NOVEMBER 1987,
COMMISSION DECISIONS
11-10-87
11-30-87

Ronald Tolbert v. Chaney Creek Coal Corp.
Sec. Labor for Bryan D. Pack v. Maynard
Branch Dredging Co. & Roger Kirk

KENT 86-123-D
KENT 86-9-D

Pg. 1847
Pg. 1850

KENT 87-26-D
PENN 85-298-R
WEST 86-191
SE
87-85-DM

Pg. 1851
Pg. 1904
Pg. 1908
Pg. 1922

WEVA 87-183-R
WEST 86-124-M
PENN 86-262
CENT 87-39-M
VA
87-29-D
PENN 87-183-D
WEVA 87-42
WEVA 87-42(B)
LAKE 85-87-R
WEVA 87-89-D

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

LAKE 87-53-D
PENN 87-158
SE
86-128-M
SE
87-49-R
LAKE 87-76-M
WEST 87-219
WEVA 87-106-D

Pg. 1965
Pg. 1966
Pg. 1972
Pg. 1983
Pg, 1985
Pg, 1987
Pg. 1988

WEVA 87-107-D

Pg. 1992

ADMINISTRATIVE LAW JUDGE DECISIONS
11-02-87
11-02-87
11-02-87
11-06-87
11-06-87
11-06-87
11-10-87
11-13-87
11-13-87
11-16-87
11-16-87
11-16-87
11-19-87
11-20-87
11-23-87
11-23-87
11-24-87
11-27-87
11-30-87
11-30-87
11-30-87
11-30-87

Eddie D. Johnson v. Scotts Branch Mine
Emerald Mines Company
Pittsburg & Midway Coal Mining Co.
Sec. Labor for Brian S. Ousley v. Metric
Constructors, Inc.
H.D. Enterprises, Ltd.
Owl Rock Products Company
Otis Elevator Company
Heldenfels Brothers, Inc.
Sec. Labor for Jerry Rife v. Adkins Coal Co.
Leonard W. Miller v. Florence Mining Co.
Consolidation Coal Company
Consolidation Coal Company
NACCO Mining Company
Sec. Labor for Roger Lee Wayne, Sr., v.
Consolidation Coal Company
Gladys B. Johnson v. Freeman United Coal
Solar Fuel Company, Inc.
Drillex, Incorporated
Consolidation Coal Company
Elmhurst-Chicago Stone Company
Colorado Westmoreland, Inc.
Sec. Labor for David Willis v. Babcock
Mining Company and others
Sec. Labor for Albert Halstead v. Babcock
Mining Company and others

1923
1927
1933
1944
1947
1948
1949
1950
1952
1958

NOVEMBER 1987
Review was granted in the following cases during the month of November:
Secretary of Labor, MSHA v. Mid-Continent Resources, Inc., Docket No.
WEST 85-19. (Judge Lasher, October 15, 1987)
Local Union 1261, Dist. 22, UMWA v. Consolidation Coal Company, Docket
No. WEST 86-199-C. (Judge Morris, October 22, 1987)
Review was denied in the following case during the month of November:
Ronald Tolbert v. Chaney Creek Coal Corporation, Docket No. KENT 86-123-D.
(Motion to reopen case from Commission's June 22, 1987 Order denying Review)

COMMISSION DECISIONS

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

November 10, 1987
RONALD TOLBERT

v.

Docket No. KENT 86-123-D

CHANEY CREEK COAL CORPORATION

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

BY THE COMMISSION:
In this discrimination case that arose under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1982), counsel
for complainant Ronald Tolbert has filed a motion requesting the Commission to reopen the proceeding for purposes related to enforcement of the
Commission's final decision. Respondent Chaney Creek Coal Corporation
("Chaney Creek") has opposed the motion. For the following reasons, the
motion is denied.
This case was commenced by a discrimination complaint filed with
the Commission. by Mr. Tolbert pursuant to section 105(c)(3) of the Mine
Act. 30 U.S.C. § 815(c)(3). On March 16, 1987, Commission Administrative Law Judge Gary Melick issued a decision concluding that Chaney
Creek had discriminated against Tolbert in violation of section
lOS(c)(l) of the Act, 30 U.S.C. § 815(c)(l). by refusing to rehire him
from layoff status because he had testified on behalf of Odell Maggard
in the latter 1 s discrimination case before the Commission (Docket Nos.
KENT 86-1-D, etc.). 9 FMSHRC 580 (M~rch 1987)(ALJ). The judge also
ordered Chaney Creek to offer Tolbert employment. On May 12, 1987, the
judge issued a remedial order directing Chaney Creek to pay Tolbert
$14,453 in back pay and interest through April 8, 1987, as well as any
additional back pay and interest to date of reinstatement, and $16,900
in attorney's fees. 9 FMSHRC 929 (May 1987)(ALJ). The judge referred
the case to the Secretary of Labor for the proposal of a civil penalty.
On June 8, 1987, Chaney Creek petitioned the Commission for review
of the judge's decision. The Commission issued a notice on June 22,
1987, stating that review was not directed. Accordingly, pursuant to
operation of the statute, the judge's decision became a final decision

1847

of the Commission on June 22, 1987, 40 days after its issuance. 30
U.S.C. § 823(d)(l). Chaney Creek did not seek review of the judge's
decision in a United States Court of Appeals. 30 U.S.C. § 816(a).
Talbert's motion to reopen alleges that Chaney Creek reinstated
Tolbert on May 28, 1987, but to date has paid him only $2,500 of the
back pay and $1,000 of the attorney's fees owed under the Commission's
final decision. The motion further alleges that Chaney Creek has
claimed financial inability to pay and, on September 16, 1987, proposed
settling the Commission's judgment by paying Tolbert 35-50 cents on the
dollar. Tolbert asserts that two other mining corporations and John
Chaney individually are successors and/or alter egos of Chaney Creek,
possess the financial ability to satisfy the judgment debt, and should
be brought into this proceeding as successors under the Commission's
successorship doctrines as enunciated in Secretary on behalf of James
Corbin et al. v. Sugartree Corp., et al., 9 FMSHRC 394 (March 1987),
pet. for review filed, No. 87-3391 (6th Cir. April 29, 1987). Tolbert
requests the Conunission to remand this matter to the formerly presiding
administrative law judge for further proceedings. The operator has
filed an opposition.
The essential nature of the remedy sought by Tolbert is collection
of a judgment debt. This relief involves, inter alia, enforcement and
execution of the Conunission 1 s final decision in this matter. Such an
enforcement request is properly directed to the Secretary of Labor.
Under the Mine Act, the Secretary is empowered to seek compliance with
Commission orders in the federal courts. See 30 U.S.C. §§ 816(b) & 818.
We need not and do not express any opinion as to other avenues of relief
that may be available to Tolbert.
Accordingly, Tolbert 1 s motion to reopen is denied.

~n

~~/}~
Richard V.

Backley~

Commissioner

L. Clair Nelson, Commissioner

1848

Distribution
Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
Thomas W. Miller, Esq.
Miller, Griffin & Marks, P.S.C.
700 Security Trust Bldg.
Lexington, Kentucky 40507
John Chaney
Route 1, Box 286
East Bernstadt, Kentucky

40729

Billy Chaney, President
B.D.C. Coal Corporation
Route 1, Box 286-B
East Bernstadt, Kentucky

40729

Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

1849

•

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

20006

November 30, 1987
SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of BRYAN D. PACK
v.

Docket No. KENT 86-9-D

MAYNARD BRANCH DREDGING COMPANY
and ROGER KIRK
BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
ORDER

BY THE COMMISSION:
On September 29, 1987, the Commission granted the petitions for
discretionary review filed by complainant Bryan D. Pack and the Secretary
of Labor, who has prosecuted the discrimination complaint involved in this
proceeding on Mr. Pack's behalf. On November 12, 1987, the Commission
received a request from Pack that his petition for review be dismissed
because the Secretary is representing him on review in this matter.
Pack 1 s petition for review was received before that of the Secretary
and was filed to protect his review rights before us. The Secretary 1 s
subsequently filed petition adequately preserves and presents Pack 1 s
position on review, Accordingly~ upon consideration of Pack 1 s request, his
petition for review is dismissed. The Secretary's petition remains for
disposition by the Commission.

L. Clair Nelson, Commissioner

1850

Distribution
Bryan D. Pack
Box 1212
Gallipolis, Ohio

45631

Vicki J. Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Hugh M. Richards, Esq.
134 East Fifth Street
P .o. B.ox 905

London, Kentucky

40741

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NOV 2 1987
EDDIE D. JOHNSON,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 87-26-D
MSHA Case No. PIKE CD 86-16

SCOTTS BRANCH MINE,
Respondent

Scotts Branch Mine
DECISION

Appearances:

Mr. James Boyd, International Representative,
UMWA, District 30, Pikeville, Kentucky, for
the Complainant;
Mr. Edward N. Hall, Robinson & McElwee,
Lexington, Kentucky, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
on November 12u 1986, by the complainant Eddie D. Johnson pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977u· 30 u.s.c. § 801 et seq. Mr. Johnson filed his
initial complaint with the Secretary of Laborv Mine Safety and
Health Administration (MSHA), and following an investigation
of his complaint, MSHA made a determination that a violation
of section 105(c) had net occurred, and informed Mr. Johnson
of this finding by letter of October 16, 1986. Mr. Johnson
then filed a timely complaint with the Commission pro se, but
subsequently retained the United Mine Workers of America
(UMWA)v District 30v to represent him in connection with his
complaint. A hearing on the merits of .the complaint was held
in Pikeville, Kentucky, and the parties appeared and participated fully therein. The ~arties filed posthearing briefs,
and the arguments presented therein have been considered by me
in the adjudication of this matter. I have also considered
the arguments advanced by the parties during the course of the
hearing, as well as the testimony presented in the depositions
of the complainant, which are a matter of the record herein.

1851

The complainant contends that he was transferred from a
coal producing section (first right) of the mine where he was
employed as a continuous-miner operator, and also served as a
member of the mine safety committee, to a construction section
in retaliation for withdrawing himself from unsafe places and
for making complaints about certain unsafe conditions on the
first right sectione He also contends that mine management
has harassed and intimidated him for making safety complaints,
and for exercising his rights as a safety committeeman, and
that mine management is still harassing him and ~nterfering
with his rights as a committeeman. Complainant's initial
requested relief was to be transferred back to his job on the
first right producing section, and an order prohibiting the
respondent from further subjecting him to harassment because
of his safety concerns and activities as a member of the
safety committee.
The respondent filed a timely answer to the complaint,
and it denies that it has discriminated against the complainant or harassed ,him because of his safety complaints and his
activities as a member of the safety committee. The respondent asserts that the complainant's transfer from a coal
producing section to a construction section was part of an
overall work force realignment which took place on June 2,
1986, and that the realignment was the result of a management
decision to realign its work force to increase production on
its working sections, including the first right section, in
preparation for the installation of a longwall mining machine.
Respondent contends that even assuming that the realignment
and transfer of the complainant could have been motivated in
part by protected activity, which it denies, it nonetheless
had a legitimate right and concern for increasing production
on the complainant's section in order to retain its production schedule for the installation of the longwall mining
machineo The respondent points out that although the complainant was admittedly transferred from a producing section
to a construction crew as a continuous-miner operator, he was
retained within his same union job classification as a miner
operator" for the same working shiftv and with the same rate
of payc
The record in this case establishes that since the filing
of the cornplaintv and subsequent to the realignment of June 2,
1986y the first right producing section has been mined out and
no longer exists. The complainant has conceded that any
requested relief with respect to his return to that section is
no longer available to him (Tr. 105). The record also establishes that the complainant is still gainfully employed by the
respondent as a f aceman on the longwall coal producing section, that he successfully bid on that job subsequent to the

1852

realignment in question, and that he is still functioning as
an active member of the mine safety committee (Tr. 106).
The complainant concedes that assuming a finding is made
by me that the respondent discriminated against him in violation of section 105(c), the only available remedy, aside from
such a finding, would be an order directing the respondent to
cease and desist from any further discrimination or acts of
harassment against him. Further, dur~ng the course of the
hearing the complainant's representative indicated that the
complainant also seeks an award of monetary costs and expenses
incident to the complaint and the hearing, including lost
wages for the witnesses who appeared and testified on his
behalf (Tr. 107-109}.
Issues
The critical issues in this case is whether or not the
complainant's realignment and transfer from a producing section to a construction section was prompted or motivated in
any way by his engaging in protected safety activity, whether
the transfer was in retaliation for those safety activities,
and whether or not the respondent harassed, or continues to
harass, the complainant for those activities. Additional
issues raised by the parties are identified and disposed of
in the course of my adjudication of this case.
Applicable Statutory and Regulatory Provisions
1.

30

The Federal Mine Safety and Health Act of 1977,

u.s.c. § 301 et ~·

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

3.

Commission Rulesv 29 C.F.R. § 2700.1,

Pretrial and Bench Rulings
Respondent's pretrial motions for summary dismissal of
the complaint on the ground that the complainant 1 s complaint,
when considered in conjunction with his pretrial depositionsv
did not establish a viable comolaint of discrimination,
particularly in light of the r~spondent 0 s offer to reinstate
the complainant to the coal producing section from which he
was transferred (which was rejected by the complainant), and
his admission that he did not consider his transfer as a form
of management "punishment 11 WERE DENIED.

1853

During opening statements at' the hearing, respondent's
counsel renewed his motion for summary judgment and dismissal
of the complaint. In support of his oral motion, counsel
stated that since the complainant successfully bid on a job
as a longwall faceman on a coal producing section, and since
the first right section has been mined out, his requested
relief to be transferred back to the first right producing
section is moot. Counsel pointed out.that the complainant
suffered no loss of pay or job status as a result of the
transfer, and that he is still functioning as a member of the
mine safety committee. Counsel further pointed out that in
his pretrial depositions, the complainant admitted that mine
management never indicated to him that he was being transferred because of his safety complaints, and that "the only
thing the court could do--at least the only thing that seems
plausible--would be just to say that the company discriminated
against this individual" (Tr. 19-22).
Complainant's representative agreed that the first right
section no longer .exists.· He stated that he intended to establish that the complainant was discriminated against, and that
at the time he bid on the longwall faceman's job, the respondent "used discriminatory actions against him to keep him from
getting the job," and that the mine manager stated that the
realignment, which resulted in the complainant's transfer, was
motivated by "chicken shit complaints." Complainant's representative further asserted that Mr. Johnson's transfer was
made by management to keep him off the new longwall section
because management considered him to be a "troublesome" safety
committeeman (Tr. 28-30).
After consideration of the arguments presented on the
record the respondent's renewed motion for summary judgment
and dismissal of the complaint was DENIED ( ·rr. 34)
·rhe
parties agreed to incorporate by reference the deposition
testimony of the complainant 1 s pretrial depositions (Tr. 37).
o

At the close of the complainant's case presentation, the
respondent renewed its motion for summary judgment and
dismissal of the complaint {Tro 109)0 The motion was again
DENIED (Tr. 114, Vol. II).
Complainant 1 s Testimony and Evidence
Burt Melton, Electrician and Chairman of the mine
committee, testified that on May 27 or 28 1986, he attended

1854

a union-management meeting concerning the propos-ed realignment, and that when he returned to work the next Monday,
June 2, 1986, the proposed realignment was not the same in
that Mr. Johnny Damron, the union vice-president, Mr. Russell
Ratliff, chairman of the safety committee, and Mr. Johnson
were all taken off the first right section and assigned to
the construction crew. Mr. Melton believed that none of
these individuals were originally scheduled to be realigned
as shown in the original posted realignment, and he believed
that management had agreed not to move them off ~he production section (Tr. 41-44).
Mr. Melton stated that during a meeting with Mine Manager
Herbert "Tubby" Kinder, on Monday, June 2, he asked Mr. Kinder
why he had taken Mr. Damron off the production section, and
Mr. Kinder responded "because they had made too many chicken
shit complaints and the production was not what it should be
up there" (Tr. 45). Mr. Melton confirmed that he also participated in a meeting with management 2-weeks later and
Mr. Kinder stated that M~. Johnson, Mr. Damron, and Mr. Ratliff
had been realigned because "the section was not producing the
way it should." Mr. Melton stated that Mr. Kinder again mentioned complaints, and while he did not specifically mention
"safety complaints," Mr. Melton assumed and speculated that
this is what Mr. Kinder had in mind (Tr. 48). Mr. Melton confirmed that he was involved in a grievance proceeding concerning Mr. Johnson's bid for a longwall faceman's job in March,
1987, and that Mr. Johnson was awarded the job (Tr. 48, exhibit
C-1).

On cross-examinationv Mr. Melton confirmed that he first
learned about the realignment of Mr. Johnson, Mr. Ratliff, and
Mrc Damron on Monday, June 2, and that based on a prior
realignment list which he had seen, these individuals were not
scheduled to be affected. Mr. Melton stated that he usually
represents all employees on behalf of the union in such
realignments, and Mr. John Hodges, the respondent 1 s personnel
director, represents the company (Tr. 58). Mr. Melton confirmed that when Mr. Hodges showed him the first list,
Mr. Hodges did advise him that it was subject to change (Tr.
59-60). Mr. Melton identified exhibit R-7 as a list simiiar
to the one he saw, but indicated that it was not the "original
list" (Tro 57)"
Mr. Melton confirmed that the realignment was made in
preparation of the installation of a longwall panel but that
certain problems delayed the installation, setting it up, and
that the realignment "mostly concerned producing coal on that
panel" <Tr. 60). Mr. Melton also confirmed that management

1855

was concerned about production on the third shift right panel,
and that he had discussed this with James Ratliff, the assistant mine manager who no longer works for the respondent, in
an attempt to resolve what management perceived to be a production problem on that section. Mr. Melton stated that
Mr. Ratliff advised him that the senior men would be retained
on the production section, and that less senior men would be
realigned to the construction crew. Since Mr. Johnson,
Mr. Ratliff, and Mr. Damron did not sign off the production
section voluntarily, Mr. Melton was surprised to learn that
they had been realigned (Tr. 60-64}.
Mr. Melton confirmed that mine management had discussed
with him a request that men work on Saturday to catch up with
the work, and that discussions regarding production on the
section had taken place for several weeks prior to the
realignment of June 2 (Tr. 69). Thirty-five to 40 men on
three shifts were affected by the realignment, and all of the
men, except for Mr. Johnson, Mr. Ratliff, and Mr. Damron
"were pacified and everything was fine so far as they were
concerned" (Tr. 75).
Mr. Melton stated that Mr. Damron, Mr. Ratliff, and
Mr. Johnson all filed discrimination complaints with MSHA,
but that Mro Damron and Mr. Ratliff settled their dispute
when the respondent agreed to put them back on the production
section and the complaints were not further pursued (Tr. 76).
Respondent's counsel confirmed that the two cases were
settled and that the terms of the settlements were identical
to the one offared Mr. Johnson, which he refused (Tr. 77,
exhibit R-9).

Mro James Boydv confirmed that no grievance was filed
with respect to the realignmentv and that management was
informed of the unionus decision to proceed with a section
105(c) discrimination complaint instead. Mr. Boyd stated
that the union decided against a grievance because of the
cost involved and its belief that it would have received an
adverse ruling (Tro 80)a The union believed it could prove
discrimination (Tr 80)0
Mro Melton stated that when he first learned about the
realignment on May 27 or 28, and posted a listQ Mro Damron 1
Mr. Ratliff v and Mro Jackson were shown as being retained in
their jobs on the production sectionv and he dealt with their
cases because they were the only ones who complained to him
about the subsequent realignment on June 2 in which they were
realigned off the production section to the construction crew
(Tr. 82). Mr" Melton confirmed that all three individuals in

1856

question retained their pay and job classifications, and that
the action taken by the respondent in this regard was legal
(Tr. 84). Mr. Melton stated that he assumed and speculated
that management "reached out to Damron, Johnson and Ratliff
and proposed to switch them off one section to another
·because of the safety problems," and that is why the union
decided not to file discrimination complaints {Tr. 85-86).
Mr. Melton stated that he decided to opt for the filing
of discrimination complaints with respect to the .realignment
of Mr. Damron, Mr. Johnson, and Mr. Ratliff because he could
think of no legitimate reason why management would seek to
realign the men in question. He stated that Mr. Ratliff "had
several safety complaints," but he had no first knowledge
that Mr. Damron ever caused any "safety problems" for management, although Mr. Damron has advised him that he has had
"run-ins with his foreman 11 (Tr. 87). Mr. Melton confirmed
that while he has had disagreements with his foreman, none.
were related to safety matters {Tr. 88).
He also confirmed
that he has never .observed any safety complaints at the mine
and that he does not work on a section where coal is produced
(Tr. 89).
However, he has been involved in "safety issues"
that others have complained about in his capacity as an
alternative safety committeeman, but he was not affected by
the realignment (Tr. 90).
Mr. Melton confirmed that the only other safety committeeman affected by the realignment was Mr. A. B. Thacker, but
he lacked enough seniority to maintain his job. Mr. Melton
also confirmed that after the realignment, his conclusion
that Mr. Johnson, Mr. Damron, and Mr. Ratliff "were left out
to dry by management because of their safety activities" was
based on Mro Kinder 0 s statement about the "chicken shit complaints" (Tr. 92)o Mro Melton stated that he never discussed
ML Kinder's statement with him (Tr. 93)o
Howeveru when
Mro Boyd met with Mr. Kinder to discuss the reasons from the
realignment, Mr. Kinder stated "If I put them back, you will
make me put them back, and that Mr. Boyd advised Mr. Kinder
that a section 105(c) discrimination complaint would be filed
11

(TL

94)o

Mr. Melton denied that he. was attempting to "put mine
management in its place," and he stated that his concern was
trying to find out why management realigned Mr. Johnson,
Mr. Damron, and Mro Ratliff in the first place, and that
management never gave him any legitima~e reasons for their
action in this regard <Tr.· 95). Mr. Melton confirmed that in
a statement which he gave to an MSHA investigator during the

1857

investigation of Mr. Johnson's complaint he told the investigator that Mr. Hodges did advise him that the first realignment list which he saw on May 27 or 28 was "spur of the moment
thing and that there could be a change" (Tr. 97). Mr. Melton
had no independent recollection that Mr. Hodges told him that
the list was subject to change by General Mine Foreman Charles
Morley or Second Shift Foreman Otis Slone, but if he so testifies, Mr. Melton could not say he would be lying (Tr. 97).
Mr. Melton confirmed that Mr. Donny Saunders, the day shift
continuous miner operator placed on the first right section
after the realignment was senior in job class if ic'ation to
Mr. Johnson (Tr. 97-98), but that it would have been customary
for Mr. Saunders to have taken the lesser seniority miner
operator's job on the second shift when he was transferred
from the day shift (Tr. 102).
Mr. Melton stated that as a result of the realignment,
Mr. Johnson contacted the union because he believed that he
had "been put upon" by manC3.gement, and that after mine manager Kinder indicated that he would not put Mr. Johnson back
on his production section unless he was forced to, the union
decided to file a section 105(c) discrimination complaint.
Mr. Melton stated that during discussions with Mr. Kinder he
was informed of the union's belief that Mr. Johnson was
realigned because of his safety complaints. Mr. Melton also
stated that in the past, Mr. Johnson had advised him that he
"felt like he had had trouble with management," especially
with Mr. Slone on the evening shift, and that Mr. Johnson had
informed him of this "a year and a half ago, I guess."
Mr. Melton stated that Mr. Russell Ratliff also informed him
of a complaint he had made about water on the track, and that
he did so "I guess it had to be a year and a half ago." However0 he could recall Mr. Damron making no such complaints.
Mr. Melton confirmed that the union and Mr. Johnson decided
to file a discrimination complaint because Mr. Johnson felt
that he was realigned because of his safety complaints (Tr.
105-111)
0

Denver Thackeru roof bolter operatoro testified that in
November 0 1986 0 during job bids on the longwall panelu section
boss Glen Matheny offered to put him on a shift paying timeand-one-half if he would put his name back on the bid list for
a longwall job that Mr. Johnson had bid on.
Mr. Thacker
stated that Mr. Matheny told him that he had discussed this
with the 11 old man," namely Mr. Kinder. Mr. Thacker stated
that he had taken his name off the bid because of some gas in
the panel, and that Mr. Matheny explained that he wanted him
to get the job because "if the wrong man got up there, that he
could knock us all out of the job" (Tr. 118). Although

1858

Mr. Matheny gave no specific reasons for offering him the
inducement of a time and one-half shift, Mr. Thacker speculated that Mr. Matheny did not want Mr. Johnson to get the job
because "they did not want a safety man -- or him in particular up there on the longwall" (Tr. 118). Although Mr. Matheny
did not specifically mention Mr. Johnson, Mr. Thacker stated
that "I just took it he meant Eddie" (Tr. 118).
Mr. Thacker stated that he removed his name from the job
bid because "I knowed Eddie could take better car.e of it than
I could. He knows more about safety business," and "I just
know I had knocked him out of the job. That is the reason I
took my name off 11 (Tr. 119-120). Mr. Thacker confirmed that
he testified in the arbitration proceeding in December 1986,
concerning the job bid in question (Tr. 123).
Ricky Varner, roof bolter operator, stated that in
December, 1986, he was working on a bolting machine with
Mr. Thacker, and that Mr. ~atheny came to the working place
to speak with Mr. Thacker. After their conversation,
Mr. Thacker told him that Mr. Matheny stated to him that he
"was wanting him to sign the longwall job to beat Eddie out
of it" (Tr. 126). Mr. Varner stated that Mr. Thacker told
him that Mr. Matheny had stated that "one man could ruin the
whole thing up there," but that he did not identify "the one
man" (Tr. 127). Mr. Varner stated that Mr. Thacker also told
him that Mr. Matheny spoke to him again the next day and
offered him a Saturday shift if he would take the longwall
job (Tr. 128). Mr. Varner stated that in response to a question by Mr. Thacker as to why the respondent would ask him
(Thacker) to bid on the job, Mr. Varner told Mr. Thacker that
because of gas on the section, the respondent did not want
Mro Johnson there because it thought Mro Johnson would shut
the section down (Tro 129)"
Mr. Varner was of the opinion that the respondent tried
to persuade Mr. Thacker to bid on the longwall job to keep
Mro Johnson off that section because he would take care of
safety problemso Mro Varner stated that he has shut his
bolter down because of methane on his section, and called it
to the attention of management. Although he has been
realigned in the past, he did not believe that this was done
because of his complaints about methane. He was not part of
the June 2 realignment involving Mr. Johnson (Tr. 132).
Mitchell Mullins, head drive man, testified that in
April, 1986, he overheard section foreman Randy Smith call
out on a mine phone to shift foreman Otis Slone and inform
him that the men in the section wanted to exercise their

1859

individual safety rights to be on the outby side before a
shot was fired (Tr. 144). Mr. Mullins did not know whether
the' men proceeded outby before the shot was fired because he
was too far away to even hear the shot (Tr. 145).
Representative Boyd introduced a copy of a grievance
which was filed over this shot firing incident (Tr. 145;
exhibit C-2). Respondent's counsel stated that the grievance
was settled in order to avoid calling· in Federal and state
inspectors to determine whether the shot was accomplished in
accordance with the regulations, and to avoid further interruption to production (Tr. 147). He took the position that
the shot was legal, and the parties agreed that MSHA was not
called in to resolve the matter (Tr. 148). Mr. Boyd confirmed
that the shot was fired 1,000 feet outby where the men were
working on the section, but took the position that the men
were not given the opportunity to be outby and that Mr. Slone
went ahead and fired the shot before the men had an opportunity to be outby. Mr. Boyd confirmed that the grievance was
filed during the next shift and that no section 103(g) inspection was requested (Tr. 151), and that no safeguard notices
were ever issued covering the shot (Tr. 155).
Mr. Mullins confirmed that he had no independent knowledge about the details of the shot, did not hear it, did not
know whether the men actually left the mine, and that he did
not leave. When asked whether he had any personal knowledge
as to what this case is all about, Mr. Mullins responded "the
harassment and trouble Otis Slone and the company has given
Eddie on his job classification, if he is qualified to do the
job or not or who is better qualified they want in there
besides him." Mr. Mullins confirmed that he has no personal
knowledge of any harassment of Mr. Johnson (Tr. 162).
Donald Robinsonv general laborer, was called to testify
as to his knowledge of an incident of January 8, 1986,
referred to by Mr. Johnson in his complaint. Mr. Johnson
stated that he filed a safety grievance over the alleged
failure by shift foreman Otis Slone to follow a pillar plan.
Mr. Boyd stated that this incident is part of "a pattern
of discrimination charges and of acts that have been committed
against Mr. Johnson by the company" (Tr. 166). Mr. Boyd
asserted that Mr. Slone tried to get Mr. Johnson to cut the
left-hand side after the right-hand side had already been cut,
but that this was not done and "they finally pulled away from
it and went to another block. They backed up, timbered it off
and started mining again" (Tr. 167). Mr. Boyd conceded that
Mr. Johnson exercised his safety rights, refused to cut the

1860

pillar, and withdrew himself. However, he was not assigned
other work, and the crew simply backed out, set timbers, and
continued mining in another area (Tr. 169). Mr. Boyd implied
that Mr. Slone attempted to have Mr. Johnson cut a pillar
which would have been in violation of the pillar plan (Tr.
169). Mr. Boyd suggested that Mr. Johnson "took a lot of
ribbing" over that incident (Tr. 170}.
Mr. Robinson stated that he recalled the incident and he
confirmed that he and the rest of the crew exerci%ed their
safety rights and withdrew from the pillar area. However, he
stated that Mr. Slone did not insist that the pillar be mined
after they withdrew and that he could not recall "no big
hassle" over the incident (Tr. 171).
On cross-examination, Mr. Robinson stated that Mr. Slone
simply asked the crew to mine the pillar, but they believed
it was unsafe and chose not to. The crew withdrew, and the
area was timbered, and mining continued in another area (Tr.
17 4}.
Lynville E. Johnson, general laborer, was called to
testify about an incident which occurred during December,
1985 to January 1986, during which section foreman Earl
Matheny asked Mr. Johnson to take some coal cuts from an area
which Mr. Johnson believed was unsafe. Mr. Slone was called
in, and was mad, and both Mr. Matheny and Mr. Slone stated
that Mr. Johnson did not want to work (Tr. 176). Mr. Johnson
stated that Mr. Slone stated 11 God damn it. Eddie don't want
to work no way" (Tr. 177).

Mro Boyd stated that this incident is another example of
a section foreman asking men to do work in an area which they
believed was unsafe (Tr. 189)0 Mr. Boyd also alluded to a
rock fall which covered up a continuous-mining machine (Tr.
187)
0

On cross-examination, Mr. Johnson alluded to another
work force realignment which occurred during December, 1985,
and respondentus counsel asserted that this realignment
resulted in a union grievance 1 but that the arbitrator
rejected any notion that the realignment resulted from any
safety complaints (Tr. 181).
Since it appeared that the men exercised their safety
rights and withdrew from areas which they believed to be
unsafe, Mr. Boyd was asked to explain the relevance of these
incidents to Mr. Johnson's complaint of discrimination. He
responded "I am trying to show the integrity of the mine

1861

foreman, Otis Slone, and things he will do and the actions he
has took 11 (Tr. 190). Mr. Boyd stated that he did not believe
that Mr. Slone was involved in the realignment decision made
by management that is in issue in this case (Tr. 190}.
Jerry D. Hicks, continuous miner operator, was called to
testify about an incident concerning the use of 5-foot glue
for 6-foot roof bolts. Mr. Hicks stated that this occurred
approximately 2 years ago, and after eoncluding that the use
of 5-foot of glue for 6-foot bolts may have been unsafe,
Mr. Johnson asked Mr. Slone to send a 11 safety man·" in to make
a determination. Mr. Slone came into the section and asked
Mr. Hicks whether the use of the glue was safe. Mr. Hicks
stated that he was of the opinion that additional "spot
bolting" with 4-foot bolts, using 4-foot of glue, would make
the area safe. Mr. Slone asked Mr. Johnson for his opinion,
and Mr. Johnson told Mr. Slone that he was not qualified to
make the decision and asked Mr. Slone "to have someone with a
little more authority come·in and check it out." No safety
man was called in, but Mr. Slone proceeded to spot bolt with
4-foot bolts. Mr. Hicks confirmed that since it could not be
determined how many breaks had been bolted with 5-foot glue,
spot bolting was done for two breaks "to make sure they got
it all" (Tr. 195-197).
Mr. Hicks stated that Mr. Slone "was wanting us to run
coal" and asked each crew member whether it was safe to
continue mining with the area bolted with 5-foot of glue.
Mr. Hicks stated that the section "was awful low on production" and that Mr. Slone informed the crew that "he thought
we ought to pick it up a little" (Tr. 197).
Mr. Hicks testified to an incident which occurred in
September of 1985v when the men on the section were questioned
in the mine office about low production on one evening. After
listening to the explanations, foreman Charles Morley concluded that the low production resulted from "unsatisfactory
work all the way across the board" and that everyone on the
shift was given a warning. Howeveru Mr. Eddie Johnson was
given an unsatisfactory work slip (Tr. 198). Mr. Hicks
recalled that on one Saturday evening shift Mr. Slone made a
statement that Mr. Johnson "was trying to slow things down,"
but he could not recall whether it was the same evening when
the warnings were given out. He also stated that Mr. Slone
"may not have been talking totally to Eddie.
He might have
been talking to all of us.
I really can't remember.
It has
been a long time" (Tr. 201).

1862

Mr. Hicks identified the foreman in charge during the
spot bolting-glue incident as Miles Robinson.
He 3tated that
Mr. Robinson was fired shortly after the spot bolting was
done, and was replaced by foreman Randy Smith (Tr. 203).
Although Mr. Robinson would make air readings and gas checks,
Mr. Hicks stated that "he wasn't real thrilled about it," and
that Mr. Smith would "shake his head and go ahead and take
it" (Tr. 204).
Mr. Hicks stated that when he and Mr. Eddie ~ohnson had
an equipment break down with their mining machine, Mr. Slone
seemed to question Mr. Johnson more, and would say little to
him, and that Mr. Smith would not say much about it (Tr. 205).
Mr. Hicks stated that Mr~ Slone told the men to cut out the
"sweetie (coffee) breaks 11 and would sometimes get after the
crew for waiting around for him to instruct them as to their
work duties (Tr. 206).
On cross-examination, Mr. Hicks stated that it was perfectly appropriate ,for someone other than the shift foreman
to fireboss the section before energizing the equipment, and
that the spot bolting which took place came about as a result
of the complaints concerning the glue (Tr. 211). Mr. Hicks
confirmed that he heard "rumors" that Mr. Eddie Johnson
received an unsatisfactory work slip because he had previously
received a verbal warning (Tr. 212).
Tommy Tackett, electrician, was called to testify about
an incident concerning a continuous-mining machine being
worked on by Mr. Slone. Mr. Slone was working under the head
the miner attempting to replace a conveyor chain, and the
miner head was supported by a scoop bucket rather than being
adequately blocked or otherwise supported with wooden crib
blocks. When Mr. Johnson observed Mr. Slone under the miner
head, he told him that "it didn't look very safe," and that
Mr. Slone ~eplied to Mr. Johnson "If you got anything to say
about this, Eddie, we will talk about it tomorrow.
All you
are wanting to do is hold up production 11 CTr. 223).
Mr. Tackett stated that the power was not disconnected, and
his opinion, Mr. Slone was engaged in an unsafe practice
(Tr. 223-226).
Mr. Boyd confirmed that the incident was not
reported to MSHA, and no violation was issued (Tr. 233).
Mr. Tackett confirmed that he has worked in the mine for
7 years, and he indicated that durin~ this time period
Mr. Johnson was reluctant to work under roof conditions which
he believed were bad and needed additional support and a section foreman would take the opposite view and try to convince

1863

him or the crew that the roof was sound and work should continue (Tr. 234-236). Mr. Tackett stated that on one occasion
he and foreman Randy Smith had a difference of opinion as to
whether a roof area was sound. Mr. Smith thought the roof
was sound and suggested that he continue bolting. Mr. Tackett
refused, and after retreating from the area, the roof fell
{Tr. 239). Mr. Tackett conceded that any time he and a
foreman disagree as to whether work can proceed safety, he has
exercised his safety rights to withdraw, and the foreman would
assign him to some other work (Tr. 239).
Mr. Tackett stated that on one occasion 2-months before
the realignment, bad top was encountered at the feeder and
Mr. Slone was called in to look at the area. Mr. Slone
assured the crew that the feeder top would be taken care of
on the next shift, and assigned the crew to work on the top
in the intake. The feeder top was not corrected by the next
shift, and Mr. Tackett's crew had to correct the condition
when they next went to work (Tr. 241-242).
Mr. Tackett testified about the incident concerning
inadequate glue which was used in conjunction with resin roof
bolts. Mr. Tackett confirmed that Mr. Slone was called into
the section, and disagreed with Mr. Johnson's assessment that
anything was wrong, and indicated that work should proceed.
After arguments, Mr. Slone agreed to spot bolt the area, and
assigned the crew to other work shoveling the belt (Tr. 244).
Mr. Tackett alluded to another incident in which
Mr. Johnson complained to foreman Randy Smith about a missing
handle on a continuous-mining machine fire supp:cession device 1
and after giving the respondent 24-hours to repair the device,
it was repaired (Tr. 245)"
Mro Tackett stated that he had
previously reported the condition, but that it was not taken
care of until Mro Johnson complained (Tr. 248). Mr. Tackett
also alluded to another incident in which Mr. Johnson asked
him to calibrate a methane monitor on a continuous-mining
machine, and that he did ito Howeverv he indicated that materials were not always readily available on the section to do
the calibration (Tr. 249)0 Mro Boyd conceded that in this
instance, the calibration was done and that the necessary materials was "probably there" (Tr. 255) o
Mro Tackett stated that anytime there was a safety
problem or complaint on the section Mr. Slone would come in
and always inquired of Mr. Johnson as to the problem (Tr.
257), and that this occurred at times when Mr. Johnson was
not the safety committeeman (Tr. 258). Mr. Boyd suggested
that this occurred because Mr. Slone may have thought that

1864

Mr. Johnson was the spokesman for the men on the section (Tr.
259).
A. B. Thacker, continuous miner operator, and president
of Local Union 2264, cunfirmed that he worked on the first
right section with Mr. Johnson as a miner helper for approximately 6 months in 1984 and 1985. Mr. Thacker stated that
there were safety complaints on first right "from the day it
started from Eddie Johnson and the whole crew," and that the
complaints dealt with 11 bad roof, methane gas.
It was just
that way all the time." Mr. Thacker confirmed that he was
realigned on June 2, 1986, to the "hootowl" shift, but subsequently signed back to the evening shift (Tr. 266-267).
Mr. Thacker alluded to the feeder bad roof condition
incident, and stated that after the condition was reported to
the section boss, the men withdrew from the area and foremen
Slone and Herald Mullins were summoned to the area, and they
asked Mr. Johnson aqout the· problem. Mr. Slone checked the
roof test holes and agreed that the top was bad and assigned
the men to other work.
Although Mr. Slone assured the men
that the roof condition would be subsequently taken care of,
Mr. Tackett contended that this was not done and that the
next shift did some work under the bad top (Tr. 270>.
When asked about any "threatening statements" by
Mr. Slone to Mr. Johnson over safety complaints, Mr. Thacker
mentioned the incident concerning Mr. Slone doing some work
under a continuous miner head which was propped up by a scoop
bucket. Mr. Thacker described the encounter between Mr. Slone
and Mro Johnson as follows (Tr. 271-272):

* * * And Eddie asked them -- to the best of
my remembrance right now, he asked them, he
said, "Do you all feel that this is a safe way
to work on that miner? Don't you think you
should put a crib under it to protect yourself?"
That kind of got Otis peed off.
He got
back. He come up in Eddie's face.
He told
Eddie, He said, "I want to know who you think
you are and what gave you the right to tell me
and the mechanic that we are doing our job
unsafe." He said, "I have worked in the mines
a long time.
I 1 ve never gotten nobody hurt;
ain't going to get hurt."
And I told Otis then myself, I said,
"Otis, he is a safety representative for

1865

United Mine Workers in this Local and he has
got a right to ask that boy is he doing his
job safe if he feels he is not. As a matter
of fact, I think he ought to write you and
Tommy Tackett both up for working in an unsafe
condition."
And Otis, he got all over him. He just
kept on. And then I told him, I· said, "If you
have got anything to say, we should wait ti~l
we get outside." And Otis more or less, he
said, "yeah, we will take it up tomorrow
evening." But it never was mentioned no more
that I know of.

Mr. Thacker was of the opinion that Mr. Slone engaged in
an imminently dangerous unsafe practice and violated the law
by working under the miner head. Although he and Mr. Johnson
observed him doing the work, Mr. Thacker admitted that no
union safety committee complaint was filed, no imminent
danger complaint or order was issued, no one complained about
it, no one reported the matter to MSHA, the matter was not
reported to mine superintendent Kinder, and no violation was
ever issued {Tr. 274-276). Mr. Thacker stated further that
Mro Slone took the position that he was not in any danger and
stated "I have been mining a long time before you fellows
ever got here" (Tr. 276).
Mr. Thacker stated that when he worked with Mr. Johnson
on the first right section in 1984 and 1985, Mr. Johnson made
one or two safety complaints every day about the roof and
ventilation problems (Tro 276-277). Mr. Thacker stated that
he was present many times when Mr. Johnson requested foreman
Smith to take air readingsv and after doing so,
Mr. Slone would appear on the section and would argue about
the amount of air on the section. Mr. Thacker also stated
that when Mr. Johnson asked Mr. Smith about the "mean air
velocity," Mr. Smith would reply that "he didnut know what it
meant'" {Tr. 279).

Russell Ratliff, roof bolter, confirmed that he was
realigned on June 2, 1986, from the first right section to
the construction section (Tr. 283, 298). He stated that when
he worked on that section Eor a period of approximately
8 months he often exercised his safety rights and made safety
complaints to his section foreman Jerry Bentley, and that
"the biggest part of the time, he wouldn 1 t agree with me"
(Tr. 285). Mr. Ratliff estimated that he made approximately
"a couple of dozen" complaints, and in those instances where

1866

Mr. Bentley disagreed with him, Mr. Bentley would call mine
foreman Charles Morley and safety committeeman Charles
Cantrell to the section to discuss the matters (Tr. 287).
Mr. Ratliff confirmed that when he complained to
Mr. Bentley, he sometimes agreed with him, and sometimes
disagreed with him, but that Mr. Bentley did take corrective
action (Tr. 288). Mr. Ratliff also confirmed that after
discussions with mine management and ~nion safety committeeman about his complaints "we would work out a corrective
means of fixing the roof conditions like putting collars up
and cribs where it was needed 11 (Tr. 290). Mr. Ratliff stated
that he never exercised his right to "walk off 11 the section
because of his safety complaints and always waited for the
arrival of mine management and a safety committeeman to
resolve the question (Tr. 291).
He confirmed that in those
instances where disagreement still existed, Federal or state
inspectors were called in (Tr. 292-293).
Mr. Ratliff st~ted that he was present during a unionmanagement meeting concerning the June 2, 1986, realignment
and that mine superintendent Kinder made a statement to him
that he would not be put back on the first right section
"because of our chicken shit complaints. That was his words 11
(Tr. 294). Mr. Ratliff further stated that Mr. Kinder also
stated that "if he put me back on the section, he would be
made to put me back" (Tr. 295).
Mr. Ratliff confirmed that he filed a section 105(c)
discrimination complaint, and that the respondent settled the
matter by putting him back on the first right section, and
this was the only remedy that he sought (Tr. 295). When
asked for his opinion as to why he was initially realigned
off the section, Mr. Ratliff stated "I guess, you know, where
we had so many problems and I would act on them.
You know,
where I was a roof bolter man, you know, the condition was
extreme. That is the worst top I ever worked in" (Tr. 296).
Mr. Ratliff confirmed that he lost no pay as a result of the
realignment and worked the same shift and the same number of
hours.
He stated that he wanted to stay on the first right
section because he knew the roof conditions and 11 ! feel like
I can take care of the men that was on the section better
than anyone else could." He confirmed that he was not a
safety committeeman at that time, but subsequently became one
on June 11, 1986 (Tr. 298-299; 305).
Mr. Ratliff stated that he believed he was initially
realigned because of his safety complaints, but conceded that
other miners who were also working on his section, and who

1867

made safety complaints, were not affected by the realignment
(Tr. 307). In response to further questions in this regard,
Mr. Ratliff stated as follows (Tr. 307-308):
Q. Did you have any clues as to why that was?
Had anybody ever threatened you, called you
out or showed anger toward you?

A. The statement Tubby Kinder made, the mine
manager, was proof enough to me.
Q.

When was that?

A.

In that meeting~

Q. I am talking about before this happened.
Now, prior to this, had Mr. Kinder ever come
to you and said, "Listen, what are you trying
to do calling all the feds in, calling all the
state people in. You are filing complaints
left and right and most of these are chicken
shit," as you put it -- or I mean as he put it.
Did this sort of thing happen before the
realignment?
A.

No.

Q. Did Mr. Kinder explain what he meant about
his comment? Did he indicate to you what kind
of complaints he had in mind?
Ao
No, he did noto
I guess it was all
complaints in generalo
Qo

Excuse me?

A.

All the complaints in general.

Johnny Damronv longwall shearer operator9 and union
vice-president, testified that prior to the realignment he
worked on the first right section for 6 months as a miner
operator.
He recalled one safety complaint he made concerning some unbolted roof placesF and other complaints which
were made by the roof bolters. The complaints were made to
section foreman Jerry Bentley, and Mr. Damron stated that
Mr. Bentley ''always took the attitude~ you know, we were
trying to slow production" (Tr. 316). Mr. Damron stated that
Mr. Bentley would get mad when a union safety committeeman
was called into the section in response to the complaints,

1868

and if the complaint was taken care of "it stopped at that
point" (Tr. 316).
Mr. Damron could not recall any instances when a Federal
inspector came to the section to inspect the roof, but did
recall one occasion when a state inspector came in to look at
a roof fall (Tr. 317). Mr. Damron stated that on one occasion when he questioned the adequacy of the ventilation on
the section, Mr. Bentley "just took the attitude he didn't
see it as a serious problem or something" (Tr. 31,7). On
another occasion, when a scoop man refused to go under bad
top, mine foreman Charles Morley was called to the section,
and he assigned him and a mechanic to set collars and timbers
and Mr. Morley "sat there and made smart remarks" {Tr. 318).
Mr. Damron recalled a meeting at which he was present
along with Mr. Johnson, Mr. Ratliff, Mr. Boyd, Mr. Melton, and
mine management personnel concerning the June 2, 1986, realignment. Mr. Damron stated that Mr. Kinder was informed that he,
Mr. Johnson, and M.r. Ratliff believed that they were discriminated against because of their safety complaints. When asked
about Mr. Kinder's responses, Mr. Damron stated "I can't
recall exactly what he said, but he said there have been a lot
of chicken shit complaints up there" (Tr. 319). Mr. Kinder
specifically referred to a complaint about a trolley wire that
came in contact with the mantrip, and Mr. Damron confirmed
that the men refused to go under the wire and tried to get the
foreman to move the track. Mr. Damron could not recall how
that dispute was resolved, and stated that the section foreman
"would try to get something to get back at you" (Tr. 320).

Mro Damron stated that an initial realignment sheet did
not reflect that he was being realignedv and when he found
out on June 2 0 that he was to be realignedu he filed a discrimination complaint 0 but subsequently settled it when he
was put back·on his original section (Tr. 320-321).
He
believed that the company tried "to get back at him" be
attempting to realign him (Tr. 322)0 Mr. Damron stated that
roof bolter Russell Ratliff also made complaintsu but that
other than himself u Mr. Johnson, and Mr. Ratliff v he knows of
no other complaining miners who were realigned (Tr. 324).
Mr. Damron had no knowledge that foreman Bentley had
anything to do with his realignment, and Mr. Boyd confirmed
that Mr. Bentley himself was also realigned (Tr. 327).
Mr. Damron confirmed that production on his section was low,
but he attributed it to bad.top conditions (Tr. 326).
Mr. Damron has no knowledge as to the number of complaints
made by Mr. Ratliff on the section {Tr. 329). Mr. Damron

1869

confirmed that at least 17 men were relocated to other shifts
as a result of the 382 section closing down on June 2, 1986
(Tr. 330).
Mr. Damron stated that no management person ever
instructed him to go out under unsupported roof to work, and
that when bad top was encountered the men had to withdraw
from the area "and that is why I felt we were harassed was
because you have to go in and set extra support" (Tr. 334).
Mr. Damron claimed that during the 2 years he served as
a safety committeeman, mine management, namely former assistant mine manager James Ratliff, was unhappy because of his
safety complaints. When·asked when this occurred, Mr. Damron
replied "it has been some years back," but he could not recall
seeking out the mine superintendent or anyone else higher in
management than Mr. Ratliff to complain about the purported
treatment accorded him by Mr. Ratliff (Tr. 343-344).
Complainant Eddie D. Johnson confirmed that he is presently employed by the respondent as a faceman on the longwall,
and that prior to June 2, 1986, he was employed as a
continuous-miner operator on the first right section (Tr. 13).
Mr. Johnson's testimony included references to the safety
complaints referred to in his discrimination complaint, as
well as in prior depositions, which have been incorporated by
reference in these proceedings. Mr. Johnson confirmed that a
week or so before the realignment of June 2, 1986, he complained to section foreman Randy Smith about a missing handle
on a fire suppression device and some bad top in the section.
Mr. Johnson also confirmed that approximately 4 or 5 weeks
before the realignmentu he also complained to Mr. Smith about
a methane buildupQ and that he also had complained on prior
occasions about additional levels of methane on the sectiono
Mro Johnson stated that Mr. Smith on occasion became angry
with him over the complaints, and he confirmed that he did not
complain to MSHA or the safety committee.
Mr. Johnson confirmed his prior statements made in his
depositions that Mr. Smith had no knowledge of the impending
realignment of June 2, 1986, and made~no statements to him
indicating that his realignment had anything to do with his
complaints. Howeveru Mro Johnson was of the opinion that
Mr. Smith "has an influence on realignments" (Tr. 20).
Mr. Johnson also confirmed that in each instance when he
complained to Mr. Smith, his complaints were addressed and
the conditions complained of were corrected, or he was
assigned to other work. Mr. Johnson also confirmed that

1870

foreman Otis Slone was not present during these complaints
made to Mr. Smith (Tr. 17-35; 45).
Mr. Johnson confirmed that approximately 1 month before
the realignment he complained to Mr. Smith about respirable
dust which was coming back on the continuous miner operator,
and the need for more ventilation and water sprays. In this
instance, the water sprays were checked and repaired, the
adequacy of ventilation curtains was reviewed, and the
complaint was taken care of by Mr. Smith within 3? minutes,
and he said nothing to Mr. Johnson which would lead him to
believe that he would be transferred for complaining (Tr.
41-43).
With regard to the incident concerning Mr. Slone's working under the miner head, Mr. Johnson stated that Mr. Slone
became angry with him when he confronted him about the matter,
and Mr. Johnson conceded that he may have provoked Mr. Slone
(Tr. 51-52). Mr. Johnson confirmed that when he received an
unsatisfactory work slip on September 28, 1985, he was not a
member of the safety committee. Although conceding that the
slip was issued because management believed he was "goofing
off" and not doing his work, Mr. Johnson believed that it was
indicative of management's attitude toward him because "they
don't like me for what I stand for" (Tr. 66), and he viewed it
as a continued form of harassment. Mr. Johnson confirmed that
the incident was resolved after he filed a grievance and the
matter was settled (Tr. 60-70). Mr. Johnson denied that he
ever received any verbal warnings about his work prior to the
issuance of the slip in question, but admitted that he and
Mr. Slone "had talked several times" about equipment problems, coal production, and "about my work" (Tr. 72-73).
Mr. Johnson also testified about the incident concerning
a premature shot which resulted in a grievance being filed,
and he stated that after the shot was fired, Mr. Slone accused
him of trying to slow down production (Tr. 74-82). He went on
to testify about other complaints and confirmed that while he
believed he was resented and not liked by management, management nonetheless addressed his complaints and took corrective
action (Tr. 84-101). Mr. Johnson also believed that management had no legitimate right or reason for the realignment,
and that it was done as a convenient way to get him off the
producing section (Tr. 102-103).
Respondent's Testimony and Evidence
General Mine Foreman Charles Morley testified as to the
circumstances surrounding the work force realignment which

1871

took place on June 2, 1986. Mr. Morley confirmed that there
have been several realignments during his tenure as mine
foreman, and with regard to the June 2 realignment he stated
that in preparation of that personnel action, Mr. John Hodges,
respondent's supervisor of human resources (personnel director), prepared a list of mine personnel according to their
union job classifications, and that this was given to him for
the purpose of determining the composition and establishment
of particular work crews which would be effected by the
realignment.
Mr. Morley stated that the realignment came about' in
order to establish a crew to increase production so as to
speed up the advancing of the first right section in anticipation of the completion of the installation of the longwall
system. Mr. Morley stated that the decision to purchase the
longwall system was made in approximately, 1985, that the
decision was communicated to the union, and that the advancement of the first right section in anticipation of the longwall had been the topic of many discussions.
The scheduled
date for the longwall installation was September, 1986, and
it was imperative that the first right and second sections be
driven up and connected before the longwall could be installed
and made operational (Tr. 116-122).
Mr. Morley confirmed that the respondent hired three
consultants for the planning of the longwall installation,
and that certain projections, including production and roof
control problems, had to be addressed.
He confirmed that
production on the first right section had fallen behind, and
he testified as to certain production data compiled on the
sections (Tr. 122-127u exhibit R-1).
He stated that production on the first and second right longwall sections was
lower in comparison to production on the other sections (Tr.
130)0
Mr. Morley confirmed that the second right section had
a three-entry system, and that the second right section began
as a five-entry system, and then dropped to a four-entry
system within the past 2 monthso
Although one would expect
better production from a five-entry systemv this was not the
case {Tr. 131)0
Mro Morley identified exhibit R-11 as a
representation of mine production for all working sections,
as of Mayp 1986p a month before the realignment, and he
confirmed that it indicates lower cumulative coal production
figures for the first and second right sections CTro 145).
Mr. Morley confirmed that the initial realignment list
prepared by Mr. Hodges was not final, and that it was subject
to his (Morley's) review and consideration, and that in
compiling the crews, he would take into consideration the

1872

personalities and work habits of the personnel to insure a
good mix of people who could get along with each other (Tr.
129). He confirmed that in order to improve production, he
determined that there should be a different mix of people on
the first right section for both the day and second shifts,
and this was discussed with Otis Slone, the second shift foreman, and changes were made not only for Mr. Johnson's shift,
but also included the second right section. Mr. Morley denied
any discriminatory intent in the shift changes, and he stated
that they were made in order to pick up producti~n and to get
the mine back on schedule (Tr. 131-132). After further discussions with Mr. Slone and assistant mine manager Jim Ratliff,
the realignment changes were made, effective June 2, 1986, and
they are reflected on exhibit R-7 (Tr. 133-135). Mr. Morley
confirmed that he had no idea what happened to the initial
list compiled by Mr. Hodges (Tr. 137), and stated that it contained only names and occupations (Tr. 137, 144). He further
explained the realignment information which appears on exhibit
R-7, and confirmed that after making the necessary adjustments
and changes, he returned it to Mr. Hodges who finally prepared
it to show who would be on the sections in question (Tr.
144-145).
Mr. Morley confirmed that as continuous miner operators,
Mr. Damron and Mr. Johnson filled critical positions with
respect to the advancement of their sections in anticipation
of the installation of the longwall system, and in his opinion
their work performance was less than adequate. Mr. Morley was
of the opinion that many union people were afraid that the
longwall system would cost them jobs, when in fact it kept
them working (Tr. 150). He confirmed that at the time of the
realignment, the development of the first right section was at
least one-third away from its final completion 1 and was at
least 2 months behind in its anticipated completion (Tr. 153).
Mr. Morley conceded that Mr. Johnson's safety complaints
caused delays in the anticipated completion of the first
right sectionff and he believed that many of the roof control
complaints were invalid. However 1 he insisted that all of
Mr. Johnson's complaints were addressed, and if management
agreed that they were legitimate, corrective action would be
taken. Mr. Morley agreed that a safety committeeman has the
right and obligation to make safety complaints, and he confirmed that Mr. Johnson never came directly to him with his
complaints, and that they were usually made to section
foremen Otis Slone and Randy Smith, or safety director Jerry
Ratliff. Mr. Morley also confirmed that he never went into
the section to look into the complaints, and that this responsibility was delegated to the section foremen (Tr. 153-156).

1873

Mr. Morley confirmed that any information he had with
respect to any frivolous or invalid complaints by Mr. Johnson
would have come from the section foremen, and he stated that
Mr. Slone believed that Mr. Johnson was slowing down the section by cutting slow, and that both Mr. Slone and Mr. Smith
"couldn't get things going the way they should" (Tr. 157).
Mr. Morley further confirmed that he was aware of this at the
time of the realignment, and that he considered the fact that
"the section is not moving like it should be and production
is not like it should be" at the time he made his realignment
decisions (Tr. 158).
Mr. Morley confirmed that he personally checked on some
roof safety complaints made by Mr. Russell Ratliff, and that
he did so in the company of safety committeeman Charles
Cantrell, and at times they differed on the merits of the
complaints, and in those cases where the roof was bad, corrective action was always taken (Tr. 161). Mr. Morley was not
personally aware of any safety complaints made by Mr. Damron,
and he confirmed that many times, he had no knowledge as to
who was complaining (Tr. 162).
Mr. Morley denied that he ever harassed Mr. Damron with
regard to the placement of roof cribs, and he confirmed that
a complaint about a man trip trolley wire was corrected as
soon as it came to his attention (Tr. 166-168). Mr. Morley
denied that he ever contemplated moving or realigning
Mr. Johnson because of any safety complaints, and it made no
difference to, him who worked on the sections as long as he
was satisfied that he had a good mix of personnel to get the
job done.
He confirmed that union personnel, as well as section foremen, were moved during the realignment in an effort
to "get a better chemistry or something going up there and
get production going" (Tr. 169).
Mr. Morley stated that after the realignment, production
"picked up some," but that subsequent problems and bad top
conditions, including a roof fall, delayed matters further.
With regard to the results of the realignment, Mr. Morley
stated "I don°t know if it accomplished a whole lot.
It
picked up some." However, he indicated that the intent of
the realignment was aimed at an effort to pick up production
(TL 172)
o

On cross-examination, Mr. Morley stated that he considered Mr. Slone to be a "pretty good" foreman, and he denied
any personal knowledge of Mr. Slone ever committing any

1874

unsafe acts (Tr. 180). He answered certain hypothetical questions concerning the incident involving Mr. Slone's work under
the continuous miner head, including roof control violations
and complaints on the section (Tr. 180-194).
Mr. Morley confirmed that he discussed the realignments
made on the second shift with Mr. Slone, and that he and
Mr. Slone made the decisions in that regard. Mr. Morley
could not recall speaking with Mr. Ratliff with regard to the
day shift realignments, and indicated that he (Mo~ley) would
have made the decisions alone in the absence of Mr. Ratliff
(Tr. 195).
Mr. Morley stated that he was not present at any meeting
held by the union with Mr. Hodges on May 28, or 29, 1986, and
that any decision regarding job classifications would have
been made by Mr. Hodges (Tr. 195-196). During the course of
a colloquy with the parties, respondent's counsel indicated
that the realignment shown on exhibit R-6 reflects the line-up
prior to the actual ~ffective date of the realignment, and
that exhibit R-7 reflects the line-up after the realignment
became effective on June 2, 1986. Complainant's representative Boyd contended that exhibit R-6 was presented to the
union mine committee by mine management at the mine on either
May 27 or 28, 1986, and the committee wa;;:; informed that "This
realignment will go into effect June 2nd" (Tr. 198). Respondent's counsel disagreed (Tr. 198). Mr. Boyd stated that R-6
was the list posted on the mine bulletin board, and Mr. Hall
insisted that the list which was posted was similar to R-6,
and that it cannot be located (Tr. 200).

Mr. Morley stated that exhibit R-6 was similar to R-7,
and he confirmed that he was not aware that R-6 was given to
the union committee by Mr. Hodges. Mr. Morley suggested that
Mr. Hodges would have given the union such a list in order to
let them know who was in any job classification, but he confirmed that Mr. Hodges could not align the particular crews~
and that this was done by him (Morley) (Tr. 199).
Mr. Morley stated that his decision to realign
Mr. Johnson, Mr. Damron, and Mr. Ratliff was made on Friday,
May 30u 1987F and that Mr. Slone was present.
Mr. Morley
then advised Mr. Hodges as to his realignment decision, and
Mr. Hodges compiled the realignment list shown on exhibit R-7
(Tr. 200), and he explained what was re~lected on that list
(Tr. 206-214).
Mr. Morley confirmed that during his discussions with
Mr. Slone prior to the realignment, Mr. Slone advised him that

1875

the miner operators should be changed because he believed this
was necessary in order to increase production. At no time did
Mr. Slone mention any safety complaints, and he did not mention that the complaints may have been slowing down production
(Tr. 215).
Mr. Morley could not recall attending any meeting with
members of the mine committee and mine management subsequent
to the realignment, but that he was a~are that such a meeting
took place through "talk. 11 Mr. Morley stated that he had to
attend to his business of running the mine, rather than
attending meetings concerning labor-management contractual
matters (Tr. 219). Mr. Morley did recall being present at a
meeting at which Mr. Boyd and Mr. Kinder were present when
Mr. Boyd advised Mr. Kinder that a discrimination complaint
would be filed, and he recalled Mr. Kinder commenting to
Mr. Boyd to file the complaint "if he felt that way" (Tr.
220). Mr. Morley denied hearing Mr. Kinder make any statement to the effect that the realignment came about "because
he was tired of the.c-hicken shit complaints 11 (Tr. 221).
Mr. Morley confirmed that Mr. Kinder did state that the
realignment would be made in order to try and speed up production and the mining advance rate on the first right section
so that the longwall could be set up (Tr. 222}. Mr. Morley
stated that Mr. Johnson, Mr. Damron, and Mr. Ratliff never
indicated to him that they believed they were being realigned
because of their safety complaints (Tr. 222>.
During the course of the hearing, complainant's representative Boyd asserted that the only three employees affected
by the realignment whose job classifications were not changed,
but nonetheless realigned on their shift, were ~r. Johnson 1
Mro Ratliff and Mr" Damron. Howeveru Mr. Boyd conceded that
all three suffered no changes in their job classifications as
a result of the realignmentv and suffered no loss in pay. They
were simply moved to different mine locations (Tr. 223-225).
Mr. Boyd further contended that everyone else shown on the
realignment lists (exhibits R-6 and R-7) remained within their
job classifications and same work locations. However, he subsequently conceded that everyone from the section as shown on the
lists were affected by the realignment, and either had their
job classifications changed or were physically assigned to
other locations in the mine (Tr. 225-228).
Mr. Morley testified as to the work being performed by
the construction crew on the construction section after the
realignment, and he confirmed that hazardous conditions could
be encountered anywhere in the mine, including the construction area, and he could not state that the construction area

1876

exposed miners to more hazards than on a producing section
(Tr. 239).
Mr. Morley again denied that Mr. Johnson was moved to
the construction section because of his safety complaints,
and he confirmed that Mr. Johnson has filed safety complaints
since the realignment and that "we try to take care of them
as quick as we can" (Tr. 242).
Mr. Morley denied that he has
ever harassed Mr. Johnson, and he confirmed that Mr. Johnson
is still serving as a safety committeeman. Mr. Morley denied
any knowledge of any offers made to anyone to bid on a job
for which Mr. Johnson had bid (Tr. 243).
Gary Puckett, respondent's office supervisor, confirmed
that part of his duties include the tabulation and maintenance
of certain mine production records. Mr. Puckett confirmed
that he was familiar with the production records as reflected
by exhibits R-1, R-2, and R-11, and he explained the data
reflected therein (Tr. 253-258).
He confirmed that the differences in production could b~ caused by adverse roof conditions
or other factors not reflected in the production information,
and that any differences in production with regard to the
first and second right sections, as reflected in the data, may
not be conclusive unless one knows or takes into account the
prevailing mining conditions in those sections (Tr. 259).
Mr. Puckett testified as to certain daily carload production data maintained in his notebooks, and respondent's counsel confirmed that this data does not take into account any
prevailing conditions on the sections. Based on his review
of the production information as recorded in his books,
Mro Puckett concluded that for the period February 28, 1986,
to May 30, 1986~ the first right section had less than half
of the production as compared with all the other sections
noted (Tr. 260-261)0
For the period June 2, 1986, to July 30,
1986, the data reflects that mine production did not pick up
(Tr o 261-265) o
Jerry Ratliff mine safety director, confirmed that he
has worked at the mine 10 years, and he stated that he has
daily contact with the mine safety committee, and that he can
work with ~ro Johnson, who makes safety complaints on a
regular basis. Mr. Ratliff confirmed that he has no reason
to believe that mine management was motivated to realign the
work force in order to punish Mr. Johnson for making safety
complaints, and he was never at any meetings or heard any
discussions among management that Mr. Johnson was realigned
because of his complaints (Tr. 266-268, 273>.

1877

With regard to an incident in Wlhich Mr. Slone fired a
shot to clear hanging draw rock from the roof, Mr. Ratliff
stated that when Mr. Johnson brought this to his attention,
he (Ratliff) called the state and Federal regulatory agencies
to determine whether any laws may have been violated. He
confirmed that there was no violation in this instance (Tr.
269), and he assumed that what Mr. Slone did was correct (Tr.
270).
Mr. Ratliff confirmed that Mr. Johnson regu~arly calls
to his attention mine conditions which he observes on his
shift, including any violations, and that he addresses these
matters and takes Mr. Johnson to the appropriate mine production or maintenance departments to ascertain the facts "so
they get something done about it" (Tr. 279, 282). Mr. Ratliff
stated further that he has never refused any safety complaints
from Mr. Johnson or any other miner, nor has he ever refused
to immediately communicate any such complaints to the appropriate mine departments (Tr. 293). He also confirmed that he has
many times personally taken· Mr. Johnson to the places he
complained about, and while he sometimes disagrees with
Mr. Johnson's assessment of the situation, he and Mr. Johnson
resolved the matters (Tr. 294).
Mr. Ratliff stated that he had no knowledge concerning
Mr. Denver Thacker's allegation that a section foreman tried
to bribe another employee to bid on a job that Mr. Johnson had
bid on, and Mr. Ratliff confirmed that he had some reservations about Mr. Thacker's credibility, and he explained why
(Tr. 298-302).

Mro Ratliff confirmed that he had nothing to do with the
realignment in question, was in no way connected with that
decision, and that Mro Morley and Mro Slone never consulted
with him in this regard CTro 311)0 Mr" Ratliff discounts any
"conspiracy theory" that the realignment was in some way
designed to isolate Mr. Johnson as a safety committeeman, and
he stated as follows in this regard (Tr" 312)~
A.
* * * I have person~lly not had any problems with Eddie other than -- heck, we 1 re
going to disagree on things. But r 1 ve never
sat in -- I 9 ve spent a lot of my time with
Charles Morley, Herbert Kinder, Otis Slone,
Gerald Mullins"
I 9 ve never heard anybody say,
1
"hey, we re going to screw Eddie and move him
because of a safety complaint.n I've never
heard that.

1878

Otis Slone testified that he has worked in UDderground
mines for 34 years, has served as a second shift foreman at
the mine for over 10-1/2 years, and has known Mr. Johnson
most of his life "since he was a kid" (Tr. 313). Mr. Slone
confirmed that he participated in the determination as to the
make-up of the work crews in connection with the June 2, 1986,
realignment, and that he discussed the matter with Mr. Morley
as is the usual practice during such realignments. Mr. Slone
stated that he absolutely did not suggest to Mr. Morley that
Mr. Johnson should be reassigned because of his s.afety complaints, and indicated that he has worked closely with
Mr. Johnson since he became a safety committeeman. Mr. Slone
was of the opinion that some of the complaints made by
Mr. Johnson were not legitimate, and he confirmed that at
times during their discussion on safety matters they became
heated and he became upset with Mr. Johnson (Tr. 317).
Mr. Slone stated that on a day-to-day basis, the first
right section was "way behind" in production, and that the
realignment was made in an effort to increase production.
Mr. Johnson's safety complaints had nothing to do with that
decision, and safety complaints were made by individuals
other than Mr. Johnson (Tr. 318).
Mr. Slone testified as to the circumstances under which
he fired the shot which has been testified to in this case,
and he confirmed that no violation of any safety law resulted
from the manner in which he conducted that shot (Tr. 318-323).
He also testified about the incident in which he performed
work under a continuous miner head, and concluded that it was
not unsafe (Tr" 326-328).

Mr. Slone testified as to the circumstances surrounding
s issuance of an 8 Unsatisfactory work slip" to Mr. Johnson
sometime in 1985, and indicated that the entire production
crew was taken out of the mine so that he could talk to them
about production and his belief that they "were all laying
down." A day or two later, he spoke with Mr" Johnson and
issued the slipf and he did so because he believed that
Mr. Johnson was "goofing off." He confirmed that he had
previously spoken to Mr. Johnson at least one time about not
doing his job (Tr. 331). Mr. Slone confirmed that he has
stated from time-to-time that "Eddie Johnson just doesn't
want to work anywhere," and that he made that statement to
Mr. Johnson on at least one occasion (Tr. 335).
Mr. Slone confirmed that he recommended that Mr. Johnson
be moved off the first right section, but denied that he made
any recommendations with respect to Russell Ratliff, who

1879

worked on a different shift. Mr. Slone confirmed that
Mr. Johnson has made quite a few safety complaints, and has
been "a burr in his saddle." Mr. Slone further confirmed
that if Mr. Johnson observes something on his section that
needs to be done, he will contact him and he will then go
into the section to take care of the problem. Mr. Slone
stated that "sometimes I may not take care of all he wants
done, but we work on it" (Tr. 355).
Mr. Slone confirmed his belief that Mr. John.son has made
quite a few so-called "chicken shit complaints," and he cited
several examples (Tr. 357). He also confirmed that coal production picked up "very little" after the realignment, and he
attributed this to bad top and draw rock conditions encountered in the section (Tr. 357).
Randy Smith, stated that he has served as a section
foreman in the mine for approximately 2 years, and that he
has 16 years of mining experience. He confirmed that he was
Mr. Johnson's foreman on the first right section for approximately 9-months prior to the June 2, 1986, realignment. He
also confirmed that he had many occasions to discuss mining
conditions and safety matters with Mr. Johnson and that at
times he disagreed with Mr. Johnson's evaluation of the mining conditions. Attempts were always made to resolve any
differences, and Mr. Smith indicated that if he could not
resolve them "I would always contact the mine foreman" (Tr.
361).
Mr. Smith stated that he has discussed Mr. Johnson's
work and slow production with him, as well as with his entire
crew, and that he was receptive to Mr. Johnson's complaints
in his attempts to address them and take corrective action.
Conceding that he may have sometimes overlooked some complaints which he characterized as "little" or "nothing,"
Mro Smith confirmed that "we would take care of them as we
could" (Tr. 363).
Mr. Smith stated that at no time did he ever suggest to
Mr. Slone or Mr. Morley that Mr. Johnson should be transferred
to some other section because of hid safety complaints, or
because he "was a problem." Mr. Smith stated that "me and
Eddie had between ourselves--I thought we done all right about
working them out between us" (Tr. 364). Mr. Smith stated that
he holds no animosity towards M.r. Johnson and he confirmed
that Mr. Johnson no longer works with him (Tr. 366).
Mr. Smith denied that Mr. Slone ever indicated to him
directly or indirectly that "if we had Eddie off the section,

1880

we could do better" (Tr. 371-372). Mr. Slone did mention
that he and Mr. Johnson sometimes had differences of opinion
about roof conditions, and he confirmed that production continued "about the same" after Mr. Johnson left the section
because the conditions worsened (Tr. 372).
Glen Matheny, section foreman, stated that at one time
he served as president of the local union at another mining
operation. He denied that he was sent to speak with Denver
Thacker about re-bidding for a job as a f aceman qn the longwall machine in order to insure that Mr. Johnson would not be
afforded an opportunity to take that job. He also denied
that he had ever offered anyone an opportunity to work a
shift and a half to re-bid the job that Mr. Johnson desired,
or that he had any discussions with anyone which could be
interpreted that such an offer was ~ade (Tr. 374-375).
Mr. Matheny had no idea as to why Mr. Thacker would make
"this big story." Mr. Matheny further stated that he is
familiar with the union contract, and he confirmed that once
Mr. Thacker had removed himself for consideration for the
faceman's job, it was not possible under the contract to
re-bid for that job, and that this would be prohibited under
the contract. Mr. Matheny confirmed that he had Mr. Thacker
take his name off the bid for the faceman's job in the first
place because he discussed the matter with him and advised
him that he wished to keep him on the section as a roof
bolter operator since pillaring work was anticipated {Tr.
377-378). He confirmed that Mr. Thacker remained on the section as a roof bolter (Tr. 378).
up

Mr. Matheny denied that he ever took Mr. Thacker aside
underground at his working place in the presence of Mr. Varney
to speak
th him, and indicated that "I 0 ve never had anything
to say to Denver that I wouldn't have to say to Rick," and that
they were both roof bolters. Mr. Matheny also denied that he
spoke with Mr. Thacker in the bath house about re-bidding for
the faceman°s job (Tr. 379). Mr. Matheny stated that there is
no truth in any statement by Mr. Thacker that he (Matheny) told
Mr. Thacker that any offer to re-bid the faceman°s job had been
"cleared by the old man," namely mine manager "Tubby" Kinder
(Tr. 381).
Herbert E. "tubby" Kinder, testified that he has served
as mine manager for approximately 3 years and has been
involved in mining for 47 years. He stated that he did not
participate to any great extent in the realignment of June 2,
1986, and that the realignment was the general mine foreman's
responsibility. Mr. Kinder confirmed that mine production

1881

was down on the first right section and that he discussed
this with Mr. Morley, but did not indicate to him that "the
mix of people needed to be changed or looked at." Mr. Kinder
denied that he ever indicated to anyone that Mr. Johnson
should be transferred to another section because he had made
safety complaints or because he was a safety committeeman
(Tr. 386).
Mr. Kinder stated that Mr. Hodges takes care of personnel
grievances, and with respect to Mr. Russell Ratli.ff, he confirmed that he had been suspended with intent to discharge on
two occasions because of absenteeism (Tr. 387).
Mr. Kinder denied that he ever instructed Glen Matheny
or anyone else to bribe Denver Thacker to re-bid a longwall
job so that Mr. Johnson would not get it. Mr. Kinder stated
that while he might know Mr. Thacker, he could not recall who
he is (Tr. 390). Mr. Kinder could not recall any realignment
list which may have been posted in the bathhouse on May 29,
30, and June 2, 1986, and he confirmed that Mr. Hodges handles
such matters (Tr. 3~8).
Mr. Kinder recalled meeting Mr. Melton, Mr. Damron,
Mr. Hodges, and safety committeeman Charles Cantrell in the
hallway outside the mine foreman's office after the realignment on June 2, 1986, and he confirmed that he did make the
comment that "I was tired of those chicken shit complaints"
(Tr. 385, 399). He also recalled a subsequent meeting 2 weeks
later with members of the union when the realignment was discussed, and that Mr. Johnson, Mr. Damron, and Mr. Ratliff
stated that they believed they were realigned because of their
safety complaints. Mr. Kinder denied stating that before
putting these individuals back on their sections "somebody
will make me do it." He did recall remarking that "everything
you do at Scotts Branchq
you ask somebody to do something 1
was discrimination or harassment" (Tr. 400).
Mr. Kinder confirmed that he made the decision that a
realignment was necessary and did so in order to provide a
third shift made up of perscnnel from the other two shifts to
speed up the advance rate on the two sections. Mr. Kinder
denied that he had anything to do with the details of the
realignment regarding actual shift-or job selections, and he
confirmed that these details were left to Mr. Hodges and the
shift and mine foreman.
Mr. Kinder denied that any management
personnel ever discussed with him that Mr. Johnson or
Mr. Ratliff would be realigned "to keep the old man happy,"
and that he never discussed such a matter with anyone (Tr.
403-404).

1882

John E. Hodges, respondent's Supervisor of Human
Resources, testified that he has been so employed since 1980,
and that prior to this time, he served as chairman of a UMWA
mine committee and a field representative for District 19.
Mr. Hodges stated that the decision to install the longwall
was made in early 1985, and a longwall coordinator was hired
in August of that year. The decision was communicated to the
Qnion in approximately June, 1985. On March 27, 1986, he discussed with the union the need to increase produc~ion on the
first and right panels, and asked it to speak to its membership about working the first and right panels on Saturdays so
as to speed up the advance of those panels for the installation of the longwall (Tr. 409-410). Another meeting was held
on May 1, 1986, and the union was advised that unless it
agreed to work the two panels on Saturdays, the entire 382
working section would be eliminated in order to put another
crew on the third shift to operate the first and second right
panels. However, the membership would not agree (Tr. 411).
Mr. Hodges stated that· 35 to 40 people were affected by
shift changes and reassignments resulting from the June 2,
1986, realignment, and the elimination of the 382 section
affected the job classifications of 18 people (Tr. 412).
Mr. Hodges confirmed that he gave mine committee chairman
Melton a list similar to exhibit R-7 to let him know who was
going to be realigned, but that he made it clear to Mr. Melton
there may be some changes as to the placement of personnel
because he (Hodges) had not spoken to Mr. Slone or Mr. Morley
at the time he gave Mr. Melton the list (Tr. 414).
Mr. Hodges confirmed that he lacks the authority to make
actual crew assignments, and that in past alignments and
realignments sufficient time was allowed so that he could
communicate the assignment of personnel to Mr. Melton. However v in the case of the June 2v 1986, realignment, he did
not have enough advance notice, and made that clear to
Mr. Melton when he gave him the list. He also made it clear
to Mr. Melton that the list was subject to change because he
had not met with Mr. Morley or Mr. Slone (Tr. 414, 416).
Mr. Hodges indicated that he first learned about the
final decision to make the realignment on May 28, 1986, when
Mine Manager Kinder and Frank McGuire, Division Manager of
Mines, informed him of their decision to eliminate the 382
section and put a crew on the third shift. They informed him
that they would need 10 miner operators, and informed him of
the positions which had to be eliminated and others which

1883

needed to be filled.
Mr. Kinder explained that he then prepared some sheets similar to R-7, "slotting" the necessary
positions, but that he did not make the actual crew assignments. Mr. Hodges denied that he delivered exhibit R-6 to
Mr. Melton before the crew selections were made by the production people, and respondent's counsel pointed out that this
was the case because the 382 section was still shown on that
list (Tr. 416). Mr. Hodges confirmed that the R-6 list is
his work product, but that it was prepared by his secretary
at his direction.
He confirmed that he did give Mr. Melton
another list similar to R-6 and that Mr. Melton put it up on
the mine bulletin board (Tr. 417).
·
Mr. Melton confirmed that the "lists" he put up on the
bulletin board in the bathhouse were roughly eight or nine
sheets of paper which he taped individually on the board to
inform the men in the event they were affected by the realignment. Mr. Melton confirmed that the list was torn down by
the bathhouse man, and he did not keep a copy. Mr. Hodges
was not sure that he saw the list posted on the board, and he
explained that following his normal procedure, after such
lists are finalized, and any problems concerning reassignments
are resolved, he makes out a final list which he personally
posts on the board (Tr. 420).
Mr. Hodges stated that he gave lists similar to the ones
he gave to Mr. Melton to Mr. Slone and to Mr. Morley, and
that the only thing he attempted to do was to list personnel
in their proper job titles. Mr. Morley and Mr. Slone made
the actual crew assignments because he (Hodges) had no authority to make those assignments (Tr. 421). Mr. Hodges denied
that Mr. Morley ever said anything to him about an assignment
for Mr. Johnson or that he wanted to get rid of him (Tr. 421).

Mro Hodges confirmed that he did object to Mro Morley 1 s
original placement of Mr. Ratliff on the fourth left section
working with foreman Paul Fouts, because they had a prior
personality "run-in," and Mr. Ratliff received a 15-day sussion for refusing to obey orders and threatening and abusng Mr. Fouts. Mr. Hodges confirmed further that Mr. Ratliff
had previously received another suspension for threatening
another supervisor and himself, and was also suspended for
absenteeism"
As a result of these incidents, and aftec several meetings with him, ~r. Ratliff was given "a last chance
agreement" (exhibit R-12), and Mr. Hodges did not consider
him to be a credible individual (Tr. 426-428).
Mr. Hodges identified exhibit R-5, as a part of the
realignment sheets showing how various people were affected

1884

by the realignment (Tr. 429, 431). He confirmed that at least
16 hourly employees on the 382 section were affected by the
realignment, and that most of them stayed in the same job title
(Tr. 432). Mr. Hodges denied that Mr. Johnson, Mr. Ratliff,
and Mr. Damron were the only three people, other than the 382
section, that were moved from their jobs on their shift (Tr.
433), and referring to exhibits R-6 and R-7, he named several
(Tr. 433-434).
Mr. Hodges confirmed that he met with Mr. M~lton on
May 28 or 29, 1986, during a "24/48 hour meeting" and gave
him a list of the personnel who would be moved out of their
job classifications, and he explained the purpose of the
meeting (Tro 447-449).
Findings and Conclusions
In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining miner
bears the burden of.- product1on 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, 2 FMSHRC 2768 (1980), rev'd on other grounds sub~·
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins
v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984);
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-2511 (November 1981), rev'd on other grounds
sub~· Donovan v. Phelps Dodge Corp., 709 F.2d 86 <D.C. Cir.
1983). The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no wav motivated by protected activity. If an
operator cannot rebut the prima f acie case in this manner it
may nevertheless affirmatively defend by proving that (1) it
was also motivated by the miner 1 s unprotected activities alone.
The operator bears the burden of proof with regard to the
affirmative defense.
Haro v. Magma Copper Companyv 4 FMSHRC
1935 (1982), The ultimate burden of persuasion does not shift
from the complainant. Robinettep supra. See also Boich v.
FMSHRCv 719 F.2d 194 (6th Cir. 1983); and Donovan v. Stafford
Construction Companyv No. 33-1566 D.C. Cir.(April 20, 1984)
(specifically-approving the Commissionvs 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.

1885

Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if
the facts support a reasonable inference of discriminatory
intent. Secretary on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2510-11 (November 1981), rev'd on other grounds
sub !!.2!!!· Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir.
1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99
(June 1984). As the Eight Circuit analogously stated with
regard to discrimination cases arising under the National
Labor Relations Act in NLRB v. Melrose Processing Co.,
351 F.2d 693, 698 (8th Cir. 1965):
It would indeed be the unusual case in
which the link between the discharge and the
[protected] activity could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can
be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is
free to draw any reasonable inferences.
Circumstantial indicia of discriminatory intent by a
mine operator against a complaining miner include the following: knowledge by the operator of the miner's protected
activities; hostility towards the miner because of his protected activity; coincidence in time between the protected
activity and the adverse action complained of; and disparate
treatment of the complaining miner by the operator.
Mr. Johnson's Protected Activities
It is clear that Mr, Johnson enjoys a statutory right to
serve on the mine safety committee, and the respondent may
not discriminate against him because of his safety duties as
a committeeman. Mr. Johnson also has a right to file safety
complaints, request MSHA to perform section 103(g) safety
inspections, to inform state or Federal mine inspectors of
conditions which he believes are hazardousu and to complain or
inform mine management of mine conditions which he believes
present hazards to himself or to his fellow miners.
Mr. Johnson 1 s safety complaints and related duties incident to
his service as a safety committeeman are protected activities
which may not be the motivation by mine management for any
adverse action against him. Further, management is prohibited
from interfering with Mr. Johnson 1 s protected safety activities, and it may not harass, intimidate, or otherwise unduly
impede his participation in those activities. Secretary of
Labor ex rel. Fasula v. Consolidation Coal Co., 2 FMSHRC 2786

1886

(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co v. Marshall, 663 F.2d 1211 (3d Cir. 1981), and
Secretary of Labor ex rel. Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981). Safety complaints to mine
management or to a section foreman constitutes protected activity, Baker v. Interior Board of Mine Operations Appeals,
595 F.2d 746 (D.C. Cir. 1978); Chacon, supra. However, the
miner's safety complaints must be made with reasonable promptness and in good faith, and be communicated to mine management, 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).
The record in this case establishes that Mr. Johnson
frequently made safety complaints to' his section foremen about
mine conditions which he believed constituted hazardous conditions or violations of certain mandatory standards. As a
matter of fact respondent's safety director Jerry Ratliff confirmed that Mr. Johnson has made safety complaints to him on
a regular basis i~ his capacity as a member of the safety
committee, and that Mr. Johnson rather routinely brings to
his attention mining conditions on his shift which he believes
are either questionable, hazardous, or violations. The record
also establishes that the complaints often resulted in a foreman being called to Mr. Johnson's section to discuss the conditions, and that they sometimes had heated discussions or
differences of opinions as to whether or not the conditions
were in fact hazardous or not in compliance with the applicable safety regulations.
The record also establishes that Mr. Johnson has filed
union safety and other job-related grievances against the
respondent during his employment, some of which went to
formal arbitration, and others which were settled by the
parties pursuant to the labor-management agreement (Exhibits
C-1, C-2, C-4, C-5, C-11, R-3, R-4).
Although there is no direct evidence that Mr. Johnson
made any specific complaints to any MSH..~ or state mine inspectors, the testimony presented on his behalf r as well as his
depositionv suggests that on occasions 1 MSHA inspectors may
have been called to the mine to resolve safety questions or
"disputes" resulting from Mr" Johnson's safety involvement
with the union and/or the mine safety committee. Some of
Mr. Johnson 1 s complaints to. management resulted in refusals
by Mr. Johnson or his crew to work in the areas deemed by

1887

them to be hazardous, thereby necessitating their reassignment to other work while management addressed their safety
concerns.
In view of the foregoing, I conclude and find that
Mr. Johnson has established that both in his capacity as a
miner, and as a member of the mine safety committee, he made
and communicated safety complaints to mine management prior
to the June 2, 1986, realignment which resulted in his transfer from a producing section to a construction s~ction.
Further, under all of these circumstances, it seems clear to
me that Mr. Johnson's safety complaints and safety-related
activities in bringing these complaints to the attention of
management in his capacity as a miner or safety committeeman
are protected activities under section 105(c) of the Act, and
that the respondent is prohibited from retaliating against
Mr. Johnson for making the complaints.
Management's Alleged Harassment and Intimidation of
Mr. Johnson
Mr. Johnson's original complaint makes no mention of any
specific instances of harassment or intimidation by management because of his safety complaints. Mr. Johnson's pretrial
depositions of January 16, and June 9, 1987, are also devoid
of any credible references concerning instances or acts of
management harassment or intimidation toward Mr. Johnson
because of his safety activities. Quite the contrary. The
record in this case, including past grievances filed by
Mr. Johnson on safety and non-safety matters, reflects that he
was a rather active and combative safety committeeman who did
not shy away from confrontations with his supervisors over
safety issueso
As a matter of fact, after the realignment,
Mr. Johnson continued, and still continues, to function as a
viable saf
committeeman on a coal producing section, and he
still brings his safety concerns and complaints to the attention of the mine safety director.
The record in this case establishes that in each instance
when Mro Johnson or other safety committeemen brought their
saf
complaints or concerns to the attention of their foremen, they and their fellow miners were allowed to withdraw
from the affected areas and were assigned other work while
management ultimately addressed their concerns and took correcti~e action.
While it may be true that in some instances,
management disagreed with Mr. Johnsonvs safety assessments and
opinions and the discussions may have been rather heated, I
find no credible basis for concluding that management ignored
Mr. Johnson's complaints or retaliated against him because of

1888

his complaints. While it may also be true that some foremen
may have initially attempted to convince a working crew that
certain conditions were not unsafe and suggested that they
should continue working, the issues were either resolved
through further involvement of management and the safety
committee, or the miners were allowed to withdraw and were
assigned other work. I find no credible evidence that miners
were ever forced or coerced to work under unsafe conditions.
In his deposition of January 16, 1987, Mr. Johnson conceded that he did not consider his realignment transfer to be
a form of "punishment" because of his safety complaints (Tr.
13). In his June 9, 1987, deposition, Mr. Johnson confirmed
that no one from management has ever made any statements to
him, or suggested to anyone else, that his transfer resulted
from his safety complaints (Tr. 55). Mr. Johnson alluded to
a complaint concerning roof bolts which he made to safety
director Jerry Ratliff, and indicated that Mr. Ratliff
expressed some dissatisfaction with his filing a grievance.
Mr. Johnson conced~d that Mr. Ratliff never abused him
verbally, and never threatened him because of his complaints,
but that he did give him some "dirty or hateful looks" (Tr.
87-89).
Mr. Ratliff 1s unrebutted testimony, which I find credible, reflects that while he and Mr. Johnson sometimes had
differences of opinion over the substance and merits of
Mr. Johnson's complaints, Mr. Ratliff always addressed them
in any effort to take corrective action, and that ~~r. Johnson
still brings safety matters to Mr. Ratliff's attention in his
capacity as a safety committeeman. Further, Mr. Ratliff's
unrebutted testimony establishes that he had nothing to do
with the realignmentv and took no part in that decision.
In his deposition of June 9u Mro Johnson alluded to a
complaint he made to section foreman Randy Smith concerning a
bad roof condition. While he asserted that Mr. Smith had a
"bad attitude" against him, Mr. Johnson confirmed that
Mr" Smith allowed him to withdraw his mining machine from the
bad top area and assigned him to work in another area until
the roof conditions were subsequently corrected. Conceding
that Mr. Smith disagreed with his safety assessment of the
bad top 1 Mr. Johnson confirmed that Mr. Smith displayed no
anger towards himu did nothing to suggest that "he would get
back to him,~ or in any manner suggested that he would transfer him because of his complaint (Tr. 26-27).
With regard to his encounter with foreman Otis Slone
when Mr. Johnson confronted Mr. Slone and questioned the

1889

wisdom of his working under the ripper head of a mining
machine, Mr. Johnson stated in his deposition that Mr. Slone
displayed his anger towards him.
However, he conceded that
neither Mr. Slone, Mr. Ratliff, or Mr. Gerald Mullins ever
threatened him, or in any manner indicated that they would
transfer him because of this complaint (Tr. 52-53). As a
matter of fact, during the course of the hearing, Mr. Johnson
admitted that he may have provoked Mr. Slone during this
encounter (Tr. 51-52). Mr. Johnson also admitted that he too
is prone to anger and that he sometimes loses his. temper when
dealing with his foremen (Tr. 33).
Mr. Johnson alluded to his 1985 receipt of an "unsatisfactory work slip" from Mr. Slone as an example of past
harassment. The record shows that when the slip was issued
Mr. Johnson was not a safety committeeman, and that the slip
was issued because Mr. Slone believed that Mr. Johnson was
"goofing off" and that he and his entire work crew were slowing down production. Mr. Johnson filed a grievance, and it
was subsequently withdrawn 'after Mr. Johnson showed improvement in his work (Exhibits C-11, C-12). Mr. Slone testified
that Mr. Johnson had previously been warned about his work,
and Mr. Johnson denied that was the case, but did admit that
Mr. Slone had previously "talked to him" about his work performance.
Upon review and consideration of the facts surrounding this "work slip" incident, I cannot conclude that
the slip was issued by Mr. Slone to harass Mr. Johnson.
During the course of the hearing, when pressed for
details concerning any acts of harassment, threats, or hostility exhibited by management towards him, Mr. Johnson responded
with his conclusory beliefs that management did not like him
"for what I stand for" (Tr. 66), and that it displayed resentment, anger, and rejection because of his safety concerns (Tr.
95-96). Mr. Johnson stated that "nine times out of ten, with
myself, you end up with a big argument" over his safety complaints (Tr. 93-94). Notwithstanding these beliefs of resentment by management, Mr. Johnson conceded that it nonetheless
addressed his safety complaints and took appropriate corrective action (Tr. 84-101).
Although not specifically pleaded as incidents of alleged
management acts of harassment, during the course of the hearing Mr. Johnson and Mr. Boyd implied that management 1 s harassment of Mr. Johnson resulted inu or forced Mr. Johnson to file
formal safety and other grievances.
A discussion of these
grievances follows.

1890

In a prior grievance arbitrated in August, 1985, in connection with a job posting issue, the arbitrator noted that
when Mr. Johnson expressed fear in operating his mining
machine in a pillar section to which he was being transferred,
the respondent accommodated his concerns and reassigned him
elsewhere. The arbitrator found that by virtue of a company
favor, rather than a contractual right, Mr. Johnson was transferred from normal work of which he had a fear to temporary
duties while awaiting an appropriate opening to which he could
be assigned on a permanent basis (Arbitration Decision, pg. 7,
exhibit R-4).
·
In a grievance filed on January 15, 1984, Mr. Johnson
protested his assignment-to a "floater joo" after the respondent assigned an employee junior to him as a permanent equipment operator while Mr. Johnson was designated a "floater."
Mr. Johnson contended that his assignment as a "floater" was
made in retaliation for safety complaints he had lodged. The
arbitrator rejected this contention and found no evidence of
retaliation by management because of Mr. Johnson's safety
complaints (exhibit R-3, pg. 5). Citing numerous instances
where Mr. Johnson was reassigned during January and February,
1984, the arbitrator further found no evidence of a pattern
of abuse and concluded that management acted within its contractual authority in making the reassignments (pgs. 11-13).
After consideration of all of the testimony and evidence
adduced in this case, I find no probative or credible evidence
to support Mr. Johnson's assertions that mine management
harassed or intimidated him because of his complaints or the
exercise of any protected safety rights incident to his
service as a safety committeeman, and Mr. Johnson's assertions
in this regard ARE REJECTED.
Mine Managementus Motivation for the Realignment of June 2v
1986
In my view, the thrust of Mr. Johnson's complaint is the
claim that shift foreman Charles Morley and mine foreman Otis
Slone exhibited a disregard for safety through their "attitude" towards him as the safety committeeman, and by their
efforts to transfer him from a producing section to a nonproducing construction area, thereby effectively restricting the
area of the mine where he could effectively function as a
safety committeeman on behalf of his fellow miners who looked
to him as their leader.
In support of the claimed discrimination in this case,
Mr. Johnson believes that Mr. Morley and Mr. Slone, the two

1891

key principals who made the realignment decision with respect
to the make-up of the newly aligned work crews, aided and
abetted by other key management officials, conspired to transfer Mr. Johnson in order to isolate him and to restrict his
safety activities.
In his posthearing brief, and in further reliance on his
claims of past and ongoing discrimination, Mr. Johnson's representative Boyd points to the fact that after the realignment,
production on the longwall section showed no improvement, and
that this does not support the respondent's asser.tion that the
realignment was prompted out of management's concern for production. Mr. Boyd further relies on the testimony of
Mr. Thacker and Mr. Varner in support of his argument that
mine management, through Mr. Matheny, and with the "blessing"
of mine manager Kinder, attempted to "bribe" Mr. Thacker to
bid on the longwall faceman's job with an offer of extra shift
work, in order to prevent Mr. Johnson from getting the job.
Conceding the fact that this purported "bribe" came well after
the realignment, Mr. Boyd concludes that this was simply
another discrimiriatory management attempt to prevent
Mr. Johnson from effectively functioning as a safety committeeman. Finally, Mr. Boyd points to the statement by Mr. Kinder
after the realignment, that the realignment was the result of
''too many chicken shit complaints, 11 in support of his conclusion that the realignment was retaliatory.
Mr. Kinder's statement must be taken in context.
Mr. Melton testified that during one meeting with Mr. Kinder
and the union concerning the realignment, and in response to
a question from Mr. Melton as to why Mr. Damron was realigned,
Mr. Kinder responded "because they had made too many chic~en
complaints and the production was not what it should be up
n
(Tr. 45). In a subsequent meeting with Mr. Kinder, and
_:_...:.:...;:...;;;;,...=.
n response to a question from Mr. Melton as to why
Mr. Johnson, Mr. Damron, and Mr. Ratliff had been realigned,
Mr. Melton testified that Mr. Kinder responded "because the
section was not producing the way it should" (Tr. 48).
Mr. Melton admitted that at no time did Mr. Kinder mention
safety complaints and he conceded that he simply assumed ana
speculated that Mr. Kinder had in mind safety complaints (Tr.
48),
Furtherg there is absolutely no testimony or evidence
that Mr. Kinder ever mentioned safetv complaints as the basis
fer the realignment.
Mr. Russell Ratliff confirmed that at the time of the
realignmentu he was not a safety committeeman, and while he
was of the opinion that his prior safety complaints resulted
in his realignment, he conceded that other miners who made

1892

safety complaints were not affected by the realignment.
Mr. Ratliff also confirmed that at no time prior to the
realignment did Mr. Kinder aver mention anything to him about
making any "chicken shit complaints," and when asked about
the types of complaints Mr. Kinder may have had in mind when
he made his statement, Mr. Ratliff replied "all the complaints
in general."
Mr. Damron, who also serves as uaion vice-president,
stated that he heard Mr. Kinder's comment, but indicated that
"I can't recall exactly what he said, but he sai~ there have
been a lot of chicken shit complaints up there." Mr. Damron
confirmed that other miners also made complaints, but he could
think of no other complaining miners who were realigned, and
he confirmed that 17 others were relocated to other work
shifts as a result of the section closing down and the
realignment.
The record in this case shows that both prior to, and
after the realignment, the union met with management to discuss the proposed realignment. The record also shows that
management's concern to increase production on the first and
second right sections in anticipation of placing the longwall
section in production prompted it to seek help from the union
by having the men agree to work extra shifts on Saturdays, but
that this suggestion was rejected by the union. Mr. Kinder
testified that he made the decision that the realignment was
necessary in order to add a third shift composed of personnel
from the other two shifts in order to speed up the production
rate of those sections in preparation for the longwall.
Mr" Kinder testified that he had nothing to do with the
selection or make-up
the realigned crews 1 that such decisions are made by Mr. Hodges and the respective foremen, and
he denied that he ever discussed the particular make-up of
the crews with his foremen or Mr. Hodges.
Having viewed
Mr. Kinder during his testimony at the hearing, he impressed
me as a candid and straightforward individual, and I find him
to be a credible witness. Given the fact that the initial
purchase of the longwall, and the anticipated realignment,
was the subject of much debate among management and the
union, and given the obvious past and ongoing tensions that
existed and still exists between management and the union
over past grievances complaintsv and controversies as
reflected by the record in this case, L am convinced that
Mr. Kinder, as the mine manager responsible for the overall
operation of the mine, found himself frustrated over his
attempts to solve his production problems.
In this setting,
I am further convinced that Mr. Kinder's statement concerning

1893

.. chicken complaints," which was made in conjunction with his
stated concerns over the lagging production rate of the two
sections which were driving towards completion in anticipation of the longwall, and which was made subsequent to the
realignment in a rather off-handed fashion, was the result of
his legitimate concern and frustration over production, rather
than any concern over past safety complaints.
I conclude and find that Mr. Kinder's decision to implement the work force realignment in question was well within his
management prerogative, and that his decision in this regard
was prompted by his intent to attempt to increase production
rather than to isolate Mr. Johnson as a safety committeeman, or
to otherwise retaliate against him for his activities as a
safety committeeman.
The record in this case establishes that the realignment
affected miners other than Mr. Johnson, and that rank-and-file
miners, as well as foreman ·were moved. Miners other than
Mr. Johnson were moved from their jobs on the second shift
production section to the construction section, and the entire
382 working section was eliminated. Mr. Melton conceded that
at least 25 to 40 miners were affected by the realignment;
Mr. Damron believed that at least 17 miners were relocated to
other shifts as a result of the elimination of the former
producing section; and Mr. Boyd conceded that miners working
with Mr. Johnson on the second shift producing section were
affected by the realignment. Given these circumstances, and
the fact that Mr. Johnson is still serving as a safety committeeman, with no loss of pay or other job rights on the same
work shift, I find it most difficult to believe that mine
management would have conspired to engineer the realignment
simply to restrict Mro Johnsonns safety activities.
I find no
credible evidence of any disparate treatment of Mr. Johnson.
Mr. Boyd argued that as a result of the realignment,
everyone else affected with the exception of Mr. Johnson,
Mr. Ratliffv and Mr. Damronu were realigned by seniority and
job classification. Mr. Boyd took contradictory positions on
this issue during the hearing. On the one hand, he insisted
that the realignment was illegal because seniority was not
followed, and he asserted that the union had prevailed in
prior grievances on the issues of realignment, job classification, and seniority rights. On the other hand, Mr. Boyd confirmed that there was no requirement for seniority and job
classification considerations during such realignments.
Mr. Boyd was invited to present further arguments in his posthearing brief with regard to these issues, as well as the

1894

contractual implications of the realignment, but he did not
do so.
Mr. Hodges confirmed that the respondent need not consider seniority when making work force realignments, and that
numerous arbitration decisions have sustained management's
prerogative to make job assignments (Tr. 441-442). Respondent's counsel introduced two such arbitration decisions,
(exhibits R-3 and R-4), and he indicated that one such case
(R-3), concerned the precise issue as to whether the respondent may align by seniority, and that the arbitrator rejected
Mr. Johnson's contentions that he was realigned because of
his safety complaints (Tr. 441-442).
Mr. Melton confirmed that Mr. A. B. Thacker, was the
only other safety corrunitteeman affected by the realignment.
Yet, there is no suggestion that Mr. Thacker believed his
realignment resulted from his service as a safety committeeman. Mr. Melton explained_ that Mr. Thacker lacked enough
seniority to maintain his job after the realignment. One may
conclude from this that the Union's position with respect to
the realignment, focused on the seniority rights of those
affected, rather than on any safety complaints. Further
support for this conclusion may also be found in the position
taken by Mr. Johnson's representative Boyd with respect to
the merits of the realignment. Although he first indicated
that there was no requirement that seniority be followed in
the realignment, he insisted that the entire realignment was
illegal because the respondent failed to follow the applicable contractual seniority and job classification requirements.
Given this position, I find it rather strange that the union
failed to file a grievance challenging the purported illegality of the realignment.
In his posthearing briefv Mr. Boyd suggested that coal
production on the first right section was low because of
adverse roof conditions, and that subsequent to the realignment? production did not pick up. While this may be true, I
am not convinced that production was consistently low on the
section because of roof conditions. Although the respondent
stipulated that shortly before and after the realignment, the
top in the first right section was bad (Tr. 139l1 the cecord
reflects that managementvs concern for lagging production had
been a long-standing concern for at least a year or so prior
to the realignment, and it was out of this concern that
Mr. Slone took the entire crew out of the mine in 1985 at the
time he gave Mr. Johnson an unsatisfactory work slip.

1895

Miner operator Jerry Hicks, who•worked on Mr. Johnson's
section, confirmed that the section "was awful low on production," and that Mr. Slone spoke to the crew about picking up
their production rate. He also confirmed that Mr. Slone mentioned eliminating the coffee breaks, and would sometimes
admonish the crew about "waiting around" for their work
instructions.
Mine foreman Morley's unrebutted·testimony was that the
first right section was at least 2 months behind .its anticipated completion, and that at the time he realigned the crews,
production was not moving like it should have (Tr. 153-156).
Section foreman Slone testified that the production on the
section was "way behind", on a day-to-day basis (Tr. 318).
Mr. Damron confirmed that production was low on his section, and he too attributed it to the roof conditions (Tr.
326).
However, he confirmed that he only made one complaint
about the roof conditions, and that this occurred several
weeks before the re~lignment (Tr. 328).
Although Mr. Melton initially indicated that he could
find no legitimate reason for the realignment, he subsequently
conceded that it was made in preparation for the longwall,
that management was concerned with production, and that he had
discussed management 1 s concern over the low production on the
advancing section with management several weeks before the
realignment, including management's request for Saturday work
by the crew to pick up their production rate in anticipation
of the longwall installation.
I find nothing in Mr. Melton's
testimony to suggest that low production was the result of
adverse roof conditions. While it is true that Mr. Melton did
not work on a producing section and may not have been aware of
any adverse roof conditionsu I find it hard to believe that in
his capacity as chairman of the mine committee, he would not
have been aware of any consistently bad top conditions or complaints from miners in this regard.
In response to a hypothetical bench question as to
whether or not mine managementr believing that Mr. Johnson,
Mr. Damron, and Mr. Ratliff were "non-producers," could
legally and contractually reassign them to a non-producing
section, Mr. Melton responded in the aEfirmative so long they
were retained in their job classification at the same rate of
pay.
In Mr. Johnson 1 s case, Mr. Melton conceded that
Mr. Johnson was realigned with his pay and job classification
intact, on the same work shift, and that he still remained a
saf '3ty committeeman ('fr. 83-84).

1896

I have carefully reviewed the testimony of the miners
who testified in this case, and while it was true that adverse
roof conditions were encountered from time-to-time, I find
nothing to suggest that such conditions prevailed for any long
period of time, or that any such adverse roof conditions
regularly impacted to any great degree on the low production
rate or low advance rate which was of concern to management.
The testimony of mine management.personnel Hodges,
Kinder, Morley, and Slone, which I find credible, corroborates
management 1 s production concerns, and reflects ma'nagement 1 s
concern that the production on the first right section needed
to be addressed and speeded up so as to insure its timely completion and connection with the anticipated longwall. I conclude and find that the realignment of June 2, 1986, resulted
from management's legitimate concern that the production
needed to be improved, and that in deciding to proceed with
the realignment, management was motivated by its intentions to
increase the rate of speed at which the production section was
advancing, rather than to attempt to isolate any safety committeemen because of their complaints.
With regard to the actual implementation of the realignment and the role played by Mr. Slone and Mr. Morley in the
selection and assignment of the crews, the record establishes
that they alone made the crew selections on Friday, May 30,
1986, and Mr. Boyd confirmed that they had the authority to
make such decisions (Tr. 451). Mr. Hodges testified that when
he gave Mr. Melton the list, it was not a list showing the
actual realigned work force, and that he informed Mr. Melton
that the list was subject to changes after Mr. Slone and
Mr. Morley reviewed
for the purpose of "slotting" employees
to their realigned positions. Mr. Melton admitted that
Mro Hodges advised him in advance of the actual realignment
that the list was subject to change. Although the list in
question no longer exists and was apparently destroyed after
Mr. Melton posted it, I accept as credible and plausible
Mr. Hodgesn explanation with regard to his role in the realignment,
eluding the use of the personnel data and "lists"
reflected by exhibits R-5 through R-7).
All of the management individuals who were either directly
or indirectly involved in the realignment (Hodges, Morley,
Slone>r testified that no effort was made to assign Mr. Johnson
to the construction crew because of his safety complaints or
service as a safety committeeman. Mr. Kinder testified that he
made his realignment decision without regard to personalities,
did not discuss the make-up of the crews with Mr. Slone or
Mr. Morley, and that his realignment decision was in no way

1897

motivated by any desire to get rid of Mr. Johnson. Likewise,
section foreman Randy Smith denied that he ever spoke with
Mr. Slone about transferring Mr. Johnson, or that he harbored
any animosity toward Mr. Johnson, or sought to retaliate
against him because of his safety complaints. Safety Director
Jerry Ratliff, who has had, and continues to have, regular contact with Mr. Johnson, testified that he was unaware of any
discussions or suggestions that Mr. Johnson be transferred to
the construction section because of his safety complaints, or
that mine management sought to punish Mr. Johnson. for his
safety complaints.
Although it is true that Mr. Morley and Mr. Slone were
aware of Mr. Johnson's past safety complaints at the time they
made up the realigned work crews, they both denied that
Mr. Johnson's safety activities influenced them, or played any
part in their decision to transfer him to the construction
section. The record reflects that both Mr. Morley and
Mr. Slone had in the past,_ experienced differences of opinions
with Mr. Johnson's-asserted safety concerns and complaints.
Mr. Slone readily admitted that some of his discussions with
Mr. Johnson were "heated" and that he became upset over some
of Mr. Johnson's complaints which Mr. Slone believed were
invalid. Likewiser Mr. Morley considered some of Mr. Johnson's
complaints to be invalid, and he conceded that Mr. Johnson's
complaints did cause delays in production. Given these circumstances, and notwithstanding Mr. Morley's and Mr. Slone's
denials to the contrary, there is an inference that
Mr. Johnson's safety activities did influence Mr. Morley and
Mr. Slone in their collective decision to transfer Mr. Johnson
to the construction section. Nevertheless, if it can be shown
by a preponderance of the evidence that the decision by
Mro Morley and Mro Slone with respect to the make-up of the
work crews was motivated by their legitimate concern to
increase production~ the motivational factor behind management's initial decision for the need of a realignment, any
inference of discriminatory intent may ba successfully
rebuttedo
Mr. Morley testified that his primary concern in assigning miners to particular work crews was to insure a good mix
of productive people who could work together harmoniously in
order to achieve mine management 1 s production objectives.
Mro Morley candidly conceded that he considered the personalities and work habits of all available personnel, concluded
that there should be a different mix of people, including
foremen, in order to improve production, and that he freely
discussed this with Mr. Slone. With regard to the slotting
of Mr. Johnson, as well as Mr. Damron, Mr. Morley believed

1898

that their past work performance was less than adequate.
Mr. Morley further believed that the continuous miner positions in the realigned section would be most critical to any
attempts to increase production and he concluded that those
9ositions which had previously been occupied by Mr. Johnson
and Mr. Damron should be filled by someone else on the newly
created production section.
Mr. Morley stated that Mr. Slone-shared his view with
respect to the past work performance of Mr. Johnspn, and in
fact it was Mr. Slone who suggested that changes should be
made in the crew assignment of continuous miner operators,
and it was Mr. Slone who informed Mr. Morley that Mr. Johnson
was a slow machine operator and that he and section foreman
Smith had problems keeping Mr. Johnson's section moving at a
pace to suit him.
Further, as indicated earlier, Mr. Slone
had previously warned and spoken to Mr. ·Johnson about his
work, issued him an unsatisfactory work slip, and had made
previous statements to Mr. Johnson that he did not want to
work.
Mr. Morley was directly involved in the prior warning
to Mr. Johnson, and miner operator Jerry Hicks corroborated
the fact that Mr. Morley believed that the low production on
the section was the result of unsatisfactory work by the
entire crew, and that Mr. Morley gave them all a warning in
this regard. Mr. Slone confirmed that he recommended to
Mr. Morley that Mr. Johnson be moved off the first right section, and he corroborated the fact that he discussed the
make-up of the crews with Mr. Morley.
Mr. Morley asserted that his decision with respect to
his desire to obtain a different mix or personalties on the
newly aligned work crews was equally applied to personnel on
the second right section shift, as well as Mr. Johnson's
shift, and that foremen, as well as union personnel were
moved in his attempts to "get a better chemistry or something
going up there an get production going" (Tr. 169). Conceding
that production did not substantially increase after the
realignment, Mr. Morley insisted that his intent in making up
the particular work crews was aimed at increasing production.
I conclude and find that Mr. Morley and Mr. Slone were
simply carrying out their management responsibilities in implementing the realignment decision made by Mr. Kinder. There is
nothing to suggest that Mr. Morley or Mr. Slone initiated the
realignment or made any suggestions to Mr. Kinder that a
realignment was necessary in order to isola±e Mr. Johnson.
As
a matter of fact, Mr. Boyd conceded that he had no reason to
believe that Mr. Slone had anything to do with the initial
realignment decision (Tr. 190).

1899

Having viewed Mr. Morley and Mr. Slone during their testimony at the hearing, I find them to be credible individuals.
I find no credible basis for concluding that Mr. Johnson was
treated any differently from other miners with respect to the
selections and decisions made by Mr. Morley and Mr. Slone in
realigning the available work force.
The record clearly
establishes that one entire section was abolished, and that
foremen as well rank-and-file miners,- including other miners
on Mr. Johnson's shift, were affected by realignment, and
that some miners who had complained about safety ~ere not
realigned. Mr. Melton confirmed that with the exception of
Mr. Johnson, Mr. Ratliff, and Mr. Damron, the remaining miners
affected by the realignment were "pacified and everything was
fine as far as they were concerned" (Tr. 75).
With regard to the purported "adverse" decision by management to realign the work forcer I take note of the Commission's
decision in Bradley v. Belva Coal Company, 4 FMSHRC 982 (June
1982). Citing its Fasula and Chacon decisions, the Commission
stated in pertinegt part ~s follows at 4 FMSHRC 993:
"* * *
Our function is riot to pass on the wisdom or fairness of such
asserted business justifications, but rather only to determine
whether they are credible and, if so, whether they would have
motivated the particular operator as claimed."
I conclude and find that Mr. Morley and Mr. Slone acted
well within their managerial and discretionary authority in
deciding upon which particular personnel at their disposal
would be transferred or realigned.
Acting within their
authority as managers, they were fr:~e to a1ake j:1dgmenl:s 3.nd
decisions with respect to the relative work performance levels
of the
lable personnel, including any personality traits
or work habits which they believed were required to assure
that a productive and harmonious group of workers were available to achieve management's production objectives.
I find Mr. Morley's explanation as to the factors which
he and Mr" Slone chose to follow in making their crew selections to be reasonable and plausible, and that their seleccion
sions were motivated by their good faith intentions
to attempt to increase production in anticipation of the lon'::]wall r rather than to discriminate against Mr. Johnson or to
isolate hiin .Eor his safety complaints or his activities as a
safety committeeman.
I reject Mr. Johnson 1 s assumptions and
conclusions that management somehow conspired to realign him
out of
iation for his safety activities. Mr. Johnson's
service as a safety committeeman does not insulate him from
legitimate managerial business-related non-discriminatory

1900

personnel actions, UMWA ex rel Billy Dale Wise v.
Consolidation Coal Company, 4 FMSHRC 1307 (July 1982), aff'd
by the Commission at 6 FMSHRC 1447 (June 1984); Ronnie R.
Ross, et. al v. Monterey Coal Company, et. al., 3 FMSHRC 1171
(May 1981).
With regard to the issue raised for the first time at
the hearing by the union concerning an alleged "bribe" by
management as an indication of its purported attempt to keep
Mr. Johnson off of the producing longwall section, I take
note of the fact that this alleged incident occui~ed well
after the realignment, and there is absolutely no evidence to
suggest that Mr. Morley or Mr. Slone were involved in that
alleged incident.
The issue concerning the bidding for the longwall faceman' s job which Mr. Johnson now occupies was the subject of
arbitration. The record establishes that after a formal arbitration hearing held on February 18, 1987, Mr. Johnson was
awarded the job (exhibit C-1). In that proceeding, Mr. Hodges
and Mr. Matheny appeared on behalf of management, and
Mr. Melton, Mr. Johnson, Mr. Thacker, and Mr. Varney appeared
on behalf of Mr. Johnson.
The union's position with respect to Mr. Johnson's grievance, as reflected by the arbitrator's decision, was that the
respondent was attempting to circumvent the contract and not
award the job to Mr. Johnson because he was a safety committeeman. In sustaining Mr. Johnson's grievance and awarding
him the job, the arbitrator based his decision on a finding
that the respondent failed to follow established company
policy prohibiting anyone but the actual job bidder from adding or deleting a bidder's name from the bid sheet. The arbitrator rejected the claim that the respondent attempted to
bypass Mro Johnson because he was a safety committeeman. In
doing so, the arbitrator found that there was no evidence
which even suggested that this was the case (exhibit C-1, pg.
5)

0

Although I am not bound by decisions of arbitrators 9 I
may nonetheless give deference to an arbitrator 1 s '1 specialized
competence" in interpreting a provision of any applicable
labor-management agreements. Chadrick Casebolt v. Falcon Coal
Company, Inc. 1 6 FMSHRC 485v 495 (February 1984); David Hollis
v. Consolidation Coal Company, 6 FMSHRC 21, 26-27 (January
1984); Secretary on behalf of Fasula v. Consolidation Coal Co.r
2 FMSHRC 2786 (October 1980), rev'd on other grounds sub~·
Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3d Cir.
1981).

1901

I take particular note of the arbitrator's comments at
page four of his decision that a full and complete hearing was
conducted and that the parties had an ample opportunity to
present evidence in support of their claims.
I note the arbitrator's comment that the union's assertion that Mr. Johnson
was bypassed because he was a committeeman was made in closing
arguments, and his conclusion that the union submitted no evidence to even suggest that Mr. Johnson's status as a safety
corrunitteeman had anything to do with the job bid .in question.
Neither party presented any posthearing discussion with
regard to the prior arbitration hearing. The respondent
simply characterized the alleged "bribe 11 as an "incredible"
pretexual fabrication by the union to discredit management.
The complainant simply concludes that the arbitrator's ruling
that the bid made by the employee in competition with
Mr. Johnson was too late, and that a foreman could not add a
bidder's name on the job bid, "shows true signs of discrimination on the company's part."
In this case, Mr. Thacker's testimony is devoid of any
credible statements to indicate or even suggest that at the
time Mr. Matheny may have discussed the job bids with him,
Mr. Matheny said anything directly or indirectly that would
lead Mr. Thacker to conclude that Mr. Matheny made any job
overtures to him with the intent to isolate or get rid of
Mr. Johnson. Mr. Thacker admitted that his belief that
Mr. Matheny did not want Mr. Johnson to get the longwall
faceman's job was based on speculation, and that Mr. Matheny
did not mention Mr. Johnsun by name.
Mr. Varner first testified that Mr. Thacker told him
that Mr. ~atheny wanted him to bid for the faceman's job in
order "to beat Eddie out of it." He later stated that
Mr. Thacker indicated to him that Mr. Matheny did not identify Mr. Johnson as the individual who he was trying to keep
out of the section. Thus, Mr. Varner not only contradicts
himself, but he contradicts Mr. Thacker's testimony that
Mr. Johnson did not mention Mr. Johnson's name at all.
Mr. Varner also testified that it was he who suggested
to Mr. Thacker that Mr. Matheny was trying to keep Mr. Johnson
off the section for fear he would shut it down because of
methane. Mr. Varner confirmed that he made the suggestion in
response to an injury from Mr. Thacker as why anyone would ask
him to bid for the job. This also contradicts Mr. Thacker's
statement indicating that it was he who told Mr. Varner that
Mr. Matheny wanted to get Mr. Johnson off the section.

1902

After careful consideration of the testimony of
Mr. Thacker and Mr. Varner, which I conclude is contradictory,
and lacking in credibility, and taking into consideration the
arbitrator's finding with respect to the merits of the alleged
"bribe," I reject the complainant's assertion that Mr. Matheny,
or anyone else, made an offer to Mr. Thacker with the int~nt to
exclude Mr. Johnson from the longwall section in order to prevent him from functioning as a safety-committeeman or to prevent him from making complaints.

ORDER
In view of the foregoing findings and conclusions, and
on the basis of a preponderance of all of the credible testimony and evidence adduced in this case, I conclude and find
that the complainant has failed to establish that the realignment of June 2, 1986, was in any way discriminatory, or was
motivated by the respondent's intent to prevent him from exercising any protected rights with respect to his employment as
a miner or in his capacity as a member of the safety committee. Even had the complainant established a prima facie case,
I conclude that it was clearly rebutted by the respondent's
credible evidence which established that the realignment constituted a reasonable and plausible business-related and
non-discriminatory effort by management to increase production
in order to facilitate and expedite the installation of the
longwall. Accordingly, the complaint IS DISMISSED, and the
complainant's claims for relief, including costs, ARE DENIED •

.···Lt~~ 1!1/~

/G~ige ~

Koutras
Administrative Law Judge

Distribution~

Mro James Boyd, UMWA District 30 Representativev Safety
Department 7 Williamson Road, Pikeville, KY 41501
(Certified Mail)
Edward No Hall, Esq" 7 Robinson & McElweeu PoOo Box 1580,
Lexington 1 KY 40592 (Certified Mail)
/fb

1903

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

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 2 1987
EMERALD MINES COMPANY,
Contestant

.
.

v.
SECRETARY OF LABOR.,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA),
Respondent
and
LOCAL UNION 1889, DIS·l'RICT 17

UNITED MINE WORKERS OJ?
Ai.\1ERICA,
Intervenor

..
..
..

CONTEST PROCEEDING

Docket No. PENN 85-298-R
Citation No. 24018631 8/8/85
Emerald No. 1 Mine

DECISION
Appearances:

Before~

R. Henry Moore, Esq., Buchanan Ingersoll
Professional Corporation, Pittsburgh, Pennsylvania
for Emerald Mines Company;
Edward H. Fitch, Esq., Office of the Solicitor,
U. S. Department of Laboru Arlingtonu Virginia for
the Secretary of Labor,
Mary Lu Jordanu Esq.u United Mine Workers of
Americau Washingtonv DoCo for the Intervenor

Judge Gary Melick

This case is before me upon re.nand by a majority of
the Co:nmission far further proceedings consistent with its
decision dated September 30v 1987. On October 27v 1987u the
following stipulations were filed with the undersigned~

1.
On August 8 l985v at a~oo a.rn., Inspector Koscho
issued Citation No. 2401863 cncitation") purportedly
pursuant to Section 104Ca} of the Federal Mine Safety
and Health Act of 1977 ("the Act"), 30 O.S.C. § 814(a),
alleging a violation of 30 c.F.R. 75.308.
2.
Under the heading and caption "Condition or Practice,"
the Citation alleged as follows:

1904

During a l03(G)(l) investigation it is determined that
power from the continuous miner Serial No. JM 2567 was
not immediately de-energized when 2.5% to 2.6% methane
was detected; also changes were made in the ventilation
in the working places before the continuous miner in
the working place was de-energized. The incidence
[sic] took place in No. 1 Haulage 002 section in a
crosscut being driven· from 3 Room to 2 Room on 7/29/85.
3.
The Citation alleged that the alleged violation was of
such a nature as could significantly and substantially
contribute to the cause and effect of a coal mine safety or
health hazardc
4.
On August 23, 1985, at 8:15 a.~., Inspector Koscho
modified the Citation to a Section 104(d) citation, thereby
alleging an unwarrantable failure to comply with the
mandatory standard.
5.
On Septernber,6, 1985, Emerald filed a Notice of Contest
challenging the Citation and the modification of the
Citation to a Section 104(d) citation and the special
finding of "unwarrantable failure."
6.
A proposed penalty was issued for the 104(a) Citation
in September, 1985, and was paid by Emerald on October 11,
1985.
7.
On November 18, 1985, the Secretary filed a Motion to
Dismiss Proceedings on the basis that the Notice of Contest
was moot because Emerald paid the proposed penalty. Emerald
filed a response to the Secretary's Motion to Dismisso

80
On November 15, 1985, Emerald filed a Motion for
Partial Summary Judgment as to the unwarrantable failure
allegation. · The principal ground for this Motion was that
the Citation was based upon an after-the-fact investigation
and, thereforeu could not properly be based upon Section
104(d) of the Acto The Secretary filed a response to
Emerald's Motion"
9
A hearing was held before the Administrative Law Judge
on January 22, 19860 The hearing was limited to the issues
raised by the parties' Motionso
0

10. On March 5, 1986, the .Administrative Law Judge issued
his decision.
He granted the Secretary's Motion to Dismiss
as to the fact of the violation and the significant and
substantial finding but denied it as to the unwarrantable
failure allegation and the allegation of a violation of

1905

Section 104Cd)(l) of the Act. He also granted Emerald 1 s
Motion for Partial Summary Judgment, modified the Citation
to a Section 104(a) Citation and deleted the unwarrantable
failure finding.
11. Intervenor, the United Mine Workers of America,
petitioned the Federal Mine Safety and Health Review
Commission for discretionary review of the Judge's decision
granting Emerald's Motion for Partial Summary Judgment, and
the Commission granted review on April 14, 198,6.
12. After briefing and oral argument, the Commission issued
a decision on September 30, 1987, reversing the
Administrative Law Judge's decision as to Emerald's Motion
for Partial Summary Judgment and vacating' his modification
of the Section 104{d) Citation to a Section 104(a). The
Commission remanded the case to the Administrative Law Judge
for further proceedings.
13. Emerald wishes in 'the near future to seek review by the
United States Court of Appeals of the Commission's decision
on the issue of whether a Section 104(d) violation and
unwarrantable failure finding may be based on an
after-the-fact investigation. It is unable to do so until a
final order is issued in this matter, and, for that reason,
it has entered into this Stipulation to facilitate and
expedite such review.
14. Emerald withdraws all its allegations challenging the
modification of the Citation to a Section 104(d) citation
except insofar as it has challenged such modification as
improperly based upon an after-the-fact investigationu
rather than an inspection and actual observance of the
conditions described in the Citationo Emerald now limits
its challenge of the unwarrantable failure finding and the
allegations of a violation of Section 104(d) to those issues
which the Administrative Law Judge addressed in deciding its
Motion for Partial Sununary Judgment and which were involved
in the Commissionus review of such decisionv ioeov whether a
Section 104Cd> violation can properly be based upon an
after-the-fact investigation rather than an inspection and
actual observance of the cited conditionso

150 With this limitation of the basis of Emerald~s
challenge to the modification of the Citation, the
Corrunission 1 s resolution of the issues raised by Emerald 1 s
Motion for Partial Summary Judgment as to whether a Section
104{d) violation may be based upon an after-the-fact
investigation is dispositive of Emerald 1 s Notice of Contest
and, on that basis, it is stipulated that it would be

1906

appropriate that a finding be entered denying Emerald's
Notice of Contest on the basis of the Commission's decision
in this matter.
16.

No further hearings are necessary in this matter.

17. An order may be entered denying Emerald's Notice of
Contest on the basis of the Commission's decision in this
matter since there are no other issues to be addressed in
this matter.
The above stipulations are accepted for purposes of these
proceedings. The Contest herein is accordingly denied and
dismissed on the basis of the Commission's decisi n in this case
rendered September 30, 1987.

Gary Mel
Administl ative
(703) 7; -6261
Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll Professio al
Corporation, 57th Floor, 600 Grant St., Pittsburgh, PA
CCerti.Eied Mail)

15219

Edward Ho Fitchv Esqo, Office of the Solicitorv Uo S. Department
of Laborv 4015 Wilson Blvd., ~rlingtonv VA 22203 (Certified
Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, DC 20005 (Certified Mail>
npt

1907

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

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

NOV 2 1987

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-191
A.C. No. 48-00086-03508

v.

Kemmerer Mine

PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioffer;
John' A. Bachmann, Esq., The Pittsburg & Midway Coal
Company, Denver, Colorado,
for Respondent.

Before~

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges Pittsburg and Midway Coal Company,
(P & M), with violating three safety regulations promulgated
under the Federal Mine Safety and Health Act, 30 u.s.c. § 801 et
~., (the Act).
A hearing on the merits took place on January 6 1987 in
Salt Lake C
, Utah. The parties filed post-trial briefs"

Issues
The issues presented are whether the violations occurred; if

so, what penalties are appropriate.
Citation No. 2831954
This citation alleges a violation of 30 C.FoR. § 77.603
provides~

which
§

770603

Clamping of trailing cables to equipment"

Trailing cables shall be clamped to machines in a manner
to protect the cables from damage and to prevent strain
on the electrical connections.
The violative condition is described in the subject citation
as follows:

1908

The junction box located in pit #1-VD supplying power
to the #809 overburden shovel does not have a straining
clamp on the 7200 Volt A.C. trailing cable. The cable
is very tight and not preventing a strain on the electrical
connections.
Summary of the Evidence
Melvin Potter, a person experienced in mining, has been an
electrical inspector for eight years. On May 6, 1986, he
inspected the Kemmerer Mine operated by P & M (Tr. 5-7).

MSH~

During the course of his inspection, as he went by a
junction box in the 1-VD pit, he could not see a straining
clamp l; on it (Tr. 7). The restrained cable was the trailing
cable for the shovel. The voltage in the cable was 7200 AC (Tr.
7 fl 8) •

A company electrician opened the junction box. Inside the
box he observed a wopden clamp, but it was not fastened and it
was loose from the cable (Tr. 8, 9). If it had been fastened it
would have served as a straining clamp for the 1000 or more foot
cable. When the inspector observed the trailing cable it was
taut and there was strain on it (Tr. 10).
Failing to secure the trailing cable could cause a phase to
ground fault or a phase to phase fault.
~ phase to phase would
energize the junction box and the rest of the system with 7200
volts (Tr. 13-15). If a miner touched the box he would be
electrocuted (Tr. 14).
In the inspector 0 s opinionu it was reasonably likely that an
injury could occur if the condition was not remedied.
In cross examination the inspector agreed that the citationv
as writtenv states there was no straining clamp on the cable (Tr.
40)

0

However there was a wooden block clamp in the box. But
the clamps were laying down in the box and not around the cable
(Tr o

42) •

When the inspector pointed out the failure to have a
restraining clamp in the box the electrician immediately put on a
wooden clamp {Tro 56-58)
The electrician said they had worked
on the box before the inspection and had apparently left the
clamp off.
0

Photographs, Exhibits Rl and R2, were not taken at the time
of the inspection (Tr. 56).

ll

A straining clamp goes on the cable to prevent strain on the
cable inside the box itself (Tr. 7).

1909

Called as a rebuttal witness, Inspector Potter identified
his notes made at the inspection. They indicated there was no
clamp on the cable (Tr. 242).
Richard Dovey, testifying for respondent, serves as P & M's
manager of safety and training (Tr. 60, 61).
The witness accompanied the inspection team. They initially
discussed the necessity of P & M placing firefighting equipment
on a utility's substation.
On two occasions the morning of the inspection the inspector
had driven by the 1-VD area. There was no external clamp on the
box. They called the electricians to shut down the shovel. A
photograph was taken on a identical junction box (Tr. 65, 55: Ex.
R3). The witness, Dave Ravnikar, Rex Playstead and Inspector
Potter were present at the time of the inspection.
When we approached the box Mr. Potter directed the inspection party to stop because he could not see a strain clamp.
However, when the box was opened he observed the wooden blocks
were located in their proper place. That is, two wooden blocks
with a hole cut in them held the cable (Tr. 68). The blocks
measure 8 inches by 8 inches with a hole approximately two and
one eighth inch (Tr. 69). The blocks cannot come out when the
lid is closed.
Company policy requires the shock blocks and straining
clamps on the trailing cables. This protects strain from the
inner mechanism of the box and it protects the cable against
scuffing on the metal edges of the boxes CTr. 71).
In the opinion of the witness the clamp qualifies as a
trailing clamp under § 7706030 The connectors inside the box
were protected from strain as a result of the clamp (Tr" 71, 72)"
After the inspection an external Clellen grip was installed. The
company representatives didn't tell the inspector they already
had a clamp in place because they hadn't decided if the inside
clamp in place was a legitimate cable strain (Tro 73)"
Witness Dovey~s basic statements to MSHA 1 s supervisory mine
inspector in Sheridan, Wyoming was the same as his testimony (Tr.
182-185)" However, the supervisor indicated that all of the
citations would stand as written (Tro 185, Ex. R7) o
Dovey didn 1 t disagree that the screws in the restraining
clamps were missing (Tr. 186).
Discussion
The evidence is conflicting as to whether a violation of the
regulation occurred.

1910

Inspector Potter testified the junction box did not have an
external straining clamp.
He agrees the citation was written in
this fashion.
But when the junction box was opened it was found
the box contained wooden blocks around the cable.
These blocks
suffice as a straining clamp.
Since the wooden blocks serve as a
restraining clamp it follows that P & M did not violate the
regulation.
I credit respondent's evidence that the cable was resting on
the two wooden blocks.
I disregard the inspector's evidence that
blocks were unfastened and loose from the cable.
Blocks measuring 8 11 x 8 11 in a junction box are not likely to become loose in a
box of this type.
In addition, it was not shown how any screws,
even if missing~ would affect the ability of the blocks to serve
as a straining clamp when the junction box was closed.

Citation No. 2831954 should be vacated.
Citation No. 2831955
This citation alleges a violation of 30 C.F.R. § 77.701
which provides:
§ 770701 Grounding metallic frames,

casings, and other
enclosures of electric equipment.

Metallic frames, casings, and other enclosures of
electric equipment that can become "alive" through
failure of insulation or by contact with energized
parts shall be grounded by methods approved by an
authorized representative of the Secretary.
The violative condition is described in the citation as
follows~

A 110 volt AC space heater located in the electrical
supervisor vs office is not equipped with a proper ground.
The heater was energized and in use.

Summary of the Evidence
On the same inspection Mro Potter found an ungrounded 110
volt AC metal-cased heater in the electrical supervisorvs office.
It had two phase wires plugged into a 110 v9lt outlet.
It lacked
a third wire for grounding (Tr. 16).
In addition, there was no
solid connection to any metal water lines having a low resistance
to earth.
Further, there was no grounding of any other type (Tr.
17)0 Failure to ground this type of heater could cause shock,
,
serious burns or a fatality.
If this condition continued and a
fault occurred you could reasonably expect a shock or serious
burn (Tr. 18, 19).

1911

The inspector did not check the inside of the heater to see
whether or not it was double insulated (Tr. 43). The back of
this appliance had a "UL" stamp of approval on it (Tr. 43).
The methods approved by the Secretary for grounding
equipment (30 C.F.R. 77.701-1) are the methods to be used for AC
equipment (Tr. 43, 44).
The inspector did not check to see whether the power system
from which this heater received its power was ungrounded.
However, he explained that the heater itself was not grounded.
And if a fault occurred on the heater, the fault could not go to
ground (Tr. 46, 48) •
The inspector was not sure if MSHA has a policy concerning
the grounding of appliances (Tr. 49).
In the inspector's opinion, the metal heater could have
been grounded by an extra wire back into the wall socket. Also a
three prong plug would have ,grounded it (Tr. 50, 51).
Witness Dovey, testifying for respondent, confirmed that
the heater lacked a three prong plug. However, the building
where the device was plugged was grounded and equipped with
circuit breakers (Tr. 111).
Witness Dinkel, called as an expert witness for the Secretary in rebuttal, indicated that equipment of this type must be
grounded regardless of UL approval (Tr. 220-222).
Witness Veneskey, testifying for P & M, expressed the
opinion that § 770701 applies to appliances (Tro 159) o The
witness expressed his views as to the § 770516 and the National
Electrical Code (Tro 160-162)0 The heater fits into the NEC
criteria (Tro 162}
The witness was not aware of any MSHA
requirement that appliances when brought out to the mine be
modified to include a ground plug if they do not have one from
the manufacturer (Tro 163)0
o

In cross exarninationu the witness, agreed the possibility
existed that the metal frame might become alive through a failure
of insulation or a contact or an energizing of the parts (Trc
164v l65u 168)0

Discussion
Section 770701 is not applicable or that it applies only to
electrical equipment from ungrounded AC power system. P & M, in

1912

support of its positioni cites the Secretary's regulations,
77.516 and 77.701-1. ~/

§

An analysis of relevant regulations indicates that § 77.516
was enacted under "Subpart F - Electrical Equipment - General".
I would be inclined to agree with P & M's views but § 77.701,
violated here, was enacted in "Subpart H - Grounding".
In sum,
the Secretary has enacted general regulations relating to
equipment as he did in Subpart F and he may generally require
that such equipment meet the NEC. He may then impose stricter
limitations, as he did, in relation to the grounding of such
equipment as in§ 77.700.
P & M further states that § 77.701-1 controls the scope of
77.701.
It contends that § 77.701-1 by its terms limits § 77.701 to ungrounded equipment. I do not agree. Section 77.701 by
its terms generally covers grounding. There is no indication the
subsequent regulation was enacted so as to limit§ 77.701.

§

The cases and textbook cited by P & M deal with general
rules of statutory qonstruction and they are not inopposite the
views expressed herein.
P & M's final argument is that MSHA has issued no policy or
interpretation requiring the replacement of two-prong plugs.
~/

§ 77.516

Electric wiring and equipment; installation
and maintenance.

In addition to the requirements of §§ 77.503 and 77.506,
all wiring and electrical equipment installed after June
30u 197lu shall meet the requirements of the National
Electric Code in effect at the time of installation.
§ 770701-1

Approved methods of grounding of equipment
receiving power from ungrounded alternating
current power systems.

For purposes of grounding metallic framesu casings and
other enclosures of equipment receiving power from ungrounded alternating current power systems, the following
methods of grounding will be approved.
(a) A solid connection between the metallic frame~ casing
or other metal enclosure and the grounded metallic sheathu
armor or conduit enclosing the power conductor feeding
the electric equipment enclosed;
{b) A solid connection to metal waterlines having low resistance to earth:
Cc) A solid connection to a grounding conductor extending
to a low-resistance ground field; and,
(d) Any other method of grounding, approved by an authorized
representative of the Secretary, which insures that there
is no difference in potential between such metal enclosures
and the earth.
1913

Therefore, the inspector's abatement requirements amount to
nothing more than his personal preference.
The regulation, in effect, provides that potentially
energized parts shall be grounded by methods approved by the duly
authorized representative of the Secretary, that is, the
inspector.
Several methods of grounding were available but in the
instant case a three way plug was required. It was not shown in
this case that the inspector exceeded his authority.
Citation No. 2831955 should be affirmed.
Citation No. 2831956
This citation alleges a violation of 30 C.F.R. § 77.502
which in its entirety provides:
§ 77.502 Electric equipment; examination, testing,

and

maintenance. ,
Electric equipment shall be frequently examined, tested,
and properly maintained by a qualified person to assure
safe operating conditions. When a potentially dangerous
condition is found on electric equipment, such equipment
shall be removed from service until such condition is
corrected. A record of such examinations shall be kept.
The violative condition is described in the citation as
follows:
The electrical equipment located in the Sorenson Draw
tunnel is not being properly inspected and maintainedu in
that the 24 volt telephone system has electrical wires
exposed and a toggle switch added allowing coal dust to
enter inside the telephoneo
Sununary of the Evidence
Inspector Potter inspected the 24-volt telephone in the
Sorenson Draw tunnel" He found the metal encased battery powered
system had a switch and two connectors on the outside of the
phone, It also had external connecting terminals that run to the
surface (Tro 19Q Ex. Rlu R2)
There was coal dust on the
terminals and on the batteries (Tro 20, 32). The external bare
clamps which carry 24-volt current and the toggle switch were not
on the phone. This allowed coal dust to enter the phone where
the wires were located. The bare wires were attached to a bare
clamp on the outside of the phone (Tr. 21, 22). There was also
coal dust in and around the clamps. The terminals, an inch and
half apart, could have provided a source of ignition (Tr. 22).
Coal dust would provide the fuel for the explosion. Small
explosions can keep expanding throughout an area (Tr. 24).
a

1914

The tunnel has conveyor belts; also one or two maintenance
people work there (Tr. 24).
The toggle switch was on the outside of the phone (Tr. 24,
25). It was not dust tight. You could see through to the
switch when you opened the door of the telephone (Tr. 25).
In the inspector's opinion, there was sufficient coal dust
on the interior of the phone to create a hazard (Tr. 26). The
opening in the phone could create a flame path to the exterior of
the phone CTr. 27).
Most phones have a sealed rubber type boot
over the switch (Tr. 27, 28). The boot prevents dust from
entering into the electrical components of the phone. The
inspector had never seen a telephone with an unprotected toggle
switch (Tro 28)" The telephone was tagged "approved for methane
only". Approval for methane is not equivalent to approval for
dust (Tro 29).
coal dust is more violatile than methane.
Methane will burn itself out but coal dust just "keeps going"
(Tr. 30).
This was a permanently installed phone and the tunnel was
always dusty (Tr. 30, 31).
In view of these conditions you could
reasonably expect a mine explosion. This tunnel has been cited
for coal dust in the past (Tr. 31}.
In cross examination, the inspector read from the definition
(Tr. 34). Under the definition a permissible phone could or could not be permissible in both gassy
and dusty locations (Tr. 36, 37). This particular phone was
methane proof, a higher standard than dust proof.
§ 30 C.F.R. Part 23(d)

Witness Dovey, testifying for respondent, described the use
of the telephone. During the inspection Dovey did not see any
light coming through the toggle switch hole.
Furtheru there was
no hole at the toggle switch (Tr. 9l)o
After the citation was issued Dovey researched the telephone.
He produced the maintenance manual for the telephones in the
tunnel. The manual had been obtained from the electrical
departmento
Dave Ravnikar also stated that the toggle switch had
not been added (Tr" 93, 94)" Dovey copied the identifying number
from the telephoneo But he didn't recall the manufacturer (Tr.
96) o Further, he didn't recall the ID number.
In addition, he
couldn 1 t say if it was the number that appears on the front page
of the exhibito
Howeverv he took the document down to compare it
to see if he had exactly the same phone (Tr. 96). Dovey didn't
know who published the exhibit (RS). The maintenance department
maintains manuals for the equipment at the mine (Tr. 97).
Such
records are generally maintained with a mine issuance number but
there is no such number on the phone (Tr. 97, 98). But he had
taken the information from the door on the phone (Tr. 98). A
manufacturer's name was present but Dovey did not recall it (Tr.
98). Dovey also didn't know if there had been any after acquired
phones (Tr. 98) •

1915

Comparisons between Exhibit R5 and photographs of the
telephone previously received in evidence indicates there was no
speaker, nameplate or labels on the telephone as depicted in the
offered exhibit~/ (Tr. 94-102, Ex. R5).
Dovey is familiar with the concept of permissible
communication systems in coal mines. Such a system can be placed
in a dusty, gaseous area. This particular tunnel has never been
classified (Tr. 106). According to the company brochure the
phone system was permissible (Tr. 107). This particular phone
has a sticker saying it is "MESA - approved permissible."
Permissible equipment is sealed to prevent dust or gas from
entering (Tr. 108). It is, accordingly, dust ignition proof.
The telephone was maintained in a proper operating condition
(Tr. 109). The connectors on the telephones were in the proper
holes (Tr. 109, 110). The toggle switch was intact and tight.
There was no dust in the telephone. It was a 12 volt phone and
the batteries were connected in parallel <Tr. 110).
TERRANCE DINKEL~ called as an expert rebuttal witness by the
Secretary, was identified as an electrical engineer for MSHA (Tr.
193-195).
In Dinkel vs opinion the telephone system was not
intrinsically or inherently safe. Intrinsically safe means a
device has insufficient energy to ignite the atmosphere present.
A 24-volt or a 12-volt, or a flashlight battery can ignite coal.
The light coming through the switch indicates the units were not
sealed (Tr. 197, 198, 203). Section 27-7Cd) of C.F.R. 30 requires batteries to be in sealed containers. Since there was
dust inside the cabinet it was not sealed (Tr. 199u 201) o
The telephone, as inspected by Mr. Potter, was potentially
dangerouso L~ is a matter of time before moisture and dust
accumulate and cause a short (Tro 205).

Protection from methane does not constitute protection from
coal dusto Coal can conduct current from one terminal to another
Tro 2 ) c Even though approved for methane a faulted circuit
could ignite the coal dust lying in its path (Tr. 219).
Witness Dinkel further stated that a device designated
permissible by MSHA is permissible in both dusty and gassy
locations (Tr. 22 6) "
In rebuttal Inspector Potter testified the telephone was
tagged as "permissible MESA for methane only" (Tr. 240).

3/ The judge sustained the Secretary's objection and excluded
Exhibit RS (Tr. 103, 105, 191-192, 248).

1916

The inspector's notes made at the time of the inspection
stated there was dust on the inside of the compartment. You
could rub your fingers and they would come up black {Tr. 242,
243, Ex. P2). However, the wind and coal dust was blowing in the
tunnel but the dust in the telephone did not go into suspension
(Tr. 245). There was some coal dust in suspension in the tunnel
(Tr. 246).
James T. Veneskey, a person experienced in mining, serves as
the director of safety for P & M (Tr. 152-154).
In the opinion of the witness a 12 or 24 volt system will
not ignite coal dust. Coal dust must be in suspension before it
will explode {Tr. 157). With the MSHA approval label the
telephones were intrinsically safe but not designed to be totally
dust proof. But they were to be used in a dusty and gassy atmosphere (Tr. 157-159). The enclosure was not permissible so as to
reduce a flame path (Tr. 158).
Witness Dovey t~stif ied there was a sticker on the telephone
stating "MESA permissible" (Tr. 239).
Discussion
The pivitol issue here concerns whether the telephone was
"potentially dangerous" within the meaning of § 77.502.
In connection with this citation I credit the testimony of
Inspector Potter and witness Dinkel. Briefly, the inspector
found coal dust on the terminals and on the batteries in the
telephone. In addition, bare wires were attached to a bare clamp
on the outside of the phone. Both witnesses concluded the
terminals, an inch and a half apart, could provide a source of
ignition for the coal dusto The telephone, with a hole at the
toggle switch, .in a coal dusty tunnel, was ~potentially
dangerous" within the meaning of the regulation.
P & M contends MSHA is attempting to penalize it through the
use of conjecture and deceit.
Specifically, it contends MSHA's
case is based on the failure to maintain electrical equipment,
i.e., exposed electrical wires and a defective toggle switch.
But at the trial MSHA mutated the case into allegations of a
dangerous accumulation of coal dust.
I disagree with P & M's claim. The facts presented at the
hearing are fairly within the allegations of the citation. The
violative condition is described as follows:
The electrical equiptment [sic] located in the Sorenson
draw off tunnel is not being properly inspected and
maintained, in that the 24 volt telephone system has
electrical wire's exposed and a toggle switch added
allowing coal dust to enter inside the telephone.

1917

P & M states that, in any event, MSHA's evidence is woefully
lacking of proof to establish the conditions necessary to create
a hazardous condition. P & M cites The Pittsburg and Midway Coal
Mining Company, 7 FMSHRC 2072 (1985).
It is true that in the
above case Judge Koutras concluded that accumulations of coal
dust which are merely black in color are not dangerous. 7 FMSHRC
at 2104.
The evidence in the instant case shows a minimal amount of
coal dust accumulation.
Inspector Potter saw dust over the
inside of the phone. You could rub your fingers across the
compartment and they would come up black (Tr. 242, 243).
However, the potentially dangerous condition consisted of all of
the facets involved here. These were the hole at the toggle
switch, the coal dust between the terminals of the batteries Can
ignition source) and the coal dust blowing in the 14 foot by 20
foot tunnel (Tr. 245, 246) •
More persuasive than Judge Koutras' decision is the
Commission decision in Pittsburg and Midway Coal Mining Company 8
FMSHRC 4 (1986). In this case the Commission was dealing with a
related standard, 30, C.F.R. § 77.202 ~/
Specifically, the Commission stated as follows:

P & M argues on review that the judge erred in finding
a violation because the judge did not require the Secretary
to establish the existence of a present, actual ignition
source in the vicinity of the accumulation at the time of
the inspection. Rather, the judge concluded that under
section 77.202, if a 11 potential" ignition source is present
in the vicinity of an accumulation, the accumulation is
dangerous within the meaning of the standard. 6 FMSHRC at
13490 We agree with the judge 1 s conclusiono
It is well
established that the Mine Act and the standards promulgated
thereunder are to be interpreted to ensureu insofar as
possibleu safe and healthful working conditions for miners.
Furtheru the Commission observed that:
Section 77a202u like most coal mine safety standardsu
is aimed at the elimination of potential dangers before
they become present dangers.
8 FMSHRC at 60
In sum, in the instant scenario, the telephone was "potentially dangerous".

4/ The standard reads: Coal dust in the air of, or in or on the
surfaces of, structures, enclosures, or other facilities shall
not be allowed to exist or accumulate in dangerous amounts.

1918

P & M also contends the telephone was permissible for this
location and therefore complied with 30 C.F.R. § 23.2(d). ~/
On this issue the credible evidence shows that the telephone
was marked as "approved for methane only" (Tr. 28, 29). Further,
according to MSHA's electrical engineer, Dinkel, methane gas is
not a conductor but coal dust can be (Tr. 210, 211, 217).
Even
though permissible for methane the presence of coal dust would
still present a potentially hazardous situation (Tr. 218, 219).
In addition, to the above factors, the telephone was obviously
not permissible in view of the hole at the toggle switch.
P & M further argues that it was impossible for Inspector
Potter to see a hole at the toggle switch. He did not have a
flashlight and the location of the telephone and its position in
the tunnel preclude such an observation.
I disagree.
Witness Davey indicated there was light in the
tunnel behind the telephone as well as directly overhead (Tr. 89,
90). Inspector Potter indicated there were lights on the
ceiling, sides and behind (Tr. 39, 40). When the telephone door
was opened you could see through the hole at the toggle switch
(Tr. 39).

For the foregoing reasons Citation 2831956 should be
affirmed.
Civil Penalties
The statutory criteria to assess civil penalties is
contained in Section llO(i) of the Act.
The evidence establishes that P & M has a minimal adverse
prior historyo
The company has three violations for the two year
period ending May 5, 1986 (EXo Pl)o The record fails to disclose
the size of the operator. The record does not present any information concerning the operator's financial condition. Thereforev in the absence of any facts to the contraryu I conclude
that the payment of penalties will not cause the operator to
discontinue its businesso Buffalo Mining COou l IBMA 226 (1973)
and Associated Drilling, Inc.u 3 IBMA 164 (1974). The operator
was negligent as to the ungrounded space heater inasmuch as this
condition was open and obviouso The operator also was negligent
as to the telephone equipmento Periodic checks, such as are required by§ 77.502, would have disclosed these defects. The
gravity of each violation was high. A miner could have been

~/

The cited definition reads:
(d) "Permissible" as used in this part means completely
assembled and conforming in every respect with the
design formally approved by MSHA under this part. (Approvals under this part are given only to equipment for
use in gassy and dusty mines.)
1919

burned or electrocuted by the electrica~ space heater. The
defective telephone could have caused an explosion. The operator
is to be credited for statutory good faith since the violative
conditions were abated.
On balance, I deem that a civil penalty of $150 is proper
for each citation affirmed herein.
Briefs
The parties have filed detailed briefs which have been most
helpful in analyzing the record and defining the issues.
I.have
reviewed and considered these excellent briefs.
However, to the
extent they are inconsistent with this decision, they are
rejected.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered~ ·

1.

The Commission has jurisdiction to decide this case.

2o
Respondent did not violate 30 C.F.R. § 75.603 and
Citation No. 2831954 should be vacated.

3. Respondent violated 30 C.F.R. § 77.701 and Citation No.
2831955 should be affirmed.

4. Respondent violated 30 C.F.R. § 77.502 and Citation No.
2831956 should be affirmed"
Based on the foregoing findings of fact and conclusions of
law I enter the followingg

ORDER
lo Citation Noo 2831954 and all penalties therefor are
vacatedo
2" Citation Noc 2831955 is affirmed and a civil penalty of
$150 is assessedo
3"
Citation No" 2831956 is affirmed and a penalty of $150
is assessedo

Law Judge

1920

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 CCertif ied Mail)
John A. Bachmann, Esq., The Pittsburg & Midway Coal Company, 1720
South Bellaire Street, Denver, CO 80222 (Certified Mail)

/bls

1921

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

NOV 6 1987
SECRE'rARY' OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA)'
ON BEHALF OF

BRIAN S. OUSLEY
Complainant
v.

DISCRIMINA'rION PROCEEDING

Docket No. SE 87-85-DM
MD 86-18
C.P.L. Plant

METRIC CONSTRUCTORS, INC.,
Respondent
DECISION APPROVING SETTLEMENT

The Parties, on Nov~nber 2, 1987, filed a Motion for
Decision and Order Approving Settlement which was signed by
Complainant and the Attorney for Respondent. A Settlement
Agre5~ent signed by the Parties was attached to the Motion.

I find that the terms of the settlement agreement are just
to both Parties.
Accordingly v the Motion Approving Settlement is GRAN'rEo, and
it
ORDERED that the settlement agreement of October 15u 1987,
is APPROVED; and the Parties shall be bound by all its terms"

,/fY

I /)

.

(~~

~vrarn Weisberger

Administrative Law Judge
Distribution~

Frederick W. Moncrief, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mary A. Lau, Esq., Lau, Lane, Pieper & Asti, P.A., P. 0. Box 838,
Tampa, FL 33601 (Certified Mail)
dcp

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

NOV 6 1987
H. D. ENTERPRISES, LTD.,
Contestant

.
.:

v.
SECRETARY OF LABOR,
MINE SAFE·rY AND HEA.LTH
ADMINISTRATION CMSHA),
Respondent

CONTEST PROCEEDING
DocRet No. WEVA 87-183-R
Order No. 2909306; 4/15/87
Birchfield No. 1 Mine

.
DECISION

Appearances:

William o~ Stover, Esq., Beckley, West Virginia,
for Contestant;
Jack E. Strausman, Esq., Office of the Solicitor,
u. s. Department of Labor, Arlington, Virginia, for
Respondent.

Before: Judge Melick
This case is before me upon the application for review filed
by n. D. Enterprises, Ltd. (H.D.) pursuant to section 107Ce>Cl)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et. seq., the "Act" to challenge an "imminent danger"
withdrawal order issued by the Secretary of Labor pursuant to
section 107(a) of the Act.~/

~/Section 107(a) of the Act provides in part as follows:
Ltg upon any inspection or investigation of a coal or other
mine which is subject to this Act, an authorized
representative of the Secretary finds that an imminent
danger exists¥ such representative shall determine the
extent of the area of such mine througho'ut which the danger
exists, and issue an order requiring the operator of such
mine to cause all persons, except those referred to in
section 104(c), to be withdrawn from, and to be prohibited
from entering, such area until an authorized represantative
of the secretary determines that such imminent danger and
the conditions or practices which caused such imminent
danger no longer exist.

1923

The order at bar, No. 2909306, issued April 15, 1987,
charges as follows:
The boom and masts of the Grove TMS475A crane was [sic]
being swung back and forth underneath the energized
high voltage power lines in order to lift cement to the
top of the Fan building. It was raining and the boom
could easily contact the power lines. When measured
with range finder the masts was [sic] 13 feet ·below the
line. Men were also working on top of this building
and contacting crane to empty cement.
Section 3Cj) of the Act defines "imminent danger" as
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." The limited issue before me in this case is
whether such a condition or practice existed at the time the
order at bar was drafted.2/
~the

According to· Ernest Thompson, a coal mine inspector for the
Federal Mine Safety and Health Administration (MSHA), H. D.
Enterprises, a contractor at the BirGhfield No. 1 Mine, was in
the process on pouring cement on the roof of a new fan building
on the morning of April 15, 1987. Thompson observed that a crane
was swinging a cement bucket beneath and at "close clearance" to
what he presumed were high voltage powerlines. The crane itself
was positioned under the powerlines and three workmen were
standing on a metal decking onto which the concrete was being
poured. The workmen would contact the cement bucket lever as
they unloaded the bucket. The metal bucket was, in turn attached
to metal ropes suspended from the boom of the crane.
Thompson testified that he did not know the distance between

the boom ~nd the powerlines at the time he issued the order but
subsequently measured the distance and found that the boom came
no closer than 13 feet to the closest powerline.
Thompson also

acknowledged that he did not know the voltage in the powerlines
at the time he issued the order but presumed that there was
fie
voltage to cause electrocution to the workers on the
;::-oaf should the boom contact the powerlines while someone was

touching the lever on the cement bucket. Thompson also believed
that an electrical ~arc" could occur so that electric current
~/While the ordec was terminated shortly after its issuance,
questions regarding the validity of that order are not moot. See
Zeigler Coal Co., l IBMA 71 (1971).

1924

sufficient to cause electrocution could jump 8 to 10 feet through
the air.
Wayne Milan, a graduate electrical engineer and MSHA
electrical inspector, testified however that the lowest in height
of the series of powerlines at issue was a low voltage ground
wire transmitting no more than 40 volts and which could not cause
electrocution if contacted. The MSHA expert also opined that
electrical arcing could not occur over A distance of more than a
few inches.
In view of Milan's qualifications I find his
testimony to be entitled to significant weight.
Considering Milan's testimony along with the uncontested
evidence that the distance between the lower low-voltage ground
wire and the high voltage wires was four feet, it is apparent
that in reality the hazard about which Inspector Thompson was
concerned i.e. the crane boom contacting the high voltage lines
and electrocQting the workmen, was not as imminent as first
thought. The closest distance between the boom and the high
voltage lines was a'ctually some 17 feet and the applicable
regulatory standard (30 C.F.R. § 77.807.2) permits that distance
to be as little as 10 feet.
It is also apparent that the
inspector was operating under the erroneous belief that
electrical arcing could occur over a distance of 8 to 10 feet.
The credible testimony of MSHA's electrical expert was that such
arcing can occur over a distance of only a few inches. With the
benefit of this additional information, which was not known to
Inspector Thompson when he issued the order, I cannot find, that
the Secretary has met his burden of proof that an "imminent
danger" did in fact exist.
I also note that in abating the order; the inspectoc
permitted the crane to continue operating in the same location
which he had just found to be iaimminently dangerous" (See
Government Exhibit 2). This is confirmed by the testimony of
crane operator Clinton Stover. The evidance also shows that
during this stage of abatement Inspector Thompson was himself
standing atop the metal roof of the fan building while the crane
was operating in the noted manner. This evidence is not
consistent with an ;u imminent danger'g.

1925

ORDER
Order No. 2909306 is hereby VACATED.

Distribution:
Jack E. Strausman, Esq., Office of th Solicitor, U. s.
Department of Labor, Room 516, 4015 Wilson Blvd., Arlington, VA
22203 (Certified Mail)
William D. Stover, Esq., 41 Eagles Road, Beckley, WV
(Certified Mail)

npt

1926

26801

FEDERAL MINE SAFETY AND HEALTH REVIEW COMAJ\ISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE "'00
DENVER, COLORADO 80204

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

NOV 6 1987

CIVIL PENALTY PROCEEDING
Docket No. WEST 86-124-M
A.C. No. 04-03821-05506

v.

.Azusa Plant

OWL ROCK PRODUCTS COMPANY,
Respondent
DECISION
Before:

Judge Morris

The Secretary of Labor .on behalf of the Mine Safety and
Health Administration, charges respondent with violating 30 C.F.R.
§ 56.9087, a safety regulation promulgated under the Federal Mine
Safety and Health Act, 30 u.s.c. § 801, et seq., (the Act).
The parties waived their right to a hearing and submitted the
case for a decision on stipulated facts.
Issues
The issues are whether respondent violated the regulation, if
sov what penalty is appropriate.
Stipulation
The parties stipulated as

follows~

lo Respondent is subject to the Federal Mine Safety and Health
Act of 1977 (hereinafter called the Act) and the Federal Mine Safety
& Health Review Commission (FMSHRC) has jurisdiction over the subject
matter of this action and over the partieso
2o
A citation was issued to Respondent alleging a violation of
30 CoF.R. § 56.9087 in that a number 8247 service repair truck, Ca
one-ton Ford pickup) v which had a partially obstructed rear view was
operated without an audible reverse signal alarm on the day of the
inspection" A proposed civil money penalty of $56.00 was assessed
and timely contested.

1927

3. The standard allegedly violated, 30 C.F.R. § 56.9087 provides as follows:
§ 56.9087 -

Audible warning devices and back-up alarms.

Heavy duty mobile equipment shall be provided with audible
warning devices. When the operator of such equipment has
an obstructed view to the rear, the equipment shall have
either an automatic reverse signal alarm which is audible
above the surrounding noise level or an observer to signal
when it is safe to back up.
4. The payment of $56.00 civil money penalty will not affect
respondent's ability to stay in business.
5. The size of respondent,'s company was 233,367 production tons
or hours worked per year at the time of the citation.

6. The size of respondent's mine was 29,526 production tons or
hours worked per year at the time of the citation.
1o
In the 24 months preceding the issuance of the instant
citation the total number of assessed violations against respondent
is one.

8. Respondent abated the instant citation by installing an
electric back-up alarm on the truck.
9o
The truck in issue which is equipped with extended side
mirrors on both sidesv is a number 8247v Ford one-ton pickup trucko

10. Respondent uses this t~uck as a service repair vehicle. As
such it loads and carries service equipment where needed throughout
the mine. The majority of the time it is parked by the mechanics'
shopo
11. The vehicle is not used for loading, hauling or dumping
activitieso

120 The driversi tools are carried in the bed of the pickup.
The bed is in the back. The driver can observe hazards to the rear
prior to moving the pickup, when he replaces the tools, after completing whatever job he was performing.

1928

13. The judge may consider MSHA's policy memorandum (Exhibit Rl)
in ruling on respondent's position.
14. The Mesa Health and Safety report, Exhibit P2, may be considered by the judge concerning the issue of gravity if a violation
is established.
Discussion
The issue in this case focuses on whether a one-ton Ford pickup
truck qualifies as heavy-duty mobile equipment within the meaning of
30 C.F.R. § 56.9087.
I conclude it does. In King Knob Coal Company, Inc., 3 FMSHRC
1417 (1981) the Commission construed a similar regulation, 30 C.F.R.
§ 77.410. l;
In that case the Commission ruled that ["t]ruck is a
generic term and, of course, pickups are a familiar type of light
truck." Further, the Commission observed that
"the obvious ·purpose of §77. 410 is to protect
miners from vehicles of various size moving in reverse.
The standard is premised on the general recognition
that a driver's rear view is ordinarily not as good,
and hence as safe, as the forward view. Even if their
role at a mine is primarily auxiliary, three-quarter
ton pickups are nevertheless medium-sized vehicles
whose relative speed compared with heavier vehicles
constitutes a hazard in the busy mine setting."

!/

The standard reads:
Mobile equipmentf automatic warning deviceso
Mobile equipmentf such as trucksu forkliftsu front-end
loaders, tractors and graders, shall be equipped with
an adequate automatic warning device which shall give
an audible alarm when such equipment is put in reversec

1929

Respondent argues that MSHA's policy memorandum excludes the
necessity of compliance. The policy memorandum provides as follows:
§ 12,258

MSHA Policy Memorandum Explains
Mobile Equipment Reverse Alarm
Requirements for Metal and NonMetal Mines

Mobile equipment engaged in "loading, hauling
and dumping" at surface mines or surface areas of underground mines must have either back-up alarms or signalmen to comply with 55/56/57.9-87 if rear view is obstructed, according to the March 26, 1981, MSHA Policy
Memorandum No. 81-3 MM. Text is as follows:
Subject:

Program Directive: Citation of Standard
55/56/57.9-87, Audible Reverse Alarms

This document provides guidance for the uniform
application of standard 55/56/57.9-87 and reflects
recent Administrative Law Judge decisions which relate
to the subject matter.
The standard is applicable only to surf ace mines
and surface operations of underground mines. The heavy
duty mobile equipment addressed by the standard must be
engaged in "loading, hauling, dumping" activites and
must present an obstructed view to the rear.
(Exhibit Rl)
In King Knob the Commission noted that MSHA 1 s policy is not
nding on the Commissionp 3 FMSHRC at 1420
Respondent's further argument is that the pickup was not engaged
in any U!loading, hauling or dumping." Particularly, respondent relies on the scope-note containing 30 C.F.R~ § 56.9087. Specifically/!
the scope-note reads, 11 Subpart H - - Loading I! Hauling and Dumping o 11
As a general rule of statutory construction a scope-note does
not prevail over the text of a regulationo
Finally, respondent argues that the truck driver can ouobserve"
hazards to the rear prior to moving the pickup when he replaces the
tools after completing whatever job he was performing.

1930

Respondent's argument on this issue arises from paragraph 12
of the stipulation. However, observations by the truck driver prior
to moving the truck do not assist him when he is actually moving the
vehicle to the rear.
It is at that point that his vehicle must have
an unobstructed view to the rear or a backup alarm.
For the foregoing reasons, Citation No. 2671370 should be
affirmed.
Civil Penalty
The statutory authority to assess a civil penalty is contained
in Section llO(i) of the Act.
The stipulation of the parties addresses most of the statutory
criteria. However, the issues of negligence, gravity and abatement
should be considered.
The operator's negligence is minimal since it relied on MSHA's
policy memorandum in determining potential liability. The gravity
is high. Exhibit P2 focuses on a MESA investigation of a fatality
involving the failure to have an audible backup alarm on an International "Cargo-Star" Model 1950 maintenance truck. The operator is
to be credited with statutory good faith in promptly abating the
violative condition.
Considering all of the statutory criteria, I conclude that a
civil penalty of $25 is appropriate.
conclusions of Law
Based on the entire record and the stipulation of the parties
t.he following conclusions of law are entered:

lo

The Commission has jurisdiction to decide this caseo

2o Respondent violated 30 C.F.R. § 56.9087 and Citation No.
2671370 should be aff irmedo
Based on the stipulation of the parties and the conclusions of
law I enter the following:

1931

ORDER
Citation No. 2671370 is affirmed and a civil penalty of $25 is
assessed.

Law Judge

Distribution:
Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department
of Labor, 3247 Federal Building, 300 North Los Angeles Street,
Los Angeles, C~ 90012
(Certified Mail)

Mro David Lindquistp Chief Safety Engineerv Owl Rock Products
Company" 5435 Peck Roadv PoOo Box 330v Arcadiav CA 91006
(Certified
Mail)
/ot

1932

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

22041

NOV 101987

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 86-262
A. C. No. 36-02405-03501 B70
Greenwich No. 1 Mine

v.
OTIS ELEVATOR COMPANY,
Respondent

DECISION
Appearances:

James H. Swain, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, fqr Petitioner;
Ga~y L. Melampy, Esq., Reed, Smith, Shaw & Mcclay,
Washington, DC, for Respondent.

Before:

Judge Maurer
STATEMENT OF THE CASE

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to § 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et seq., (the "Act") for an alleged violation of the regulatory
standard found at 30 C.F.R. § 75.1725(a). l:.f
The issues before me are the respondent 1 s status as an
"operator" under the Act, the alleged vagueness of the cited
standard, whether the respondent, if properly charged as an
operator in this instance with violating a valid regulation,
violated that regulation as alleged, and, if so, whether that
violation was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety
or health hazard, i.e., whether the violation was "significant
and substantial." If a violation is found, it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
The case was heard in Pittsburgh, Pennsylvania, on
March 31, 1987.
The parties ~ave filed pq_st-hearing briefs
and proposed findings and conclusions, and they have been
considered by me in the course of this decision.
1/ § 75.1725{a)
Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe condition shall be removed from
service immediately.

1933

Section 104(a) "S&S" Citation No. 2689913, issued on
March 3, 1986, cites a violation of 30 C.F.R. § 75.1725(a)
and the cited condition or practice is described as follows:
Gary Belks and John Namestrik employees of the
Otis Elevator Co. installed a govenor (sic)
rope on the North Portal Elevator that created
a hazard to the employees at this.mine because
this govenor (sic) rope was not installed properly.
The smelter socket termination and Crosby Clamp
termination were not properly made because the basket was not poured with smelter to the top of the
small end of this basket and holes in the smelter
existed on the wide end of this basket. The Crosby
Clamp termination was made with the (2) 1/2"
saddles on the dead end of this wire rope and
there should be (3) three Crosby Clamps used on
this 1/2" wire rope termination.
RESPONDENT'S STATUS AS OPERATOR
All during 1986 the Otis Elevator Company (Otis) had a
contract with the Pennsylvania Mines Corporation (PMC) to
furnish and provide supervision, labor, equipment, tools,
materials and spare parts to inspect and maintain two elevators,
including the North Portal Elevator, at PMC's Greenwich No. 1
Mine.
This maintenance and service contract provided that Otis
would maintain the elevator equipment in safe operating condition and more specifically that Otis would regularly and systematically examine, adjust, lubricate, repair or replace
elevator parts, as required.
Under the terms of this contract,
Otis was further obliged to examine periodically all safety
devices and governors and make periodic no load and full load
safety tests.
As a practical matter, this amounted to Otis
conducting weekly inspections of the elevators, performing bimonthly safety tests and responding to trouble calls and repairing the elevators on an as-required basis.
In consideration for the performance of this service, Otis received
$2,600.60 per month for the North Portal Elevator and $2,646.64
per month for the other elevator at the Greenwich No. 1 Mine.
Interestingly, an attachment to this contract, signed
for Otis by one Carl M. Dick as Branch Manager, arguably
registers Otis as an independent contractor, including providing an address for service of MSHA citations.
The Act contains a rather broad definition of "operator"
at section 3(d):

1934

For the purpose of this Act, the term--

*

*

*

(d) "operator" means any owner, lessee, or other
person who operates, controls, or supervises a
coal or other mine or any independent contractor
performing services or construction at such mine
(emphasis added) .
Against the background that Otis is an elevator service
company whose employees, pursuant to a service contract between Otis and PMC performed inspections and conducted safety
tests on a regular basis on the two elevators at the Greenwich No. 1 Mine as well as performing more extensive maintenance and repair work on those elevators on an as-needed basis,
it seems patently clear to me that the language of section 3(d)
of the Act intended to include them within the definition of
"operator."
Otis, however, contends that, on average, their employees
are only in the mine once a week, for an average visit of 1.5
hours. The argument being that this is a minimal presence
which is insufficient to bring them under the Mine Act. I
note, however, that the very citation at bar was issued as a
result of elevator repair work done by their employees on one
of those visits.
Otis also alleges and I am satisfied that
they do not perform construction work at the mine nor control
any area of the mine. Contrary to their assertion, however,
that they do not maintain a continuing presence at the mine,
I disagree and find that in the performance of their contractual obligations to PMC at Greenwich No. lv they did indeed have a continuing presence at the mine for all of 1986.
For legal authorityv Otis cites National Industrial Sand
Association v. Marshall, 601 F.2d 689 (3rd Cir. 1979), and
Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985).
Both cases are distinguishableo
In National Industrial
Sand Association, the issue the court was faced with was substantially differento
The issue before the Third Circuit was
whether the Secretary was statutorily authorizeo to include
fewer than all independent contractors as operators for purposes of the training regulationso
The Court, however, at
the beginning of
analysis did set fort~ some general
guidance:
'Operator' is defined in the Mine Act as 'any
owner, lessee, or other person who operates, controls or supervises a coal or other mine or any
independent contractor performing services or

1935

construction at such mine. 1 As this definition
indicates, some, if not all, independent contractors are to be regarded as operators. The reference
made in the statute only to independent contractors
who 'perform[] services or construction' may be understood as indicating, however, that not all independent
contractors are to be considered operators. There
may be a point, at least, at which an independent
contractor's contact with a mine rs so infrequent or
de minimis that it would be difficult to conclude
that services were being performed.
601 F.2d at
701 (footnote omitted).
Old Dominion, supra, while an enforcement proceeding
similar to the instant case, presents a very different
situation factually.
In Old Dominion, the utility's contacts
with the mine were truly de minimis.
The sole revenue derived by Old Dominion from its
relationship with Westmoreland is for the sale of
electric power. Old Dominion does not perform any
maintenance at the substation, or of the transmission or distribution lines leading to and from the
substation. Old Dominion's employees install equipment to measure voltage and amperage for its meter,
maintain the meter and read it approximately once
per month for purposes of billing.
772 F.2d at 93.
In holding that the MSHA regulations do not apply and
were not intended to apply to electric utilities whose sole
relationship to the mine is the sale of electricity, the Court
stated that~
Old Dominion 1 s only contact with the mine is the
inspection, maintenance, and monthly reading of
a meter for the purpose of sending a bill to a
mine company for the sale of electricity. Petitioner1 s employees rarely go upon mine property
and hardly, if ever, come into contact with the
hazards of mining.

*

*

*

MSHA seeks to regulate those few moments every
month when electric utility wor~ers rep.d or maintain meters on mine property.

*

*

1936

*

Plainly, Congress intended to exclude electric
utilities, such as Old Dominion, whose only
presence on the site is to read the meter once a
month and to provide occasional equipment servicing.
772 F.2d at 96-97.
In stark contrast to the Old Dominion factual situation,
I find as a fact that Otis's contractual obligations and performance thereof constituted a substantial, as opposed to a
de minimis continuing presence at the Greenwich No .. 1 Mine.
Further, although the elevator is not used to transport coal
and is not per se a part of the coal production or extraction
process, I nonetheless find and conclude that because the North
Portal elevator transports approximately 20% of the work force
into and out of the mine on a daily basis and is additionally
a designated escapeway, i t is an essential ingredient involved
in the coal extraction process.
I also find and conclude that the party responsible for
the cited condition and who was in fact in the best position
to eliminate the hazard, if there was a hazard, and prevent it
from recurring was none other than the Otis Elevator Company.
Inspector Niehenke, in his discretion, exercised his judgment
and cited Otis for the alleged violation as the operator responsible for the installation of the governor rope on the
North Portal elevator.
I concur in at least that portion of
his decision.
VAGUENESS OF THE CITED REGULATION
Respondent Otis also asserts that 30 C.F.R. § 75.1725(a)
is unconstitutionally vague because it does not establish any
standards by which a person can determine what the regulation
requires of them in order to comply with its terms"
There is
no doubt that the regulation is a very subjective standard
which on its face simply requires that machinery and equipment
"be maintained in safe operating condition."
Broadness, however, is not necessarily a fatal defect
in a safety standard"
The Commission has previously held that
many such standards must of neces~si ty be "simple and brief in
order to be broadly adaptable to myriad circumstances."
Kerr-McGee Corp.v 3 FMSHRC 2496 1 2497 (1981)"
Furthermore, in
a case involving this very same regulation, Alabama By-Products
Corpo 1 4 FMSHRC 2128 (1982) / the Commission rejected the
operator's contentions of unconstitutional vagueness and
stated the following test:
(I]n deciding whether machinery or equipment is
in safe or unsafe operating condition, we conclude
that the alleged violative condition is appropriately

1937

measured against the standard of whether a reasonably
prudent person familiar with the factual circumstances
surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would
recognize a hazard warranting corrective action within
the purview of the applicable regulation.
4 FMSHRC at
2129.
Applying this test to the facts or this particular case, I
specifically reject Otis' argument that this standqrd is so
overbroad and/or vague so as to be unenforceable, and so will
instead decide the fact of violation of the cited standard
in this case on the merits.
FACT OF VIOLATION-30 C.F.R. § 75.1725(a)
MSHA electrical Inspector Leroy Niehenke testified as
to his training and experience, and he confirmed that he had
conducted an inspection of the North Portal elevator at the
Greenwich No. 1 Min~ on February 27, 1986.
As a result of
this inspection, he felt that the governor rope should be
replaced, and i t subsequently was, by Otis Elevator Company
personnel.
On March 3, 1986, Inspector Niehenke returned to see to
it that the governor rope had been replaced, and he determined
that it had.
He got on top of the elevator car and checked
the suspension rope and governor rope terminations.
He
noticed that the newly babbitted socket termination on the
governor rope attached to the safety linkage on the top of
the elevator car had several holes in the babbitt material
on the larger end of the basket termination.
He testified
further that the babbitt material was not adhering to the
res that came through the socket and there was also no
babbitt visible from the small end of the basket, which
indicated to him that there was a void of babbitt material
inside the basket, adversely affecting the efficiency of the
termination.
The governor is attached to the elevator car by a onehalf inch diameter steel governor rope attached at the top
and bottom of the car.
At the top of the car, t.he rope is
attached by means of a babbitted socket termination.
This
socket is a tapered basket approximately 2 1/2 inches long
with a small end and a larger end.
The small end of the
socket is provided with an opening that is slightly larger
than one-half inch in diameter so that the 1/2-inch rope can
pass through it.
The socket termination is made by unravelling approximately five inches of the rope at one end to
spread out the lays of the rope, turning them inward to form

1938

•

a rosette, and pulling them into and towards the small end of
the tapered socket. Once the rosette is pulled into the
socket, a molten alloy of tin, copper and antimony ("babbitt")
is poured into the socket. At the bottom of the car, the
governor rope is attached to the car by means of U-bolts
known as "Crosby clamps."
Inspector Niehenke found fault with this lower termination
of the governor rope also because he felt there should be three
(3) Crosby clamps on the termination vice the two .(2) he found
there and they were installed with the U-bolts on the live-end
of the rope as opposed to the dead-end as he stated they are
supposed to be installed.
The "live-end" of the rope being the
end of the rope that is attached to the equipment as opposed to
the "dead-end" where the rope is merely turned around and cut
off.
There is nothing attached to the "dead-end." The problem
being, according to the inspector, that the U-bolts will crush
these wires and the termination can fail.
Even the Otis expert
testi ed that the U-bolts ,should be placed on the dead-end of
the rope to prevent,· kinking the live-end, damaging the rope
lays and losing strength in the rope.
The basic facts concerning the top and bottom terminations
as testified to by Inspector Niehenke have not been rebutted in
any manner by Otis.
The more difficult issue is what do those
now established facts mean vis-a-vis the safety of the elevator
or any component of it.
In order to establish the regulatory
violation cited herein, the Secretary bears the burden of proof
that the equipment, the elevator or some part of it, was rendered "unsafe" by Otis' installation of the governor rope.
The elevator in question is supported by nine suspension
ropes during normal operationv any one of which is capable of
supporting the entire weight of the car.
The governor rope
performs no hoisting or suspension function.
It is attached
at the top of the car to a lever which activates the mechanical
safeties for the elevator if the car exceeds 125% of its rated
speed.
The governor senses the speed of the elevator through
the governor rope.
As the elevator moves up and down, the
governor rope runs over two sheave wheels located at the top
and bottom of the elevator shaft.
This movement of the rope
causes the wheels to turn and the f lyballs on the governor to
spin.
As the elevator speed increases, the centrifugal force
on the flyballs causes them to rise,
If and when the elevator
speed would exceed 125% of its rated speed, it would cause the
flyballs to
se to the point where two m~~al jaws in the
governor mechanism would release and clamp down on the governor
rope, causing the rope to pull up the governor rope lever
situated on top of the elevator car, activate the safeties,
and stop the car.

1939

During normal operations, the load on the lower termination (the Crosby clamps} is the weight of the lower sheave
wheel and the weight of the rope.
In the event the safeties
are activated in an overspeed condition, there is no load on
the rope termination on the bottom of the car because the tension on the governor rope at that time would be exerted between the governor jaws and the safety lever on the top of the
car (the socket termination) .
The load exerted on the socket
termination on the top of the car to set the mechanical
safeties is on the order of 250-300 pounds of pull. (force}.
That is the force required to pull up the governor rope lever
on top of the car, which in turn activates a spring which applies the safeties and stops the car.
The maximum possible
tension on the socket termination would be approximately 1000
pounds, as the governor jaws are designed to release the rope
when the level reaches 1000 pounds, by which time the safeties
should have been activated.
I find that if it were possible
for either end termination to fail under any load it would
ever be subjected to in no~mal or emergency conditions, I
would find that condition to be an "unsafe" one, and in
violation of 30 c:F.R. § 75.1725(a).
Inspector Niehenke uses the American National Standard for
Wire Rope for Mines as a guideline for inspecting mine elevators.
More specifically, in this case, he used portions of these ANSI
standards to check and ultimately reject as unsatisfactory the
two terminations made on the governor rope.
Neither of the
terminations were done in accordance with the ANSI standards,
as the unrebutted testimony of the inspector clearly establishes.
There are no objective mine safety regulations establishing
standards for elevator governor rope terminations
Neither are
the ANSI standards incorporated by reference therein.
Thereforef
non-compliance with the ANSI standards does not in and of itself
establish either a violation of the regulations or a finding
that an unsafe condition exists on a piece of machinery or
equipment.
However, the ANSI standards do provide some guidance
for the inspector and myself as to the proper configuration of
rope terminations.
The ultimate issue in this case isv however, did those
terminations render the governor rope assembly unsafe.
The
fact that the terminations did not comply with the ANSI standards is but a single piece of the equation.
Two individuals testified as expert witnesses in this case.
Mr. Ronald Gossard, an MSHA engineer, testified for the Secretary.
In response to a hypothetical question framed based on
the facts in evidence, he opined that the elevator as it existed
at the time the citation was written would operate safely until

1940

such time as the governor was needed to apply the safeties.
At that point, the terminations, especially the one at the top
of the car, could fail.
He testified that because the small
end of the socket termination basket was not filled with babbitt material and since that is the end of the rope termination
that faces upward in the shaft, moisture could collect inside
the termination and quickly corrode the rope at that point.
He further testified that the way the socket termination was
described in the record, if and when the elevator car ever went
in to an over speed condition and the governor jaws c.lamped down
on the governor rope, the shock load on the poorly made termination could cause it to fail in service. With regard to
the lower termination made with Crosby clamps, his concern was
that if the clamps came loose prior to an overspeed operation
of the governor, you would have a loose rope dangling in the
hoistway which could become entangled with the suspension
ropes or the elevator counterweight.
Mr. James Beattie, a maintenance supervisor for Otis,
testified as an expe~t- for the respondent.
He stated unequivocally that it is impossible to pull a rope such as the one
in question that has been "rosetted" back through a socket
termination like the one at bar, even if that termination
has no babbitt poured into it at all.
He stated that when
you turn the lays of the rope back and make the rosette, you
increase the diameter of the rope.
Thereafter, if you pull
on that rope to attempt to force it back through the basket,
all you accomplish is to wedge it tighter into the socket.
Once it tightens up in the socket, that is all the further
it will move.
He further opined that before you would pull
the rope back through the socketp you would either first
break the rope or the socket.
Mr.
backed up his opinion with a test which essentially confirmed his opinion.
The test was not, however 1
performed on the installation that Inspector Niehenke cited
as unsafe.
The test was performed in controlled conditions
at a machine shop in Pittsburgh.
He made up a 1/2-inch wire
rope installation with a socket termination on one end and a
le Crosby clamp on the other end. At the socket end, he
s
unraveled and looped the wire lays into a rosette and pulled
it handtight into the socket.
No babbitt was poured into the
socket to secure the rope. On the other end, a single Crosby
clamp, correctly installed, however, was used to secure the
rope.
He then imposed a load of approximately 3200 pounds on
this assembly, with no slippage once the ro~ette fully
tightened up inside the socket termination.
There was no
slippage noted whatsoever at the Crosby clamp end. From this
test he concluded that an unbabbitted socket termination
would sufficiently withstand the load required to activate
the governor rope lever and therefore the safeties on the
elevator car.

1941

On cross-examination, however, Mr. Beattie allowed that
to do a quality job on the socket termination you would have
to use babbitt in the socket termination and you should
fill it to the top of the shackle and be able to see babbitt in
the small end of the basket. He also conceded that if the
job was as Inspector Niehenke testified, and that is unrebutted,
he would recommend that it be changed out. On redirectexamination, he reiterated that even so, it was not unsafe.
Weighing the totality of the evidence in this record, I
find that the elevator governor assembly and therefore the
elevator, should the governor ever have been needed at some
future time, were in an unsafe condition within the meaning of
30 C.F.R. § 75.1725(a).
In so holding, I find that the condition of the wire rope terminations at both the babbitted and
clamped ends of the governor rope were as Inspector Niehenke
described them. This factual evidence was unrebutted by Otis.
I credit the expert testimony of Mr. Gossard concerning the
hazards he associated with the condition as described, particularly the likelihood of corrosive damage to the rope because
of the poorly made .socket termination in an area where acidic
moisture could quickly corrode the rope, and his opinion that
the emergency operation of the governor would introduce an
initial shock load on the babbitted termination that could
fail a poorly made one.
These points were unrebutted by
Otis as well. Also persuasive is the fact that although
respondent's expert did not think the situation as described
in the record was "unsafe" he nevertheless would recommend
that it be changed out.
The respondent's case consisted of the expert testimony of
Mr" Beattie and video-taped evidence of a stress test performed
on a wire rope with an unbabbitted socket termination on one
end and a single Crosby clamp termination on the other.
This
test demonstrated that the assembly as configured should withstand a force on the order of ten times as great as the force
necessary to pull the lever that activates the safeties. However, neither Mr. Beattie or the stress test dealt with the
corrosion issue or the effect that the imposition of an
initial shock load would have on the poorly babbitted termination.
I agree with the Secretary that the stress pull test
performed under what might be considered laboratory or "ideal"
conditions is an entirely different situation than what
actually
sts in the mine given the environmental conditions that the equipment must operate in there.
,,
The Commission has stated in Mathies Coal Co., 6 FMSHRC 1
(1984), that to establish a significant and substantial violation the Secretary must show that the violation contributed
to a hazard, and that the hazard contributed to would, with

1942

reasonable likelihood, result in an injury of a reasonably
serious nature.
The inspector and the Secretary's expert
were of the opinion that the hazard contributed to here was
ultimately the failure of the elevator governor assembly to
halt an overspeeding car because of the failure of one or
the other of the governor rope terminations. Of particular
concern was the babbitted socket termination on top of the
car. Had the governor failed to halt the car in such an
emergency, the inspector would expect fatal injuries to the
miners on board the elevator.
I find the evidence.establishes
that if the violative condition had been allowed to continue
unabated, the defects found in the terminations by Inspector
Niehenke combined with the corrosive environmental factors
the equipment would be exposed to over time would indeed
contribute to a hazard reasonably likely to result in injury
and/or death should the elevator's governor assembly system
be needed in an emergency to halt an overspeeding car.
Therefore, I find the violation to be a "significant and
substantial" one and serious . .
Furthermore, the violation clearly resulted from the
respondent's negligence since it was their employee who was
directly responsible for the inadequate and as found herein,
unsafe, installation of the governor rope.
Considering all
of the above and the rest of the statutory criteria enumerated
in section llO(i) of the Act, including the respondent's good
history of prior violations and good faith abatement of the
violation herein, I find that an appropriate penalty for the
violation is $750, as proposed.
ORDER
It is therefore ORDERED that Citation Noo 2689913 IS
A?FIRMEDo
It is further ORDERED that Respondent pay the sum
of $750 within 30 days of the date of this decision as a
civil penalty for the violation found hereino

I

I
I

1

J.1

~.l/;f/(/J/
uA11,,~,{j-,/'
I
' l/
WVVVV'f"

Roy Jf. • aurer
Admin~ttative Law Judge
Distribution:

James Ho Swain, Esq., Office of the Solicitor, u. S. Department
of Labor, 3535 Market Sto, Philadelphia, PA 19104 (Certified
Mail)
Gary Lo Melampy, Esq., Reed, Smith, Shaw & Mcclay, Suite 900,
1150 Connecticut Aveo, NW, Washington, DC 20036 (certified
Mail}
yh

1943

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

NOV 131987
SECRETARY OF LABOR,
MINE S~..FETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 87-39-M
A.C. No. 41-00035-05503

v.
Crusher No. 9101
HELDENFELS BROTHERS, INC.,
Respondent
DEFAULT DECISION
Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 820(a), seeking civil penalty assessments
in the amount of $80 for four alleged violations of certain
mandatory safety standards found in Part 56, Title 30, Code of
Federal Regulationso
The citations and proposed civil penalty
assessments are as follows~
Citation No.
2868074
2868076
2868077
2868078

Date
12/04/86
12/04/86
12/04/86
12/04/86

30 C.FoRo
Section
56.6042
5609022
56.14007
56 .1800 (a) (b)

Assessments
$ 20
$ 20
$ 20
$ 20

On October 2, 1987, I issued an Order to Show Cause
directing the respondent to state why it should not be held in
default and a summary order entered in accordance with the
applicable Commission rules because of its failure to file a
timely answer in this case. The order directed the respondent
to respond by October 17, 1987.
On October 21, 1987, respondent's counsel contacted me by telephone, and after explaining
the circumstances concerning the respondent's failure to file

1944

a timely response, counsel indicated that he was contemplating
paying the proposed civil penalty assessments in full, or in
the alternative, would attempt to settle the matter with the
petitioner's counsel.
Respondent's counsel was advised that he
would have an additional week within which to decide how to
proceed further, but that any decision in this regard should be
made within that time frame, and that he was to communicate his
decision to me in writing, with a written response to my showcause order. On November 9, 1987, petitioner's counsel advised
me that the respondent has not further communicated with his
office, and the respondent's counsel has not communicated with
me, nor has he filed any written response to my show cause order.
Discussion
The applicable Commission Rules in this case provide as
follows:
29 C.F.R. § 2700.27
§

2700.27 Proposal for a penalty.

(a)
When to file. Within 45 days
of receipt of a timely notice of contest
of a notification of proposed assessment
of penalty, the Secretary shall file a
proposal for a penalty with the Commission.
29 C.F.R. § 2700.28
§

2700.28 Answer.

A party against whom a penalty is
sought shall file and serve an answer
within 30 days after service of a copy of
the proposal on the party. An answer
shall include a short and plain statement
of the reasons why each of the violations
cited in the proposal is contested?.
including a statement as to whether a violation occurred and whether a hearing is
requested.
29 C.F.R. § 2700.63
§

2700.63 Summary disposition of proceedings.

(a)
Generally. When a party fails
to comply with an order of a judge or these

1945

rules, an order to show cause shall be
directed to the party before the entry of
any order of default or dismissal.
(b) Penalty proceedings. When the
judge finds the respondent in default in a
civil penalty proceeding, the judge shall
shall also enter a summary order assessing
the proposed penalties as final, and
directing that such penalties be paid.
The pleadings in this case reflect that the respondent was
served with a copy of the petitioner's complaint proposing the
assessment of civil penalties for the alleged violations in
question on April 1, 1987. Respondent's answer was received by
the petitioner on July 27, 1987. As a result of the untimely
answer, petitioner filed a .motion for default judgment, and my
show-cause order followed.
The respondent has failed to respond in writing to my
show-cause order, and its counsel has not further communicated
with me in this matter. Under the circumstances, I conclude and
find that the respondent is in default and has waived its right
to be further heard in this matter.
I see no reason why the
petitioner's proposed civil penalty assessments should not be
made the final order of the Commission, and the motion for
default judgment IS GRANTED.
ORDER
Pursuant to Commission Rule 63p 29 C.F.R. § 2700.63v
judgment by default is herewith entered in favor of the petitioner, and the respondent IS ORDERED to immediately pay to the
petitioner the sum of $80, as the final civil penalty assessment
for the violations in question.

;J/

-/~J14/fl

A///~

?f / I~

Geo~g'r"A. Kotltras
Administrative Law Judge

Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 South Griffin Street, Suite SOl, Dallas, TX 75202
(Certified Mail)
John 0. Heldenfels, President, Heldenfels Brothers, Inc., and
H. C. Heldenfels, Jr., Attorney-at-Law, P.O. Box 4957,
Corpus Christi, TX 78469 (Certified Mail)
/fb
1946

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

NOV 131987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of
JERRY RIFE
Complainant

DISCRIMINATION PROCEEDING
Docke~ No. VA 87-29-D
Sol. No. 87-29617

No. l Mine

Vn

ADKINS COAL CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Melick

This case is before me upon a Complaint of
Discrimination filed by the Secretary of Labor on behalf of
Jerry Rife. The parties including the individual Complainant
have agreed to settle the case.
WHEREFORE, the motion for approval of set
GRANTED, and this case dismissed.

I i

are

i\
J\I \

I

;\_/ 1

!
I

\_/~i'·'~

•

.

Gary Melick
Administrat ve Law udge
(703) 756-6161
\
Distribution~
l

I

\ f

\' .

Jonathan Kronheimv Esq., Office of th~; Solicitor, U.S.
Department of Labor; 4015 Wilson Blvd~, Arlington, VA 22203
(Certified Mail)
·
Charlie R. Jessee, Esq., c. R. Jessee & Associates, P.C., 180
East Main Street, Abingdon, VA 24210 (Certified Mail)
npt

1947

.

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

NOV 161987
LEONARD W. MILLER,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 87-183-D

v.
Florence No. 2 Mine
THE FLORENCE MINING CO.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Broderick

On November 13, 1987, Complainant moved to withdraw
his complaint because he has amicably resolved the matter
with Respondent.
,
The complaint, filed under 105(c) (3) of the Act, alleges
that Complainant received a verbal warning for not operating
his shuttle car fast enough.
The relief he sought was an
apology from his foreman.
I have considered the motion in the light of the purposes
of section 105(c) and conclude that it should be approved.

Accordingly, the motion to withdraw is GRANTED, and
this proceeding is DISMISSED.
)

J

j

,

ltl tzu· ~ /fI jh ck t,;, (,I_
James A. Broderick
Administrative Law Judge

Distribution:
David Jo Tulowitzki, Esq., United Mine Workers of America,
District No. 2 Legal Counsel, 521 West Horner Street, Ebensburg,
PA 15931-0538 (Certified Mail)
William M. Darr, Esq., The Florence Minin9 Co., P.O. Box 729,
Indiana, PA 15701 (Certified Mail)
slk

1948 i

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

NOV 161987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 87-42
A.C. No. 46-01453-03735

v.

Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Broderick

The only citation remaining in this docket, 2703915,
was transferred to Docket WEVA 87-42(B) and is included in
a decision approving settlement and dismissing the proceeding,
issued today.
Therefore, this proceeding is DISMISSED.

,

j

/+t-:fi'cYf~ ~i_

"v'/vlLS
{c
James A. Broderick
Administrative Law Judge

Distribution~

Susan M. Jordan, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Michael Ro Peelish, Esq., Consolidation Coal Company, 1800
Washington Rd., Pittsburgh, PA 15241 (Certified Mail)
slk

1949

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

NOV 161987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA} ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 87-42(B}

A.c: No. 46-01453-03735

v.

Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
AND DISMISSING PROCEEDING
Before:

Judge Broderick

Two citations remain in this docket, 2703915 and 2713101.
Citation 2713124, transferred to this docket from
WEVA 87-42(A) by order of May 19, 1987, was actually a part
of the settlement approved by order of May 20, 1987, in
Docket WEVA 87-42(A). See letter from Michael Peelish, Esq.,
dated October 30, 1987, together with copies of the payments
made for the approved settlement. Docket WEVA 87-42(A) is
closed.
The Secretary moved to withdraw this civil penalty
petition with respect to citation 2713101 and to vacate the
citationo The citation alleged a violation of 30 CoF,R.
§ 50ol0 because Consol did not irrunediately contact MSHA
upon the occurrence of an 11 accidento 11 The term accident is
defined as an injury which has a reasonable potential to
cause death. It was originally assumed that the injury
involved here was a serious electrical shocko Further
investigation? including hospital and medical reports and a
written statement from the injured employee, disclosed that
grease burns to his hands were the only injuries he sustained
and that he did not suffer electrical shock. Therefore, the
motion contends that the injury involved was not life
threatening. Based on the representations in the motion,
it is GRANTED" The penalty proceeding is r:ISMISSED as it
relates to citation 2713101 and the citation is VACATED.
Citation 2703915 alleges a violation of 30 C.F.R.
75.1003 because a trolley wire was not adequately guarded.
The violation was originally assessed at $1000, and the parties
§

1950

propose to settle for $800. The motion states that the
employee who was injured, a certified electrician, was
directed to guard the wire before performing the work on
the track, but he failed to· ,~o .so •. 1:i~his mitigates Consol's
negligence.
I have considered 'the' ·motion in the light of
the criteria in section llO(i) of the Act, and conclude that
it should be approved.
Accordingly, the settlement agreement is APPROVED,
and subject to the payment by Consol of the $800, .this
proceeding is DISMISSED.

;:/ttA1t£5~ ~fl~1-tA1t/_
J' James A. Broderick

Administrative Law Judge

Distribution:
Susan M. Jordan, Esq., U.S. Department of Labor, Office of
the Solicitor, 3535 Market St., Philadelphia, PA 19104
(Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Co., 1800
Washington Rd., Pittsburgh, PA 15241 (Certified Mail)
slk

1951

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

November 19, 1987

NACCO MINING COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. LAKE 85-87-R
Citation No. 2330657; 6/5/85
Modified to
Citation No. 2330657-02; 6/24/85

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

Powhatan No. 6 Mine

and
UNITED MINE WORKERS OF
AMERICA (UMWA},
Intervenor
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 86-2
A. C. No. 33-01159-03668

v.

Powhatan No. 6 Mine

MACCO MINING COMPANY 9
Respondent

and

UNITED MINE WORKERS OF
AMERICA (UMWA) 9

Intervenor
DECISION

Appearances:

Thomas C. Means, Esq., Crowell & Moring,
Washington, D. C. for Contestant/Respondent;
Patrick M. Zohn, Esq., Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio for
Respondent/Petitioner;
Thomas M. Myers, Esq.~ United Mine Workers of
America, Shadyside, Ohio for Intervenor.

1952

Before:

Judge Merlin

This case is before me pursuant to the Commission's decision
and order of remand dated September 30, 1987. 9 FMSHRC 1541. A
subsequent conference in chambers was held with counsel for all
parties on October 22, 1987, at which time counsel advised they
wished to submit stipulations covering the issues which had been
remanded for further consideration. Permission to submit
stipulations was granted.
The stipulations were received on November 16, 1987 and they
read as follows:
1. Because NACCO Mining Company
("NACCO") wishes to obtain prompt review of
the Commission's September 30, 1987 decision
but is unable to d~ until a final order is
issued in this matter, it has entered into
this Stipulation to eliminate the less
important issues which remain in order to
facilitate and expedite such review.
2. NACCO hereby agrees to withdraw its
Notice of Contest to the extent that NACCO no
longer challenges the finding of
unwarrantability.
3. NACCO no longer alleges that MSHA
Subdistrict Manager William H. Reid improperly modified Citation No. 2330657 from a
§ 104(a) citation to a § 104(d)(l) citation
based solely upon a general policy
consideration.
4. Subdistrict Manager William H. Reid
modified the citation in liaht of his view of
applicable legal standards after he reviewed
the facts as recited in the citation and the
memorandum summarizing the events upon which
the citation was based and considered prior
meetings that he conducted with NACCO
officials concerning prior alleged violative
incidents such as the one contained in the
citation.
NACCO, despite the Commission's
September 30, 1987 decision in this case,
continues to contest the § 104(d) citation on
the grounds that it was based on an investigation of a past already abated violation
instead of an inspection of an existing

1953

violation as NACCO contends § 104(d)(l)
requires.
A voluminous record, including the transcript of a de novo
hearing of substantial duration, has been compiled in the-instant
matter. Because of this and in light of the Commission•s remand,
I believe it incumbent upon me to review the stipulations in
order to determine whether they are in accordance with the
record. Cf. 30 U.S.C. § 820(k) and 29 C.F.R. § 2700.30(c). Such
review is()articularly called for with respect to the issue of
the sub-district manager's actions because after vigorously challenging this conduct at the trial level, the operator now has
done a complete volte face by not only seeking to drop its protest {Paragraph No. 3):-DLJt further by endorsing with great particularity the sub-district manager's behavior (Paragraph
No. 4).
Accordingly, I have again reviewed the record to determine
whether the sub-district manager acted correctly within the statutory framework. Up~n such additional consideration, I now
conclude that the sub-district manager's mode of action in
modifying the citation was proper. I accept his testimony that
after he scrutinized the citation he telephoned the supervisory
inspector and went through with him the violation and its
particulars (Tr. 350-351). This telephone conversation was
confirmed by the supervisory inspector (Tr. 215, 224). The
sub-district manager further stated that his finding of
unwarrantable failure was based upon prior meetings with mine
management and the violation itself (Tr. 359). From reading the
citation he concluded the continuous miner operator had to have
known he was under unsupported roof (Tr. 372). The sub-district
manager stated he would have ordered the modification even if
there were no policy considerations (Tr. 376}. In his opinion,
the facts in the citation met the criteria for unwarrantable
failure (Tr. 390-391). In light of this evidence, I believe a
substantial basis exists to support the conclusion that the
sub-district manager•s modification action was based upon the
specific facts of this case as the operator now admits. In
addition I believe it was appropriate for the sub-district
manager to evaiuate the facts of this citation in light of the
prior meetings he had held with mine management regarding the
problem of deep cuts (Tr. 353-354~ 357-358, 367, 376). Finally,
when the sub-district manager's statement that he did not know
what the section foreman was doing at the time of the violation
is viewed in context~ it becomes clear t~at this statement does
not mean the manager acted without reference to the facts of the
case. This remark concerned the brief period the foreman was
absent because he was performing the pre-shift examination (Tr·.
399). The sub-district manager testified that the foreman could
have been legitimately absent because of his pre-shift responsibilities, but that he nevertheless should have known what was
going on in his section especially since he had only five entries
0

0

1954

(Tr. 373, 398-399). In this respect also, therefore, the
conclusions of the sub-district manager were premised upon the
circumstances of the violation.
In view of the foregoing, the agreement of the parties that
the sub-district manager acted correctly is accepted.
In Paragraph No. 1 the operator advises it no longer challenges the finding of unwarrantable failure. I conclude the
record supports a finding of unwarrantability and that therefore,
the operator's present stance regarding this issue is in
accordance with the evidence and consistent with governing interpretations of the term "unwarrantable failure" in effect at this
time. In Zeigler Coal Corporation, 7 IBMA 280, 295-296 (1977),
unwarrantable failure was cast in terms of what the operator
"knew or should have known" or a failure to abate because of "a
lack of due diligence, or because of indifference or lack of
reasonable care".
More recently, it has appeared that the Commission is engaged in a prQcess of refining the concept of
unwarrantability ~~d perhaps moving towards a higher level of
fault. In U. S. Steel Corporation, 6 FMSHRC 1423, 1437 (1984)
the Commission noted that the Zeigler interpretation had been
specifically approved in the legislative history of the 1977 Mine
Acto However, the Commission stated that an unwarrantable
failure to comply could be proved by a showing that the violative
condition or practice was not corrected or remedied, prior to
issuance of a citation or order because of "indifference, willful
intent, or a serious lack of reasonable care" (emphasis supplied).
Subsequently, in Westmoreland Coal Company, 7 FMSHRC 1338, 1342
(1985) the Commission again spoke of the degree of "aggravated
conduct" intended to constitute unwarrantable failure as
"indifference, willful intent, or serious lack of reasonable
ca.re' (emphasis supplied)o Assuming: that the Commission°s recent
decisions embody something more than the Zeigler standard which
was akin to ordinary negligence, there can be no doubt that the
operator's conduct here falls well within the concept of
"aggravated conduct" as it has been articulated thus far
by the Commissiono
0

In my original decision, I reviewed the evidence of record
and concluded as follows:
It was to such an individual [Palmer, a fast
and careless continuous miner operator] that
Sikora [section foreman] assigned the task of
cutting coal in the crosscut near the end of
the shift. But Sikora turned his back on the
time element and on the off sight nature of
the pre-existing first cut, both of which
increased the pressure on the continuous
miner operator to complete- the cro-sscut on
that shift in one cut. When the circumstances under which this task was assigned
1955

are combined with the nature of the
individual to whom the job was given, what
happened was all but inevitable, i.e. the
taking of all coal on one cut and the
continuous mine operator in violation by
going far beyond supported roof. The union
safety committeeman testified the circumstances made it "tempting" to take all the
coal on one cut (Tr. 329). To an individual
like Palmer it would be virtually irresistible to get the extra 10 tons in the one cut
(Tr. 720). Sikora must have realized this.
He knew Palmer and he knew the conditions
under which he was assigning him this task.
Sikora 1 s conduct is far worse than mere lack
of supervision. It was he who created the
circumstances under which the violation was
all but bo~hd to happen. And it was he whose
first priority was not safety but getting
home as fast as he could at the end of the
shift. The operator put Sikora in his
position of supervisory and managerial
responsibility. His careless, reckless and
wilful behavior is attributable to the
operator which must bear the consequences.
Southern Ohio Coal Company, 4 FMSHRC 1459
(1982). ***
It is clear therefore, that the section foreman's conduct
n this case not only constituted, but indeed far exceeded,
'"unwarrantable failure" under any of the descriptive terms used
the Commission to define that concept. His extraordinary and
egregious departure from what reasonably could be required of one
in his position clearly justified issuance of a § 104(d)(l)
citation with its attendant serious sanctions.
In light of the foregoing and pursuant to the Commission 1 s
decision that a § 104(d)(l) citation could be issued under the
circumstances presented here. the subject citation is AFFIRMED
and the operator's notice of contest is DISMISSED.

Paul Merlin
Chief Administrative Law Judge

1956

Distribution:
Thomas C. Means, Esq., Crowell and Moring, 1001 Pennsylvania
Avenue, N.W., Washington, DC 20004 (Certified Mail)
Patrick M. Zohn, Esq., Office of the Solicitor, U. S. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail}
Ann Rosenthal, Esq., Vicki Shteir-Dunn, Esq., Office of the
Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA 22203 (Certified Mail)
Thomas Mo Myers, Esq., United Mine Workers of America, 56000
Dilles Bottom, Shadyside, OH 43947 (Certified Mail)
Mary Lu Jordan, Esq., UMWA, 900 15th Street, N.W., Washington, DC
20005 (Certified Mail)
I gl

1957

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

NOV 201987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

DI~CRIMINATION

ADMINISTRA·rroN (MSHA) I

ON BEHALF OF
ROGER LEE WAYNE, SR.,
Complainant

v.

.
..

MORG CD 86-13

.

Ireland Mine

0

PROCEEDING

Docket No. WEVA 87-89-D

CONSOLIDA'rION COAL COMPANY,

Resp9ndent
DECISION
Appearances~

Linda M. Henry, Esq., Office of the Solicitor,
U. s. Department of Labor, Philadelphia,
Pennsylvania, for the Complainant;
Michael R. Peelish, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case
This case is before me based upon a Complaint filed by the
Secretary of Labor on February 9, 1987, on behalf of Roger Lee
Wayneu Sr.u alleging discrimination under Section 105Cc} of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 185(c)
(the Act). The United Mine Workers of America filed a Notice of
Intervention on February 12u 1987. Consolid~tion Coal Company
(Respondent) filedF on February 25, 1987u its Answer and a Motion
to Dismiss on the ':Jround that the complaint was untimely filed.
An Ordec was entered denying Respondentvs Motion to Dismiss on
March 17~ 1987.
The Complainant filed a Motion for Leave to A.mend Complaint
on March 23, 1987. This motion was not opposed. Complainant's
Amended Complaint seeks an Order assessing a civil penalty
against Respondent in the amount of $300 to $500.

1958

Pursuant to notice, this case was scheduled for trial for
June 9, 1987. Respondent filed a Motion for Continuance of the
trail on June 2, 1987. This Motion was not opposed and pursuant
to notice the case was rescheduled for August 4, 1987, in
Wheeling, West Virginia. At'. 1t.he. hearing, David Wolfe, Roger Lee
Wayne, Sr., David Miller, Leo Connor, and Billy Wise testified
for the Complainant. Hestel B. Riggle, Jr., and George Carter
testified for the Respondent. Respondent filed its Posthearing
Brief on October 27, 1987. Petitioner filed its proposed
Findings of Fact and Memorandum on October 28, 19870
Stipulations
At the hearing, the following stipulations were entered
into:
••• [T]hat the Federal Mine Saf~ty and Health
Administrative Law Judge has jurisdiction over the
matter; the size of the operator, Consolidation Coal
Mine as reflectec;i-on the proposed Complainant's Exhibit
Number 82 was 37,808,900 and the size of the mine at
the Ireland Mill was 1,962,774 tons; that the proposed
assessment of the specific penalty is $3,500.00 and
will not affect the operator's ability to stay in
business • • • • [T]hat the complaint in this matter was
timely filed; that Roger Wayne, Complainant, is an
employee of the Ireland Mine and-that Consolidation
Coal Company operates in this case.
CTr. 3)
•.• [T]hat the Committeemen or Safety Committeeman
who was on the shift of an MSHA Inspector present as
possible inspection conferences as defined by the Act
would be the first choice as the authorized representave of the miners on that shift.
(sic)
••• [T ]hat it
is the respon bility of the safety committeeman to
communicate to the other miners, to other members of
the Unionp safety problems at the mine, results of any
conferences or communications with the Federal Mine
Safety and Health Administrationf and the results of
inspections.
(s
)
(Tr. 100-101).
Findings of Fact
The ventilation plans at the Respondentis Ireland Mine are
reviewed every 6 months by MSHA Insoectors and Respondent.
Prior
to the review, MSHA conducts an on-~ite inspection to determine
if the mine conditions are suit~ble to the plan and if the mine
is adequately ventilated. MSHA Inspector David Wolfe conducted
an on-site ventilation inspection on March 3, 4, 5, and 6. Subsequently, Wolfe contacted Respondent's superintendent of mines

1959

to arrange for a review of the ventilation plan on March 25, 1986.
According to Wolfe, in general, in a 6 month review of the ventilation plan MSHA officials meet with Respondent's personnel and
miners to review the compliance record of Respondent in the past
6 months, review revisions of the ventilation plan proposed by
Respondent, and discuss comments by those present as to the plan.
Roger Lee Wayne, Sr., a first class mechanic employed by
Respondent, was a member of the safety committee in March 1986.
Hestel Riggle told Wayne on March 24, 1986, that the following
day there would be a ventilation plan review meeting. Wayne
informed Riggle that he would probably go with him to the meeting
as he (Wayne) was working the day shift.
Prior to the commencement of the day shift at 8:00 a.m., on March 25, 1986, according
to Riggle, Wayne informed him that he was to be the Union
Representative at the meeting at 9:00. Riggle told Wayne to go
to his work section and that if he was needed at the meeting he
will be called.
When Wolfe met with ~espondent's representatives on the
morning of March 25, 1986, to conduct a 6 month review of the
ventilation plan, David Shreve of the United Mine Workers of
America was present, along with David Miller and Leo Conner, both
miner members of the safety committee, and both of whom were not
on the day shift. Also in attendance was Billy Wise, another
miner and member of the safety committee, who according to the
uncontradicted testimony of Miller was not on the day shift.
Riggle asked Wolfe if a walkaround was needed and Wolfe said
that one was not needed at the meeting, as the miners had sufficient representatives~ Miller requested of George Carter,
Respondentus Supervisor of Industrial and Employee RelationsQ
that Wayne attend the meeting as he was the designated representative of the minerso Wolfe said that a representative was not
necessary at the meeting as the meeting was not an inspection.
Carter told Miller that Wayne could be brought out to the meeting
on Union business. Miller insisted that Wayne be called and the
dispatcher notified Wayne to go to the meeting. Subsequentlyu
Respondent asked that the meeting be postponed for a day so they
could have a corporate representative inasmuch as Shreve from the
UMWA was presenta Miller requested a postponement of 10 days to
allow the safety committee to study the revision to the ventilation plane The meeting was then adjourned, and when Wayne
arrivedv he was told by Carter that he was on Union business and
could not go back to the min~.

196Q:

Issues
The issues are whether the Respondent discriminated against
Wayne, in violation of Section 105(c) of the Act, and, if so,
what is the appropriate relief to be awarded Wayne, and what are
the appropriate civil penalties to be assessed against the
Respondent for such discrimination.
Laws
S€ction 105(c)(l) of the Act provides, in essence, that no
person shall in any matter discriminate against or cause discrimination against, or other wise interfere with the exercise of the
statutory rights of any miner or representative of miners because
of the exercise by such miner of any statutory right forded by
the Act. In essence, Section 103(f) of the Act, provides that
" ••.• a representative authorized by his miner shall be given an
opportunity to •••• participate in pre-or post-inspection conferences held at the mine."
Discussion
Complainant and Respondent are protected by, and subject to,
the provisions of the Mine Safety Act, and specifically Section
105(c) of the Act.
I have jurisdiction to decide this case.
The Commission, in a recent decision, Goff v. Youghiogheny &
Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Goff, Supra, at 1863,
stated as follows~
A complaining miner establishes a prima facie case
of prohibited discrimination under the Mine Act by
proving that he engaged in protected activity and that
the adverse action complained of was motivated in any
part by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United Castle Coal
Coou 3 FMSHRC 803f 817-18 (April 1981)0
The operator
may rebut the prima facie case by showing either that
no protected activity occurred or that the adverse action was not motivated in any part by protected activityo
Robinette, 3 FMSHRC at 818 n. 20. See also Donovan Vo
Stafford Constr. Co.p 732 F.2d 954, 958-59 (D.C. Cir
1984) 0 Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.
1983) (specifically approving the Commission's PasulaRobinette test).

1961

Protected Activities
Wolfe's uncontradicted testimony established that, in
general, a 6 month review of Respondent's ventilation plan, is
preceded by an on-site inspection to see if the mine is being
properly ventilated. Indeed, Wolfe conducted such an inspection
on March 3, 4, 5, and 6, 1986. According to the uncontradicted
testimony of Wolfe, the 6 month meeting to review the ventilation
plan is held to review the compliance record of the Respondent
and review revisions proposed by Respondent to the ventilation
plan. Accordingly, I find that the meeting scheduled for
March 25, 1986, was a "post-inspection conference," within the
purview of Section 103(f) of the Act, inasmuch as it is likely
that conditions observed in the on-site inspection of March 3, 4,
5, and 6, would have been discussed. It is also clear, based
upon the testimony of Wolfe, that miner attendance and
participation at this meeting is critical to further safety at
the mine, as the latter would have an opportunity to discuss the
revision to the ventilation plan, and then to inform other miners
of these changes.
Based upon all the above, I conclude that Wayne's participation in the March 25 conference, as an authorized representative
of the miners, is to be considered a protected activity within
the purview of Section 105Cc) of the Act.
In essence, the uncontradicted evidence presented by
Complainant establishes that Wayne, on March 25, 1986, was a
safety committeeman, and that Miller had requested that the
latter, as the designated representative of the miners, be
present at the March 25 conference concerning the revision of the
ventilation Plano Furtheru I note that the Parties at the
hearing stipulated that the safety committeeman who was on the
shift at the time of a post inspection conference would be the
first choice as the authorized representative of the miners on
that shift. I thus conclude that, although three other safety
committeemen were already present at the conference, that Wayneu
was the "authorized" representative within the purview of Section
103(f) of the Act, as he was working on the shift during which
the conference occurred.
In this connection, I find that there is no relevance to the
comments that MSHA Inspector David Wolfe made at the March 25
conference that, in essence, a "walkaround" was not required by
him and that the miners were already represented by the three
safety committeemen who were present.

1962

Adverse Action
Respondent, in essence, argues that it had no legal obligation to provide Wayne with an opportunity to attend the March 25,
1986 conference. In this connection, Respondent maintains that
it reasonably relied upon the statements by Wolfe that a
walkaround was not needed inasmuch as the miners already had
three safety committeemen present. However, the critical issue
is not Respondent's good faith in asserting that it had no
obligation to allow Wayne to participate in the meeting, but
rather, its actions against Wayne, when confronted with th&
request that he attend the meeting. Respondent argues, in
essence, that Miller, in asking for Wayne to be present at the
meeting, placed the latter on Union business, and thus Wayne did
not suffer any loss of pay. Wolfe testified that Miller
initially requested of Respondent that Wayne be placed on Union
business (Tr. 23, 24). However, I accept Miller's version, as it
was essentially corroborated by Riggle and Carter (Tr. 141, 158),
that George Carter, Respondent 1 s Supervisor of Industrial and
Employee Relations told him that Miller would not be brought out
of the mine unless he went on Union business (Tr. 105, 106).
Miller then insisted that Wayne be brought out of the mine
to attend the meeting. When Wayne arrived the conference had
been adjourned, but Carter told Wayne that he could not go back
to the mine as he was on Union business. This had the effect of
causing Wayne to loose his pay for the balance of the day.
Accordingly, it is clear that Respondent's refusal to allow Wayne
to return to the mine after the March 25 conference had been
adjourned, constitutes an adverse action.
Motivation
The record tends to support a conclusion that Respondent did
not have any improper motive in concluding, in essence, that it
did not have any obligation to have Wayne attend the March 25
conferenceu as it relied upon the comments by Wolfe that such
attendance was not necessaryo Howeveru once the conference was
adjourned 0 there does not appear to be any basis for Carter 1 s
action in refusing to allow Wayne to return to the mine, other
than to punish him for attempting to attend the meeting.
Accordingly~
is concluded that Respondent's action in not
allowing Wayne to return to the mine, .was motivated solely by
Wayne 1 s asserting his rights under Section 105(c) and attempting
to attend the March 25 conferenceo Accordingly, it is concluded
that Respondent did violate Section 105(c) of the Act, as it did
commit an act of discrimination against Wayne within the purview
of Section 105(c) of the Act.

1963

In assessing a penalty to be imposed against Respondent, I
have considered the size of Respondent's mining operation as
stipulated to by the Parties. I have also taken into account the
gravity of the violation committed wherein. Also, although it
might be concluded that Respondent acted in good faith in
·initially refusing to permit Complainant to attend the March 25
conference, I find that the adverse action committed by Carter
against Wayne in not allowing him to return to the mine, was
intentional. Based on these factors, I· find that a penalty of
$300 is appropriate.
ORDER
It is ORDERED that.

1. Respondent shall, within 15 days from the date of
this Decision, post a copy of this Decision at the Ireland Mine
where notices to miners are normally placed, and shall keep it
posted there for a period of, 60 days.
2. Respondent, shall within 15 days from the date of
this Decision, pay Complainant for the 6 1/2 hours he would have
worked on March 25, 1986, had he not been refused permission to
return to work.
3. Respondent shall pay a penalty of $300 within 30
days of this Decision.

/fZ_ ~

Avram Weisberger
Administrative Law Judge

Distribution~

Linda M. Henryv Esq., Office of the Solicitor, U. s. Department
of Laborv Room 14480-Gateway Building, 3535 Market Street
Philadelphia, PA 19104 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road 1 Pittsburgh, PA 15241 (Certified Mail)
Thomas M. Myersu Esq., 56000 Dilles Bottom, Shadyside, OH 43947
(Certified Mail)
dcp

1964

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

22041

NOV 23 1987
GLADYS B. JOHNSON,
Complainant

DISCRIMINATION PROCEEDING

v.
FREEMAN UNITED COAL MINING
COMPANY,
Respondent

.

Docket No. LAKE 87-53-D
VINC CD 87-04
Orient No. 4 Mine

ORDER OF DISMISSAL
Before:

Judge Melick

Complainant requested to withdraw her Complaint of
Discrimination in the captioned case on the grounds that she
is unable to pursue the matter because of financial and other
problems. She states that she understands the consequences
of withdrawal and dismissal and that it is a final
disposition of these proceedings. Under the circumstances
herein, permission to withdraw is granted.
29 C.F.R. §
2700.11. This case is therefore dismissed with prejudice and
the hearing scheduled for November 24, 1987, is cancelled.
Respondent's request for costs, attorney's
other sanctions for the Complainant 9 s failure to a
scheduled depositions is denied for failure to mee
conditions set forth in FEDo R. CIV P.37o

Distribution:

Ms. Gladys B. Johnsonv P. 0. Box 103,
(Certified Mail)

lp, IL

62921

Harry M. Coven, Esq., Gould & Rather, Freeman United Coal
Mining Company, 222 North LaSalle Street, Suite 800, Chicago,
IL 60601 (Certified Mail)
npt

1965

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

NOV 231987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING.
:

v.

Dockst No. PENN 87-158
A. C. No. 36-06289-03522
No. 10 Mine

SOLAR FUEL COMPANY, INC.,
Respondent

.
DECISION

Appearances:

Before:

James~.

Culp, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania for Petitioner,
David C. Klementik, Esq., Windber, Pennsylvania for
Respondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et.
seq., the "Act", charging Solar Fuel Company, Inc. (Solar Fuel)
with three violations of regulatory standards. The general
issues before me are whether Solar Fuel violated the cited
regulatory standards as allegedu andu if sou whether those
violations were of such a nature as could significantly and
substantially contribute to the cause and effect of a mine safety
or health hazard, i.e. whether the violations were "significant
and substantial." If violations are found, it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Acto
Citation No. 2695362 charges a "significant and substantial"
violation of the mandatory standard at 30 C.F.R. § 75.1725(a) and
alleges as followsg
The top and bottom belt rollers of the No. 1 main belt were
not maintained in a safe operating condition in that from
station spad No. B-71 and extending inby to station spad No.
193, 9 bottom rollers were found frozen and worn into the
rollers from the bottom belt and seven top rollers were
worn, broken and badly damaged. Coal dust, float coal dust
and combustible material was present on, under and around

1966

the bottom rollers. This belt was in operation at the time.
This citation was one of the factors that contributed to the
issuance of imminent danger order No. 2695361 dated
12-30-86: therefore, no abatement time was set.
The cited standard, 30 C.F.R. § 75.1725Ca), provides that
"[m]obile and stationary machinery and equipment shall be
maintained in safe operating condition and machinery or equipment
in unsafe condition shall be removed from service immediately".
Citation No. 2695363 charges a "significant and substantial"
violation of the mandatory standard at 30 C.F.R. § 75.400 and
alleges as follows:
Coal dust, including float coal dust, loose coal, and
combustible material, in the form of empty rock-dust bags
are present on, under, and around bottom belt rollers, the
jabco power cable and belt structures beginning at spad No •.
B-71 and extending inby.a distance of approximately 1,200
feet to the be1t tail Cspad No. 193) of the No. 1 main belt.
These accumulations measured from 1 to 12 inches in depth
and from 12 to 72 inches in width under this belt. Coal
float dust accumulations also existed on the mine floor from
No. 2 main belt inby to the tail of No. l main belt. This
area measured approximately 10 feet wide for a distance of
approximately 360 feet. This belt was in operation at the
time. Measurements were made with a six foot standard rule
and 50 foot tape measure.
The cited standard provides that "(c]oal dust, including
float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materialsg shall be cleaned up and not be
permitted to accumulate in active workingsu or on electric
equipment thereino~
Vincent Jardina, a Coal Mine Safety and Health Inspector for
the Federal Mine Safety and Health Administration CMSHA), was
conducting a regular inspection of the Solar Fuel No. 10 Mine on
December 30u 1986u when he observed float coal dust accumulations
and combustible materials consisting of empty rock dust
bags, beginning at spad B-71 and continuing for some 1,200 feet.
The accumulations were dry, mostly dark in color and from 1 to 12
inches deep and from 12 to 72 inches wide. The area had not been
rock dustedo According to Jardina the accumulations were more
than normal and most likely were caused by excess air flow
through an air lock door frozen open. Exce~sive coal dust was
thus blown off the conveyor belt causing rapid accumulation of
the dust. ·

1967

Jardina believed the condition to be dangerous and could
contribute to a fire or explosion. In particular he observed
that the conveyor belt was operating with 16 damaged and/or
frozen rollers within close proximity to the coal dust.
(See
discussion of Citation No. 2695362) According to Jardina, seven
top rollers were damaged (some of which were not rotating) and
nine bottom rollers were "frozen".
Indeed one of the "frozen"
bottom rollers had been rubbed flat from the belt. In addition
the area of the conveyor structure near..one of the suspect
rollers felt "very warm" to Jardina. Under these conditions
Jardina thought it likely that the heat generated by friction
from the damaged rollers would ignite the coal dust causing a
fire or explosiono Energized power cables and electrical
installations also provided ignition sources. The fire hazard
was further aggravated by the undisputed fact that if the
conveyor belt itself caught fire it would give off carbon
monoxide and toxic phosgene gases even before smoke appeared.
The noted hazard was even further aggravated by the fact
that the belt air was vented directly into the return
aircourse--the secondary escapeway. Thus fire, toxic fumes and
smoke could very well bar the safe use of that escapeway. If an
explosion should blow out critical stoppings the entire work area
would also likely be contaminated with smoke and toxic gases.
Jardina also observed that the primary escapeway had been
rendered impassible to vehicles because of icing conditions.
Miners attempting escape would thus be forced to crawl over ice
in a coal height of only 30 to 32 inches in the last 150 to 200
feet of the primary escapeway. With eight miners working inby at
the time it may reasonably be inferred that fatalities would
occuro
Within the framework of this undisputed evidence I am
convinced that a disaster of major proportions was imminento The
violations were unquestionably of the highest gravity and
"significant and substantial"o Secretary v. Mathies Coal Co.
6 FMSHRC l (1984)0
In reaching these conclusions I have not
disregarded the evidence that an increased number of fire sensors
had been placed along the subject beltline and indeed were on
40-foot centerso Thus in the event of a fire an alarm would more
likely be triggeredo
I have also considered the evidence that
Solar Fuels had provided self rescuers and personal oxygen
supplieso
In addition I recognize that the subject coal was of
0
low volatility" Nevertheless these factors are not of a
magnitude to significantly impact on the overall severity of the
cited violationso
Inspector Jardina also concluded that the violations were
the result of high negligence. He opined that the accumulations
had developed over one complete work shift and the last work

1968

shift had been from 3:00 p.m. to 11:00 p.m. the night before.
The conditions were cited around 6:41 a.m. shortly after the
beginning of the 6:00 a.m. to 2:00 p.m. work shift. In addition
the mine examiner's book showed that the belt had been examined
between 9:00 a.m. and 10:45 a.m. and again between 3:00 p.m. and
6:00 p.m. the day before but the examiners had not reported any
accumulations. Jardina also noted that the examiners had
reported that the belt rollers "should be replaced" but in fact
defective rollers still remained at the.time of his inspection.
Solar Fuel Safety Director Alvy Walker also told the
inspector that they were having difficulty obtaining a type of
roller needed for the belt. Walker said that in any event he
would not stop the belt to replace any single defective roller.
At the same time Walker admitted to the danger of accumulations
of "fine coal" near a frozen roller and acknowledged that they
had problems with dust accumulating because of the high air
velocity.
Indeed in certain locations they had found it
necessary to clean up_the dust twice a day. He also acknowledged
that they had only one man responsible for cleaning up 5,000 feet
of belt line and that no one was working on the subject belt at
the time of the citation even though it had been operating for at
least 40 minutes before he met with the inspector.
Solar Fuels argues in defense that they had a "clean up"
plan that, in essence, permitted them to clean up accumulations
during the following shift. The alleged clean-up plan, which had
been submitted by a predecessor company to the Mine Safety and
Health Administration on May 12, 1982, provided that
accumulations would be "cleaned up during the shift or the
following shift"o Howeverv while it is true that the regulatory
standard at 30 CoFoRo § 750400-2 does require that a program for
regular clean up and removal of accumulations of coal and float
coal dustv loose coal and other combustibles be established and
maintained there is no process set forth for the approval of such
a plan by the Secretary of Labor. The regulatory requirement for
a clean up program thus cannot provide a basis to estop the
Secretary from enforcing the requirements of the standard at 30
CoFoRo § 7504000 The Secretary is in any event not subject to
the doctrine of equitable estoppal. See Secretary Vo King Knob
Coal Company Inc. 3 FMSHRC 1417 (1981)0 Solar Fuel's argument,
thereforev that it was not subject to the cited standard because
it had a clean-up plan 0 is devoid of merit.
Within this framework of evidence I find therefore that the
violations are proven as charged, that the violations were
serious and "significant and substantial" and were the result of
high operator negligence.

1969

Citation No. 2695425 alleges a non-significant and
substantial violation of the standard at 30 C.F.R. § 70.508 (a)
and charges as follows:
A periodic survey of the noise exposure to which each miner
in the active workings of the mine is exposed was not
received by the Mine Safety and Health Administration. The
survey was required to be conducted during the three month
period ending December 31, 1986.
The citation was issued January 16, 1987, by Inspector
Jardina and the operator was given until January 30, 1987, to
abate the violation. However, on February 19, 1987 ~· the
condition had still not been abated and Inspector Jardina
therefore issued a withdrawal order under section 104(b) of the
Act. The survey was finally conducted and the order terminated
on the following day. According to Jardina the violation was not
serious and he considered that the operator could have forgotten
to have completed the survey.prior to the initial citation. The
operator furnished qo excuse however for to failing to abate the
violative condition within the period set for abatement in the
initial citation. Solar Fuels admits to the violation and
provided no satisfactory reason for its failure to abate the
violation in a timely manner.
In assessing penalties herein, I have also considered that
the operator is relatively small in size and has a modest history
of violations.
I have also considered that the operator abated
the violations charged in Citations No. 2695362 and 2695363 in a
good faith manner.
ORDER
Citations Noo 2695362v 2695363 and 2695425 are affirmed and
Solar Fuel Company InCov is directed to pay ci~il penalties of
$500v ~500, and $100 respectively for the viol tions charg~d
therein within 30 days of the date of this dee sion.

~

i~

~.

II

r

/ ~~~l~~
..:~;~~ive
{703)~56-626i

1970

\

1
!]

\
Judge

Distribution:
James E. Culp, Esq., Office of the Solicitor, U. S. Department of
Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
David c. Klementik, Esq., 1206 Graham Avenue, Windber, PA
(Certified Mail>
npt

1971

15963

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

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 24 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 86-128-M
A.C. No. 54-00271-05501 J7Y

v.
Cantera Metro
DRILLEX, INCORPORATED,
Respondent
DECISION
Appearances:

Jane Brunner, Esq., Office of the Solicitor,
U.S. Department of Labor, New York, New York,
for the Petitioner;
Antonio Garcia-Soto, Esq., Santurce,
Puerto Rico, for the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of
civil penalty filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977u 30 U.S.C. § 820(a)u seeking a civil penalty assessment of $68 for an alleged violation of mandatory
safety standard 30 C.F.R. § 56.6047, as stated in a section
104(a) "S&S" Citation No. 2655924, served on the respondent by
an MSHA inspector on May 28, 1986.
Issues
The issues presented in this proceeding are as follows:
1. Whether the respondent violated the
cited mandatory safety standard, and if so, the
appropriate civil penalty to be assessed for
the violation based on the criteria found in
section llO(i) of the Act.

1972

2. Whether the inspector's "significant
and substantial" (S&S) finding concerning the
violation is supportable.
3. Additional issues raised by the
parties are identified and disposed of in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

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

3.

Commission Rules, 20 C.F.R. § 2700.l et seq.

Stipulations
The parties stipulated to the following (Tr. 3-6):

1. The respondent is a contractor engaged
in a business performing blasting and drilling
services for mine operators engaged in the
business of mining aggregates.
2. The respondent is subject to the jurisdiction of the Mine Act.
3. For purposes of the Mine Act, the
respondent is a small operator, employing four
to five people in its operations covered by the
Act, and its annual blasting and drilling
activities consists of 557 man-hours"
4. Respondent's history of prior violations consists of one order issued in May 1985,
for which the respondent paid an uncontested
civil penalty assessment of $180. Two citations issued in February 1987v have not been
assessed as yet by MSHA, and the respondent
confirmed that it will not contest the citations and will pay the civil penalty
assessments.
5. Payment of the proposed civil penalty
assessment for the alleged violation in this
case will not adversely affect the respondent's
ability to continue in business.

1973

Discussion
Section 104(a) "S&S" Citation No. 2655924, issued on
May 28, 1986, cites a violation of mandatory safety standard
30 C.F.R. § 56.6047, and the condition or practice is
described as follows:
"Company, Drillex, Inc., transported
565 electrical blasting caps from the dealer to Cantera Metro
(54-00271), inside the pick-up cab, mark Isuzu, tag
no. 299879, where blasting caps were exposed to sparking metal.
A person was driving the pick-up."
MSHA Inspector Juan Antonio Perez, testified that he has
been employed as an inspector since 1975, and that he is a
professional licensed engineer with a background in chemical
and metallurgical engineering. He confirmed that his duties
include compliance inspections of sand and gravel quarries and
cement plants, and that he has conducted approximately 2,000
inspections during his tenure with MSHA.
Mr. Perez con~irmed that he issued the contested citation
du.ring the course· of an inspection he was conducting at the
Cantera Metro quarry operated by Metro Industry, Inc. During
the course of that inspection, he observed a pickup truck
arriving at the mine site, and upon observation of the truck
he determined that it was carrying a load of blasting caps in
the driver's compartment or cab. Upon questioning the driver
of the truck, Mr. Perez learned that the truck was owned by
the respondent and that the driver was one of the respondent's
employees.
Mr. Perez stated that he determined the number of electrical blasting caps present in the cab of the truck by reviewing the delivery documents produced by the driver. Mr. Perez
believed that the blasting caps presented a hazard in that
they were exposed to the "sparking metal" of the cab of the
truck, including the doors, and that is why he cited section
56.6047 of the regulations. He confirmed that he observed
ammonium nitrate in the cargo bed of the truck.
Mr Perez believed that-. the respondent was negligent in
that the detonator caps in question were readily observable in
the cab of the truck" He also believed that the caps presented a hazard in that they are considered to be explosive.
He believed that an accident was reasonably likely to occur
because all of the ingredients for such an event were present,
namely, explosive caps, sparking metal, and the driver in the
cab of the truck.
o

1974

Mr. Perez confirmed that the electrical blasting caps in
question are considered to be explosives under MSHA's regulations, and were not "blasting agent's" within the exception
found in section 56.6047.
On cross-examination, Mr. Perez stated that ammonium
nitrate, in its natural state, is a fertilizer and not an
explosive. In order to be considered an explosive, it must be
combined with a fuel oil. He concedea that his citation makes
no reference to any such explosive material being transported
in the back cargo area of the truck.
Mr. Perez confirmed that abatement was achieved by transferring the remaining cited detonator caps to another truck
after the initial delivery, and that the citation was terminated approximately an hour after it was issued. Mr. Perez
further confirmed that his enforcement jurisdiction over the
respondent is limited to any trucks actually found on quarry
or mine properties, and that in the instant case, he inspected
the truck after it: was driven onto the mine site in question.
Mr. Perez confirmed that he has no particular expertise
or knowledge with respect to the use of explosives or blasting
materialsv and that his general knowledge of explosives is
from his "on the job" work experience as an inspector and from
his attendance at MSHA training sessions and seminars. He
agreed that the manner in which the cited detonator caps were
being transported did not violate any local explosive laws or
regulations or other Federal laws or regulations.
The parties agreed that at the time the citation was
issued, the driver of the pickup trucku who was an employee of
the respondent, was delivering electrical detonator caps to a
mine quarry operated by Metro Industries Inco The pickup used
to deliver the detonators was owned by the respondentu and the
driver was making the first of two deliveries scheduled for
that day. The first delivery consisted of 245 detonators, and
the scheduled second delivery to another site consisted of
320 detonators7 thus accounting for the total of 565 detonators cited by the inspectoro
Respondent produced copies of a form issued by the local
police department dated May 28u 1986, granting permission to
one Jose Collazo Bonilla, the driver of the truck in questionu
to transport two loads of electrical detonators along a designated route specified on the face of the forms. The forms
reflect that they were issued at 6:58 and 7:06 a.m., and the
information describing the pickup truck in question, including

1975

the tag number, is identical to that• stated by the inspector
on the face of the citation (exhibit R-1).
Although the police permit in question is in Spanish,
respondent's counsel translated it for the benefit of the
Court and petitioner's counsel, and upon review of the form by
Inspector Perez, he confirmed that the permits are in fact as
represented by the respondent.
Mr. Perez explained the general procedures normally
followed in the transportation of explosives, and he conceded
that he made no determination as to whether those procedures
were in fact followed in this case. He explained that it was
his understanding that local police regulations required
separate trips when multiple deliveries of detonators are made
to local mine sites. He confirmed that his principal concern
in issuing the citation was his belief that the detonators
were exposed to the truck "sparking material," namely, the
interior metal cab framing.

Mr. Perez st~ted that the detonators in question were
packed inside their original manufacturer's cardboard containers and that the boxes were stacked in the cab of the
truck from the floor to halfway up the front cab window.
He
could not state how many containers he observed, and denied
that the boxes were stored inside another container. However,
he later stated that they were inside another non-conductive
container as required by section 56.6057, but that it had no
top.
Petitioner's counsel asserted that the detonator containers were inside the type of container required by section
56.6057, and if they were not, the inspector would have cited
a viol~tion of that standard.
Mro Perez conceded that this
was trueo
Mro Perez admitted that he did not inspect the interior
of the truck cab to determine the actual composition of the
metal interior framework and did not determine whether it was
aluminum or painted with a "non-sparking" painto He also
admitted that he had no knowledge as to whether or not the
truck ignition Key was aluminum and did not inspector or look
at the key"
He admitted that aluminum material is
"non-sparkingo"
Mro Perez stated that the electrical detonators were
classified as a "class C explosive," but he conceded that they
could not explode while packed inside the manufacturerqs
original boxed containers.

1976

At the close of MSHA's case, respondent's counsel made a
motion for summary dismissal of the citation on the ground
that MSHA had failed to produce any evidence, or to otherwise
establish, that the interior of the truck cab where the electrical detonators were located and observed by the inspector
was composed of sparking metal, or that the detonators were
otherwise exposed to any sparking metal (Tr. 65-66). The
motion was initially taken under advisement, subject to any
re-dirct or rebuttal testimony by MSH~ (Tr. 66). Respondent's
motion was again renewed (Tr. 83, 99), and it was tentatively
granted from the bench, subject to the filing of a posthearing
brief by MSHA, and the receipt of the final hearing transcript
(Tr. 99-102, 107). Respondent was also afforded an opportunity to file a brief {Tr. 107).
MSHA 1 s Arguments
In its posthearing brief, MSHA views the single issue in
this case to be whether or not its mandatory standards permits
the carrying of explosives in the passenger cab of a truck.
MSHA submits that such a practice is prohibited by 30 C.F.R.
§ 56.6047 and by its overall regulatory scheme pertaining to
the transportation of explosives. MSHA points out that section 5606047 plainly requires that there be no sparking metal
exposed "in the cargo space," that the cargo space be equipped
with "suitable sides and tail gates," and that the explosives
"shall not be piled higher than the side or end enclosures."
MSHA asserts that if the standard is construed to permit the
transportation of explosives in the cab of a vehicle, or in
any area other than the acknowledged cargo space, the quoted
provisions of the standard would be rendered meaningless.
MSHA maintains that the standard obviously contemplates that
the "cargo space" of the vehicle is only that area which is
enclosed by the sides and tailgate of the vehicleq and not the
area within the passenger cab" MSHA concludes that the standard only addresses the presence of exposed sparking metal in
the cargo space because that is the only area of the vehicle
where it is permissible to place explosive materialsr and to
hold otherwise would authorize the placement of explosives in
the passenger cab, which is not a cargo space, where the explosives could indeed be exposed to sparking metal" Consequentlyu
MSHA believes that the placement of explosives in the cab of a
pickup truck constitutes a clear violation of the cited
standard"
With regard to its overall regulatory scheme concerning
the transportation of explosives, MSHA cites section 56.6050,
which provides as follows:
"Other materials or supplies shall

1977

not be placed on or in the cargo space of a conveyance containing explosives, detonating cord or detonators, except for
safety fuse and except for properly secured, nonsparking equipment used expressly in the handling of such explosives,
detonating cord or detonators."
(Emphasis added).
MSHA argues that the presumptive placement of explosives
in the cargo space of a vehicle forms the only conceivable
basis for excluding other materials or supplies "on or in the
cargo space." Similarly, the standard's exception for
"nonsparking" equipment would serve little purpose if there
was no requirement to transport explosives in the same cargo
space. MSHA concludes that a contrary interpretation of the
standard would curiously subject covered employers to possible
citations in circumstances where sparking equipment was present in the cargo space of a vehicle while explosives were present in the passenger cabr and submits that the standard has no
such intent.
MSHA also cLtes section 56.6040, which provides as
follows:
"Expl6sives and detonators shall be transported in
separate vehicles unless separated by 4 inches of hardwood or
equivalent."
MSHA argues that section 56.6040 contemplates that all
explosives and detonators are to be transported in the cargo
space where they are to be separated as specified. MSHA
points out that the standard does not mention, or imply, that
these materials may be separated merely by placing the explosives or detonators in the passenger cab of a vehicle, and
that absent the required separation inside of the cargo space,
employers are required to utilize separate vehicles. Since
this standard sets forth the only alternative available to
employers engaged in the transportation of explosives and
detonatorsu MSHA concludes that the standard would indeed
reference the use of the passenger cab if such a practice was
deemed appropriate. MSHA maintains that the respondent in
this case was engaged in transporting explosives and detonators in the same vehicleo Since the cargo space was fullu
MSHA suggests that the respondent was attempting to avoid
having to make two trips or the use of two vehicles.
At the hearing, MSHA s counsel took the position that
while the cited standard section 56.6047? makes reference LO
sparking metal exposed in the cargo space of vehicles used to
transport explosives; since the detonators in question were in
the passenger cab of the truck, rather than the normal rear
truck cargo bed, the cab of the truck would be considered the
cargo space for purposes of the standard. At the close of the

1978

hearing, counsel conceded that the essence of the alleged violation is whether or not the truck cab contained sparking
metal, and whether the blasting caps were exposed to any such
sparking metal (Tr. 103).
Findings and Conclusions
Fact of Violation
The respondent is charged with an alleged violation of
mandatory safety standard 30 C.F.R. § 56.6047, which provides
as follows:
56.6047

Vehicle construction

Vehicles used to transport explosives,
other than blasting agents, shall have substantially constructed bodies, no sparking metal
exposed in the cargo.space, and shall be
equipped with suitable sides and tail gates;
explosives shall not be piled higher than the
side or end enclosures.
Respondent produced copies of two permits issued by the
local police department on the day the citation was issued,
attesting to the fact that the transportation of the electrical blasting caps in question satisfied local police regulatory requirements, and MSHA did not dispute this fact (exhibit
R-1, Tr. 52).
MSHA's conclusion that the respondent was transporting
explosives in the rear of the truck in question is unsupported
by any credible or probative evidencev and it is rejected.
The record reflects that Inspector Perez was not sure what he
observed in the rear of the truck. Although he alluded to
91
other explosives 11 in the back of the truck, he obviously made
GO effort to identify them.
Although he further alluded to
ANFO, an explosive brand name, he stated that "I cannot testify as to anfo" (Tr. 22, 26).
The only specific "explosive" material referred to by
However, he
conceded that this material was not an explosive (Tr. 23). He
also conceded that the citation he issued makes no mention of
any explosives being carried in the rear of the truck (Tr. 23).
Mr. Perez explained that ammonium nitrat~, in its natural
state, was a fertilizer and not an explosive, and in order to
Mr. Perez were bags of ammonium nitrate (Tr. 22).

1979

make it an explosive, one must add diesel fuel oil. He reiterated that the ammonium nitrate he may have observed was not an
explosive (Tr. 26).
Mr. Perez confirmed that ammonium nitrate is considered a
"blasting agent," under MSHA's regulations. However, he conceded that section 56.6047 provides for an exception for blasting agents, and that the transportation of such materials in
the truck in question was not prohibiced by that standard (Tr.
25, 28). He also confirmed that the transportation of the
blasting caps in question in the cab of the truck did not violate any local laws or any regulations of the Federal Treasury
Department, Alcohol, Tobacco and Firearms (ATF} Agency (Tr.
37-38). Mr. Perez suggested that the reason the blasting caps
were carried in the cab of the truck was that there was no
room in the back of the truck (Tr. 28).
Mr. Perez confirmed that the detonators in question were
not exposed, but were packed in their original manufacturer's
cartons. The cartons were in turn located in non-conductive
containers as required by section 56.6057, and both Mr. Perez
and MSHA's counsel conceded that the manner in which they were
stored was in compliance with that mandatory standard (Tr. 76,
77).
Although one may conclude that it may have been imprudent
for the respondent to transport electrical detonator caps in
the cab of the truck, I find no regulatory or evidentiary
basis for finding a violation in this case. Aside from the
fact that MSHA produced no evidence to establish that the cab
of the truck was constructed of non-sparking metal, MSHA's
posthearing argumentsu which I find to be rather strained, and
which I rejectu would require the respondent to consider two
or three mandatory standards together before reaching any
rational conclusion that transporting blasting caps in a cab
of a truck was or was not prohibited.
In my viewr the regulatory intent of section 56.6047 is
to establish minimum construction standards for vehicles used
to transport explosives. Contrary to MSHA's arguments, I
cannot conclude that the standard is intended to prohibit the
transportation of explosives in the cab of a truck. As a
matter of factu as pointed out earlier, MSHA's position during
the hearing was that the cab of the truck was in fact the
cargo space since the explosives were located there, and since
the interior of the cab was of metal construction, which MSHA
assumes was exposed sparking metal, a violation was established. MSHA's counsel stated that "once you put the cargo in
the cab of the truck, then you've by d~finition made the cab

1980

of the truck the cargo space" (Tr. 61). When asked to define
the term "sparking metal," Inspector Perez replied "I don't
know, its zinc, iron, • • • whatever the truck is made of"
(Tr. 60). When asked whether or not the inspector had in mind
the phrase "no sparking metal" as stated in section 56.6047,
when he issued the citation, MSHA's counsel replied in the
affirmative (Tr. 62).
Although Mr. Perez indicated thal he was a licensed metallurgical engineer, his experience in explosives was limited to
several seminars, and his experience and training in applying
MSHA's mandatory standards (Tr. 30-31). MSHA's counsel conceded that Mr. Perez failed to inspect the interior of the
truck cab to determine whether it was in fact constructed of
sparking metal. Counsel further conceded that Mr. Perez
simply assumed that the interior of the truck was constructed
of sparking metal, and took the position that this was common
knowledge. Counsel acknowledged that aluminum metal, and
metal which is treated or painted with non-sparking paint,
would be considered non-sparking and in compliance with the
standard. However, counsel took the position that the burden
was on the respondent to establish this (Tr. 81-82). I disagree. In my view, the burden of proof here lies with MSHA
and not the respondent. MSHA must establish all elements of
the cited standard, particularly the fact that the interior of
the truck was constructed of sparking metal.

On the facts of this case, MSHA's evidentiary proof is
totally lacking to support any conclusion that the interior of
the truck was constructed of sparking metal. Mr. Perez considered "sparking metal" to be any metal that can heat and produce a spark. As an exampleu he explained that if a truck
dr
ng down a road hit a stone; and the stone hit the truck
body and produces a sparku then he would consider the metal to
be sparking metal (Tr. 78-79). Yet, he simply looked at the
metal door, and in a less than cursory way, determined that it
was constructed of sparking metal. He made no inspection of
the cab interior to determine whether it was constructed of
aluminumu or whether it was coated or painted with non-sparking
paint. As for the dooru he candidly admitted that "I didngt
prove that it can produce a sparking material on that 11 (Tr. 81).
He also made no determination as to whether or not the truck
ignition key was made of alumimlffi, and acknowledged thac he has
heard of such keys (Tr. 98). Given his asserted metallurgical
background, I would think that it would have been a simple
illatter for Mr. Perez to make a determination as to the composition of the interior of the truck to determine whether it was
constructed of sparking metal. The fact is that he did not do
so.

1981

Under all of the aforesaid circumstances, I conclude and
find that MSHA has failed to establish a violation of section
56.6047. Accordingly, the respondent's motion to dismiss,
made at the hearing, IS GRANTED, my previous tentative bench
ruling in this regard IS AFFIRMED, and the citation IS VACATED.
ORDER
In view of the foregoing findings and conclusions, section 104(a) Citation No. 2655924, issued May 28, 1986, citing
an alleged violation of 30 C.F.R. § 56.6047, IS VACATED, and
MSHA's proposal for assessment of civil penalty IS DISMISSED.

~
if,
.
·<<George" A. :Koutras

,/'J
/'f/Af'14!/

''Administrative Law Judge
Distribution:
William G. Staton and Jane Brunner, Esqs., Office of the
Solicitor, U.S. Department of Labor, 1515 Broadway, Room 3555,
New York, NY 10036 (Certified Mail)
Antonio Garcia Soto, Esq., P.O. Box 10165, Santurce, PR 00908
(Certified Mail)
/f b

1982

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

NOV 271987
CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. SE 87-49-R
Ord~r No. 2842983; 1/7/87

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

Matthews Mine
:

CIVIL PENALTY PROCEEDING

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

Docket No. SE 87-86
A.C. No. 40-00520-03620

v.

Matthews Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER OF DISMISSAL
Before:

Judge Broderick

On October 27, 1987, the parties filed a joint motion
to approve settlement together with exhibits. On November 9u
and November 19v 1987u the Secretary filed supplements to the
motion at my request.
In the contest proceeding, Consol seeks review of an
imminent aanger withdrawal order issued under section 107(a)
of the Ac~. The penalty case seeks penalties for four alleged
violations of 30 C.F.R. § 75.1704v each originally assessed
at $500. The motion states that the parties agree to settle
each violation for $300. The l07(a} order was issued because
the Inspector concluded that the four violations collectively
constituted an imminent danger.
The violations resulted from rock falls which blocked four
separate areas in the intake escapeways in the subject mine.
The motion states that the Secretary now believes that the
107(a) order was issued in error, and that the gravity of
the violations was not as serious as originally thought because
there were two travellable escapeways for all persons to
exit the mine.

1983

I have considered the motion in the light of the criteria
in section llO(i) of the Act and conclude that it should
be approved.
Accordingly, the settlement is APPROVED and Respondent
'is ORDERED TO PAY the sum of $1200 within 30 days of the
date of this order.
IT IS FURTHER ORDERED that Order No. 2842983 is VACATED,
and the review proceeding is DISMISSED.

/J~11u§ .P:£vdtt1~}
t/ ~ames
A. Broderick
Administrative Law Judge
Distribution:
Joseph B. Luckett, Esq., U.S. Department of Labor, Office of
the Solicitor, 2002 Richard Jones :Road, Suite B-201, Nashville,
TN 37215 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Co., 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
slk

19 84

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

November 30, 1987

CIVIL PENALTY PROCEEDI.NG

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

Docket No. LAKE 87-76-M
A. C. No. 11-02707-05510

v.

Elmhurst Underground No. 1

ELMHURST-CHICAGO STONE
COMPANY~

Respondent

.DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Broderick

The Solicitor has filed a motion to approve a settlement of
the one violation involved in this case. The original assessment was $7,000 and the proposed settlement is for $4,500.
The Solicitor's motion discusses the violation in light of
the six statutory criteria set forth in section llO(i) of the
Act. The subject citation was issued for a violation of 30 C.F.R.
§ 57.3022 because loose ground was not taken down or supported
before other work was done in drift EE easto An MSHA investigation concluded that this violation caused a fatal fall-of-face
accident when two miners entered the area to survey for the
center line to be used by the drillers to establish a drilling
pattern. A slab of rock, 12 feet by 7 feet and 30 to 36 inches
thick, fell from the face and struck both miners. One miner
received fatal injuries, and the other was seriously injured.
The Solicitor represents that a reduction from the original
assessment is warranted because the cited area had been marked
off following a blast, but the scaling crew had not barred the
loose material" Thus9 the miners should not have entered the
area 9 especially in light of the operator 1 s rule against working
in unscaled areas and the fact that the cited area was marked. I
accept the foregoing representations and approve the recommended
settlement.

1985

Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $4,500 within 30 days from the
date of this decisian.

t;;:. ~;:f:;:eL

Acting Chief Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. S. Department
of labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
Robert H. Brown, Esq., Laner, Muchin, Dombrow and Becker, Ltd.,
350 North Clark Street, Chicago, IL 60610-4796 (Certified Mail)
Mr. Charles Hammersmith, Jr., Executive Vice President, Elmhurst
Chicago Stone Company, 400 West First Street, Elmhurst, IL 60126
(Certified Mail)
I gl

1986

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

80204

NOV 301987
SECRETARY OF LABOR,

CIVIL PENALTY PROCEEDING

MB1E SAFETY AND HEALTH

Docket No. WEST 87-219
A.C. No. 05-04184-03504

ADMINISTRATION (MSHA),

Petitioner

Orchard Valley West Mine

Vo

COLORADO WESTMORELAND
INCORPORATED,

'Respondent
ORDER GRANTING PETITIONER'S MOTION TO VACATE CITATION AND
PROPOSAL FOR PENALTY AND ORDER OF DISMISSAL

Before:

Judge Cetti

On March 19, 1987, respondent was issued an order (later
modified to a citation) for a violation of 30 C.F.R. § 75.400.
That standard required combustible materials be cleaned up and
not permitted to accumulate. Respondent cleaned up the combustible material based on its understanding of what was
acceptable to MSHA.

Because of respondent's reliance on its understanding of
MSHA 0 s requirements, petitioner moves that the citation and
proposed penalty be vacatedo
Good cause having been shownu petitioner 1 s motion that the
citation and the proposed penalty be vacated is granted and this

proceeding is dismissed.

-~~ e:tt_.
~~~-1;1;.~:-~
__ :;tti
Adrrlinistrative Law Judge

Distribution~

James Ho Barkley 6 Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Ra Lincoln Derick, Manager, Safety and Training, Colorado West-

moreland Inc., P.O. Box 1299, Paonia, CO 81428
/ot

1987

(Certified Mail)

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

NOV 301987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF DAVID WILLIS,
Complainant

v.

.
.
.

BABCOCK MINING CO.;
HENRY McCOY, Individually
and as Operator of Babcock
Mining Co.; VIRGIL MCMILLION,:
Individually and as Operator
of McMillion Enp.~.Inc., ·
MCMILLION ENP., INC.,
Respondents

DISCRIMINATION PROCEEDING
Docket No. WEVA 87-106-D
HOPE CD 86-24
HOPE CD 87-2
No. 1 Mine

.

CORRECTION OF CLERICAL ERROR IN DECISION
Before:

Judge Fauver

The Supplemental Default Decision dated November 20, 1987,
is amended to correct the following clerical error: the
Complainant's name in Finding of Fact No. 1 is changed to "David
Willis."

-W~~v~
Administrative Law Judge
Distributiong
Carol Bo Feinbergv Esqov Office of the Solicitorp U.S.
Department of Laborv Room 516v 4015 Wilson Boulevardv Arlington,
VA 22203 (Certified Mail)
Virgil McMillionv Presidentv McMillion Enp. 9 Inc. 0 Box 13 0
Renickc WV 24966 (Certified Mail)
R.So Bailey, President, Craft Coal Company 8 State Route 15,
Montervillev WV 26282 (Certified Mail)

Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box
2057, Ashland, KY 41105 (Certified Mail)
Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland,
KY 41105 {Certified Mail)
kg
1988

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

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

November 30, 1987
(originally dated Nov. 20, 1987)

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF DAVID WILLIS,
Complainant

v.

.
.
.

BABCOCK MINING CO.;
HENRY McCOY, Individually
and as Operator of Babcock
Mining Co.; VIRGIL McMILLION,:
Individually and as Operator :
of McMillion Enp., Inc.,
McMILLION ENP., INC.,
Respondents

D~CRIMINATION

PROCEEDING

Docket No. WEVA 87-106-D
HOPE CD 86-24
HOPE CD 87-2

No. 1 Mine

SUPPLEMENTAL DEFAULT DECISION

Bef oce:

Judge Fauver

Pursuant to the Default Decision entered on October 20,
1987, and the affidavits filed with Complainant's proposed order
for relief, the following further Fiildings of Fact, Conclusions
of Law and Order are entered herain~
FINDINGS OF FACT

1. Complainant David Willis worked an average of 44
hours per week at Babcock Mining Co., and earned a regular rate
$10000 per hour, and an overtime rate of $15.00 per hour.
2"
Mr. Willis was discriminatorily fired from Babcock
Mining Co. on September 29v 1986,.and subsequently reinstated on
October 1 u. 19 8 6. Mr" Willis was again discriminator i ly f i:ced
from Babcock Mining Co. on October 20, 1986.
Babcock Mining Co.
ceased operations on December 10, 1986"
3. McMillion Enp., Inc., began operating the subject mine
on January 5, 1987, and ceased operations on February 13, 1987.

4. Mr. Willis was not successful in finding employment
between October 20, 1986 and February 13, 1987.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction in this proceeding.

1989

2.

Respondents violated § lOSCc) of the Federal Mine Safety
and Hea~th Act, 30 C.F:R: § 801 et~ as alleged in this
proceeding. They are Jointly and severally liable for back pay
due David Willis totalling $6,340.00, together with interest of
$570.60, which has been computed in accordance with the formula
set forth in Secretary ex rel. Bailey v. Arkansas Carbona
Company, 5 FMSHRC 2042 (1983).

3. Respondents are assessed a civil penalty of $550.00 for
the above violation, and they are jointly and severally liable
for such civil penalty.

4. Respondent Babcock Mining Co. is jointly and severally
liable with the other Respondents for the above back pay,
interest, and civil penalty. However, inasmuch as Babcock Mining
Co. has filed for bankruptcy, an order requiring it to make such
payments will not be entered in this proceeding.
ORDER
WHEREFORE IT IS ORDERED that:

1. Respondents Henry McCoy, Virgil McMillion and McMillion
Enp.u Inc., shall pay the above back pay of $6,340.00 and
interest of $570 .60 to Complainant D.avid Willis within 30 da2rn of
this Order.
If payment is not made within such period, interest
on the back pay shall continue to accrue under the formula in the
above Arkansas Carbona Company decision until payment in full is
made to David Willis.
2o

Respondents Henry McCoy, Virgil McMillion and McMillion
shall pay the above civil penalty of $550000 within
30 days of this Ordero

Enpo,

Inco~

~~WY~
William Fauver

Administrative Law Judge
Distribution~

Carol Bo Feinberg, Esq., Office of the Solicitor, U.S.
Department of Laborv Room 516, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Virgil McMillion, President, McMillion Enp., Inc., Box 13,
Renick, WV 24966 (Certified Mail)

R.So Bailey, President, Craft Coal Company, State Route 15,
Monterville, WV 26282 (Certified Mail)
Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box
2057, Ashland, KY 41105 (Certified Mail)

1990

Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland,
KY 41105 (Certified Mail)
kg

1991

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

NOV 301987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF ALBERT HALSTEAD,
Complainant

v.
BABCOCK MINING co.~
HENRY McCOY, Individually
and as Operator of Babcock
Mining Co.; VIRGIL McMILLION,:
Individually and·~~ Operator
of McMillion Enp., Inc.,
MCMILLION ENP., INC.,
Respondents

DISCRIMINATION PROCEEDING
Docket No. WEVA 87-107-D
HOPE CD 87-1
HOPE CD 87-4
No. 1 Mine

CORRECTION OF CLERICAL ERRORS IN DECISION
Before:

Judge Fauver

The Supplemental Default Decision dated November 20, 1987,
is amended to correct the following clerical errors:
the
Complainant's name in Conclusion of Law No. 2 and in paragraph 1
of the Order is changed to "Albert Halstead."

-cd~~~-

William·~
Administrative Law Judge

Distribution~

Carol B. Feinbergu Esq., Office of the Solicitor, U.S.
Department of Laboru Room 516, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Virgil McMillion, President, McMillion Enp.u Inc.u Box 13,
Renick, WV 24966 (Certified Mail)

R.S. Bailey, President, Craft Coal Company, State Route 15,
Mqnterville, WV 26282 (Certified Mail)
Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box
2057, Ashland, KY 41105 (Certified Mail)
Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland,
KY 41105 (Certified Mail)
kg
1992

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

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

22041

November 30, 1987
(originally
Nov. 20, 1987)

SECRETARY OF LABOR,
MINE SAFETY AND HEAL·rH
ADMINISTRA'rION (MSHA),
ON BEHALF OF ALBER·r HALSTEAD,
Complainant

v.
BABCOCK MINING CO.;
HENRY McCOY, Individually
and as Operator of Babcock
Mining Co.; VIRGIL MCMILLION,:
Individually and as Operator
of McMillion Enp., Inc.,
McMILLION ENP., INC.,
Respondents

DI~CRIMINATION

PROCEEDING

Docket No. WEVA 87-107-D

HOPE CD 87-1
HOPE CD 87-4
No. 1 Mine

SUPPLEMENTAL DEFAULT DECISION

Before:

Judge Fauver

Pursuant to the Default Decision entered on October 20,
1987v and the affidavits filed with Complainant's proposed order
for reli
f
the following further Findings 0£ Factu Conclusions
of Law and Order are entered herein~
FINDINGS OF FACT

lo Complainant Albert Halstead worked an average of 44
hours per week at Babcock Mining Co., and earned a regular rate
of $10.00
houru and an ove~time rate of $15.00 per hour.
2.
Mr. Halstead was discriminatorily fired from Babcock
Mining Co. on October 4, 1986 and subsequently reinstated on
October 9, 1986.
Mr. Helstead was aJain discriminatorily fired
from Babcock Mining Co. on.October 20, 1986. Babcock Mining Co.
ceased operations on December 10, 1986.
3.
McMillion Enp., Inc., began operating the subject mine
on January 3, 1987. 0n January 12, 1987, Mr. Halstead was
offered a job at McMillion Enp. Inc. McMillion Enp., Inc.,
ceased operations on FebruarJ 13, 1987.
4.

Between October 20, 1986 and December 10, 1986, and

between January 5, 1987 and January 12, 1987, Mr. Halstead earned
a total of $1,081.00 at other jobs.

1993

CONCLUSIONS OF LAW
1.

The Commission has jurisdiction in this proceeding.

2. Respondents violated§ 105(c) of the Federal Mine Safety
and Health Act, 30 C.F.R. § 801 et~ as alleged in this
proceeding. They are jointly and severally liable for back pay
due Albert Halstead totalling $3,279.0Q, together with interest of
$295.11, which has been computed in accordance with the formula
set forth in Secretary ex rel. Bailey v. Arkansas Carbona
Company, 5 FMSHRC 2042 (1983).
3. Respondents are assessed a civil penalty of $700.00 for
the above violation, and they are jointly and severally liable
for such civil penalty.
4. Respondent Babcock Mining Co. is jointly and severally
liable with the other Respondents for the above back pay,
interest, and civil penalty . . However, inasmuch as Babcock Mining
Co. has filed for ba,nkruptcy, an order requiring it to make such
payments will not be entered in this proceeding.
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondents Henry McCoy, Virgil McMillion and McMillion
Enp., Inc., shall pay the above back pay of $3,279.00 and
interest of $295.11 to Complainant Albert Halstead within 30 days of
this Order.
If payment is not made within such period, interest
on the back pay shall continue to accrue under the formula in the
above Arkansas Carbona Company decision until payment in full is
made to David Williso
2o
Respondents Henry McCoyu Virgil McMillion and McMillion
Enp.v Inco, shall pay the above civil penalty of $700.00 within
30 days of this Order"

~
1-M\ll~
William Fauver

Administrative Law Judge
Distribution~

Carol Bo Feinberg, Esq., Office of the Soli9itor, U.So
De9artment of Labor, Room 516, 4015 Wilson Boulevard, Arlington,
VA 22203 (Certified Mail)
Virgil McMillion, President, McMillion Enp., Inc., Box 13,
Renick, WV 24966 {Certified Mail)
R.S. Bailey, President, Craft Coal Company, State Route 15,
Monterville, WV 26282 (Certified Mail)

1994

Babcock Mining Company, c/o Drew Hunter, Secretary, P.O. Box
2057, Ashland, KY 41105 (Certified Mail>
Mr. Henry McCoy, Babcock Mining Company, P.O. Box 2857, Ashland,
KY 41105 {Certified Mail)

kg

1995

*U• S, GOVERNMENT PRINTING OFFICE 1987: 201-735/72930

1996