10 FMSHRC 498 (April 1988}; Youghiogheny &
Ohio Coal Company, 9 FMSHRC 2007 (December 1987). Further, any
determination of the significant nature of a violation must be
made in the context of continued normal mining operations.
National Gypsum, supra, 3 FMSHRC 327, 329 (March 1985).
Halfway. Incorporated, 8 FMSHRC 8 (January 1986).

1041

In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
112 9 (August 1.985) , the Commission stated further as follows:
We have explained further that the third
element of the Mathies formula 'requires that
the Secretary establish a reasonable likelihood
that the hazard contributed to will result in an
event in which there is an injury.' U.S . Steel
Mining Co., 6 FMSHRC 1834, 1836 (August 1984).
We have emphasized that, in accordance with the
language of section 104(d) (l), it is the contribution
of a violation to the cause and effect of a hazard
that must be significant and substantial. U. S . Steel
Mining Company. Inc., 6 FMSHRC 1866, 1868 (August
1984) .
The Commission recently reasserted its prior determinations
that as part o.f his "S&S" finding, the Secretary must prove the
reasonable lik~.lihood of an injury occurring as a result of the
hazard contributed to by the cited violative condition or
practice. Peabody Coal Company, 17 FMSHRC 508 (April 1995);
Jim Walter Resources. Inc., Docket No. SE 94-244 - R, decided
April 19, 1996.
In Highwire Incorporated, 10 FMSHRC 22, 67-68 (January
1988), I affirmed an inspector's "S&S" findings where the facts
and circumstances clearly established that a lack of task ·
training presented a reasonable likelihood of serious injuries
associated with such a violation . Highwire involved a fatal
truck accident that occurred when the driver lost control of the
truck on a curve and overturned. The mine operator was charged
with several violations, including a violation of 30 C.F.R.
48.26, for failing to provide newly employed experienced miner
training to the truck driver. Contrary to the instant case, th~
Secretary in Highwire provided probative testimony and evidence
concerning the operator's traini~g plan, the driver's job and
experience, and sufficient evidence supporting its "S&S"
position.
In Patch Coal Company, 10 FMSHRC 782 (June 1988), I affarmed
several citations for failure of the mine operator to g ive newly
employed experienced miner training to equipment operators in
violation of 30 C. F.R . 48.26(a) , but vacated the inspector's S&S

1042

findings associated with each of the citations. My reasons for
vacating these findings were based on the inspector's general and
speculative testimony regarding certain perceived hazards, and
his assumptions that a lack of training would expose miners to
injuries and fatalities generally associated with any mining
operation, rather than on any specific prevailing mining
conditions from which one could reasonably conclude that the
newly employed miners were in fact exposed to mine hazards in
their new work environment which would likely result in injuries
of a reasonably serious nature .
In Sunny Ridge Mining Company. Inc . , 13 FMSHRC 928, 931
(June 1991}, former Commission Judge James A. Broderick affirmed
a violation of 30 C.F.R. 48.26(a) because of the operator's
failure to train 11 newly employed experienced miners . However,
he vacated the inspector's "S&S 0 findings and modified the violation to non-"S&S" after concluding that the evidence did not
establish that the hazard contributed to by the violation would
reasonably lik~.ly result in a serious injury. In support of his
findings, Judge Broderick noted that the evidence established
that the miners were experienced and that the mine environment
was not particularly dangerous or threatening .
In the instant case, there is no evidence of any fatal
accidents at the mine, and the petitioner has no information
concerning the mine accident profile (Tr. 54). However, Mr. Kepp
testified that the respondent was awarded the contract to operate
the mine because of its continuously improved safety record, and
while there were three lost time accidents since the respondent
has operated the mine, there have been no lost time accidents
since October 28, 1995. He confirmed that the three accidents
involved two broken wrists and a broken ankle, and explained that
the mine operated for 462 days accident free before the accidents
which occurred within a seven-week period (Tr. 83). There is no
evidence that any of these incidents involved a lack of training .

.

While it is true that most of the miners completed the
required training after their "hire dates," there is no credible
or probative evidence to establish that the delay exposed them
to any particular hazards. Mr. Kepps' credible and unrebutted
testimony reflects that all of .the cited employees were experienced equipment operators with many years of service with the

1043

respondent or other mining companies. Although Mr. Kepps did not
dispute any of the employee "hire dates" listed in the orders,
Inspector Skeens agreed that these dates only reflect when the
individuals began work at the mine, and he conceded that one
cannot infer that these were the dates the individuals first
started performing their particular job tasks. He also confirmed
that in reviewing the training certificates of eight of the cited
employees, he found training certificates for different types of
training, such as annual refresher or task training, and he confirmed that the respondent had an approved MSHA training plan.
As noted earlier, Mr. Kepp testified credibly to the work
experience of the cited miners. In addition to annual refresher
and other training that they had received, he testified that
employees who start work at the mine for the first time are
escorted so that they know the roads and traffic patterns, and
that they are required to watch hazard training films and a
20-minute min~ specific video about the mine. He further
testified that\ cited employee Knoell was escorted to his work
location for the first several days to familiarize himself with
the roads, and that Ms. Gerber was informed about the mine areas
as part of a mine tour. Although I cannot conclude that these
procedures necessarily fulfilled MSHA's training requirements to
the letter, absent any evidence to the contrary, they do mitigate
the hazard and gravity exposure associated with these violations.
Inspector Skeens testified that a lack of knowledge about
the mine site, the mining conditions, traffic patterns, and the
blasting rules and procedures "could easily lead to an accident."
However, Mr. Skeens admitted that he did not determine the job
positions held by the cited employees, did not speak with them,
could not recall what they did, and simply observed them "at one
time or another" {Tr. 37, 54-56). Supervisory Inspector Keller
acknowledged that an inspector who issues training citations
based solely on a review of the training records would have no
way of knowing whether or not th~ cited employee is knowledgeable
about his work environment and can recognize a hazard unless he
speaks with him {Tr. 76).
Although it may be burdensome for an inspector to develop
all of the relevant facts in determining the potential hazard
exposure for all employees at a large mining operation, the
instant case only involves less than 12 employees who received

1044

annual refresher training, and who apparently completed the
training courses required by the cited regulations, except for
those dealing with their work environment, hazard recognition,
and the responsibilities of supervisors and miners' representatives . I find no evidence in this case to support any reasonable
conclusion that missing a course on the responsibilities of
supervisors and miners' representatives had any adverse impact on
the safety of the cited miners.
With respect to the required training course subjects on
hazard recognition and work environment, I agree that they are
important components of any approved training program. However,
in this case, the inspector's conclusion that injuries were
reasonably likely was based on his belief that improperly trained
miners are considered a hazard to themselves and to others.
Although one may agree with this generalized conclusion, I
conclude and find that an inspector must develop some factual
evidence, on a . case-by-case basis, to establish that the cited
miners would re~sonably likely suffer injuries of a reasonably
serious nature because they were not timely trained on hazard
recognition and their work environment at the particular mine
where they are employed.
In the absence of any evidence concerning the required job
tasks performed by the cited employees and the presence or likelihood of any adverse mining conditions that they would encounter
in performing these tasks, I cannot speculate or conclude that
the absence of some of the required training would reasonably
likely lead to an accident or fatality.
In support of his findings that any injury could reasonably
likely be expected to be fatal, Mr. Skeens testified that the
mine has 60 to ao feet highwalls, and that "people" work above,
below, or close to these highwalls, and that a "perso~ could
drive off that highwall if they didn't know where he was." He
also indicated that work is performed at the mine before and
after daylight hours, and that someone "could run off a high wall
face" if they did not know where they were. However, there is no
evidence that any of the cited miners worked at times other than
a normal daylight work shift, and no evidence was presented
connecting any of the cited emp~oyees with these hazards.
Indeed, in response to a bench question as to whether there was
any information in this case that any of these individuals

1045

were required to work under a highwall, petitioner's counsel
responded, "No." (Tr. 56} .
I take note of one of the prior November 1994, violations
issued by Inspector Skeens to the respondent citing a blaster
who had not been hazard trained as required by 30 C.F.R. 48.31,
before commencing his work duties in a coal pit (Exhibit P-3,
pg. 15). Mr. Skeens determined that the blaster was allowed to
work on the day of the violation and on one prior occasion, and
although he found that the cited blaster was exposed to the cited
condition and could suffer "a lost workday accident," he concluded that an accident was unlikely, and that the violation was
non-"S&S."
Mr. Skeens explained that the cited blaster in question was
experienced, had hazard training from other mines, and the fact
that he did not have the particular hazard training for the
respondent's particular mine "really came down to a technicality"
(Tr. 53). In ~he instant case, I have difficulty reconciling the
petitioner's concern about the lack of training to assure that a
miner is aware of the potential hazards at a particular mine
where he is employed, with Mr. Skeens' rather contradictory
belief that the failure to task train the blaster in question
was merely "a technicality," warranting a non-"S&S" finding.
On the facts of this case, and after careful review and
consideration of Inspector Skeens' testimony in support of his
"S&S" findings as to each of the violations, I conclude and find
that these findings were based on general and speculative
assumptions that a lack of training would expose miners to
injuries and fatalities generally associated with any mining
operation, rather than on any reliable and probative evidence
that the job tasks performed or expected to be performed by the
miners, coupled with their lack of several required training
courses, and the prevailing mining conditions under which they
were expected to work, presented conditions from which one could
reasonably conclude that they were in fact exposed to mine
hazards likely to result in injuries of a reasonably serious
nature. In short, I conclude and find that the petitioner has
tailed to establish by a preponderance of the credible and
probative evidence adduced in this case that the violations were
"S&S." Accordingly, the inspec-t or' s findings in this regard are
rejected and they ARE VACATED.

1046

Size of Business and Effect of Civil Penalty Assessments
on the Respondent's Ability to Continue in Business
Inspector Keller believed that the mine was producing
"in the neighborhood of eight million" tons in 1995, and had
approximately SO employees in 1994 (Tr. 63-64).
The parties stipulate that the respondent's 1994 coal
production was 3,356,712 tons, and that the respondent is a
medium-to-large sized mine operator (Tr. 4-5).
Although the respondent's representative "lined through'' a
proposed stipulation that MSHA's proposed penalty assessments
will not affect the respondent's ability to continue in business,
he stated that "what I was concerned about is our company is in
a loss situation for the year and it certainly would have an
impact" (Tr. 118).
In response to a bench inquiry as to whether
or not MSHA's proposed penalty assessments would put the
respondent out of business, Mr. Kepp stated "No, sir, it would
not, I did not mean to imply that" {Tr. 118).
Absent any information or evidence to the contrary, I cannot
conclude that the penalty assessments that I have made for the
violations in this case will adversely affect the respondent's
ability to continue in business, and I conclude and find that
they will not.
History of prior Violations
Inspector Keller made reference to a computer print-out
for the 24-rnonth period from January 1994 through January 1,
1996, and indicated that it reflected a total of 72 violations
(Tr . 64) . However, the actual print-out referred to by Mr.
Keller was not offered, and it is not part of the record.
MSHA's computer print-out fox the subject mine for the
period April 18, 1994 to February 21, 1995 (Exhibit P-1)
reflects that the respondent paid civil penalty assessments for
28 violations, including one violation of section 48.25(a),
two violations of section 48.29(c ) , and one violation of section
48.31. The violations that were the subject of a prior settlement {Exhibit P-3) are included in the print-out, and I note that
three of these violations were issued because of the respondent's

1047

failure to have the training records for two miners available at
the mine, and _f or not completing a training form for one miner.
In each of these instances, the miners were in fact trained.
For an operation of its size, I cannot conclude. that the
respondent has an overall poor compliance records. However,
in view of its prior training violations, I believe that the
respondent needs to pay closer attention to MSHA's training
regulations. Mr. Kepp, in his capacity as safety director and
the mine official responsible for training, must devote more
time and attention to insure that all miners are properly
trained, and that all of the required training documentation is
timely and properly maintained. In several instances during the
course of the hearing, Mr . Kepp appeared uncertain when he stated
that one training segment "very likely" was included as part of
a mine tour, and that all of the cited employees were "probably"
trained in his office to abate the violations (Tr. 95-102). In
any event, I h~ve considered the respondent's compliance record
in assessing th~ penalties for the violations which I have
affirmed and find that on the record here presented, any additional increases over those penalty amounts are not warranted.
Good Faith Compliance
The petitioner asserts that the respondent was cited for
high negligence "since it failed to exercise reasonable care in
locating violations within a reasonable period of time and in
taking appropriate action to see that those violation were
abated" (Posthearing Brief pgs . 5-6). I agree with the conclusion that the respondent failed to · exercise reasonable care,
but I reject the petitioner's assertion that the respondent
failed to abate the violations that are in issue in this case.
The petitioner stipulated that the respondent demonstrated good
faith in abating the violations, and, at page 7 of its brief,
the petitioner recognizes that the respondent demonstrated good ·
faith in abating the violations ~ited in this case.
The petitioner's "failure to abate" argument is apparently
based on the notion that after the November 1994 training
violations were issued, abated, and terminated, any subsequent
training violations may be construed as non-abatement. I find
absolutely no support for any such theory, and it is rejected.

1048

I conclude and find that the respondent demonstrated good faith
in abating the violations in this case.
Gravity
Although I have found that the violations were not "S&S,"
I nonetheless conclude and find that the failure to provide the
prescribed training were serious violations.
Negligence
Inspector Skeens testified that his "high" negligence finding associated with Order No. 3848781 (Exhibit P-2) was based on
two prior section 104(g ) (1) training orders that he issued in
November, 1994, and his close-out conference discussions, and
other discussions that he had with Mr. Kepp, and possibly other
mine management people, concerning compliance with MSHA's Part 48
training requirements (Exhibit P - 3, Tr. 31).
With regard to Order No. 3848782 (Exhibit P-4), Inspector
Skeens checked the "high" negligence block on the face of the
order form, but offered no testimony in support of this finding .
The hearing transcript reflects that Inspector Skeens was handed
hearing Exhibits P- 2 and P-4 by petitioner's counsel, and after
looking at Exhibit P-2 confirmed that it was one of the orders
that he issued (Tr . 20). He then proceeded to testify about that
order (Tr . 20-31).
Inspector Skeens identified page 6 of Exhibit P- 3 as one
of the prior section 104(g ) (1) orders he issued on November 28,
1994, and confirmed that it was "related" to Order No. 3848782,
the second citation that had not as yet been discussed (Tr . 32).
Inspector Skeens then proceeded to testify as to .his
reasons for issuing Order No . 3848782 (Tr . 35-38). After
cross-examination (Tr. 58), MSHA witness Larry Keller was called
to testify. Apart from his comment that his prior order of
November 28, 1994, where he also found "high" negligence "was
r elated to Order No. 3848782 , Inspector Skeen offered no testimony in support of his "high" negligence finding with respect to
that order.

1049

MSHA field supervisor and manager Larry L. Keller confirmed
that he accompanied inspectors during the November 1994
inspection when some section 104(g) (1) orders were issued and
that he attended a conference with Mr. Kepp where ~cross-over"
training and three-digit contractor and seven-digit mine operator
entity identification numbers were discussed (Tr. 59-60).
However, Mr. Keller offered no testimony concerning Inspector
Skeens' negligence findings with respect to the contested orders
in this case, and he was never questioned about this issue.
Apart from Inspector Skeens' testimony that his "high"
negligence finding concerning Order No. 3848781 was based on
two prior orders issued in November, 1994, and his discussions
with Mr . Kepp at that time concerning MSHA's training requirements, and his testimony that one of the prior November orders
"was related" to Order No. 3848782, the petitioner offered no
further testimony in support of the inspector's "high" negligence
findings .
At page 3 of its brief, the petitioner states that the
special penalty assessments followed the respondent's "unwarrantable failure to comply with MSHA's training regulations,"
and at page 6, the petitioner states that the violations
"exhibited an unwarrantable failure" by the respondent to ensure
the health and safety of its miners. Following these statements
is a conclusion (page 8) that the violations in this case were
designated as "unwarrantable failure," a statement at page 7 that
MSHA elected to special assess the violations "because the
operator exhibited an unwarrantable failure to comply" with the
cited training standards, and arguments in support of the alleged
unwarrantable failure violations (Brief, pgs, 6-7).
Inspectors Skeens and Keller presented no testimony or
evidence either alleging or supporting any section 104-(d)
unwarrantable failure findings in this case. Inspector Skeens'
orders were issued as section 104,(g) (1) orders, and the pleadings
filed by the petitioner never alleged or charged the respondent
with any unwarrantable failure violations . Although the
inspector was free to issue citations or orders pursuant to
section 104(d) (1) or (d) (2), and ordering the withdrawal of
miners pursuant to section 104(g ) (1), he did not do so. He
simply issued the section 104(g) (1) orders withdrawing the
affected miners, and he never modified the orders to reflect any

1050

unwarrantable failure charges and the petitioner never amended
its pleadings to reflect any unwarrantable failure charges . It's
attempts to do so now through its posthearing brief ARE REJECTED .
I find no evidentiary support for the petitioner's assertions
that the violations constitute unwarrantable failures by the
respondent to comply with the cited standards.
I take note of the fact that the petition for assessment of
civil penalties filed in this case by the petitioner includes an
MSHA Form 1000 - 179, containing the notation "Special AssessmentSee Attached Narrative . " However, the narrative statement was
not attached as part of the initial pleadings, and it was
produced by the petitioner for the first time at the hearing
(Exhibit P-6).
MSHA's narrative special assessment findings reflect a
decision to specially assess the violations in accordance with
its penalty as.sessment criteria found in 30 C.F.R. 100.5. This
regulation contains eight violations categories under which
special assessments are appropriate, including unwarrantable
failures and violations "involving an extraordinarily high degree
of negligence or gravity or other unique aggravating circumstances." The narrative findings in support of the specially
assessed violations in this case do not mention any unwarrantable
failures to comply and include no discussion with respect to any
"extraordinary" negligence, gravity, or "unique aggravating
circumstances." Indeed, the gravity finding reflects "serious"
violations, and negligence findings based on a failure to
exercise reasonable care.
As part of his inspection report in this case, Inspector
Skeens executed an MSHA Form 7000-32, recommending a "special
assessment," and he described the "serious or aggravating
circumstances" involved as the previously issued November 1994
training violations, and the closeout conference with the
respondent following that inspection. I cannot conclude that
the eight prior training violati~ns, three of which did not
involve a lack of training, and the fact that they were
conferenced with the respondent, standing alone, constitutes
"aggravating" circumstances. However, considering the fact that
most of the prior violations were issued on November 28, 1994,
just two or three months prior to the issuance of the violations
in this case, and the unrebutted testimony of the inspectors that

1051

these matters were discussed with safety director Kepp, I
conclude and find that Mr. Kepp had a heightened duty to review
his training records to insure compliance with the cited
standards in question.
While there may have been some confusion concerning the
respondent's bifurcated contractor-operator training obligations
prior to November, 1994, I agree with the petitioner's argument
that no such confusion existed when the February 1995 violations
were issued. Under all of these circumstances, although the
inspector's testimony in support of his "high" negligence findings associated with the violations is rather sparse, I conclude
and find that the record, as a whole, supports his "high"
negligence findings as to both violations, and they ARE AFFIRMED.
Civil Penalty Assessments
The petitioner has proposed a "special penalty assessment
of $7,500 for or.d er No. 3848781, and a "special" assessment of
$5,000 for Order No. 3848782. The petitioner asserts that these
proposed ''special" penalty assessments reflect an objective and
fair appraisal of the facts presented, particularly in light of
the respondent's unwarrantable failure to comply with the cited
standards, the "gravity of its negligence," its history of prior
violations {especially of the same type) , and its failure "to
identify the potential violations after having been notified of
them in November 1994."
It is clear that I am not bound by the petitioner's proposed
penalty assessments, and that I may impose penalty assessments
.Q.e. Il.QYQ, after consideration of the penalty criteria set forth in
section llO{i) of the Act, Westmoreland Coal Co., 8 FMSHRC 491,
192 (April 1986); Sellerburg Stone CoL, 5 FMSHRC 287, 290-94
(March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Where appropriate, it is clearly within my discretion to assess penalties
higher or lower than those propos~d by the petitioner, or accept
and affirm those proposed by the petitioner. On the facts and
evidence of record in this case, I conclude and find the
petitioner's proposed penalty assessments are unsupported and not
warranted.

1052

On the basis of my foregoing findings and conclusions, and
my ~ nQYQ consideration of the civil penalty assessment criteria
found in section llO(i) of the Act, I conclude and .find that the
following penalty assessments are reasonable and appropriate for
the violations that have been affirmed in these proceedings:

Order No.
3848781
3948782

2/21 / 95
2/22/95

30 C.F.R.
Section

Assessment

48.26 (a)
48.25(a)

$.2,500
$1,000

ORDER
IT IS ORDERED as follows:

1.

Sec tion 104 (g) (1) \\S&S" Order Nos. 3848781 and
2848782 ARE MODIFIED as non-"S&S" Orders, and as
modified, they ARE AFFIRMED.

2.

The respondent shall pay civil penalty assessments
in the amounts shown above for the violations that
have been affirmed. Payment is to be made to MSHA
within thirty (30) days of the date of this decision
and order, and upon receipt of payment, this matter
is DISMISSED.

Administrative Law Judge
Distribution:
Ann Noble, Esq., Office of the Solicitor, U. S. Department
of Labor, 1999 Broadway, Suite 1600, Denver, CO 80.202-5716
(Certified Mail)
Stephen Kepp, S & M Construction, Inc., P.O. Box 2606,
Gillette, WY 8.2717 (Certified Mail)

\lh

1053

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUOGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204i

JUN 2 1 1996

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On behalf of ANDY HOWARD, JR.,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 96-96-D
MSHA Case No. PIKE CD 95-21
Martiki Surf ace Mine
Mine I.D. No. 15-07295 BLH

BRUCE YOUNG AND YOGO, INC.,
Respondent
DECISION APPROVING SETTLEMENT;
ASSESSMENT OF CIVIL PENALTY

The parties have submitted an executed settlement agreement
in this matter which includes, but is not limited to, the
following items:
l.
Complainant, Andy Howard, Jr., ~grees not to institute
any further legal action arising from his alleged discharge of
August 31, 1995;
2.
Mr. Howard and the Secretary of Labor agree to waive
permanent reinstatement for Mr. Howard;
3.
Mr. Howard agrees to dismiss the appeal of his Kentucky
unemployment insurance claim;
4.
Respondents agree to pay Mr. Howard $4,350 for alleged
mental and emotional distress in accordance with a schedule set
forth in the agreement;
\

5.
Respondents agree to expunge from Mr . ..Howard's
personnel file any references to. his separation of August 31,
1995, and any references to the discrimination complaint he
filed with MSHA, or the resulting proceedings before the Federal
Mine Safety and Health Review Commission;

1054

6.
Respondents agree not to inform any prospective
employers of Mr. Howard of the discrimination complaint filed
with MSHA, or the resulting proceedings before the · Federal Mine
Safety and Health Review Commission;
7.
Respondents agree to provide Mr. Howard's prospective
employers with only the following information: dates of employment with Yago, Inc., job title and rate of pay;
8.
The parties agree that $1,000 is an appropriate civil
penalty in this case .
I have considered the representations set forth in settlement agreement and have determined that they are consistent
with section 105(c) of the Act.
ASSESSMENT OF CIVIL PENALTY
Applying the penalty criteria set forth in section llO(i}
of the Act, I conclude that a civil penalty of $1,000 is
appropriate.
ORDER
The parties' motion for approval of the settlement agreement is GRANTED. Respondents Bruce Young and/or Yoga, Inc. are
ordered to pay to the Secretary of Labor a civil penalty of
$1,000 within 30 days of this decision. They are also ordered
to pay the agreed upon compensation to Mr. Howard in accordance
with the terms of the settlement agreement, and to complete
making these payments no later than August 1, 1996. Upon
completion of these payments, and payment of the civil penalty,
this case is DISMISSED.

O/J-~Jt0/Y"'--

·A;£i~r J. Amchan

Administrative Law Judge

1055

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, 2002 Richard Jones Road,
Suite B-201, Nashville, TN 37215-2862
Tony Oppegard, Esq . , Mine Safety Project of the
Appalachian Research & Defense Fund of Kentucky, Inc.,
630 Maxwelton Court, Lexington, KY 40508
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S . C . ,
415 Second Street, P.O. Box 351, Pikeville, KY 41502-0351

/lh

. 1056

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

JUN 2 l 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
CARROLL JOHNSON,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No . SE 93-182-D
MSHA Case No . BARB CD 92-20
Mine No. 7

JIM WALTER RESOURCES, INC . ,
Respondent
and
UNITED MINE WORKERS OF
AMERICA,
'Intervenor,
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.
I

CIVIL PENALTY PROCEEDING
Docket No. SE 93-104
A.C. No. 01-01401-03938
Mine No. 7

JIM WALTER RESOURCES, INC.,
Respondent
DECISI ON ON REMAND
Before: Judge Weisberger
On April 24, 1996, the Commission remanded this case to
reconsider the assessment of penalties with respect to violations
of Section 103(f) and lOS(c) of 'the Federal Mine Safety & Health
Act of 1977 ("the Act'~).
Specifical ly, the remand required
reconsideration of the issues of the Operator's history of
violations and good faith, and the gravity of the violations.
Also required was reconsiderat~on of the expenses incurred by the
Complainant as a result of his pursuing the discrimination
action .

1057

On June 18, 1996, the Secretary filed a Joint Motion to
Approve Settlement. The motion seeks to increase the penalty for
the Section 105(c) violation to $3,000. The parties agree that
the penalty for the section 103(f) violation should. remain at
$1,000.
It was further agreed that the Complainant be paid
$261.56, less legally required withholdings, as a result of
attending the hearing in this matter.
Based on the evidence of record and the representations set
forth in the motion, I conclude that the settlement is consistent
with the purposes of the Act, and the motion is granted.
ORDER

I t is ORDERED that the Operator pay, within 30 days of this
decision, a total civil penalty of $4,000.
It is further ORDERED
that the Operator within 30 days of this decision, pay the
Complainant $261.56 less legally required withholdings.

LL

~Avram

Weisberger
Administrative Law Judge

Distribution:
William Lawson, Esq., Office of the Solicitor, U. S. Department
of Labor, Suite 150, Chambers Building, Highpoint Office Center,
100 Centerview Drive, Birmingham, AL 35216 (Certified Mail)
David M. Smith, Esq., Maynard, Cooper & Gale, 1901 Sixth Avenue
North, 2400 AmSouth/Harbert Plaza, Birmingham, AL 35203-2602
(Certified Mail)
Barry A. Woodbrey, Jr., Esq., Uni.ted Mine Workers of America,
900 15th Street, N.W., Washington, DC 20005 (Certified Mail)
/ml

1058

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

JUN 2 5 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 93-238-M
A.C. No. 03-01619-05503
Blue Bayou Sand and Gravel

BLUE BAYOU SAND AND GRAVEL,
Respondent

DECI SION ON REMAND
Before:

Judge Weisberger

On June 19·, 1996, the Commission issued a decision in this
matter reversing my initial conclusions that the violation at
issue was not S&S and did not present any imminent danger . The
Commission remanded "for reassessment of the civil penalty
consistent with this decision (Docket No. CENT 93-238, June 19,
1996, slip . op. at 8).
Consistent with the Commission's decision that the violation
at issue was S&S and an imminent danger, I find that the level of
gravity of the of the violation is very high.
In evaluating the
factors set forth in Section llO(c) of the Act, I consider most
significant the factor of gravity due to its high level.
I find accordingly, that a penalty of $1,200 is appropriate.
ORDER
It is ORDERED that, within 30 days of this decision,
Respondent shall pay a civil penalty of $1,200 for the violation
s e t forth in ci t ation/order No. 4116491.

l-,

berger
Administrative Law Judge

1059

Distribution:
Susan E . Long, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
David J . Potter, Esq., 901 North State Line Avenue, Texarkana,
TX 75501-5268 (Certified Mail)

/ml

1060

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

JUN 2 6 1996
SECRETARY OF LABOR,
MI NE SAFETY AND HEALTH
ADMINISTRATION (MSHA ) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No . LAKE 95-229-M
A.C. No. 11 - 02963-05501
Northern Illinois Service

NORTHERN ILLINOIS SERVICE CO.,
Respondent

DECISION
Appearances :

·G eorge F. Schorr, Conference and Litigation
Representative, U. S. Department of Labor,
Mine Safety and Health Administration,
Duluth, Minnesota, for the Petitioner;
David A . North, Esq., Rockford, Illinois,
for the Respondent.

Before:

Judge Feldman

This matter is before me as a result of a peti tion for civil
penalty filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S . C . § 801 et seq., (the Mine Act). The p e tition seeks a
$50.00 civi l penalty for each of t wo alleged non-significan t and
' substantial (non-S&S) v i o l ations 1 of the mandatory safety
standards contained in 30 C.F.R. Part 56 .
·

A violation i s not s ignif icant a nd substantial if i t i s
not reasonably like l y t hat the ha z ard contributed to b y the
viol a tion will r esult in a serious injury . Cement Divi s i on .
National Gypsum, 3 FMSHRC 822 , 825 (April 1981 ) .
1

·~:

1061

This case was heard in Rockford, Illinois, on March 19,
1996 . 2 The parties stipulated the respondent is an operator
subject to the jurisdiction of the Act, the cited violations were
abated in a good faith and timely manner, and, the proposed civil
penalties will not affect the respondent's ability to continue in
business. The parties' post-trial briefs are of record.
Preliminary Findings of Fact
Wayne Klinger is the sole owner of Northern Illinois Service
Company . !he company extracts limestone at the subject quarry
located north of Rockford, Illinois, on Swanson Road. The quarry
had been inactive for approximately five years before it was
leased by Klinger in September 1993, for a five year term.
Normally, there are three employees working at the quarry -a "scale girl,u loader operator Steven Yancy, and the Foreman,
Dan Kentner.
(Tr. 99). The extraction process consists of
drilling and dynamiting the limestone deposits. The extracted
material is th~n transported to the primary crusher by a
front-end load~r where it is processed and transported by belt to
stacker conveyors.
Blasting by an independent contractor began in October 1993.
Klinger purchased new equipment including a Kamatsu loader, a
Boehringer primary crusher that was assembled by Murawski
Engineering in Rockford, Illinois, a screen and conveyors. The
primary crusher was installed in May 1994 . The first bucket of
extracted limestone was loaded into the crusher on June 18, 1994.
In April and May 1994, prior to commencing operations,
Klinger made several telephone calls to the Mine Safety and
Health Administration's (MSHA's) field office in Peru, Illinois,
to request a compliance assistance visit (CAV) . A CAV is
performed, at an operator's request, in order to ensure
compliance with mandatory safety standards by operators who are

2

The March 19, 1996, hearing in this matter was initially
scheduled for November 9, 1995. The hearing was continued until
January 23, .i996, due to an interruption in government operations
as a consequence of the budget impasse. The January 23, 1996,
hearing date was once again continued because of the government
shutdown.

1062

opening new mines, or who are operating n~w mining equipment.
Under this CAV program, an MSHA inspector visits the facility and
informs the operator of potential violations. The · operator is
then given a reasonable period of time to correct the violative
conditions without the imposition of civil penalties.
In response to Klinger's request, MSHA Inspector
Robert Flowers performed a CAV on June 9 and June 16, 1994.
At that time, the primary crusher was out of service. Therefore,
Flowers could not perform a CAV to determine if the quarry was
operating in compliance with the mandatory standards pertaining
to dust and noise. However, Flowers issued numerous CAV
Nonpenalty Notices on MSHA FORM 4000-51. The CAV notices cited
various conditions including several for apparent violations of
the mandatory guarding requirements for conveyor belts and tail
pulleys. These CAV Nonpenalty Notices did not specify a
termination date before which the cited conditions had
to be corrected.
(~ Ex. R-1).
The conditions were corrected
during the period June 15 through July 6, 1994. Foreman Dan
Kentner testif {ed Flowers did not state that he would return for
a noise and dust inspection or that the CAV was otherwise
incomplete .
(Tr . 103).
In August 1994, MSHA Inspector William Hatfield reviewed
MSHA's files on the subject quarry . Hatfield talked to Flowers
and his supervisor, Ralph Christiansen. They informed him the
CAV visits were completed. Christiansen assigned Hatfield to
perform a regular inspection. Ordinarily, Flowers would have
conducted the inspection. However, Hatfield was assigned because
Flowers was behind on his inspections due to illness.
Hatfield arrived at the Swanson Road quarry at approximately
8:00 a . m. on August 4, 1994. Hatfield went to the scale house,
identified himself, and requested to speak to the foreman.
According to Hatfield, Foreman Kentner arrived at the scale
house, whereupon Hatfield, consistent with his normal procedure,
advised Kentner he was there to 'conduct a regular inspection.
Hatfield also testified he had no reason to represent that his
visit was for a CAV, as his assignment was to conduct a routine
inspection. :. Kentner testified Hatfield informed him that he
wanted to do a noise and dust inspection, although Hatfield did
not specify whether the purpose was a CAV or regular inspection.
(Tr. 103) .

1063

Kentner informed Hatfield that the primary crusher had been
out of service since August 1, 1994, due to a major breakdown
involving the clutch . Hatfield had intended to inspect the
entire operation including noise and dust compliance.
(Tr. 48).
Hatfield observed two different types of material beneath the
stacking conveyor which led him to believe that extraction
operations had commenced.
(Tr. 20). Kentner conceded there were
stockpiles of material, although he characterized the piles as
insignificant.
(Tr. 185). Since the crusher was not
operational, Hatfield, accompanied by Kentner, inspected other
areas of the facility.
Hatfield and Kentner were in the scale house at
approximately 9:30 a.m. when Hatfield observed an energized,
uncovered 110 volt duplex outlet box on the east wall. Hatfield
testified that the purpose of an outlet cover is to prevent
contact with inner wires that could result in electric shock
injuries. Consequently, Hatfield informed Kentner that a cover
was required a~d he issued Citation No. 4313030 citing a non-S&S
violation of th~ mandatory safety standard in section 56.12030,
30 C.F.R. § 56 . 12030. This standard requires electrical boxes to
be covered at all times except during testing and repair.
Hatfield returned to the facility the following morning to ensure
that the violations had been abated. Hatfield terminated the
citation at 8:00 a.m . on August 5, 1994, after he observed that a
cover had been installed on the cited outlet.
At approximately 10:00 a.m. during the August 4, 1994,
inspection, Hatfield and Kentner proceeded to the generator
trailer which contained the generator that powered the crusher
unit, screens and conveyors. Hatfield observed an acetylene tank
and an oxygen tank without valve covers. Acetylene is used as
fuel and the oxygen is used as an enhancer to power the cutting
torch. When in use, the valve caps must be removed to. install
the regulator on the tanks. A regulator is attached to the tanks
and a 100-foot hose is attached to the regulator with the cutting
torch at the end of the hose. The long hose enables torch
cutting operations to occur outside the generator trailer without
removal of the tanks. The tanks remain stored in the generator
trailer when not in use.
Hatfield concluded the tanks, also referred to as cylinders,
were not in use because they were not attached to any regulator

1064

gauges or torches.
(Tr. 29, 58). Hatfield testified that these
cylinders contained compressed gas under pressure of up to 2,000
pounds per square inch. Hatfield opined these cylinders could
explode if an exposed valve was accidentally damaged by contact
with a tool or other object. Hatfield informed Kentner that the
valve caps were required. Hatfield issued Citation No. 4313031
for a non - S&S violation of section 56.16006, 30 C.F.R. 56.16006.
Th i s mandatory standard requires valves on compressed gas
cyl inders to be covered when the cylinders are transported or
stored . Kentner had the valve caps reinstalled within 30
minutes.
Hatfield testified that he wrote Citation Nos. 4313030 and
4313031 during the evening of August 4, 1994, after returning to
his motel room after completing the day's inspection. Hatfield
returned to the quarry the following morning where he conducted a
close-out conference with the end-loader operator because Kentner
was not available . Hatfield does not recall the name of the
end-loader operator and he could not identify Yancy who was the
respondent's the end-loader operator at that time. Yancy could
not recall ever meeting Hatfield.
(Tr. 145) . The meeting
related by Hatfield reportedly occurred approximately 18 months
before the trial in this proceeding . Hatfield explained it is
difficult for him to recognize someone in a courtroom who had
been wearing a hard hat and who was last seen 18 months earlier.
(Tr . 19 7 - 9 8 ) .
The respondent alleges it received the subject citations via
certified mail on or about August 30, 1994, in an envelope
postmarked August 28, 1994. Hatfield testified that citations
are personally served on operators rather than mailed, with the
exception of citations that require subsequent laboratory
analysis such as respiratory dust · samples. Therefore, Hatfield
maintained he personally served the subject citations. to an
individual identified as the end-loader operator during a
close-out conference in the scale house on August 5, 1994.
Ultimate Findings and Conclusions
As a threshold matter, the respondent asserts that Hatfield
went to its mine site to complete the noise and dust CAV started
by Fowler in June 1994. The respondent.contends -that Hatfield
issued the subject wall outlet cover and tank valve cover

1065

citations only after Hatfield learned he could not conduct a CAV
for noise and .dust compliance because the crusher was not
operational. The respondent speculates that the silPject
citations were intended to be CAV warnings but were later written
as formal citations and initially served by certified mail on or
about August 30, 1994. Thus, the respondent argues the citations
should be treated as nonpenalty CAV warnings.
The nature and extent of a CAV inspection is within the
discretion of the Mine Safety and Health Administration (MSHA) .
Although the respondent characterized the stockpiles as
insignificant when Hatfield conducted his August 1994 inspection,
it is undisputed that mining activities began on June 18, 1994,
when the first bucket of limestone was loaded into the crusher .
The evidence also reflects Flowers had already conducted a CAV
which noted a variety of non-crusher related violative
conditions.
(~Ex. R-1) .
Therefore, there is no basis for
disturbing Hatfield's decision to conduct a regular inspection on
August 4, 1994 \ .
Moreover, it is well settled that MSHA is not estopped from
citing a violative condition simply because the violation was
overlooked during a prior inspection. ~King I\nob Coal Co ..
~' 3 FMSHRC 1417, 1421-22 (June 1981) .
Judge Morris
addressed this issue with respect to CAV reviews in Brighton Sand
& Gravel, 3 FMSHRC 127 (ALJ, Jan. 1991). Judge Morris stated:
When A CAV inspection takes place, MSHA cannot guarantee
that all areas of a mine will be inspected, nor can it
guarantee that all possible violations will be detected by
the inspector . This is because the primary obligation for
compliance with the regulations rests with the mine
operator. l.d.... at 128.
Therefore, the Secretary is not precluded from enforcing these
citations even if they existed but were not cited by Flowers
during his June 1994 CAV visit.

1066
' .

The citations in this matter identified as Exs . P-1 and P-2
were issued pursuant to section 104(a) of the Mine Act,
30 U.S.C.§ 814(a) . 3 They cite violations of mandatory safety
standards that were observed by Inspector Hatfield on the morning
of August 4, 1994, in the presence of Kentner, the quarry
Foreman. In accordance with section 104(a), the citations
describe with particularity the nature of each violation and the
mandatory standard violated . The citations also provide a
reasonable period of time for abatement of the cited violative
conditions.
I credit the testimony of Hatfield that he served the
citations on the morning of August 5, 1994, when he returned to
the quarry to determine the cited conditions were abated.
(Tr . 55-56). In this regard, the citations reflect the last
violation was terminated at 8:00 a.m. on August 5, 1994.
(Ex P-4). However, even if the citations were first served by
certified mail on or about August 30, 1994, as alleged, they were
served with "reasonable promptness" as required by section 104(a)
of the Mine Act, and, the respondent has not shown any prejudice
by its purported receipt by certified mail. Therefore, whether
Hatfield personally served the citations, or mailed them, is not
a relevant issue that impacts on the citations' validity.

Section 104(a) provides:
If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator
of a coal or other mine subject to this Act has
violated this Act, or any mandatory health or safety
standard, rule, order, or regulation promulgated
pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator. Each
citation shall be in writing and shall describe with
particularity the nature of ·the violation, including a
reference to the provision of the Act, standard rule,
regulation ,or order alleged to have been violated.
addition, the citation shall fix a reasonable time
for the abatement of the violation. The requirement
for the issuance of a citation with reasonable
promptness shall not be a jurisdictional prerequisite
to the enforcement of any provision of this Act.
3

In

1067

With respect to the issue of Hatfield's credibility, there
is no eviden ce that Hatfield represented that he was performing · a
CAV inspection . Moreover, the respondent's prompt abatement
efforts reflect these violations were not viewed as informal CAV
warnings. CAV warnings are advisory in nature and do not have a
formal abatement date. Review of the subject citations reflects
the violative conditions were abated within one day -- well in
advance of the termination date specified in the citations. This
prompt abatement evidences that Kentner was aware that these were
formal violations that, unl i ke CAV violations, required immediate
correction.
Having determined that the citations are valid, we turn to
the question of the fact of occurrence of the cited violations.
Citation No. 4313030 was issued for an uncovered, energized
110 volt duplex outlet box on the east wall of the respondent's
scale trailer . The uncovered condition of this outlet box is not
in dispute. ~he respondent does not contend this outlet box was
undergoing testing or repair at the time it was observed by
Hatfield. Therefore, the Secretary has met his burden of
establishing the cited violation of the mandatory safety standard
in section 56.12030.
With respect to remaining Citation No. 4313031, section
56.16006 requires valves on compressed gas cylinders to be
covered when not in use. The dispositive question is whether or
not the cited cylinders were in use when they were observed by
Hatfield without valve covers at approximately 10:00 a.m.
The
respondent asserts the tanks were in use because: (l)they were
connected to a regulator and a hose; (2) they had been used by
Yancy immedi ately prior to Hatfie l d's inspection; and (3) Yancy
used the cylinders for torch operations throughout the day, both
before and after the inspection. As noted below, the evidence
fails to support these assertions.
Contrary to the respondent's claim that a regulator and
torch were connected, Hatfield testified the regulator and torch
were not connected and there was no one observed preparing to use
the cylinder~.
(Tr. 29, 58). Similarly, Kentner testified that
no one was "physically cutting" at the time .
(Tr~ 122) .
The respondent's self-serving statements that the cylinders
were being used were not expressed to Hatfield by Kentner at the

1068

time of the inspection . (Tr. 137). Such exculpatory testimony,
the substance of which was first presented at trial, is of little
evidentiary value. Moreover, Citation No . 4313031 ·reveals the
valve caps were installed at 10:30 a.m., shortly after the
condition was cited. There is no evidence to support Kentner's
self-serving assertion that the regulator was removed prior to
installation of these valve caps.
{Tr. 123). For example, as
noted above, Kentner admittedly did not question Hatfield about
why he was required to remove the regulator if the cylinders were
being used.
(Tr. 137) . Kentner's testimony that the 100-foot
hose was "wrapped inside" next to the cylinders and not seen by
Hatfield is inconsistent with the respondent's assertion that the
torch was being used outside the generator trailer.
(Tr. 138).
In short, the regulator, hose and torch were not observed by
Hatfield because there is no objective evidence that they were
connected to the cylinders and being used.
(Tr. 58).
Significa~tly,

although Yancy allegedly remembers using the
tanks off and d~ all day on August 4, 1994, his testimony is
inconsistent with his purported recollection.
(Tr. 151-52).
In this regard Yancy testified:
Q.

On that day (August 4, 1994), were you aware of the fact
that there was some comment about the use of the oxygen
and torch equipment?

A.

Yeah, later towards quitting time in the afternoon he
had gone, · Dan [Kentner] was telling me -- about some
caps that he had put on.
(Tr. 151).

Yancy testified "it [doesn't] make any sense" to remove the
regulator and replace the valve caps when the cylinders are used
intermittently throughout the day.
(Tr. 152). However, the
substance of the above quoted testimony is that Yancy . first
learned that valve caps had been installed by Kentner at quitting
time.
If Yancy had used the cyl~nders throughout the day, as
alleged, he would have known Kentner had installed the caps
earlier that morning because Yancy would have had to remove the
caps and reinstall the regulator and hose in order to resume his
purported use of the torch.

1069

Thus, on balance, I credit Hatfield's testimony that there
was no evidence that the cylinders had been in use on the morning
of August 4, 1994. Accordingly Citation No. 431303.1 is affirmed.
In considering the appropriate penalty to be assessed, I
must consider the penalty criteria in section llO(i) of the Mine
Act, 30 U.S.C. § 820(i). The minimal $50.00 civil penalties
proposed by the Secretary for each of the two cited violations
takes into account that the respondent is a small operator that
has cooperated with MSHA during the CAV process.
These small
proposed penalties also reflect the low gravity of the
violations, the low degree of negligence attributable to the
respondent, and the respondent's good faith efforts to achieve
rapid compliance. Accordingly, there is no basis for disturbing
the $50.00 penalties sought to be imposed.
In affirming the proposed civil penalties, I am cognizant of
Hatfield's testimony that the respondent is safety conscious and
runs "a very g'ood operation. 11
(Tr. 95) . This mitigating factor
is a consideration in the imposition of this small penalty.
However, concerns for safety are not a defense to the cited
violations.
\

ORDER
In view of the above, Citation Nos. 4313030 and 4313031
ARE AFFIRMED.
The respondent shall pay a total civil penalty of
$100.00 to the Mine safety and Health Administration within
30 days of the date of this decision. Upon timely receipt of
payment, this case IS DISMISSED .

Jerold Feldman
Administrative Law Judge

1070

Distribution:
George F. Schorr, Conference and Litigation Representative,
Mine Safety and Health Administration, U.S. Department of Labor,
Duluth Federal Building, U.S. Courthouse, 515 W. First Street,
Room 228, Duluth, MN 55802-1302 (Certified Mail)
David A. North, Esq . , 216 Court Street, P.O. Box 17,
Rockford, IL 61105 (Certified Mail)
/mca

1071

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

JUN 2 6 1996
DONALD S. WALLACE,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEST 95-282-DM
MSHA Case No . WE MD 95-01

BARRICK GOLDSTR I KE MINES, INC . ,
Respondent

Mine I. D. # 26-01089
Barrick Goldstrike Mine

DECISION
Appearances :

James L. Kennedy, Jr., Esq . , Ketchum, Idaho,
for Complainant;
Charles R. Zeh, Esq., Zeh, Polaha, Spoo and
Hearne, Reno, Nevada, for Respondent.

Before:

Judge Amchan
Procedural History

On October 21, 1994, Donald Wallac~ filed a complaint with
the Mine Safety and Health Administration (MSHA} alleging that
he had been fired from his job at Barrick Goldstrike Mines in
retaliation for activities protected by section 105(c) of the
Federal Mine Safety and Health Act. On February 17, 1995, MSHA
notified Mr. Wallace that it had determined that no violation of
the Act had occurred. Mr. Wallace filed a complaint on his own
behalf with the Commission.
On January 17, 1996, I denied the parties' cross-motions for
summary judgment in this matter, 18 FMSHRC 103. Wallace's motion
was denied because I concluded that Mr. Wallace was not engaging
in activity protected by the Federal Mine Safety and Health Act
when he advised a fellow miner pver his radio to "punch through"
or skip his assigned lunch break. Wallace told his friend to
take two or three Delay-sos (an unscheduled break to combat
fatigue} later if necessary.
Respondent contends that this

1072

conversation, which occurred on September 26-27, 1994, the last
night Complainant was allowed to work for Barrick Goldstrike, led
to his termination.
I denied Respondent's motion for summary judgment because
Mr . Wallace alleged that he would not have been discharged had he
not engaged in other activities, which appeared to be protected
under the Act. A hearing was held in Elko, Nevada, on March 2829, 1996, to afford Complainant an opportunity to establish that
his discharge was related to these protected activities.
Findi ngs of Fact
Donald S. Wallace worked for Respondent at its mine near
Carlin, Nevada, from September 1990 until September 27, 1994,
when he was suspended and then terminated {Tr. 336, 361-62).
Mr. Wallace worked as a haul truck driver, sometimes on the night
shift . At the time of his discharge, this was a 12 ~ - hour shift,
beginning at 7:00 p.rn . Miners were allotted a 30 minute lunch
break and two 15-minute scheduled breaks during each shift
{Tr. 75-77). Respondent also allowed for unscheduled bathroom
breaks {"Delay-40s") and unscheduled breaks to combat fatigue
{"Delay-80s") (Tr . 77, Exh. R-1, Tab 26).
Mr. Wal lace's first involvement with Respondent's discipli.nary program occurred in November, 1993 . Prior to this time,
shovel operators on Wallace's shift worked with an oiler, who
assisted the operator in running and maintaining the shovel.
Respondent abruptly stopped assigning employees to work as
oilers. When Wallace discovered this, he got on the radio in
his haul truck and asked shovel operator Donald Randall whether
Randall was working without an oiler. When Randall responded in
the affirmative, Wallace made a comment questioning the safety of
this practice (Tr. 210 - 14, 340-41}.
Wallace was then summoned to the off ice of his foreman , Vern
Goglia. Mr. Goglio orally reprimanded Mr. Wallace for making his
comments about the lack of an oiler over the radio (Tr . 74, 3404 1 , 465-66, Exh. R-1, Tab 8)
Mr. Wallace's second brush with Respondent's disciplinary
program occurred in January, 1994. At this time, Complai nant was
given "decision-making leave" as the re sult of another c omment he

1073

made over the radio in his truck . Mr. Wallace was put on a
one-year probation as the result of this incident (Tr. 51-52,
70-71, Exh. R-1, Tabs 14 & 15}.
Respondent was in the process of changing its lunch-break
system for the night shift . Previously, miners on the night
shift had some discretion as to when they took their lunch break.
Barrick was implementing a system in which miners would eat at
times assigned by the supervisory employee serving as dispatcher.
This change was implemented so that equipment continued to
operate at maximum efficiency throughout the shift 1 • A number of
miners did not like the change (Tr. 72-76}.
On January 12, 1994, a shovel broke down and foreman Mo
Cunliffe announced that lunch breaks would start at 11:00 p.m ..
Mr. Wallace sarcastically asked over his radio, ~[w]hy don't you
give us our breaks at the beginning of the shift and just work
us the rest of ~ the night• (Tr. 339, 344). Wallace was thereupon
summoned to Mr. '. cunliffe's office and was reprimanded for making
an insubordinate remark over the radio. During Wallace's
discussion with Cunliffe, both lost their temper.
Afterwards, Complainant was given a "decision-making leave
day (DMLD)" for making disruptive comments over the radio. On
this day, he was not allowed to come to work, but was paid.
The objective of the DMLD was to make an employee aware of the
seriousness of his violation of company policy. The DMLD was a
step in Respondent's progressive discipline program beyond verbal
and written reprimands (Exh. R-1, Tab 15, Tab 38, Policy and/or
Procedure 90-202, pp. 2-3, Tr. 465-66)).
Mr. Wallace had a meeting with Respondent's Human Resources
Manager Ron Sled and Assistant Mine Manager Ron Johnson in

Glenn Wyman, general forema~ of mine operations at this
time, stated that under the old system not enough equipment
operators were choosing an early lunch break, thus causing
inefficiencies in equipment utilization.
Foremen were also
unsystematically assigning employees an early lunch to make up
for the lack of volunteers, creating tension among some operators
who believed the early lunch breaks were assigned inequitably
(Tr. 430).
1

1074

February 1994, to discuss the DMLD. Following this meeting,
Wallace signed a form which advised him that "any further policy
or procedure violations may cause other discipline or termination
of employment." He also executed a statement indicating his
willingness to change his behavior to · conform to Respondent's
policies. Further, he acknowledged his understanding of his
position in the progressive discipline policy (Exh . R-1, Tab 15).
The decision-making leave day form remained active in
Mr. Wallace's personnel file for one year. Seven and a half
months after he signed it, the incident which led to his
termination occurred.
During this period, Respondent continued to have difficulty
establishing a lunch break system for the night shift that
satisfied management and the equipment operators . It tried a
"mass break" system whereby the entire pit shut down at the same
time and then abandoned it. In September Barrick changed to an
"autobreak" sys~em, whereby lunch was assigned to operators by
computer (Tr. 419-20, 430-34, 504).
Respondent also experimented with its procedure for equipment operators to take unscheduled breaks to combat fatigue.
To
take such a break an operator entered the code "delay-80" on the
computer onboard his truck (Tr. 420).
In late September 1994
Respondent was concerned on the one hand, that some miners were
not taking "delay-80" breaks when they should, and on the other
hand, that some miners were abusing the "delay-80 11 breaks
(Tr. 183-86, Exh . R-1, tabs 24 & 28).
At about midnight on September 26-27, 1994, miner David
Paules was notified by a computer message that he had been
scheduled for a midnight lunch break. Paules complained to the
dispatcher over his radio that he had been assigned an "early"
lunch break several nights in a row (Tr. 199-200).
The dispatcher told Paules to take his lunch break as
assigned. He apparently promised to try to rectify the situation
afterwards . . After a few minutes Complainant Wallace got on the
radio (Tr. 200).
Wallace said to Paules, "Dave, why don't you punch through
lunch and take two or three Delay-sos later when needed to help

1075

you make it through the night." These remarks were heard by
everyone in the pit (Tr. 74, 201, 206-07, 266, Wallace
Depositi on I: 131-32).
At the conclusion of the night shift on the morning of
September 27, 1994, Complainant was suspended from his employment by Terry Sheehan, Mine Operations Superintendent . Wallace
described Sheehan as being "very agitated" (Tr. 361-62) . On
September 28 , Wallace had a meeting with Jeff Marrett from
Barrick's Human Relations Department and Glenn Wyman, a general
foreman in Respondent's Mine Operations Department. They
discussed with him his comment over the radio to Mr . Paules and
decided to recommend that the suspension become a termination of
Wallace's employment (Tr. 425-30, 476-77).
On October 3, 1994, a committee of mana'g ers from the Mine
Operations Department formally recommended that Mr . Wallace be
terminated(Exh ~ R-1, tab 35).
This committee consisted of
Marrett and wycl.~n, Terry Steinhausen, another general foreman,
Terry Sheehan and George Bee, Mine Division Manager (Tr . 61-62) .
On October 10, 1994, Wallace met with Charles Geary, VicePresident and General Manager of the mine, to appeal his
termination. At this meeting, Wallace told Geary that he
believed that he was being terminated because he had inquired
about a ''miners' representative" at the mine and because he had
contacted MSHA about safety and health concerns at the mine.
Mr . Geary ratified Complainant's termination (Tr. 314-16,
Exh. R-1 , tab 36).
Comp l ainant's a l legations of protected activity
Complainant al l eges that the comments for which he was
counseled in Novenlber 1993, concerned safety. Pursuant to a
sudden change in policy, Respondent required an operator to run..
and maintain a large electric shovel by himself. Wallace
contends his comments over the rqdio were intended to raise
concerns over the safety of this decision (Tr. 340 - 41) .
On July _ 28, 1994, Complainant contacted State of Nevada
Mine Safety ·officials to complain of a lack of air c o n ditioni ng
in his haul truck. Drivers sit- near the vehicle ' s e ngine which
generates heat (Tr. 141, 352). The air c ondit i oning i n
Complainant's vehic l e had not been working for 5~ shifts p rior to

1076

this telephone call. Wallace had brought this to Respondent's
attention without result. The day after his call the air
conditioning was repaired (Tr. 347-53, Wallace deposit i on I: 6875) .
Wallace never informed management of this phone call and
there is ins u fficient evidence to establish that Respondent knew
of it . Complainant informed several fellow miners that he made
the call, but there is no evidence that any of them informed any
supervisory employees (Tr. 349-51) .
On one occasion in the late summer or early fall of 1994,
haul truck driver William Pennell approached foreman Mo Cunliffe
and asked if Cunliffe could get his truck's air conditioner fixed
(Tr. 145-46 ) . Cunliffe pointed to Wallace, who was in his
office. Without any apparent hostility, the foreman said,
\\ [h] ere ' s the man who can get your air conditioner fixed"
(Tr. 145-6, 148, 366-68) .
I am unable to conclude from this
remark that Cunliffe had determined that Wallace had been
responsible for the MSHA inspection.
Wallace had a reputation for being one of the most outspoken
employees at Respondent's mine, if not the most outspoken miner
(Tr. I : 267-70, 275, 468) . Cunliffe's comment may simply have
been a reference to Wallace's willingness to let management know
what was bothering him, including inoperable air conditioning
(Tr . 368). Moreover, even if Cunliffe thought Complainant called
MSHA, there is no evidence that he bore Wallace any animus as a
result. Wallace testified that he got along "well enough" with
Cunliffe and only had a problem with him regarding the lunch
break system (Tr. 366).
John Kirkwood is a haul truck driver who was terminated by
Respondent in March 1995 (Tr. 151-53, 166-67} . He testified that
in mid-August 1994, he was sitting at a computer terminal in the
foremen's office when he heard Vern Goglio, one of the foremen
who superivsed Mr. Wallace, talking to another foreman.
According to Kirkwood, Goglio said:
Something to the effect that, since Don (Wallace] had
called MSHA it wasn't goi ng to be tolerated, something
to do with nai l s and coffins , he had d riven a nail i n a
coffin or something like that.
(Tr . 155)

1077

Mr . Kirkwood also testified that in September 1994, while
turning in his time card, he overheard one foreman say to
two other foremen, "[t)hat could result in somebody calling
MSHA." Then Mr. Kirkwood states that foreman John Simler
responded, "[n)o, they know what happens around here if you
call MSHA" (Tr. 158) .
I find Mr. Kirkwood's testimony regarding these alleged
conversations to be insufficiently credible to support any
factual findings.
In addition to his animus towards Respondent
regarding his own termination, there are other puzzling aspects
to Kirkwood's testimony . I can understand why Mr. Kirkwood may
not have reported these conversations to Barrick Goldstrike
management or MSHA (Tr. 168). However, if Mr. Goglio made the
remarks attributed to him, I cannot understand why Kirkwood did
not warn Complainant. There is no evidence from either Kirkwood
or Wallace that he did so.

Finally, i:.,f Goglio was looking for an excuse to have
Complainant fired, one would think that this would be revealed
in Goglio's attitude towards Mr. Wallace prior to his discharge.
To the contrary, Wallace test i fied that he got along well with
Goglio (Tr. 367).
The comment attributed to Foreman Simler is similarly
suspect because there appears to have been no reason for him
to make it. There may have been a belief amongst miners after
Mr. Wallace's discharge that his termination was related to
calling MSHA (Tr. 147). However, there is no indication prior
to Wallace's discharge that Respondent had taken any action that
would lead miners to think that a call to MSHA would lead to
retaliation.
State MSHA officials conducted an inspection pursuant to
Wallace's complaint and Wallace's air conditioning was repaired
almost immediately following this inspection. However, the
inspectors did not talk to Wallace or inspect his haul truck
(Tr. 352-53, Wallace deposition I: 68-75). Repair of his vehicle
on July 29, ~ay have had nothing to do with the inspection
(Tr. 258) .
Mr. Wallace was not the only equipment operator who
complained about his air conditioning (Tr . 368). There were

1078

approximately 120-130 miners working on his crew (Tr. 500) .
Thus, the shift on which he worked was sufficiently large that
Barrick could not necessarily identify Complainant as the source
of the inspection request by process of elimination. Finally,
there is no evidence that any state or federal MSHA official
violated the law in identifying Wallace to Barrick as the source
of the complaint (Tr. 351).
There is no evidence that . any citations resulted from this
inspection (Tr . 361). This makes it very difficult to infer that
Barrick management would have retained sufficient animus towards
Wallace to consider this inspection in terminating him two and a
half months later--assuming that it did suspect him of initiating
the inspection.
Between September 1 and September 10, 1994, Wallace
contacted State mine inspector Norman Pickett on at least
two occasions. He asked Pickett about the procedures for
designating a "miners' representativen at Respondent's mine. 2
He had a similar discussion or discussions with Federal MSHA
Inspector James Watson during this period. There is no evidence
that Respondent was aware of either inquiry (Tr. 354-55, 358,
406) .
Wallace's September 17. 1994 discussion with
General Foreman Glenn Wyman
Immediately after Wallace's crew assembled for their shift
on Saturday, September 17, 1994, General Foreman Glenn Wyman
approached Complainant and asked for his opinion regarding a

2A

"miner's representative" is a person who represents two
or more miners for purposes related to the Mine Safety and Health
Act, 30 C. F. R . Part 40. Such a representative has the
authority to ask MSHA for an ins~ection of a mine pursuant to
section 103(g) of the Act. The representative must also be
afforded the opportunity to accompany a MSHA inspector and
management representative during an inspection, and an
opportunity to participate in pre-inspection or post inspection
conferences held at the mine, §103(f) of the Act. There were no
"miners' representatives" at Barrick Goldstrike in September 1994
(Tr. 356) .

1079

safety meeting at which the lunch breaks and the "delay-80s" were
discussed (Tr ... 357-59, 383-86, 410-13, Exh. R-1, Tab 23).
Wallace told Wyman he thought Respondent was making the new
computerized " autobreak" system fail . Wyman denied this and told
Wallace that the company was trying to find a way to make the
system work.
The two men then discussed two recent incidents which almost
resulted in serious accidents. Wyman told Wallace that both
drivers in these incidents had just had a break and therefore he
believed they were not related to the new lunch break system
(Tr . 411- 12 ) .
Complainant then asked Wyman if there should be a "miners'
representative" at the mine (Tr. 357-359, 383-86, 410-413).
Wyman said that he did not think that was necessary because
Barrick's open-door policy and other company procedures were
'
adequate to address
employee concerns . Although Wallace
'
described Wyman as "uncomfortable" with his suggestion, th~re
is no evidence that Wyman exhibited anger or hostility either
to Wallace or to the suggestion . 3 W~llace then went to work
(Tr. 359, 412 - 13).
Three days later, on Tuesday, September 20, Wyman mentioned
his conversation with Wallace to Jeff Marrott, of Respondent's
Human Resources Department (Tr. 417). Marrett recalled Wyman
saying that Wallace expressed a desire for rank and file miners
to have more input at the mine.
Wyman also told Marrett that
he thought Wallace was "pushing for a union" (Tr. 487, Also see
Tr. II: 323). A little more than a week later, Wyman and Marrott
decided that Wallace should be terminated after his comments to
David Paules over his truck radio (Tr. 452) .
In early October 1994, Barrick's Human Resources manager
Ron Sled conducted an investigation of Wallace's allegations of

3

Wyman testified that he did not understand that Wallace was
suggesting a "miners' representative" for MSHA purposes
(Tr. 416). Nevertheless, I credit Wallace's testimony that this
is what he was suggesting and thus find the discussion to
constitute protected activity under the Act.

1080

retaliatory discharge. When Sled interviewed Wyman, the latter
said that he recalled Wallace stating that the miners needed
"some representation." Wyman told Sled that he did not recall
any mention of MSHA and that he thought that Wallace meant union
representation (Tr. 323).
Wallace's call to MSHA the day before his termination
On September 26, 1994, Wallace left a message with MSHA that
the air conditioni ng in his truck was not operating again. There
is no evidence that Respondent knew of this call (Tr . 359-60).
Analysis of Mr. Wallace's Complaint
Section lOS(c) {1) of the Federal Mine Safety and Health Act
provides that:
No person shall discharge or in any manner
discriminate against or cause to be discharged
or cause discrimination against or otherwise
interfere with the exercise of the statutory
rights of any ... miner because such miner
... has
filed or made a complaint under or
related to this Act, including a complaint
notifying the operator or the operator's agent
... of an alleged danger or safety or health
violation ... or because such miner ... has
instituted or caused to be instituted any
proceeding under or related to this Act .. .
or because of the exercise by such miner .. .
of any statutory right afforded by this Act.
The Federal Mine Safety and Health Review Commission has
enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec. ex rel. Pasula v . Consolidation
Coal Co . , 2 FMSHRC 2786 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
{3d Cir. 1981), and Sec. ex rel. Robinette v. United Castle
Coal Co., 3 FMSHRC 803 (April 1981).
In these cases, the
Commission held that a complainant establishes a prima facie case
of discrimination by showing (1) that he engaged in protected
activity and (2) that an adverse action was motivated in part
by the protected activity.

1081

The operator may rebut the prima facie case by showing
either that no protected activity occurred, or that the adverse
.action was in no part motivated by the protected activity . If
the operator cannot thus rebut the prima facie case, it may still
defend itself by proving that it was motivated in part by the
miner's unprotected activities, and that it would have taken the
adverse action for the unprotected activities alone.
Complainant's termination would not have occurred but for
his radio communication with David Paules on September 27, 1994.
If I were to conclude that the comment was protected activity
under section lOS(c), I would find that his discharge violated
the Act. However, I reach the opposite conclusion.
A good faith safety or health complaint made to management
is protected by section 105(c). However, Mr. Wallace has not
established that his comment was a safety and health complaint.
Wallace contends that he thought Respondent's new system for
assigning lunch.. breaks was dangerous because it left some
equipment operators with seven hours until the end of the shift
and only one 15-minute break (Wallace deposition I: 166-68).
I find, however, on the basis of the evidence before me,
that Wallace's radio communication was not a good faith safety
complaint.
First, it was not directed to management, but instead
was directed to fellow-miner David Paules and could have
encouraged Paules to disregard company policy with regard to
lunch breaks.
Second, Wallace had no grounds for concluding
that Paules' objection to an early lunch-break was made for
safety reasons (Wallace deposition II: 48).
The evidence before me is insufficient to indicate that
there was anything inherently hazardous about Respondent's new
lunch break policy for its night shift.
In this regard, I not~
that the Mine Communication Sheet dated September 22, 1994
(Exh . R-1, Tab 24), allows for more than a 15-minute "delay-BO"
break if deemed necessary by a su'pervisor. More than two "delay
80" breaks in one shift also could be taken with the approval of
a supervisor (Exh. R-1, Tab 28).
In conclusion, I find that . Mr. Wallace's comment of
September 27, 1994, was not protected activity. Therefore, to
establish that his discharge violated section 105(c) of the Act

1082

he must establish that he would not have been terminated but
for other activities that are protected.
Complainant's communications with MSHA
While Mr. Wallace has established that he engaged in
activities protected by the Mine Act, he has failed to prove
that his termination is related to these activities. As the
Commission and Federal Courts have repeatedly noted, it is rare
that a link between the discharge and the protected activity
will be supplied exclusively by direct evidence. Usually
discrimination can be proven only by circumstantial evidence
upon which the trier of fact draws an inference regarding the
employer's motivation, Secretary of Labor on behalf of Chacon v.
Phelps Dodge Cor:poration, 3 FMSHRC 2508, 2510 (November 1981).
The most common circumstances upon which such an inference
may be based are the employer's knowledge of the protected
activity, hostility towards the protected activity (animus),
coincidence in time between the protected activity and the
discharge or other adverse action, and disparate treatment of the
complainant and similarly situated employees, Ibid., at 2510.
Mr. Wallace fails to establish a link between his discharge and
calls to MSHA primarily because there is insufficient direct or
circumstantial evidence that Respondent was aware of them.
Moreover, assuming Barrick knew or surmised that Complainant
had engaged in any of these protected acts, there are insufficient grounds to conclude that Respondent bore sufficient animus
towards these activities for them to have contributed to his
termination .
The November 1993 radio conversation regarding
the lack of oilers on shovels and the January .1994
comment regarding the early lunch break.
Complainant contends that he commented upon Respondent's
decision to cease assigning oilers to its shovels in November
1993, and the early lunch break of January 12, 1994, out of
concern for the safety of equipment operators. I conclude that
he has not established that the January incident constituted a
good faith safety complaint protected by the Act.

1083

The comment regarding the shovel is a closer question.
However, I conclude .that it is unnecessary to decide whether it
is protected because I see no substantial link between this
incident and Wallace's termination, which occurred ten months
later.
The September 17. 1994. discussion with Glenn Wyman
regarding miners' representatives.
The conversation with Glenn Wyman provides two common
indicia of discriminatory intent: knowledge of protected
activities and proximity in time to Wallace's discharge.
Indeed,
with regard to the latter, Wyman and Jeff Marrett, the
two individuals who decided to fire Wallace, discussed his
request for "representation" little more than a week before
making this decision.
My reason .for declining to inferentially find a relationship
between this conversation and the termination is the complete
lack of evidence of hostility or animus on the part of Respondent
to Wallace's protected activity. The fact that Foreman Wyman did
not agree with Complainant does not constitute hostility or
animus sufficient to allow an inference that Wyman was motivated
by this discussion in recommending Wallace ' s termination.
Wallace testified that he believed that he could talk to
Wyman about his concerns regarding the break system {Tr. 358).
Nothing in his description of the conversation indicates that
Wyman reacted to his suggestion with anger or hostility. The
closest the record comes to suggesting animus is the fact that
Wyman thought Wallace's discussion regarding "representation"
sufficiently significant that he told Marrett about it three days
later. However, I conclude this fails to provide sufficient
basis for drawing an inference that Wyman or Marrett, the only
two management officials aware of this conversation, were
motivated by it when recommending, Wallace's termination .
If Wyman and/or Marrett would not have recommended termination but f9r activities protected by the Mine Act, I would deem
it irrelevant that others involved in the termination were not
aware of these activities. I would find a section lOS(c)
violation . However, in addition to finding an insufficient
nexus between the September 17, 1994 discussion and Wallace's

1084

termination, I conclude that retaliation, if it did occur, was
not for activity protected by the Mine Act.
There is no suggestion that Wyman or Marrett were hostile or
concerned with the possibility that Wallace or another miner
would become "miner's representative." While this might not be
true with regard to the inception of campaign for a union, such
considerations are beyond the purview of the Federal Mine Safety
and Health Act.
Complainant's argument that his discharge must have
been motivated by his protected activities because
Respondent could not haye possibly fired him for the
September 26-27. 1994 radio comment.
Much of Complainant's case is directed to showing that no
reasonable employer would have fired him for suggesting to
Mr . Paules that he skip the lunch break and take "delay-80s"
later, if he needed them.
To the contrary, I conclude that
Respondent had sufficient non-protected reasons to fire him .
Mr. Wallace appears to have been genuinely concerned with
the welfare of his fellow miners.
Further, his work record
appears to have been unblemished apart from his use of the truck
radio to communicate his disagreement with management decisions
on at least three occasions. One might agree with Complainant
that Respondent should not have fired him. However, that does
not mean that he has established that his discharge violated
section lOS{c} of the Act.
Respondent's witnesses have established that the scheduling
of lunch breaks was a very sensitive issue at the mine in 1994
(Tr . 419-20, 504}. Barrick had tried several methods of
balancing its concerns for productivity with the wishes of its
equipment operators. Each of these apparently met with some
resistance from its employees.
In this context, the company might have reacted very
strongly to a suggestion from one employee to another, regarding
the lunch break that appeared to be inconsistent with the
instructions of their supervisors. This is all the more true
when this suggestion was made -over the mine radio system whereby
all employees could hear it.

1085

Finally, when an employee is on a probationary status for
criticizing m~~agement over the radio, it is certainly possible
that he would be fired if he again made remarks over the radio
that management could interpret as another challenge to its
authority.
In conclusion, I find that Complainant has not established
that his termination violated section 105{c} of the Act. His
complaint is therefore DISMISSED.

~{!.;~

Administrative Law Judge
Distribution:
James L. Kennedy, Jr., Esq., P.O. Box 2165, Ketchum,
ID 83340 {Certi'fied Mail}
Charles R. Zeh, Esq . , Zeh, Polaha, Spoo & Hearne,
450 Marsh Ave., Reno, NV 89509 {Certified Mail)

/lh

1086

FEDERAL KINE SA!'ETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW Jl.OGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUN 2 8 \996
WILLIAM F. METZ

I

Complainant

... DISCRIMINATION PROCEEDING

Docket No. PENN 95-479-DM
NE MD 95-06

v.
WIMPEY MINERALS and
TARMAC AMERICA, INC.,
SUCCESSOR-IN-INTEREST,
Respondents

:

Millard Lime & Stone

:

Mine ID 36-00017

..

DECISION
Appearances:

William F. Metz, Lebanon, Pennsylvania, pro se;
William Doran, Esq . , Smith, Heenan and Althen,
Washington, D.C . for Respondent.

Before:

Judge Melick

This case is before me upon the complaint by William Metz
under Section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. S 801 et seq., the MAct," alleging that Wimpey
Minerals discharged him on March 21, 1995, presumably in
violation of Section 105(c) {l) of the Act. 1

1

Section lOS(c) (1) of the Act provides as follows:

No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator of the operator's agent, or the representative of
the miners at ~he 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

1087

More particularly, Mr. Metz alleges in his May 6, 1995,
complaint to the Department of Labor's Mine Safety and Health
Administration (MSHA) as follows:
After several attempts to convey to management .QlU:.
concerns about Gene Graham mainly safety related issues they
told us that they did not want to here [sic] ~ problems
related to Gene Graham & on or around March 16th I told Roy
Lashbrook again my concerns & that I wanted a meeting with
James Gregory, Vice President. Roy told Carrol & Carrol
came to see me wanted to know what my problem was now I
sad [sic) same thing as [illegible) other than that Gene was
trying very hard not to flip out on anybody but that was it ·
and you know the things (safety items) are not getting
repaired & also telling people to do things they should not
be doing (the safe way) he said bill [sic) whats [sic) your
problem everything is running I said thats (sic] my problem
thing [sic) running that probably shouldn't on March 21st he
came to me about 9:00 p.m. & told me I was fired why I asked
he said it just wasn't working out. This is just a brief
and to the point response to the action I don't believe
people should be fired for voicing their concerns about
safety & also they should make a mockery of MSHA since you's
[sic] are there for are [sic] safety I will get into that
with the investigator
I would like to be reinstated to my job with my
seniority and back pay from March 21st and unemployment
payed [sic) back because if & when I go back if they lay me
off I won't have any unemployment you only get 26 weeks and
till this is resolve (sic) I might not have any left and
Insurance Reinstated from time of firing.
The Secretary declined to pursue the above complaint and
Mr. Metz brought this action before this Commission on his own

under Section 105(c) (3).

Footnote 1 Continued
Section 101 or because such miner, representative of miners
or applicant for employment bas 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.

1088

Metz testified at hearing that he began working for Wimpey
Minerals in February 1988 as a heavy equipment mechanic and
continued to work in that capacity until he was terminated on
March 21, 1995~ It appears that Metz' difficulties began when
Gene Graham took over as Team Leader of the shop in 1993.
According to Metz, in late 1993 or early 1994, he observed Graham
remove a wtag" that Metz had placed on the fuel truck because it
purportedly had no brakes. Metz claims he told Graham that if
the truck went out again (presumably without the brakes being
repaired) he would see Graham's supervisor, Gary Nolan. There
were apparently no further problems with that truck and Metz
concedes that nothing happened to him' as a result of this
complaint .
The next relevant incident apparently occurred on
April 11, 1994. In the early morning hours of that date Metz and
mechanic John Leffew were working together. Metz had previously
noted a series of problems with defective steering cylinders on
some of the so-ton haul trucks so he and Leffew went out to the
quarry to check on some of the other so-ton trucks. Checking the
trucks with a flashlight around 3:00 or 4:00 in the morning, Metz
found what he deemed to be defective steering problems on four of
them. He tagged those trucks, thereby, in effect, barring their
use until repaired.
When the drivers appeared for work later that morning they
inquired of their boss, Lenny Mussar, why their trucks had been
tagged-out and Metz responded that it was because of steering
problems. Metz then returned to the shop where Graham later
inquired about the tagged trucks. Accord~ng to Metz, Graham
asked him to remove the tag from at least one of the trucks and
Metz refused. Metz claims that Graham then told him to come to
his off ice where he presented Metz with two warning slips he
pulled out of his desk. One warning was for failing to note the
time on a meter reading slip and the second was for failing to
stop before driving across the railroad tracks. According to
Metz, Graham then again asked him to remove one of the tags and
when he again refused, purportedly told Metz he was fired. Metz
then went home. He was later called by Human Resources Manager
Chris Harvan who set up a meeting for the next day.
At the meeting on the next day, April 12, Harvari,
Gene Graham and the Complainant met. As a result of this meeting
Harvan presented Metz with a le~ter (Complainant's Exhibit No. 1)
indicating that his suspension with intent to discharge was
reduced to a three-day suspension without pay and 90-days
probation. Harvan did not testify but, according to Graham, this
was based on the warning notice he issued on April 11, 1994 after
the •tag-out" confrontation (Respondent's Exhibit No. 3) because
Metz was wloud", winsubordinate~, and •the biggest thing was his
threatening statements" that •r am going to become your worst

1089

nightmare." Graham acknowledged that he also gave Metz two other
warning notices after the April 11 confrontation (Respondent's
Exhibits No. 1 and 2). Graham further acknowledged that the
Mconversation got out of hand" only after he asked Metz to
reverse his decision about tagging-out the trucks. Both Graham
and Carroll Laufmann claim that Metz' suspension was not based
however on his tagging-out the trucks.
Metz claims that he also complained at the April 12 meeting
about Graham's prior removal of warning tags and was told not to
confront Graham about anything. He noted that Meverybody" was
having verbal exchanges with Graham who, according to Metz, ~kept
going nuts" and was always arguing about something.
Metz also testified that there had been a meeting between
January and April, 1994, at which Graham's supervisor, Carroll
Laufmann, told a group consisting of Metz and co-workers,
Ted Gress, Jim Shirk, John Leffew, and Feliciano •chico" Rivera,
that MI do not want to hear anything negative to do with Gene
Graham, safetywise or otherwise." Laufmann acknowledges that he
wanted the mobile equipment shop crew to stop looking at all the
negative things Graham was doing as a supervisor but could not
recall telling them not to bring safety issues regarding Graham
to his attention.
Metz further testified that his discharge on March 21, 1995,
was preceded by a meeting with Laufmann on March 16, 1995. Metz
described the meeting in the following colloquy:
[Complainant Metz):
He [Carroll Laufmann] walked in
and said, MWhat•s your fucking problem now," and that's a
quote.
And I said, Msame thing it's been, just a few
more incidents.:
And he said, MWhat•s your fucking problem?
Everything ' s running . "
And I said, MThat•s my problem. Everything's
running, and things that shouldn't be running."
And at that point, he just sat there and looked
at me. I said, •you've eith~r got to do something (or) I'm
going to [c]all MSHA and let them deal with it because I
can't take it no more."

BY JUDGE MELICK
Q.

This is what Carol said?

1090

A.
No, I told this to Carol . And as he walked up,
he got up and walked out and didn't say nothing more to
me . And I told him, •sy the way, tell James I'm the one
that sent the letter.ft And that's all I said to him.
Q.

Who is James?

A.
James Gregory, I guess he's the vice president .
At that time, I guess he was the vice president of Wimpey
USA. I don ' t know what his -- he ' s some kind of
president.
Q.
And did Carol know what this letter was?
you discuss the letter in this conversation?
A.

Did

No.

Q.
Well, how would he know what this letter was
then if he didn't know, if you didn't discuss it?

A.
I don't know if he knew or not. The person
that the letter was sent to -- and I can only speculate
that the day he go it -JUDGE MELICK: Well, I don't want speculation.
Unfortunately, we can only have what you know.
THE WITNESS:
letter.

Well, I'm the guy that sent the

BY JUDGE MELICK:
Q.

Well, what letter is this, by the way?

A.
It was a letter of a conversation I'd overheard
between Gene Graham and Dave Douville. I was standing
right there. Gene was telling me about it. Dave
Douville walked in.

Q.

Who is Dave Douville?

A.
Do you want me to tell you what was said in
that conversation?

Well, I'm just wondering what the relevance of
this letter has to do with -Q.

A.

Well, a guy died.

Q.

A

guy died?

1091

A.

Yes.

Q.
And what did the letter have to do with the
guy's death?

A.
The letter had to do with two weeks prior to
the guy dying, Gene Graham and Dave Douville that works
for Tire Centers, Incorporated, walked across the same
grating and fell through it; didn't fall through it, but
almost fell through it.
Q.

So who did you send the letter to?

A.

I sent it to Bob Furlong.

Q.

Who is Bob Furlong?

A.

And also sent a copy to George Brandt's wife.

Q.
Well, who are these people ; Bob Furlong and
somebody's wife?

A.

Bob Furlong was the president of the company .

Q.
This was not then sent to the Mine Safety and
Health Admin istration or any government agency?

A.

I don't think so.

Q.
So then what happened after this conversation
with Carol Laufmann?

A.
I can only go by their dates. I wasn't writing
stuff down.
But I believe it was three days later, I
started at, like, 8 : 30. It was about 9 : 00. He walked
up .
Q.

When you say whe," is that Mr. Laufmann?

Yes. He told me he wanted to see me in the
A.
office. I walked in. He set down. He told me he was
going to have to ask for my resignation . I told him I
was in no position to give him my resignation nor did I
want to.
He asked me again, and I said, M
Well, what's
the problem? What did I do? " I said, wI asked for a
meeting and all of a sudden, I got fired." I said, MI'm
using your grievance procedure. " They have it right here
in a book. And all of a sudden, I got fired because I'm
making one more safety compiaint about Gene Graham.

1092

And it wasn't just about that letter that I
wanted to talk to him about. I never got to tell him
anything.

Q.

And then what happened at that point?

A.
Well, then I was fired because I wouldn't give
him my resignation. He followed me up to my toolbox. I
took all my personal stuff and left.

Q.
Now, I guess we're going to have to get a
little more information. When you said you had made a
safety complaint about Gene Graham, when did you make
this safety complaint?
A.

We made many -- we attempted to.

Q.

Did you, in fact, ever make a safety complaint?

A.

They wouldn't let us.

(Tr. 15-19).

Laufmann•s description of the March 1995 events leading to
the Complainant's discharge is set forth in the following
colloquy:

Q.
And Mr. Metz was discharged March 21 of 1995.
Was there a specific incident that led to his discharge
at that time?
A.

Yes, there was.

Q.

Could you describe that incident for me, please?

A.
The incident began a couple days earlier when
John Leffew approached Roy Lashbrook, who at this time
had been substituted in the sort of chain of command
between Gene Graham and myself. John came to Roy and
said that Bill had requested that Roy set up a meeting
with James Gregory.
Roy suggested that he go back and tell Bill
that he needed to go through the chain of command, rather
than jumping over Roy and myself directly to James. And
I believe Roy, at that time, also sent back the message
that he would meet with Bill the next morning at 5:30.

Q.

To your knowledge, did Roy meet with Bill?

A.
Yes.
take place.

To my knowledge, that meeting did indeed

1093

Q.

Did Roy talk to you after that meeting?

A.
Roy talked to me after that meeting and said
that he hadn't been able to satisfy Bill, that Bill was
still asking to meet with James Gregory and suggested
that, to follow the procedure outline, that I ~ome in
early the ·f ollowing morning to meet with Bill .and see if
I could answer Bill's question or problem.
Q.
Did Roy explain to you or present any issues to
you that Mr. Metz had raised?

A.

Not in any detail, no.

Q.

Did you meet the next day with Mr. Metz?

A.
Yes, I did. I came in, arrived at the quarry
site at approximately 5:30 the next morning and went to
find Bill. I located Bill and told him that I was there
to discuss the situation . Bill was fairly
noncommunicative.
I . said, .. Look, we've got to follow the
procedure . \ I need to know what the problem is, so I can
carry it on 'to James, tell him what I know about it and
arrange a meeting."

so I pressed Bill again.

I said, What is the

problem?
Bill finally said, Mit's the same old thing .
Gene Graham's blowing smoke up your ass. "
Q.

What did he mean by that?

A.

I am not sure what Bill meant by that.

Q.

Did you ask him what he meant by that?

A.

No, I did not.

Q.

Did you ask what the •same old" problem was?

A.
I continued to say , •Let's elaborate more on
this situation." Again, I don't recall exact -- that
exact phrase sticks in my mind, but after that, I don't
recall exact words. It came out something to the effect
that it was Gene Graham -- that Bill could just no longer
work with Gene.
I said, •sill, this is directly 180 deqrees

1094

against what we put in the letter in April of '94," that
was sort of the letter that had saved his job at that
time . I said, MBill, if it's that bad, why didn't you
take the opportunity to bid on the job posting to get
into the line plant?"

Q.
And what's that? Explain that to me.
the job posting at the line plant?

What's

A.
The job postings at Millard are done if a vacancy
occurs anywhere on the Millard site. The job,
the rate and description are put up in our change
building, left up for a week or two. I forget which
exactly the time is .
And during that time, people can stop in at our
plant off·ice, sign up, put their name on a list of people
to be evaluated for filling that position. The advantage
to this position was that it would have been a transfer.
I believe the two jobs paid the same . So it wouldn't
have been -- they're both right at the top of the pay
scale at Millard. There wouldn't have been the problem
with taking a pay cut or something.

Q.
Let me ask you, you had mentioned that you said
to Mr. Metz that this was a contravention of his
agreement that he made in April of '94.
Can you describe to me what you mean there?
What agreement are you talking about?
A.
Again, as I said earlier, I had actually made
the decision that Bill should be discharged twice. The
time in April of '94 was overruled, if you will, I think
largely because the person I was working for was brand
new to Millard, had only been there three or four weeks,
really didn't know me and really didn't know the
situation well.

Q.

And who is that?

A.
James Gregory . He really didn't know me well .
I knew part of the reason maybe he was there was because
the previous administration, if you will, maybe hadn't
been as cautious in all cases and maybe should have been
in some of these instances. And he wanted to be very
sure he was doing the right thing.
So he basically said, •Let's go back and see if
we can't find a way to keep this person's job."

1095

Q.

And what did you do at that point?

A.
At that point, Chris Harvan and I, who at that
point was human resources director, I believe, set down
and over a series of a meeting or two hammered out what
we felt were the minimum requirements that it would take
for me to be willing to keep Bill Metz on his job.
(Tr. 308-312)
Q.
Focusing back on your decision to discharge
Mr. Metz, at any time in making your decision -- well, first
of all, let me ask you, did you consult with anyone else
in making your decision?

A.

In March of '95 now?

Q.

That's right.

A.
Yes, I basically made the decision. I called
my supervisor, the vice president of -- I'm sorry. I'm
getting the two instances confused. Let me start over.
I~ March of '95, once Bill had told me that,
number one, '.that he thought the letter of agreement from
April of '94 was -bullshit" and that he could -- and had
also made the statement that either he or Gene Graham was
going to have to go, I didn't feel like I had any choice .
Once Bill made those two positions very clear to me, I
thanked him and left, said I would set up a --

JUDGE MELICK: This was at the meeting you had
with him in March of '95?
THE WITNESS:
This was when I came into the
job site at 5:30 in the morning in March of '95, that's
correct .
JUDGE MELICK:

And he told you at that time

that the
THE WITNESS:
He told me at that time that
this letter that he unfortunately didn't sign and return
was a -bunch of bullshit," that he had never agreed to it
in the first place and didn't . agree to it now.
JUDGE MELICK: Wait a second. That was at the
prior meeting? This was not in March of '95?
THE WITNESS:
This was in March of '95, again,
bringing up the fact that he did not ever agree to the
letter, despite the fact that we had set in Chris

1096

Harvan•s office and agreed that this was the terms and
conditions he was going to come back to work for. And in
March of '95, he's saying •it's bullshit," that he never
agreed to it, still doesn't agree to it and basically
refused to agree with it.
BY MR. DORAN:
Q.
If I can ask you a question, this is the
-neeting the day after he met with Roy Lashbrook?

A.
This is a meeting the day after he met with Roy
Lashbrook, yes.
JUDGE MELICK: He had said at that meeting
then, again, that the letter of April of '94 was
41
Bullshi t"?
THE WITNESS:
Was •bullshit," he didn't agree
to it then and doesn't agree to it now.
Q.
And the decision to discharge Bill Metz was not
given to him on that date; is that correct?

A.
That's correct. I left that meeting. I
thanked Bill for his time. I said I would set up the
meeting with James Gregory, contacted James, told him
what had transpired, said that I just couldn't see any
option any longer and that I felt that we had to
terminate Bill. And that was my recommendation.
At this point, James has worked with me for a
year. I'm permanent in my position . James has a better
feel for the plant and people and basically agreed with
my recommendation.
Q.
And did you communicate that decision to
Mr. Metz?

A.
Yes, I did. It was not intended for me to
communicate that decision to Mr. Metz. There was a date
set for Bill to talk to James Gregory. James and . I had
agreed that, unless something came up during that meeting
that didn't come up during my meeting with Bill, that at
the conclusion of that meeting, that James would inform
Bill that he was terminated.
The day before the meeting with James was to
take place, we internally in the plant talked the
decision over with a few of the team leaders, what we
thought in private, to get them ready to -- again, we

1097

just don't like to have decisions like this to be made
and then the rumor mill get a hold of them before we can
make any kind of announcement for the work place. So we
told some people ahead of time.
For one reason or another, that information got
out into the work force, yet, that afternoon, Bill was
scheduled to come to work that night. I believe Roy
Lashbrook received the first call at home at 6:00 p.m. or
7:00 p.m. in the evening saying, •The word's out. You
guys maybe ought to consider doing something different."
Roy called me and told me.
I called James. I said, •r don't think it's a
good idea to have Bill on site, unsupervised," because at
that point, we didn't have a supervisor on the night
shift, wif he gets word that he is to be discharged the
next day."
James said, •yes," he agreed with that. We
agreed that, since I lived closer to the mine site, I
would drive back, meet with Bill and give him the word
that he was being discharged, but also tell Bill he
should, by· all means, go ahead and call James Gregory and
set up a meeting ·with James to have the meeting that they
were to have had the following day.
Q.

And did you meet with Mr. Metz?

A.

Yes, I did.

Q.
And during that meeting, did Mr. Metz express
any safety concerns to you?

A.

No, he did not.

(Tr. 334-338)

Whether safety issues were considered in discharging Metz
was discussed by Laufmann in the following colloquy:
Q.
[Mr. Doran] Let me ask you one final question
here. In making your decision to discharge Metz, did any
effort on your part to prevent Mr . Metz from making
safety concerns enter into your decision?

A.
No. At no time, if anybody comes to me with a
safety concern, it's basically between them and I. And
again, if somebody comes and says, •r need five minutes
of your time. Can I clo's e the door and can we discuss a
safety concern?" by all means, we close the door and
discuss a safety concern. ·

1098

Q.
Did Mr. Metz at any time during your tenure as
stone plant manager ever make any specific safety
complaints or safety concerns regarding Mr. Graham?

A.
I don't recall Bill ever coming to me with a
specific hard fact that Gene had -Q.
Did you ever ask him for hard facts?
ever ask him for specific issues?

Did you

A.
I never went to Bill Metz and said, MBill, can
you tell me three things that Gene has done unsafe?" At
every team meeting, there was a period at the end of the
meeting that everyone was invited to bring up a safety
concern, if they had one.
And there were some minor things brought up
there that tended to be more on the line of, Mean we do a
better job of snow removal," or #What's the temperature
in the shop going to be this year," or there's maybe a
door that needs to be fixed or something.
But in the way of items that I would say are
real true safety, life-threatening or injury-threatening
safety concerns, no. (Tr. 340-341)
This commission has long held that a miner seeking to
establish a prima facie case of discrimination under Section
105(c) of the Act bears the burden of persuasion the he engaged
in protected activity and that the adverse action complained of
was motivated in any part by that activity. Secretary on behalf
of Pasula v . Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(1980), rev'd on grounds, sub nom. Consolidation Coal Co. V .
Marshall, 663 F . 2d 1211 (3rd Cir. 1981); and Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(1981). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity. If an
operator cannot rebut the prima facie case in this manner, it may
nevertheless defend affirmatively by proving that it would have
taken the adverse action in any event on the basis of the miner's
unprotected activity alone. Pasula, supra; Robinette; supra.
See also Eastern Assoc., Coal Cor . V. FMSHRC, 813 F.2d 639, 642
(4th Cir . 1987); Donovan v. Staf!ord Construction Co., 732 F.2d
954, 958-59 (D.C . Cir, 1984); Boich v. FMSHRC, 719 F.2d 194, 19596 (6th Cir.1983) (specifically approving the Commission's
Pasula-Robinette test). Cf. NLRB v. Transportation Management
Corp., 462 U.S. 393, 397-413 (1983) (approving nearly identical
test under National Labor Relations Act).

1099

It cannot be disputed that Metz' activity on April 11, 1994,
in tagging-out Respondent's haulage trucks for steering defects
was protected activity. In addition, while not clearly
articulated, it is apparent from Metz' credible tes~imony that he
also attempted to report safety issues regarding Team Leader
Graham to Graham's supervisor, Carroll Laufmann in early 1994 and
again at his meeting with Laufmann on March 16, 1995, five days
before his dismissal. At the latter meeting Metz also complained
that certain equipment Mshouldn't be running" and told Laufmann
that •you've either got to do something [or] I'm going to [c ] all
MSHA and let them deal with it because I can't take it no more,"
(Tr. 16). It is noted that Laufmann never specifically denied
this testimony and was generally evasive on the subject. These
too are clearly activities protected under the Act.
As noted, the second element of a prima facie case of
discrimination is a showing that the adverse action was motivated
in any part by the protected activity. As this Commission
observed in Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge corp.,
709 F.2d 86 (D.C. Cir. 1983), "[d]irect evidence of motivation is
rarely encountered; more typically, the only available evidence
is indirect." The Comll\ission considered in that case the
following circumstantial indicia of discriminatory intent:
knowledge of protected activity; hostility towards protected
activity; coincidence of time between the protected activity and
the adverse action; and disparate treatment. In examining these
indicia the Commission noted that the operator's knowledge of the
miner's protected activity is Mprobably the single most important
aspect of the circumstantial case."
In the instant case there is both direct and indirect
evidence that Metz' discharge was motivated by his protected
activity. The direct evidence is in Respondent's letter
confirming the reasons for Metz' dismissal (Complainant's Exhibit
No . 2) wherein Respondent cites the April 11, 1994, alleged
Minsubordination" as an underlying basis for the dismissal.
Insubordination is disobedience or the unwillingness to submit to
authority. In the context of the April 11 incident Metz'
insubordination was essentially only his refusal to comply with
his supervisor's (Graham's) request for him to remove at least
one of the danger tags he had placed on the haul trucks at the
quarry.
While Graham testified that ' Metz' discipline in April 1994,
was also based on his loudness and the fact that he said to
Graham MI will be your worst nightmare", neither factor under the
circumstances of this case would warrant the subsequent severe

1100

disciplinary action and discharge. 2 No physical threat was cited
by Graham in his testimony and Metz' Mloud" spontaneous reaction
may reasonably be construed as having been provoked by Graham's
efforts to have Metz submit to his authority and allow at least
one of the trucks Metz found hazardous to operate without repair.
A miner does not forfeit his rights to Mine Act protections under
such circumstances.
As noted, the latter complaints and threat to call MSHA were
made only five days before Metz was discharged and were made to
the same person, Laufmann, who had already concluded that Metz
should have been fired for his April 11, 1994, protected activity
and to the same person who again recommended Metz' discharge. 3
It may reasonably be inf erred therefore that Respondent was also
motivated by these protected activities in discharging Metz.
Metz has accordingly established a prima facie case of
discrimination that is unrebutted.
In accordance with the Pasula analysis the issue then is
whether Respondent has affirmatively defended by proving that it
would have taken the adverse action in any event on the basis of
Metz• unprotected activity alone. In this regard Respondent's
evidence is insufficient. Again, looking to the April 21, 1995,
letter setting forth the reasons for Metz• termination, it is
noted that the warnings for incidents on April 7 and
April 8, 1994, were not issued to Metz until after he had engaged
in the April 11 protected activity and, according to witnesses,
were trivial incidents others had also committed without
repercussion. The April 12, 1994, Magreement" or Msecond chance"
was clearly premised on Metz' protected activity on the day
before and cannot t~erefore be considered a non-protected basis
for subsequent action. The undisputed charges that Metz ignored
his Team Leader, avoided acknowledging instructions from him and
often did not complete his paperwork in a timely fashion and the
October - November 1994 instances of "poor conduct" where Metz
was reportedly "extremely arrogant and argumentative" and when he

2

While the subject dismissal letter states that Metz also
said to Graham "I will get you Gene", Graham testified . only that
Metz said MI will be your worst nightmare". Graham's testimony
under oath is accorded the greater weight and is deemed to be the
more accurate version of what he •claims was said.
(Tr. 233-234)
3

While Metz acknowledged on cross examination that he did
not in March 1995 make "safety complaints" to management, this
testimony is not necessarily contradictory. Metz apparently did
not construe as Msaf ety complaints" his threat to call the Mine
Safety and Health Administration (MSHA) if certain equipment was
allowed to continue operating.

1101

was overheard by an outside vendor's employee, Charles Vlasic,
Mshout abusively at his Team Leader for about five minutes"
(Tr. 218) clearly provided legitimate and non-protected grounds
for disciplinary action but no action was then taken. If this
behavior was considered sufficiently serious to warrant
dismissal, such action should then have been taken. Here no
action was taken until Metz engaged in additional protected
activity on March 16, 1995.
Finally the alleged ultimatum, in which Metz purportedly
said that either Graham or he would have to go, is credibly
denied by Metz. This denial is also corroborated by the
testimony of employee James Shirk who was given contradictory
reasons for Metz' dismissal by Wimpey Vice President James
Gregory. In addition, if such an ultimatum were in fact
presented then it may reasonably be concluded that Metz would in
fact have resigned.
Under the circumstances Respondent has failed in its burden
of proving an affirmative defense. Complainant has established
that he was discharged in violation of the Act.
ORDER

The parties are directed to confer regarding reinstatement,
costs, damages and interest and are directed to report to the
undersigned on or before July 1~, 1996, regarding whether such
issues can be stipulated. If such issues cannot be stipulated by
that date, further hearings will be held on these issues on
July 25, 1996, in Harrisburg, Pennsylvania. This decision is
accordingly not final and a final decision w· l not be issued
until such issues are resolved. Boone v. Re 1 Coal co. 3
FMSHRC 1900 (August 1981)

Distribution:
Mr. William F. Metz, 2404 Long Lane, Lebanon, PA 17046 (Certified
Mail)
William Doran, Esq., Smith, Heenan & Althen, 1110 Vermont Ave.,
N.W., Washington, o.c. 20005 ·(certified Mail)
\jf

1102

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

·JUN 2 8 W96
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of ARTHUR R. OLMSTEAD
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. WEST 96-130-D
DENV-CD-95-20

Savage Mine
KNIFE RIVER COAL MINING CO.,
Respondent
DECISION
Appearances:

Tambra Leonard, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Complainant;
Laura E. Beverage, Esq ., and Rebecca Graves Payne,
Esq., Jackson & Kelly, Denver, Colorado, for
Respondent.

Before:

Judge Hodgdon

This case is before me on a Complaint of Discrimination
brought by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA), on behalf of Arthur .R.
Olmstead, against Knife River Coal Mining Company under section
lOS(c) of the Federal Mine Safet~ and Health Act of 1977, 30
U.S.C. § 815(c). For the reasons set forth be l ow, I find that
Knife River violated section lOS(c) when it discharged Mr.
Olmstead on June 30, 1995.
A hearing was held on February 27 through March 1, 1996, in
Billings, Montana.
In addition, the parties filed post-hearing
briefs in the case.

1103

BACKGROUND

Mr. Olmstead worked for Knife River from September 11, 1967,
until his discharge on June 30, 1995, a total of 27 years. He
operated the tipple since 1987. During his employment, Mr.
Olmstead was well known for raising operational and safety
matters, both with management and state and federal mine
inspectors . Until 1995, he had never had any disciplinary
problems with the company.
Richard Kalina became superintendent of the Savage Mine on
March 1, 1993, having been promoted from Knife River's Gascoyne,
North Dakota, mine where he had been foreman since 1984. On Mr.
Kalina's recommendation, Mr. Olmstead was suspended without pay
for five days beginning on March 6, 1995, for an unauthorized
absence. The absence occurred when Mr. Olmstead accompanied his
son to traffic court, for which he claimed on his time card "Jury
or Court Duty."
(Comp. Ex. 7 . )
Mr. Olmstead's employment with Knife River was terminated
effective June 30, 1995, for dishonesty. The dishonesty
concerned alleged misrepresentations on Mr. Olmstead's part about
his medical status and availability for work following surgery on
his right wrist.
FINDINGS OF FACT AND CONCLUSIQNS OF LAW
In his Discrimination Complaint filed with MSHA, Mr.
Olmstead alleged that Knife River discriminated against him by
terminating him. In the Complaint of Discrimination filed by
MSHA with the Commission, the assertion that the company
discriminated against Mr. Olmstead by suspending him without pay
was added . At the hearing a third claim was made, that the
Complainant was required to take coffee and lunch breaks at times
different than the rest of the employees. I conclude that only
the original allegation has merit.

1104

In order to establish a prima f acie case of discrimination
under Section 105(c) of the Act, 1 a complaining miner bears the
burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2768 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F2d.
1211 (2d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803 (1981); Secretary on behalf of
Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (1984); Secretary
on behalf of Chacon v . Phelps Dodge Corp . , 3 FMSHRC 2508 (1981),

rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp.,
709 F.2d 86 (D.C. Cir. 1983) .
The operator may rebut the prima f acie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity.
Pasula, 2 FMSHRC at 2799-800. If the operator cannot rebut the
prima facie cas~ in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone.
Id. at 2800;
Robinette, 3 FMSHRC at 817-18; see also Eastern Assoc. Coal Corp.
v . FMSHRC, 813 F.2d 639, 642 (4th Cir . 1987 ) ; Donovan v. Stafford
Const. Co., 732 F . 2d 954, 958-59 (D . C. Cir. 1984 ) ; Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Robinette test).

Section 105(c) (1) of the Act provides that a miner cannot
be discharged, discriminated against or interfered with in the
exercise of his statutory rights because: (1) he "has ' filed or
made a complaint under or related to this Act, including a
complaint . . . of an alleged danger or safety or health
violation;" (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section
101;" (3 ) he "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, (4) he has
exercised "on behalf of himself or others . . . any statutory
right afforded by this Act . "
1

1105

It is undisputed that Mr. Olmstead engaged in protected
activity. It is apparent that he was constantly making
complaints about matters that he considered to be safety and
health issues to whomever would listen. Therefore, the questions
in this case are whether the company took adverse actions against
him, whether the adverse actions were because of the protected
activity, and, if so, whether the company would have taken the
adverse actions solely because of unprotected activity in which
the Complainant may have engaged.
Solitary Coffee and Lunch Breilk§.

Turning first to the claim, that Mr. Olmstead was required
to take his coffee and lunch breaks alone, I find that this was
not an adverse action. On April 14, 1994, Mr. Kalina instructed
Mr. Olmstead to finish crushing the coal in the crusher before
taking his coffee or lunch breaks. This caused him to take the
breaks at different times than the rest of the employees. While
Mr. Olmstead te.s tif ied that this lasted two or three weeks, in a
record he kept at the time, on a page headed "info to establish
Harrasment [sic] Charges against Management concerning lunch time
and dinner time," only four dates are listed, April 14, 15, 18
and 19.
(Comp Ex. 4, at 102.)
On the other hand, the other witnesses, including employees
Steve Ler and Brian Carr, testified that it was not unusual for
management occasionally to require employees to take lunch or
coffee breaks at different times, if the job required it.
Furthermore, no one corroborated Mr. Olmstead's statement that he
was required to do this for two or three weeks. In addition,
even his contemporaneous notes, made for the specific purpose of
documenting adverse actions, only show four days. Consequently,
I conclude that this was no more than a reasonable job request,
no different than that made of all employees, and not ·a n adverse
action.
Suspension without Pay

The suspension without pay is a more difficult question. It
is entirely believable that the court may have required a parent
to accompany a minor to traffic · court. Clearly, however, this
was not jury duty, nor did Mr. Olmstead ever claim that he was
serving on a jury. That he was uncertain whether accompanying

1106

his son to court entitled him to any type of court leave is
supported by his discussions with his fellow employees before
going and his putting "Jury or Court Duty" on his time card .
However, despite his apparent confusion, Mr. Olmstead never
consulted anyone in a position to give him an answer. The union
contract was clear that only jury duty entitled an employee to
special leave; he did not bother to read it. Nor did he ever
question any of his supervisors about what type of leave he could
take, although at least one of is friends, Steve Ler, told him he
should check it out. 2 Mr. Olmstead testified that he put the
time card on Jody Reed's desk and told her that he did not know
how the jury duty applied and would let her figure it out . Jody
Reed, a part-time secretary, was plainly not in a position of
authority and, further, stated that Mr. Olmstead did not say
anything to her about the time card.
The day a~ter the court appearance, Mr. Kalina asked Mr.
Olmstead how the "jury trial went" and Mr. Olmstead responded,
"it went fine."
(Tr. 120.) Nothing further was said about the
incident until late February or early March when Mr. Kalina,
after finding out that the company had not received any jury fees
for Mr. Olmstead's appearance, questioned Mr. Olmstead about the
fees. Mr. Olmstead responded that the company should be
receiving a check from the court. It was only by calling the
court that the company determined that Mr. Olmstead had not
served on a jury and was, therefore, not entitled to jury leave.
It is not necessary to determine whether Mr. Olmstead was
being disingenuous or really was bewildered in this situation to
conclude that the adverse action was not based on his protected
activities . Viewing the situation through the eyes of
management, a conclusion that Mr. Olmstead was being deceptive
with them was perfectly reasonable. In fact, since Mr·. Olmstead
never bothered to attempt to clarify matters until he was

Although the Secretary has advanced that management was
aware of his dilemma because his discussions with his friends
took place in a room outside of Mr. Kalina's office, I give this
evidence no weight. There was no showing that Mr . · Kalina was in
his office at the time, or that, even if he was, he would have
been able to hear the discussion.
2

1107

suspended, such a conclusion was the only reasonable one to be
drawn.
An unauthorized absence is clearly unprotected activity.
Even though the company may have been tired of Mr. Olmstead's
constant safety complaints and recommendations, I find that the
five day suspension was allotted, mainly, if not solely, for the
unprotected activity. Accordingly, I conclude that Mr. Olmstead
was not discriminated against in this instance.
Discharge

Mr . Olmstead injured his wrist in April 1994 . In March
1995, he decided to have the wrist fused.
The surgery was
performed on March 21, 1995. After the surgery, the doctor
advised Mr. Olmstead, on March 24, that he expected him to be off
work for three months and scheduled a return visit for April 21.
Thereafter, re~urn check-ups were scheduled every 30 days.
Mr . Olmstead's next visit was on May 19. After the
examination, the doctor gave Mr. Olmstead a slip which stated:
"If avail. lite duty -- no shoveling or lifting over 15 pounds
rt. hand."
(Comp. Ex . 11.) According to Mr. Olmstead, he went
to the mine on May 23 and gave the slip to Mr. Kalina . He
testified that Mr. Kalina kept the original of the slip, made a
copy for him, and wrote down on his desk calendar when Mr.
Olmstead's next appointment was.
Mr. Olmst·e ad further testified that he explained to Mr.
Kalina that he was not completely healed, that there was a risk
that he would reinjure the wrist, but that he could return to
work with the restrictions listed. Mr. Olmstead asserted that
Mr. Kalina replied that they would wait until after his next
appointment before putting him back to work.
Mr. Kalina's recollection 0£ this visit was somewhat
different. He testified:
Q. Now, did Mr. Olmstead visit you at the mine site on
or about May 23, 1995?
A.

Yes .

1108

Q. And did Mr . Olmstead at that time provide you with
a May 19, 1995, doctor's slip?
A.

Not that I recall.

Q. Did you discuss with Mr. Olmstead whether he could
return to light duty at that time, on May 23, 1995?
A.

No, I never did.

Q. Did Mr. Olmstead discuss with you his general
medical condition?
A.
Yes . The conversation went, Art sat down and we
talked about his arm, what it looked like. If I
remember right he had a new cast on. And he said his
doctor said he could not come back to work, no light
duty.
He said his diabetes was hindering his healing
and he needed more time.
He mumbled something about 15 pounds and what I
could do with that. And I said, "I can't," something
about "when your doctor r~leases you, you can come back
to work."
(Tr. 655-56.)
Mr. Olmstead's next doctor's appointment was on June 15 .
His cast was replaced with a wrist brace. He did not receive a
work restriction slip when he left the doctor's office. He
returned to his home on June 16.
While he was helping his sons adjust a hay rake that was
pulled behind a tractor, Mr. Kalina and Junior Etzel, the
foreman, came out to the hay field in a pick-up truck . Mr.
Kalina remarked that it looked like Mr. Olmstead could return to
work. Mr. Olmstead replied that he had not been released to
return to work. Mr. Kalina asked Mr. Olmstead for a doctor's
slip to update his file.
As a result of this confrontation, both Mr. Olmstead and Mr.
Kalina apparently called the doctor's office to obtain a doctor's
slip. The slip subsequently received by both indicated that the
restrictions were: "No pushing or pulliz:ig, cannot carry items up

1109

a ladder.
motions."

No lifting over 10 pounds.
(Comp. Ex. 12 . )

No repetitive or twisting

A meeting with management was held on June 28, 1995 . At the
meeting, Mr. Olmstead was represented by counsel 3 who was
allowed to be present but not to participate, and Mr. Olmstead
was not permitted to question any of the witnesses against him .
After the meeting, Mr. Olmstead was informed by a June 30 letter
that
there is a clear discrepancy between your statements to
management about your work status and the written work
releases. You failed to provide a reasonable, credible
explanation for the discrepancy. Therefore, we have
concluded that your actions represent dishonesty in
violation of Rule 1 of Knife River Coal Mining Company
Rules of Conduct and warrant immediate dismiss~l.
(Comp . Ex . 19 . )
The letter gave the following reasons for this conclusion :
It is the recollection of Rich Kalina, the mine
superintendent, that you told him on May 23 that you
could not return to work yet. He recalls advising you
to provide a doctor's statement for the file . Notes
taken by Rich in his daily calendar for May 23 are
consistent with his recollection.
You stated at the meeting held at the Savage Mine on
June 28 regarding this matter that you knew you were
released to light-duty work in May and that you gave
the doctor's statement to Rich around May 23 but he
told you that you could not return to light duty. ·
Knife River's long-standing practice is to utilize
light duty whenever we can accommodate restrictions.

3

Mr. Olmstead was evidently misadvised by his union that a
lawyer could represent him at the meeting in the place of union
representation. Apparently, the union contract would have
permitted a union representative to participate in the
proceedings.

1110

Your statement that Rich told you in May that you could
not return to light duty would be inconsistent with
that practice and is not credible in view of Rich's
recollection and notes taken at the time.

On June 16, 1995, Rich and Junior went to Savage to get
Junior's pickup and stopped at your place to see how
your last doctor's appointment had gone. You were in
the field haying but according to both Rich and Junior,
told them you could not return to work for 30 days.
Rich told you Knife River would need a doctor's
statement regarding work status.
You stated at the June 28 meeting that what you had
said was that it would be 30 days until your next
doctor's appointment not that you couldn't work for 30
days. This conflicts directly with the recollection of
both Rich and Junior and lacks credibility.
Rich followed up by contacting your doctor's office on
June 16 and was advised that you had been re-released
to return to work on light duty at the appointment on
June 15 . When he asked what was meant by "rereleased,n he was advised that you had been released
for light duty following your May 19 appointment also.
(Id.)

Clearly, the key to this case depends on whether Mr.
Olmstead or Mr. Kalina is telling the truth about the May 23
meeting.
If Mr. Olmstead's version of the meeting is untrue,
then the company had a non-protected reason for discharging him,
even if they also wanted to get rid of him because of his
constant safety complaints. How~ver, if his version is true,
then it becomes clear that Mr. Kalina manipulated the facts so
that dishonesty could be used as a subterfuge for dismissing Mr.
Olmstead for being a nuisance with his constant complaining. I
find that Mr. Olmstead's version of the May 23 meeting is true.
To find Mr. Kalina's story credible, it is necessary to
believe that Mr. Olmstead came to the mine office on May 23 and

1111

did not give Mr. Kalina the doctor's slip given him on May 19.
Mr. Kalina's version is not supported by the evidence or common
sense. He testified that he never saw the original .slip and was
not aware of it until the doctor's nurse informed him on June 16
that Mr. Olmstead had been re-released for light duty. Indeed,
in the letter of termination this was the last discrepancy noted.
However, Mr. Kalina also testified:
Now, Mr. Kalina, the time you called Nurse Durden,
had you looked in Art Olmstead's file?

Q.

A.

Yes, just before I called her.

And did you find a May 19, 1995, slip return -- or
a slip with Orthopedic Surgeons on it?

Q.

A.

Yes, I did.

The termination letter does not mention that management was
aware of the May 19 slip as of the date of the letter. It only
states that Mr. Kalina "was advised that you had been released
for light duty following your May 19 appointment also," even
though at the hearing Mr. Kalina claimed to have found the slip
on June 16 and had even asked the doctor's nurse to decipher it
for him. It is also not mentioned in a June 16 memo from Mr.
Kalina to Larry Duppong, the Vice President of Operations who
actually discharge Mr. Olmstead, even though the memo relates
that Mr. Kalina had talked to the doctor's nurse.
Mr . Kalina was interviewed by Special Investigator Jerry
Thompson on August 24, 1995. According to Investigator Thompson,
Mr. Kalina originally claimed that he had never seen the May 19
slip and did not know what it said. Then he changed his story
and said that he had found a copy of the slip in Mr . Olmstead's
file at a later date, that he had. no idea how it had gotten
there, and that only he and Junior Etzel had access to the file
cabinet.
The most impeaching pieces of evidence to Mr. Kalina's
story, however, are the various ·copies of the May 19 slip that
were offered at the hearing . None were offered by the company.
The first one, sponsored by Mr. Olmstea~ as the copy he received

1112

back from Mr. Kalina on May 23, is a copy of the slip and has
only the doctor's writing on it.
(Comp. Ex. 11.) The next one,
identified by Mr. Kalina, purports to be the copy he discovered
in Mr. Olmstead's file on June 16. In addition to the doctor's
writing, the following writing appears in an area where it could
have been written on the slip itself: "Nurse - - Pat Durden?sp'' at
the top, and "will examine 6-15-95 next appt." at the bottom.
(Comp. Ex. 36.) Finally, a third copy, also identified by Mr.
Kalina, appears identical to the second one, except that at the
bottom it says \\will examine 6-15-95 next appt . RK."
Mr . Kalina identified the additional writing as his. He
could not explain why the "RK" had been added to the third copy,
nor why the "will examine" writing had been made darker. Mr.
Kalina claimed that he made the "will examine" note when talking
to the nurse on June 16. When questioned as to why he had used
the future tense for an examination that had occurred the day
before, Mr. Kalina stated: "I think she was just probably -- I'm
just surmising this - - I think she was reading from a file and I
was just putting all pertinent information down that I thought
about." (Tr . 742.)
This explanation makes no sense. In the first place, this
does not appear to be what would normally be pertinent
information. In the second place, nothing else was written down.
What does make sense is that Mr. Kalina wrote "will examine 6-1595 next appt." on the original slip when Mr. Olmstead gave it to
him on May 23. This would also explain how Mr . Kalina knew that
Mr . Olmstead had been to the doctor on June 15, when he decided
to go see him on June 16 . It would also explain how Mr. Kalina
knew about the 15 pound lifting restriction that he claimed Mr .
Olmstead mumbled to him on May 23 .
In short, I do not find Mr. Kalina's version of this event
credible. While the notes on his calendar seem to support his
version, I do not give those notes any weight. Almost all of the
entries pertain to Mr. Olmstead, presumably to document the case
against him. However, by his own admission, Mr. Kalina did not
make all of the entries on the day that they allegedly occurred,
but added some at a later date. Furthermore, some of the added
ones were inserted on an incorrect date, according to Mr. Kalina .
Therefore, there is no way of knowing which were written

1113

concurrently and which were written later to bolster the case
against Mr. Olmstead.
This is particularly crucial in view of the self-serving
nature of the entry on May 23 which states: "Art stopped in -not to come to work yet . No lite duty4 -- needs healing time.
Asked Art to get a Drs . slip for his file."
(Comp. Exs. 23 and
42.) The credibility of this entry is further put in doubt by
the subsequent mysterious discovery of the doctor's slip in Mr.
Olmstead's file .
In addition, I do not find that Mr . Olmstead's version is
contradicted by "Knife River's long-standing practice [] to
utilize light duty whenever we can accommodate restrictions." In
the first place, this "long standing practice" is not written
down any where in the company's rules and regulations.
In the
second place, such a practice does not mean that Mr. Kalina could
not have concluded that Mr. Olmstead was still too restricted to
work any place since he had a cast on h i s right (dominant) hand.
Having found that Mr. Olmstead's version of the May 23
meeting is the credible one, his actions in the hay field on June
16 cease to appear deceptive.
If Mr. Kalina told him there was
no light duty, it would be logical that Mr. Olmstead would relay
that to the doctor. This would explain why the doctor did not
give Mr. Olmstead a doctor's slip after his June 15 visit, and
why Mr. Olmstead then told Mr. Kalina and Etzel that he had not
been released to return to work.
Ironically, the June 16
doctor's slip appears to be more restrictive than the May 19
slip.
Obviously, Mr. Olmstead's constant safety complaints made
him an annoyance to the company. Evidently he quickly got under
Mr. Kalina's skin. Mr. Olmstead related that shortly after Mr . .
Kalina arrived at the mine, the mine had an i nspection during
which Mr. Olmstead pointed out several problems to the inspector.
He testified that after the inspector had gone, Mr. Kalina came
to him and told him that he did not want Mr. Olmstead discussing
safety problems with inspectors unless he had already brought the

4

Interestingly, "lite duty" is spelled the same way it is
on the doctor's slip.

1114

problem to Mr. Kalina. He further testified that Mr. Kalina told
him that "he ~lways got even with anybody who ever crossed that
line with him." 5 (Tr. 27.)
This obviously did not deter Mr. Olmstead, who continued
raising safety concerns. Mr. Kalina got more exasperated with
Mr. Olmstead, noting on March 8, 1994, "Art argues all the time,"
(Comp. Ex. 30), on March 23, 1994, "I'm getting very tired of
arguing with Art," (Comp. Ex. 31), and in February 1995, having a
heated discussion with him over the necessity for replacing
guards before operating the crusher, (Tr . 106, 386-90).
The "straw that broke the camel's back" occurred on May 25,
1995. Mr. Olmstead had f i.led a section 103 (g) complaint, 30
U.S.C. § 813(g) , 6 over the non-reporting of his wrist injury.
Because of the nature of the complaint, it was obvious that Mr.
Olmstead had made it. Inspector Herbert Skeens came to the mine
on May 25 to investigate the complaint. He testified that when
he gave a copy .o f the complaint to Mr. Kalina, Mr. Kalina
appeared to be "frustrated, disgusted, aggravated with the fact
that the complaint had been made." (Tr. 351.) He described Mr.
Kalina as pacing rapidly in a circle and related that Mr. Kalina
made a comment something to the effect this had been a
problem for some time, something to that effect. I
cannot quote him verbatim. I know he made a comment
that he had a problem or had a problem with Mr.
Olmstead, or something to that effect, for some time.
This had been an ongoing situation. That was the
comment that was made, something to that -- along that
line.

5

Mr. Kalina made a similar statement to Brian Carr.

(Tr.

458.)
Section 103(g) provides, in pertinent part, that:
nwhenever . . . a miner has reasonable grounds to believe that a
violation of this Act or a mandatory health or safety standard
exists . . . , such miner . . . ·shall have a right to obtain an
immediate inspection by giving notice to the Secretary or his
authorized representative of such violation or danger."
6

1115

(Tr . 353.)
Mr. Kalina was out of town from June 5 through June 14 . on
the June 16 , Mr. Kalina and Junior Etzel drove out to Mr.
Olmstead's farm to "see how he was doing." Before this date, no
one in management had been out to see how Mr. Olmstead was doing.
This was not a friendly visit. Shortly thereafter, Mr. Olmstead
found himself discharged as a result of this visit . The evidence
to support the discharge was provided by Mr. Kalina. As has been
seen, it was less than truthful.
While Mr . Olmstead was ostensibly discharged for dishonesty,
I find that he was really discharged for continually raising
safety concerns at the mine . Accordingly, I conclude that his
discharge was based on his engaging in protected activity and
that there was no legitimate non-protected activity reason for
discharging him .
CIVIL PENALTY ASSESSMENT

The Secretary has proposed a civil penalty of $1,000 . 00 for
the company's violation of section lOS(c). However, it is the
judge's independent responsibility to determine the appropriate
amount of penalty, in accordance with the six criteria set out in
section llO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg Stone
Co. v. FMSHRC, 736 F . 2d 1147, 1151 (7th Cir. 1984); Wallace
Brothers, Inc . , 18 FMSHRC 481, 483-84 (April 1996) .
In connection with the six criteria, the parties have
stipulated that the proposed penalty will not affect the
company's ability to remain in business. The mine is a small
mine and it's Assessed Violation History Report indicates that it
received only 29 citations or orders, none involving section
lOS(c), between January 1, 1978, and August 1, 1995. Plainly,
its history of prior violations is very good. On the other hand,
the gravity and negligence involved in this violation are very
serious. Taking all of this into consideration, I conclude that
the proposed penalty of .$1,000.00 is appropriate.
ORDER

Having found that Knife River Coal Mining Company's June 30,
1995, discharge of Arthur R. Olmstead w~s motivated by his

1116

protected activity and, thus, in violation of section lOS(c) of
the Act, it is ORDERED that:
1. The Respondent REINSTATE Mr. Olmstead to his former
position with full pay and benefits;
2. The Respondent PAY Mr. Olmstead full back pay, with
interest, and benefits for the period from July 1,
1995, until December 7, 1995, the effective date of his
temporary economic reinstatement.
3. The Respondent REIMBURSE Mr. Olmstead for any other
reasonable and related economic losses or litigation
expenses incurred as a result of his discharge.

4. The Respondent EXPUNGE from Mr. Olmstead's
personnel file and from company records the discharge
and all references to the circumstances involved in it.
5. The Respondent is ORDERED TO PAY a civil penalty in
the amount of $1,000.00 for its violation of section
lOS(c).
The parties are ORDERED to confer within 21 days of the date
of this decision for the purpose arriving at a settlement of the
specific actions and monetary amounts that the Respondent will
undertake to carry out the remedies set out above. If an
agreement cannot be reached, the parties are FURTHER ORDERED to
submit their respective positions, concerning those issues on
which they cannot agree, with supporting arguments, case
citations and references to the record, within 30 days of the
date of this decision. For those areas involving monetary
damages on which the parties disagree, they shall submit specific
proposed dollar amounts for each category of relief . . If a
further hearing is required on the remedial aspects of this case
the parties should so state.
The judge retains jurisdiction in this matter until the
specific remedies Mr . Olmstead is entitled to are resolved and
finalized. Accordingly, this decision will not become final
until an order granting specific relief and awarding monetary
damages has been entered. Consequently, payment of the civil

1117

:-:

penalty by Respondent is HELD IN ABEYANCE until the final order
is entered.

~firfio~

Administrative Law Judge

Distribution:
Tambra Leonard, Esq., Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
(Certified Mail)
Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln St.,
Suite 2710, Denver, CO 80264 (Certified Mail)
/lt

1118

ADMINISTRATIVE LAW JUDGE ORDERS

.-:'

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

June 3, 1996
SOUTHERN MINERALS, INC.,
TRUE ENERGY COAL SALES, INC.,
and FIRE CREEK, INC.
Contestants
v.

CONTEST PROCEEDINGS
Docket Nos . WEVA 92 - 15 - R
through WEVA 92-116-R
Fire Creek No. 1 Mine
Mine ID 46-07512

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Respondent
SECRETARY OF LABOR,
MINE AND SAFE,'.1'Y AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
Docket Nos. WEVA 92-786
through WEVA 92- 7 91
Fire Creek No. 1 Mine

SOUTHERN MINERALS, INC.,
TRUE ENERGY COAL SALES , INC.,
and FIRE CREEK, INC.,
Respondents
ORDER DENYING
MOTION IN LIMINE
The Respondent's motion to limit application of the pena l ty
assessment criteria published in 30 C . F.R . Part 100, is DENIED .
At trial the issue of the amou nt of any civil penalty assessed is
de novo before the judge, and the judge is not bound . by the
Secretary's interpretation of Part 100 and the civil penalty
criteria as set for in Part 100 • (Yougliogheny & Ohio Coal Co., 9
FMSHRC 673, 678-679 (1987); Sellersburg Stone Co .. 5 FMSHRC 287
(Marc h 1983), aff'd 737 F.2d 1147 (7R Cir . 1984)). Consequently,
I will admit any evidence relevant to the statutory civil penalty
criteria and hear the parties' arguments r egarding the proper
i n terpretation and application of such evidence to the criteria .

LJw .,.. <I /: JJ~ ~<J"oavid F . Barbour
Administrative Law Judge

1119

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

June 3, 1996
SOUTHERN MINERALS, INC.,
TRUE ENERGY COAL SALES, INC.,
and FIRE CREEK, INC.
Contestants
v.

CONTEST PROCEEDINGS
Docket Nos. WEVA 92-15-R
through WEVA 92-116-R
Fire Creek No . 1 Mine
Mine ID 46 - 07512

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

CIVIL PENALTY PROCEEDINGS
Docket Nos. WEVA 92-786
through WEVA 92-791

v.
Fire Creek No. 1 Mine
SOUTHERN MI NERALS, INC.,
TRUE ENERGY COAL SALES, INC.,
and FIRE CREEK, INC . ,
Respondents
ORDER PENYING SECRETARY'S AND RESPONDENTS'
MOTIONS FOR CONTINUANCE

A hearing in these proceedi ngs is scheduled to commence on
July 15, 1996. The Secretary's counsel has moved for a
continuance. She has a previously scheduled hearing co11;mencing
on the same date . Counsel for the Respondents l i kewise has moved
for a continuance. Counsel notes that the matter of Berwind
Natural Resources. Corp., et al., · 18 FMSHRC 202 {February 1996),
presents many of the same issues regarding operator liability
that are attendant in these proceedings, albeit in a slightly
different context.
In a partial decision issued on December 15, 1996, I ruled
that True Energy Coal Sales, Inc., was not an operator and I
dismissed the proceedings with respect to True Energy (17 FMSHRC
2191, 2217) . I held further that Southe!n Minerals, Inc., was an

1120

operator, and I ordered the parties to proceed to hearing on the
merits of the cases with respect to Southern Minerals (17 FMSHRC
at 2217-2218). The Commission declined to review the partial
decision. The Respondents assert that if these proceedings are
tried before the Commission decides Berwind, the parties will be
burdened by expending significant time and money trying these
cases against a legal standard for determining operator status
that the Commission may change; or, that the Berwind decision may
obviate the need for trying the cases at all. By continuing the
cases to allow the law to clarify, the burden and expense to the
parties will be lessened.
I am sympathetic to the Respondents' desire to lessen the
burden and expense of trial. These proceedings involve aggregate
proposed civil penalties of more than one half million dollars
and the contests of 102 citations and orders. In another motion,
counsel for the Secretary estimates that a trial will last at
least four weeks, and I conclude that if each and every alleged
violation is contested, that estimate may be correct.
However, putting the trial off until the Commission issues a
decision a some indefinite future time -- a decision that
ultimately may be appealed to a United States Court of Appeals -only delays what may well be inevitable. Without prejudging the
matter, I believe that it is more likely the Berwind decision
will warrant going forward with a trial on the merits than that
it will obviate the need for a trial. If I am correct, a
continuance at this time will make the allegations, which are
already among the oldest on the Commission's docket, more stale
and less susceptible to proof when the hearings finally are
reconvened.
Bal ancing these factors, I conclude that the hearings on
these proceedings should go forward as soon as possible.
ACCORDINGLY , I decline to continue these matters pending the
Commission's Berwind decision . . Given counsel for the Secretary's
scheduling conflict, I am prepared to reschedule the proceedings
to commence either on July 30, 1996, or August 6, 1996, but no
later. I request counsel to advise me at the June 6, 1996,
pre hearing conference which date is preferable.

~w/r/
t'~~-. .
David F. Barbour
Administrative Law Judge

1121

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

June 3, 1996
SOUTHERN MINERALS, INC.,
TRUE ENERGY COAL SALES, INC.,
and FIRE CREEK, INC.
Contestants
v.

CONTEST PROCEEDINGS
Docket Nos. WEVA 92-15-R
through WEVA 92-116-R
Fire Creek No . 1 Mine
Mine ID 46-07512

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

CIVIL PENALTY PROCEEDINGS
Docket Nos. WEVA 92-786
through WEVA 92-791
Fire Creek No. 1 Mine

SOUTHERN MINERALS, INC.,
TRUE ENERGY COAL SALES INC.
and FIRE CREEK, INC.,
Respondents
I

I

ORDER DENYING
THE SECRETARY'S MOTION TO REVISE ORPER.
DISMISSING TRUE ENERGY COAL SALES . INC.
In a partial decision issued on December 15, 1995, I ruled
that True Energy Coal Sales, Inc . (''True Energy") was not an
operator, a nd I dismissed the proceedings with respect to True
Ene r gy (17 FMSHRC 21 91, 2217). I ,held further that Southern
Minerals, Inc . ("Southern Minerals") was an operator, and I
ordered the parties to proceed to a hearing on the merits of the
cases with respect to Southern Minerals (17 FMSHRC at 2217-2218) .
On January 22, 1996, the Commission declined rev iew o f the
partial decision because I did not expressly direct that the
dismissal "be entered as a final decision" {18 FMSHRC 1) (quoting
Federal Rule o f Civi l Procedure 54(b))).

1122

The Secretary has moved for the entry of an order revising
the partial decision of December 15, 1996, by deleting the
dismissal of True Energy and thus allowing True Ene·rgy to
participate in the forthcoming hearing. According to the
Secretary, if the partial decision is not revised, the Commission
eventually may determine True Energy is an operator and the
Secretary may be required to relitigate these proceedings against
True Energy, a use of h i s resources that the Secretary asserts
would be wasteful. The Respondents oppose the motion, noting
that True Energy already has been dismissed as a party.
While I agree with the Secretary that the present posture of
these proceedings permits me to revise the order dismissing True
Energy, I decline to do so.
If the cases go forward in their
current posture, the merits of the alleged violations will be
decided. Thus, if True Energy ultimately is found to be an
operator, the Secretary will not have to relitigate whether the
violations occurred,
but rather will have to litigate only the
\
civil penalty aspects of the violations with regard to True
Energy.
On the other hand, if I grant the Secretary's motion, and
True Energy ultimately is found by the Commission not to be an
operator, the civil penalty aspects of the proceedings regarding
True Energy will have been tried for naught. Thus, I must
balance whether to try the civil penalty aspects regarding True
Energy now, or possibly later, or possibly not at all .
It bears remembering that these cases involve more than one
half million dollars in proposed penalties, and the contests of
102 citations and orders . Simplification of the forthcoming
hearing is desirable. The issue of True Energy's status as an
operator has been tried and decided. True Energy has been
removed as a participant and evidence regarding the civil penalty
criteria and True Energy has been removed from consideration. I
see little to be gained from revisiting the issue and enlarging
an already extensive record. The motion is DENIED.

<LJvA/ 1-r/ r.~ /pVll-

David F. Barbour
Administrative Law Judge

1123

Distribution:
Pamela S . Silverman, Esq., Office of the Solicitor, · U.S . Dept. of
Labor, 4015 Wilson Boulevard, Suite 516, Arlington , VA 22203
(Via Facsimile and Certified Mail)
Robert I. Cusick, Esq . , Marco M. Rajkovich, Jr., Esq . ,
Jean W. Bird, Esq., Mindy G. Barfield, Esq., Wyatt, Tarrant &
Combs, 1700 Lexington Financial Circle, Lexington, KY 40507
(Via Facsimile and Certified Mail)
David Burton, Esq., P.O . Box 5129, 1460 Main Street,
Princeton, WV 24740 (Certified Mail}
\nt

1124

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

.

June 4, 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA},
Petitioner

v.

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 95-254

A.C. No. 05-02820-03735
Docket No. WEST 95-255

A.C. No. 05-02820-03737
BASIN RESOURCES INCORPORATED,
Respondent

Golden Eagle Mine

ORDER DENYING MOTION TO COMPEL

Basin Re~ources, Inc., filed a motion to compel the Secretary to respond to its interrogatories and requests for the
production of documents.
In response, the Secretary of Labor
filed a motion for a protective order on the basis that the
requested information is protected by the informant's privilege
and the deliberative process privilege. For the reasons set
forth below, Basin Resources' motion to compel is denied.
These cases involve eleven citations and orders issued to
Basin Resources in 1994 and 1995. The four orders were issued
under section 104(d) (2) of the Mine Act. The proceedings were
stayed by Administrative Law Judge August F. Cetti for about
eight months because MSHA was conducting a special investigation
under section llO(c) of the Mine Act. The Golden Eagle Mine is
now permanently closed and most of the management employees have
moved away.
Apparently, MSHA completed its section llO(c) investigation soon after the cases were stayed. MSHA determined that
it would not file a section llO(c) proceeding. Basin Resources
states that its preparation for hearing has been hampered by the
fac~ that the Secretary did not timely inform the mine that his
investigation was completed.
Basin Resources contends that MSHA is prosecuting these
cases because of a long-running personality dispute between an
MSHA official and mine management. It contends that this dispute
began as a result of the litigation in Wyoming Fuels Co. n/k/a
Basin Resources, Inc., 16 FMSHRC 1618 (August 1994). It states
that MSHA's "power struggle" with the mine has resulted in
"extreme and disparate enforcement activity" at the mine. (Motion
at 3).
Basin Resources contends that all of the citations and
orders in these cases are invalid and that MSHA is aware of their
invalidity, but that MSHA continues to prosecute these cases
because of a "retaliatory animus" by MSHA supervisory personnel.
Id.

1125 :

Basin Resources states that it seeks three kinds of information from MSHA:
(1) information establishing a disparity in enforcement activity against it; (2) information identifying witnesses in these cases; and (3) information obtained during MSHA's
special investigation . The information that Basin Resources
seeks may be summarized as follows:
1. Notes, memoranda, or other documents, including inspector's notes and investigator's notes, which in any way
relate to the citations, orders, and penalties in the cases.
2. Special investigator's reports dealing with the citations and orders in these cases. The documents may be
redacted so as not to identify current miners.
3. Copies of all citations and orders issued to Respondent
alleging unwarrantable failure for the period commencing one
year prior to Larry Ramey's assuming authority over enforcement at the Golden Eagle Mine and continuing through the
present. .
4. Copies of all citations and orders issued at other mines
over which Mr. Ramey had enforcement jurisdiction for the
same period of time.
5. All documents relating to communications between MSHA
personnel concerning enforcement of the Mine Act at the
Golden Eagle Mine for the period commencing one year prior
to Mr. Ramey's jurisdiction over the mine and continuing to
the present .
6. The date on which Mr. Ramey obtained enforcement jurisdiction over the Golden Eagle Mine and a list of the other
mines over which Mr. Ramey obtained enforcement authority
during the same period of time as he had such authority over
the Golden Eagle Mine.
7 . Addresses and telephone numbers for all witnesses listed
in the prehearing statement including miner witnesses.
I.

I nformation Concerning Disparity in Enforcement Activity

Under the Mine Act, an MSHA inspector is authorized to
inspect a mine for violations of the Mine Act or safety and
health standards.
30 u.s . c. § 81J(a). The inspector is not
required to obtain a search warrant or provide justification
for the inspection. If, for example, an unwarrantable failure
order of withdrawal is issued, the mine operator may contest the
order and p e nalty in a proceeding before a Commission administrative law judge. The Secretary bears - the burden of proving
that a safety or health standard was violated and that the

1126

alleged violation was a result of the mine operato~'s unwarrantable failure .
If the Secretary proves that the standard was
violated and that the violation was caused by the operator's
unwarrantable failure, a penalty must be assessed . The mine
operator cannot def end the case and have the order vacated on the
basis that other mine operators have not been cited for the same
condition or that the inspector is hostile toward the company.
Citations and orders, along with the allegations contained therein, stand or fall on their own merits.
Evidence of personality conflicts, power struggles, or disparate enforcement is irrelevant in civil penalty proceedings.
A showing that other mines received fewer unwarrantable failure
orders over a period of time does not establish disparate enforcement.
More importantly, if I accept Basin Resource's allegation that a particular MSHA official was responsible for the
issuance of citations in retaliation for some lawful action of
the company, I cannot vacate the citations on that basis if the
Secretary proves that safety or health standards were violated.
The issue is '~hether Basin Resources violated safety and health
standards and ' whether the violations were the result of its
unwarrantable failure, not whether MSHA harbored a grudge against
Basin Resources. Of course, if Basin Resource's allegations are
true, the Secretary will not be able to meet his burden of proof
on the merits.
Accordingly, I will not admit such evidence at the hearing.
I find that the information Basin Resources seeks in this regard
is not admissible evidence and does not appear likely to lead to
the discovery of admissible evidence. 29 C.F.R. § 2700.56(b) .
On this basis, I deny Basin Resources's motion to compel with
respect to the information it seeks to establish a disparity in
enforcement activity against it. Specifically, Basin Resources'
request for information about Larry Ramey's enforcement activities, as summarized in Paragraph Nos. 3, 4, 5, and 6, above, is
DENIED.
II.

Information Identifying Witnesses

Basin Resources seeks the addresses and telephone numbers of
individuals that the Secretary ~xpects to call as witnesses at
the hearing.
Basin Resources' motion is GRANTED with respect to
those witnesses listed on the Secretary's response to my prehearing order and for any other witness not covered in the discussion
below.
Basin Resources also seeks this information with respect to
individuals who are or were miners that are not listed in the
Secretary's prehearing submission. The Secretary objects on the
basis of the informant's privilege. Basin Resources contends
that this privilege does not apply to those individuals who are
no longer miners . Since the mine is now closed, most, if not all

1127

of the individuals who were miners at the ~olden Eagle Mine when
the citations and orders were issued, are no longer miners.
In Bright Coal Co., 6 FMSHRC 1520, 2522-23 (November 1984),
the commission recognized the right of the government to withhold
from disclosure the identity of persons furnishing information
about violations of the law to law enforcement officials. The
Commission stated that the purpose of the privilege is to
"protect the public interest by maintaining a free flow of
information to the government concerning possible violations of
the law and to protect persons supplying such information from
retaliation." Id. The Commission further held that:
(T)he public interest in protecting persons
who discuss al leged Mine Act violations with
government officials is served regardless of
the relationship of the informer to the alleged violator, i.e., whether the informer is
an e~ployee of the respondent or a nonemployee.
Courts have long recognized the
obligation of all citizens to cooperate in
law enforcement efforts and have encouraged
and protected the communications' of possible
violations of law by shielding the informer's
identity.
Id. at 2524. Thus, the informer 's privilege applies to witnesses
that the Secretary may call to testify whether or not they are
currently employed by Basin Resources or are still miners.
I conclude that the informer's privilege applies to Basin
Resources' request for the names, addresses, and phone numbers of
the Secretary's witnesses who are no longer miners. Because the
informant's privilege is a qualified privilege, I must perform a
balancing test to determine if Basin Resources' need for the
names is greater than the Secretary's need to maintain the privilege to protect the public interest. Bright, 6 FMSHRC- at 2526.
The burden is on Basin Resources to prove facts necessary to show
that disclosure of the names is necessary to a fair determination
of the case.
Id. Factors to be considered in conducting this
balancing test include whether the Secretary is in sole control
of the requested information and whether Basin Resources has
other avenues available from which to obtain the substantial
equivalent of the requested information.
Id . In performing the
balancing test in this case, I must take into consideration the
fact that the mine is closed and the witnesses may not be readily
available for deposition.
I also take into consideration the
fact that only a small number of miners would have knowledge of
the facts relevant to the citations and orders at issue in these
cases .

1128

I conclude that Basin Resources has not demonstrated a substantial need for the requested information in the discovery
phase of these cases. I construe Commission Rule 62, 29 C.F.R.
§ 2700.62, to apply to witnesses of the Secretary who are former
miners. Accordingly, Basin Resource's motion to compel the production of the names, addresses, and telephone numbers of the
Secretary's witnesses who are miners or who were formerly miners
is DENIED. In accordance with Commission Rule 62, the Secretary
is ORDERED to provide this information to counsel for Basin Resources no later than 48 hours prior to the commencement of the
hearing.
III. Special Investigator's Reports
Basin Resources requested reports prepared by MSHA's special
investigator. The Secretary opposes this request on the basis of
the deliberative process privilege and the informer's privilege.
For the reasons set forth above, those portions of the special
investigator's report that discuss the statements of miners or
former miners is protected by the informant's privilege.
In addition, the report is protected by the deliberative process privilege.
This privilege protects communications between subordinates and supervisors within the government that are "antecedent
to the adoption of an agency policy." Contests of Respirable
Dust Sample Alternation Citations, 14 FMSHRC 987, 992 (June
1992), quoting Jordan v. Dept. of Justice, 591 F.2d 753 (D.C.
Cir. 1978). The communications must be "related to the process
by which policies are formulated." Id. This report contains
recommendations concerning whether a section llO(c) action should
be brought against an agent of Basin Resources.
It is covered by
the deliberative process privilege. I conclude that this privilege applies even where the Secretary decides not bring a case
under section llO(c). See, Buck Creek Coal Inc. 1 7 FMSHRC 2233,
2235 (December 1995)(ALJ).
In consideration of the above, in balancing the equities in
this case, I find that Basin Resources has not shown a substantial need for the special investigator's report during the discovery phase of these cases. As stated above, the issue in these
cases is whether Basin Resources violated safety standards and
whether the other allegations contained in the citations and
orders are supported by the evidence. Whether MSHA was motivated
by "retaliatory animus" is not an iss
Accordingly ~n
Resources' motion to compel the p
n of/
S · ~cial
nvestigator' s report is DENIED.
,'

Richard w. Man
Administrative
<
..

1129

Distribution:
Kristi Floyd, Esq. , Office of the Solicitor, U. s. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716
Andrew Volin, Esq., SHERMAN & HOWARD , L . L.C., 633 17th Street,
Suite 3000 , Denver , co 80202
RWM

\

1130

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

JUN 6 - 1996
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

MASTER DOCKET WEVA 93-146-B
Blacksville No. 1 Mine

v.

CONSOLIDATION COAL COMPANY,
Respondent
ORDER GRANTING IN PART AND DENIING IN PART CQNSOLIDATION CQAL
COMPANY'S MOTION TO COMPEL DISCOVERY

Background:
These civil penalty proceedings were filed by the Secretary
with this Commission on March 9, 1993, but were thereafter stayed
at the request of the Secretary because of a related criminal
investigation. By letter dated December 21, 1994, the Secretary
advised that the criminal investigation had been concluded and
that, while the basis for the stay was no longer applicable,
because of other significant litigation the attorneys for both
parties were involved in and, because of the extensive discovery
the parties anticipated in these proceedings, the parties were
seeking a further delay in trial scheduling.
The cases were subsequently scheduled for trial on August
15, 1995, but the parties again requested a continuance because
of the need for additional discovery and the "complex nature of
the issues involved". Hearings were accordingly rescheduled to
commence on October 31, 1995, in several of the related cases.
The instant cases are among those for which the parties requested
an additional continuance because of the severability of the
issues and limited availability of expert witnesses. Hearings in
the instant cases were then rescheduled to commence on
December 12, 1995.
Further continuances were necessitated by the disruption
caused by several budgetary shutdowns of the government.
Hearings were thereafter rescheduled to commence on March 5,
1996. However, on February 22, 1996, consolidation Coal Company
(Consol) moved pursuant to Commission Rule 59, 29 C.F.R.
S 2700.59, for an order compelling discovery and it was necessary
to again postpone trial. Two ~f the four categories of
information requested in that motion remain at issue, i.e. "all
documents prepared by MSHA Investigator George Bowman concerning
the investigation of the Blacksville No. 1 Mine explosion" and
"all documents prepared, used or reviewed in connection with the

11 31

drafting of the 'Internal Review of MSHA's Actions at the
Blacksville No. 1 Mine' report published on August 17, 1993".
{See Consolidation Coal Company's second motion to compel
discovery filed on May 10, 1996).
l.

Documents prepared by Investigator Bowman:

Deputy Associate Solicitor Thomas Mascolino states in his
memorandum accompanying the Secretary's response to the Motion to
Compel Discovery that some of the documents prepared by
Investigator Bowman were being withheld from the Secretary at the
direction of the U.S. Attorney for the Northern District of West
Virginia pursuant to Rule 6(e) of the Federal Rules of Criminal
Procedure. The Secretary accordingly maintains that those
documents are not in his "possession, custody, or control" and
are not therefore within the scope of Rule 34 of the Federal
Rules of Civil Procedure. The Secretary further notes that
Consol may obtain those documents by filing an appropriate motion
under Fed.R. Crim. P.6(e) (3) (D) with the Office of the United
States Attorney for the Northern District of West Virginia. The
Secretary's position in this regard is supported by law and is
accordingly upheld.
The Secretary has also provided the undersigned with what
has been designated as all remaining documents prepared by MSHA
Investigator Bowman, for in-camera review of the Secretary's
claimed privilege under the work product rule. The documents,
five memoranda of interviews (and the notes of one interviewee),
contain only the reported statements of the interviewees and do
not contain any mental impressions, conclusions, opinions or
legal theories of an attorney or other representative of a party
concerning the litigation. The work produ.c t privilege has been
codified in the Federal Rules of Civil Procedure, Rule 26(b) (3),
which provides in relevant part:
. . • a party may obtain discovery of documents and
tangible things otherwise discoverable under subdivision
(b) (1) of this rule and prepared in anticipation of
litigation or for trial by or for another party or by or for
that other party's representative (including the other
party's attorney, consultant, surety, indemnitor ,· insurer,
or agent) only upon a showing that the party seeking
discovery has substantial need of the materials in the
preparation of the party's c'ase and that the party is unable
without undue hardship to obtain the substantial equivalent
of the materials by other means. In ordering discovery of
such materials when the required showing has been made, the
court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
· litigation.

1132

The Commission has explained that the work product privilege
offers qualified immunity against discovery for materials that
are:
1.
2.

3.

documents and tangible things;
prepared in anticipation of litigation or for trial;
and
by or for another party or by or for that party's
representative.

Secretary of Labor v. ASARCO, 12 FMSHRC 2548, 2558
(December 1990) (citing 8 c. Wright & A. Miller, Federal Practice
and Procedure§ 2024, pp. 196-97 (1970); 6 J. Moore, J. Lucas &
G. Grotheer, Moore's Federal Practice~ 26.64 (2d ed. 1989)).

The Secretary claims in this case that the subject memoranda
constitute (1) documents and tangible things, (2) prepared in
anticipation of litigation, and (3) by or for another party or by
or for that party's representative. As noted, the subject
memoranda may nevertheless be subject to discovery "upon a
showing that the party seeking discovery has substantial need . .
and that the party is unable without undue hardship to obtain
the substantia\~ equivalent of the materials by other means." Id.
at 2558.

'

The Secretary claims that all of the interviewed individuals
provided testimony to the accident investigation team in the
presence of Consol's counsel and representatives. He notes that
Consol was therefore aware of these witnesses and could have
questioned or deposed each of them. The Secretary further notes
that two of the five individuals interviewed by Bowman were
management officials for Consol, i.e. Russell DeBlossio and Van
Wayne Pitman. The Secretary advises that the work notes taken by
DeBlossio, which were included with investigator Bowman's
memorandum, have been available to Consol from the outset of the
proceedings and the Secretary would, in any event, produce a copy
of those notes upon request.
Finally, the Secretary notes that two of the remaining three
individuals interviewed by Bowman have been listed as trial
witnesses by the Sec~etary and that Consol has not taken their
depositions. He notes, moreover, that their initial statements
to the accident investigation team have already been provided to
Consol . In conclusion, the Secretary argues that because Consol
had been able to obtain the substantial equivalent of these
materials through other means the files herein should be
protected under the work product rule and that Consol's request
for production of these documents should be quashed.
Consol argues on the other hand that the Bowman memoranda of
interviews should not, in any event, be protected because they
were not prepared "in anticipation of litigation" as required by
the work product rule. In Asarco, however, at page 2559 the

1133

commission noted that a special investigator does not know at the
outset of his investigation whether charges will be filed in that
particular case but nevertheless the purpose of his investigation
may be deemed to be in anticipation of litigation.
Consol maintains, in essence, that it has a substantial need
for the memoranda of interviews to compare present recollections
against prior statements and to ascertain whether there are any
contradictions in witness statements . Clearly Consol could not
make such a critical comparison without the subject memoranda.
Accordingly, whether or not the work product privilege applies to
the subject documents, Consol has a substantial need for those
documents and has no other way of obtaining the precise
information. The Secretary is therefore directed to produce
copies of the subject documents to Consol within ten (10} days of
this order.
(2} The internal review files:
Consol further seeks in its motion to compel discovery uall
remaining documents prepared, used or reviewed in connection with
the drafting of the 'Internal Review of MSHA's Actions at the
Blacksville No. · l Mine' report published on August 17, 1993,
which the Secretary has withheld from discovery. " According to
Consol fifty-five files of documents from the special
investigation remain at issue for in-camera evaluation of the
Secretary's various claims of privilege. These have been
identified in the Secretary's "Vaughn" index as File Numbers:
2(b), 4, 5, B(b), 12(a), 14, 16(b), 20, 21, 24(a), 24(b), 29, 31,
33, 35, 37, 39, 63(a), 66, 67, 69(b), 70(b), 71, 74, 75, 76, 77,
79(b), Bl(b), 88, 9l(a), 9l(b), 96(a), 96(b}, 97, 103(b), 103(c),
103 (j), 103 (k), 103 (m), 103 (n), 103 (o), 103 (q}, 103 (r), 105, 106,
107, 109, and 110.
The framework for discovery before this Commission is set
forth in Commission Rule 56(b), 29 C.F.R. § 2700.56(b). That
rule provides that "parties may obtain discovery of any relevant,
non-privileged matter that is admissible evidence or appears
likely to lead to the discovery of admissible evidence."
"Relevance" for purposes of my in-camera examination of these
documents in this discovery setting was framed by Consol in its.
first motion to compel discovery and in the following terms:

.

The Secretary apparently takes the position that the
interviews given by its two inspectors to the investigators,
as well as the interviews given by enforcement personnel in
District 3, are not in any way relevant to the allegations
in this matter. It is Consolidation's position that
the eye witness observations, impressions and actions
of the two inspectors are directly relevant to whether
a reasonable mining person would have recognized the

1134

conditions which led to the Blacksville explosion. In
addition, other interviews documented confusion among
MSHA district enforcement personnel as to whether the
ventilation plan and other applicable regulations were
complied with both prior to and during the capping of
the production shaft.
The Secretary's 104(d) citations and orders in this
case allege either high negligence or reckless disregard
of the law by Consolidation . These are very serious
accusations, and it appears that the Secretary is trying
to shield his own employees from post-accident scrutiny,
while Consolidation's agents are being subjected to the
very worst sort of Monday morning quarterbacking. The
requested information is relevant to the ability of
Consolidation's employees to recognize hazards at the
production shaft and MSHA's own ventilation plan enforcement
practices that existed at the time of the explosion. "
As the Secretary noted, however, at the hearing on Consol's
first motion to compel discovery held February 23, 1996, the
information prQviding the basis for Consol's request herein was
available to Cdnsol when the MSHA internal review report was
issued on August 17, 1993. The Secretary further noted at that
hearing that Consol had accord i ngly waited over two years before
requesting the information now sought. Because of the potential
significance of the information, however, I agreed to further
delay trial in these proceedings to resolve these limited pending
discovery issues. Under the circumstances and to prevent further
undue delay consistent with Commission Rule 56(c), I am strictly
limiting the order of production herein to only materials
relating to the interviews of MSHA enforcement personnel and
specifically to questions regarding compliance with ventilation
plan and other relevant regulations. Accordingly after
examination of the files from his internal investigation
submitted by the Secretary for in-camera review, I conclude that
only those portions of the documents within the Secretary's File
16(b) noted below will be included in the order for production.
Document 16(b) is described in tte Vaughn index as
"Interview questions and review team notes, including ~otes on
interviewee answers and on interviewer's impressions for 24 MSHA
employees. " It is noted that on~y the identifying information on
page one of each form questionnaire (questions 1-6) and the
following questions and answers are relevant to the issues
herein: page 3 (questions 2-6), pages 4 and 5, page 11 (questions
6-8), page 12 (question 6), page 25 and page 26 (questions 1-6).
In the most recent filing .on this issue, on March 29, 1996,
the Secretary has taken the position that these documents are
protected only by the deliberative process privilege and by
"personal privacy". The deliberative process privilege is a

1135

governmental privilege that has been recognized by the
Commission. In Re: Contents of Respirable Dust Sample Alteration
Citations 11 FMSHRC 987 (June 1992), and the Courts., N.L.R.B. v.
Sears, Roebuck & Co., 421 U.S. 132 (1975); E.P.A. v. Mink, 410
U.S. 73 (1973). This privilege protects documents "reflecting
advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies
are formulated." In Re: Contents of Respirable Dust Sample
Alteration Citations, 11 FMSHRC at 991, citing N.L.R.B. v. Sears,
421 U.S. at 150 (1975).
While the responses by secretarial personnel to the form
questionnaire do appear to be "pre-decisional", I do not find
that the specific questions and answers at issue are
"deliberative", i . e. they are not related to the process by which
policies are formulated. In addition, the questions and answers
deal primarily with factual information rather than advice,
recommendations or opinions.
Moreover, to the extent that some of the answers may be
deemed to be "opinions", I do not find any to be "deliberative" in
the sense that ' .they are related to the process by which a policy
is formulated. Accordingly I do not find them subject to the
deliberative process privilege. In any event, since the noted
questions and answers directly relate to the issues at bar,
including the "reasonably prudent person" test, unwarrantable
failure and negligence, I conclude that Consol has a substantial
need for that information. I further find that Consol would be
unable without undue hardship (and without further delay in these
proceedings) to obtain the substantial equivalent of the material
by other means.
The Secretary's bald assertion of a "personal privacy"
privilege is unexplained and without reference to any legal
authority. There is no record evidence moreover that any of the
interviewees are claiming any such personal privilege.
Accordingly no such claim of privilege can be appropriately
evaluated and it is rejected.
ORDER

The Secretary is accordingly directed to produce for Consol
within ten (10) days of the date of this Order (a) copies of the
five memoranda of interviews with'in Investigator Bowman's file,
and (b) the noted questions and answers from each of the
identified form questionnaires associated with the name of each
interviewee from File 16(b) of the Secretary's internal

1136

review files. The Secretary is further directed to resume
immediate custody of all of the documents submitted for in-camera
review and to segregate those documents for preservation in the
event of Commission or court review. In light of this order the
hearings on the motion to compel discovery previously scheduled
to commence on June 18, 1996, are cancelled. Counsel for the
Secretary is directed to initiate a teleconference with all
parties and the undersigned at 10:00 a.m. on June 27, 1996, to
establish a new trial date for these proceedings.

Gary Meli¢
Administra
703-756-6 °

Law Judg

Distribution:
Robert M. Vukas, Esq., Consol, Inc., 1800 Washington Road,
Pittsburgh, PA 15241 (Certified Mail)
David J. Hardy, Esq., Jackson and Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
Robert~.

Wilson, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
/jf
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