OCTOBER 1982
Commission Decisions
10-29-82
10-29-82

Conso1idation Coal Company
Old Ben Coal Company

PENN 81-106-n
LAKE 80-399

WEST 81-63-M
10-04-82 Washington Construction Company
10-06-82 Wade Kemp III, William Kure et al.
CENT 81-186-M
WEST 80-380-M
10-07-82 FMC Corp.
10-07-82 FMC Corp.
WEST 81-131-RM
10-08-82 Homestake Mining Company
CENT 80-140-M
10-12-82 Merle E. Wegner v. Asphalt Mining & Concrete Co.WEST 82-59-DM
WEST 82-128-DM
10-14-82 Harold Crumley v. Anamax Mining Co.
10-22-82 NBC Energy, Inc.
KENT 82-27
10-25-82 · Delmont Resources, Inc.
PENN 80-268-R
10-26-82 Sterling Energy, Inc.
KENT 82-44
10-26-82 Hillard Bentgen et al.
LAKE 82-27-M
10-26-82 Consolidation Coal Company
WEVA 82-30-R
10-27-82 Virginia Pocahontas Co.
VA 79-131-R
10-27-82 S & P Coal Co.
VA 81-63
KENT 82-7-D
10-28-82 Elmer Harris v. McGinnis Coal Co.
WEVA 82-18
10-28-82 Consolidation Coal Co.
10-29-82 A. B. Whitley, Inc.
SE 81-26-M

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Commission Decisions

OCTOBER

The following cases were Directed for Review during the month of October:
Secretary of Labor, MSHA v. Great Western Electric Company, Docket Nos.
WEST 81-213-RM, 81-258-M. (Judge Morris, September 7, 1982)
Roger Sammons v. Mine Services, Inc., division of Drummond Coal Co.,
Docket No. SE 82-15-D. (Judge Koutras, September 15, 1982)
Secretary of Labor, MSHA v. Florence Mining Co., Helen Mining Co., etc.,
Docket Nos. PITT 77-15, etc., IBMA 77-32. (Reconsideration of Commission 1 s
decision dated August 31, 1982)
Review was Denied in the following case during the month of October:
Lehman Gilliam v. Blue Diamond Mining, Inc., Docket No. KENT 80-288-D.
(Judge Steffey, September 9, 1982)

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

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

October. 29, 1982
Docket No. PENN 81-106-R

v.
CONSOLIDATION COAL COMPANY
DECISION
This case involves the interpretation and
of section
104(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et~· (1976 & Supp. IV 1980). l/ The
issue before us
is the procedural propriety of the administrative law judge's modification
Section 104
provides:

of the Mine Act, 30 U.S.C. § 814(d) (Supp. IV 1980),

(1) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and if
he also finds that, while the conditions created by such violation
do not cause imminent danger, such violation is of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of
such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to
the operator under this Act. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the issuance
of such citation, an authorized representative of the Secretary
finds another violation of any mandatory health or safety standard
and finds such violation to be also caused by an unwarrantable
failure of such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the area
affected by such violation ..• to be withdrawn from ... such area
until an authorized representative of the Secretary determines that
such violation has been abated.
(2) If a withdrawal order with respect to any area in a coal
or other mine has been issued pursuant to paragraph (1), a withdrawal order shall promptly be issued by an authorized representative
of the Secretary who finds upon any subsequent inspection the
existence in such mine of violations similar to those that resulted
in the issuance of the withdraw~! order under paragraph (1) until
such time as an inspection of such.,mine discloses no similar
violations. Following an inspection of such mine which discloses
no similar violations, the provisions of paragraph (1) shall again
be applicable to that mine.

1791

82-10-14

of an invalid section 104(d)(l) withdrawal order to a section 104(d)(l)
citation. 2/ For the reasons that follow, we conclude that, under the
specific circumstances of this case, the judge acted properly and we
accordingly affirm his decision.
The facts are not in dispute. On February 2, 1981, the Secretary
of Labor issued a section 104(d)(l) citation to Consolidation Coal
Company ("Consol") alleging a violation of Consol's ventilation plan.
Consol filed a notice of contest of this citation. FMSHRC Docket No.
PENN 81-92-R. On February 26, 1981, the Secretary issued Consol a
section 104(d)(l) withdrawal order which the parties settled on
July 10, 1981. 3/ On March 4, 1981, the Secretary issued another
section 104 (d)(l) withdrawal order. This order alleged improper
grounding of equipment in violation of 30 C.F.R. § 75.701-3. 4/ The
withdrawal order further alleged that the violation was significant and
substantial and was caused by Consolis unwarrantable failure to comply
with the law. On the same day the withdrawal order was issued, Consol
abated the allegedly violative condition. Consol subsequently filed a
notice of contest of this second order, which is the subject of the
proceeding now before us.
On September 24, 1981, the administrative law judge issued his
decision in Docket No. PENN 81-92-R, finding that the violation cited
in the February 2, 1981, section 104(d)(l) citation although significant and substantial, was not caused by Consol's unwarrantable failure
to comply. Given this conclusion, the judge modified that citation to a
section 104(a) citation, which he then affirmed. Consolidation Coal Co.,
3 FMSHRC 2207, 2208-10 (September 1981) (ALJ). Neither party sought
Commission review of this decision. After the judge's decision in
Docket No. PENN 81-92-R, however, Consol filed a motion for summary
decision in the present case, pursuant to Commission Rule 64, 29 C.F.R.
§ 2700.64, 5/ seeking vacation of the March 4, 1981 withdrawal order on
the grounds-that it now lacked a necessary underlying 104(d)(l) citation.
2/

The judge's decision is reported at 4 FMSHRC 49 (January 1982).
This settlement is not before us.
!:./ Section 75.701-3 provides in relevant part:
For the purpose of grounding metallic frames, casings and
enclosures of any electric equipment or device ••• , the following
methods of grounding will be approved[:]
(b) A solid connection to the grounded power conductor
of the system ••••
The order alleged improper grounding of an electrically-operated pump, in
that uninsulated and exposed wiring was present in the pump frame.
5/
Commission Rule 64 provides in part:
(a) Filing of motion for summary decision. At any time after
commencement of a proceeding and before the scheduling of a hearing
on the merits, a party to the proceeding may move the judge to
render summary decision disposing of all or part of the proceeding.
(b) Grounds. A motion for summary decision shall be granted only
if the entire record, including the pleadings, depositions, answers
to interrogatories, admissions, 'and affidavits shows: (1) that
there is no genuine issue as to any material fact; and (2) that the
moving party is entitled to summary decision as a matter of law.

3/

1792

At the outset of the hearing on Consol's contest of the March 4th
withdrawal order, the judge ruled from the bench that a valid 104(d)(l)
citation is a prerequisite to issuance of a 104(d)(l) withdrawal order.
He found that, as a result of his September 24, 1981, decision invalidating the 104(d)(l) citation underlying the withdrawal order in this
case, no precedential 104(d)(l) citation existed upon which to base the
104(d)(l) withdrawal order at issue. 4 FMSHRC at 50-51. 6/ He held,
however, that the proper procedure under the circumstances was not
vacation of the withdrawal order, as urged by Consol, but rather conditional modification of the order to a 104(d)(l) citation, followed
by a full hearing on the merits of the modified citation. Id. at 51;
Tr. 4-19. The judge made the conditional modification on
own motion.
The Secretary's counsel, upon being questioned by the judge, declined
to make his own motion for modification of the second withdrawal order
and expressed his "satisfaction" with the judge's sua
action.
Tr. 17.
-The judge thus granted Consol only partial summary decision. He
denied total summary decision because in his view a factual dispute
remained as to the validity of the conditionally modified citation. The
judge emphasized that if the evidence failed to show a s
and
substantial violation caused by an unwarrantable failure to comply 9 the
tentatively modified 104(d)(l) citation would fail, and that if the
evidence failed to show a violation at all, the case would be dismissed.
Tr. 16. At the close of the hearing, the judge confirmed his modification and affirmed the 104(d)(l) citation. 4 FMSHRC at 51-5. We
granted Consol's subsequent petition for discretionary review. 21
Consol's arguments on review are narrow and, for the most part,
procedural. Consol contends only that the judge lacked authority to
modify the withdrawal order in this case on his own initiative and
prior to a hearing. At the hearing below, Consol admitted the underlying violation, and challenged only the special 104(d){l) findings.
Consol does not now, however, seek review of the judge's conclusion
that the violation was significant and substantial and caused by its
unwarrantable failure to comply with the law. We conclude that the
judge acted properly.
We first consider the question of modification from a general
perspective. Sections 104(h) and lOS(d) of the Mine Act expressly

6/
The judge also denied the Secretary's motion to convert to a
104(d)(l) citation the first withdrawal order of February 26, 1981,
which, as noted above, had been settled by the parties. 4 FMSHRC at
50-51. The Secretary has not challenged this aspect of the judge's
ruling.
l/ We also granted the motion of the United Mine Workers of America to
intervene on review, and subsequently heard oral argument in this case.

1793

authorize the Commission to "modify" any "orders" issued under section
104. §_/ This power is conferred in broad terms and we conclude that it
extends, under appropriate circumstances, to modification of 104(d)(l)
withdrawal orders to 104(d)(l) citations. In this case, and in future
ones raising similar issues, we will define such "appropriate circumstances." Where, as here, the withdrawal order issued by the Secretary
contains the special findings set forth in section 104(d)(l), but a
valid underlying 104(d)(l) citation is found not to exist, an absolute
vacation of the order, as urged by the operator, would allow the kind of
serious violation encompassed by section 104(d) to fall outside of the
statutory sanction expressly designed for it--the 104(d) sequence of
citations and orders. The result would be that an operator who would
otherwise be placed in the 104(d) chain would escape because of the
sequencing of citations and orders. Such a result would frustrate
section 104(d)'s graduated scheme of sanctions for more serious
violations. 9/
8/
Section 104(h) of the Mine Act, 30 u.s.c. § 814(h)(Supp. IV 1980) 9
provides:
Any citation or order issued under this section shall remain
in effect until modified, terminated or vacated by the Secretary or
his authorized representative. or modified terminated or vacated
by the Commission or the courts pursuant to section 105 or 106,
9

Section 105(d) of the Mine Act, 30 U.S.C. 815(d)(Supp. IV 1980),
provides:
If, within 30 days of receipt thereof, an operator of a coal
or other mine notifies the Secretary that he intends to contest the
issuance or modification of an order issued under section 104, ••• the
Commission shall afford an opportunity for a hearing (in accordance
with section 554 of title 5, United States Code, but without regard
to subsection (a)(3) of such section), and thereafter shall issue
an order, based on findings of fact, affirming, modifying, or
vacating the Secretary's citation, order, or proposed penalty, or
directing other appropriate relief. Such order shall become final
30 days after its issuance ••••
9/
Modification under such circumstances is also consistent with our
settled precedent. We held in Island Creek Coal Co., 2 FHSHRC 279, 280
(February 1980), that allegations of a violation survived the Secretary's
vacation of the 104(d)(l) withdrawal order in which they were contained
and, if proven at a subsequent hearing, would have required assessment
of a penalty. We reached a similar result in a companion case in which
we held that allegations of violation also survived Secretarial vacation
of an invalid 107(a) order (imminent danger). Van Mulvehill Coal Co., Inc.,
2 FMSHRC 283, 284 (February 1980). In both cases, we thus contemplated
future trial of the allegations as possible 104(a) violations. (Neither
of the vacated withdrawal orders had contained significant and substantial findings.) If less serious allegations of 104(a) violations
survive, then, a fortiori, the more serious allegations in the present
type of case should survive as potential 104(d)(l) violations. In
short, the purport of our decisions is that such allegations survive,
and modification is merely the appropriate means of assuring that they
do.

1794

Any modification must be carried out on fair notice and otherwise
comport with relevant requirements of due process. In an analogous
situation arising under section 104(d)'s virtually identical predecessor
provision, section 104(c)(l) of the Federal Coal Mine Health and Safety
Act of 1969, 30 U.s .C. § 801 et seq. (1976) (amended 1977) ("the 1969 Coal
Act"), we approved an administrative law judge's modification of invalid
104(c)(l) orders to 104(c)(2) orders. Old Ben Coal Co., 2 FMSHRC 1187,
1189-90 (June 1980). 10/ We premised our approval of the modification
on the fact that the operator had not shown prejudice, had not claimed
lack of notice, and had not indicated how its defense to a (c)(2) order
would differ from its defense to a (c)(l) order. Id. Similar considerations
guide our disposition of the present case.
In
of these general principles, we now return to Consol 1 s
specific objection that the judge's modification in this case was procedurally improper. From all that appears on the record, had the
Secretary sought modification of the second withdrawal order prior to
trial, Consol would not have believed itself procedurally aggrieved.
The essence of Consol's complaint is that the Secretary, not the judge,
should have modified the order, and that even if a Commission judge may
modify a 104 order, section 105(d) of the Mine Act mandates that he act
only after--not before--"afford[ing] an opportunity for a hearing." We
cannot agree to so restrictive a reading of the powers conferred by section
105(d).
Consol contends that the responsibilities of the Secretary and
Commission judges differ, and that the judge's modification was a
usurpation of Secretarial duties. The Secretary's responsibility is to
issue section 104(d)(l) citations and orders, and to prosecute them upon
contest by the operator. Accordingly, where as here an order fails for
lack of a valid citation, the preferable procedure after contest and
assumption of jurisdiction by the Commission, would be for the Secretary
to move for modification or amendment to recharacterize the order as a
citation. 11/ In this case, however, for reasons unexplained, the
Secretary'S--counsel declined to make such a motion, but rather acquiesced
in the judge's preliminary modification. Had the judge vacated the withdrawal
order, a trial of the special 104(d)(l) findings would not have occurred,
a result that would have frustrated the purpose of section 104(d).
10/ The original orders had been issued outside the 90-day limit in
-;ection 104(c)(l) (carried over to the Mine Act) and therefore, assuming
other requirements were met, should have properly been issued as
104(c)(2) orders.
11/ Such change after a notice of contest has been filed must occur by
motion, and not on the Secretary's own initiative. See Climax Molybdenum Co., 2 FMSHRC 2748, 2750-51 (October 1980)(Secretary cannot
unilaterally vacate a contested citation.)

1795

We emphasize that the necessary special findings were contained in
the order when it was issued. Hence the judge was not adding new
findings to ucreate" a 104(d)(l) citation. Given the purpose of section
104(d) and the broad power to modify granted the Commission and its
judges in section lOS(d), we cannot agree with Consol that under these
circumstances the judge erred.
Our decision might have been different had Consol demonstrated
prejudice. We find, however, that there was no prejudice and that the
judge's actions were entirely consistent with due process. The judge
granted Consol a full hearing to contest the violation and the special
104(d)(l) findings. Consol did not, as it could have done, claim
prejudice or request a continuance when it was required to defend
against the tentatively modified 104(d)(l) citation. Consol did not
show--nor do we see how it could have shown--how its defense to the
104(d)(l) citation would differ from its defense to the 104(d)(l) withdrawal order which contained precisely the same allegations. When asked
about prejudice at the oral argument, Consol claimed it was prejudiced
because it was forced to go to hearing on the merits of the citation.
Arg. Tr. 13. However, a party moving for summary decision must always
be prepared to go to trial if the motion is wholly or partially denied;
that does not constitute prejudice. Cf. Old Ben Coal Co., supra,
Consol also argues that, in any event, the judge could not modify
the order prior to the hearing. However, the judge did not modify the
order in a final sense prior to hearing. His action was no more than a
preliminary procedural ruling expressly conditioned on the outcome of
the subsequent evidentiary hearing. Tr. 16, 18-19. Only after the
hearing did the judge issue his decision finally modifying the order and
affirming the citation. Thus, we are satisfied that Consol received an
"opportunity for a hearing" before the final binding modification occurred
in this case.
Finally, Consol argues that cases arising under the 1969 Coal Act,
in which the Interior Board of Mine Operations Appeals held that administrative law judges lacked the authority to modify withdrawal orders,
should control resolution of the issues in the present Mine Act proceeding. This precedent is not dispositive. Section 105(b) of the
1969 Coal Act, 30 U.S.C. § 815(b)(l976), ll:J authorized the Secretary
12/ Section lOS(b) of the 1969 Coal Act provided:
Upon receiving the report of such investigation, the Secretary
shall make findings of fact, and he shall issue a written decision,
incorporating therein an order vacating, affirming, modifying, or
terminating the order, or the modification or termination of such
order, or the notice, complained of and incorporate his findings
therein.

1796

of Interior to modify withdrawal orders issued under section 104(c),
the statutory predecessor of section 104(d) of the Mine Act. The
Board and its judges were part of the Department of Interior, and
the Secretary had, by regulation, delegated to them his adjudicative
functions under the Coal Act. 43 C.F.R. § 4.500 ~~· (1971)
(rescinded 1978). The Board held that administrative law judges had
no power to convert invalid 104(c) orders to notices of violation.
See, for example, Freeman Coal Mining Co., 2 IBMA 197 (1973), aff'd
on other grounds, 504 F.2d 741 (7th Cir. 1974). The Board viewed
such modification as a usurpation at the Secretary's prosecutorial
authority to issue notices of violation. Freeman, supra, 2 IBMA at
209-10. The Board determined that only certain specified adjudicative
powers had been delegated to it, and that issuance or modification of
notices or orders were not among them. Id. In contrast, under the
Mine Act, the Commission and the Secretary are independent and wholly
distinct entities, each possessing the powers specified in the Act.
Section 105(d) expressly authorizes the Commission to modify 104
orders. Thus, given the language of section 105(d), and the allocation
of powers under the Mine Act, the delegation problems perceived by the
Board in Freeman simply do not arise under the present Act. 13/ See
generally, Sewell Coal Co., 3 FMSHRC 1402, 1404 (June 1981),~

J:1/

Consol also contends that the judge erred by failing to grant it total
summary decision. The moving party is only entitled to summary decision if
there is no genuine issue as to any material fact, and if summary decision
should be rendered as a matter of law. As we decided above, Consol was
not entitled as a matter of law to a'vacation of the subject order.

1797

We conclude that the judge below did not err procedurally in
modifying the 104(d)(l) withdrawal order to a 104(d)(l) citation and
proceeding to hearing on the citation. Accordingly, we affirm the
judge's decision. 1!!_/

,/

14/ Commissioner Nelson assumed off ice after this case had been
considered by the other Commissioners. A new Commissioner possesses
legal authority to participate in pending cases, but such participation
is discretionary and is not required for the Commission to take official
action. The other Commissioners reached agreement on the disposition of
the case prior to Commissioner Nelson's assumption of office, and
participation by Commissioner Nelson would therefore not affect the outcome.
Accordingly, in the interest of efficient decision-making, Commissioner
Nelson elects not to participate in this case.

1798

Distribution
Michael McCord, Esq.
Linda Leasure, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.

UMWA
900 15th St., N.W.
Washington, D.C. 20005
Leonard Fornella, Esq,
for Consolidation Coal Co.
Corcoran, Hardesty, Ewart, Whyte & Polito
Suite 210, Chatham Center
Pittsburgh, PA 15219
Sally S. Rock, Esq.
Eastern Associated Coal Corporation
1728 Koppers Bldg.
Pittsburgh, PA 15215
E. J. Moriarty, Esq.
Old Ben Coal Company
69 West Washington Street
Chicago, Illinois 60602
R. Henry Moore, Esq.
Rose, Schmidt, Dixon, Hasley
900 Oliver Bldg.
Pittsburgh, PA 15222
Administrative Law Judge Gary Melick
Fed. Mine Safety & Health Rev. Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1799

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

October 29, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 80-399

v.

OLD BEN COAL COMPAl"IT
DECISION
This penalty case arises under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et~· (Supp. IV 1980), and involves the
interpretation of 30 C.F.R.
77.1700, which provides:
Communications in work areas.
No employee shall be assigned, or allowed, or
be required to perform work alone in any area where
hazardous conditions exist that would endanger his
safety unless he can communicate with others, can
be heard, or can be seen.
The judge concluded that Old Ben Coal Company violated the standard in
connection with a fatal accident which occurred when a bulldozer fell
into a hole in a raw coal storage pile. l/ For the reasons discussed
below, we affirm.
The facts are basically undisputed. The coal
on which the
accident happened is located on the surface of the mine. The pile is
cone-shaped and surrounds a vertical, 60-foot high stacking tube. Coal
is brought from the mine by conveyors and discharged from the top of the
stacker to form the storage pile. Bulldozer drivers, working on plateaus,
or "benches," on the pile, push the coal away from the stacker toward
four feeder holes located under the pile. The feeder holes are not
visible to the bulldozer operator from the surface of the pile, but if
coal is feeding properly, indentations, or "bird's nests," appear on the
surface directly above the holes. By operating controls in the preparation
plant, another employee, the preparation plant operator, opens and
closes the feeder holes. Coal falls down through the holes on to an
underground conveyor and is carried away to the processing plant.

1./

The judge's decision is reported at 3 FMSHRC 1886 (July 1981).

1800

82-10-15

When the weather is damp and the coal pile large, coal does not
always feed evenly into the feeder holes and "bird's nests" might not
appear. Instead, cavities, or 11 voids, 11 form between compacted coal near
the top of the pile and looser coal at the bottom going into the feeder
holes. Bridged-over voids are not visible from the surface. Although a
bulldozer may be able to run over a bridge for a time, it is not uncommon
for a bulldozer at Old Ben's mine to collapse the bridge and fall into a
void. When a driver suspects a void, he puts the blade down and drives
forward; the blade collapses the bridge, preventing the bulldozer from
going too deeply into the void.
During the two-year period preceding the accident, the coal pile
had become unusually large. The bench on which the bulldozer drivers
were working was about 35-40 feet above the feeder holes. At the time
of the accident on April 8, 1980, the weather was rainy and misty.
Shortly before Robert Mitchell, the driver involved in the accident,
started work on the midnight to 8:00 a.m. shift, another bulldozer fell
into a void, but the driver was not
urea and was able to
his
bulldozer out. However, he was visibly shaken, and requested a means of
communication. Tr. 75, 83, 87, 107.
While Mitchell was working that night, the pile was illuminated by
floodlights on the stacker and by his bulldozer headlights, but visibility was poor because of the weather. There was no radio, telephone
or other means of communication in Mitchell's bulldozer. Three telephones were located about 200 yards away from the coal pile, and there
was also a squawk box at some unspecified distance from the pile.
Bulldozer operators were not required to use the telephones or squawk
box at any set intervals, and communicated with the preparation plant on
their own initiatives as the need arose. Mitchell's bulldozer was
equipped with an operable back-up alarm that could be heard 300 yards
away, and his bulldozer could have been seen at times during the shift
when it was on certain parts of the coal pile. Old Ben conceded at oral
argument before the Commission that, so far as the record shows, neither
the preparation plant operator nor any other employee was required to
observe or keep track of the bulldozer driver on the pile. Tr. Arg. 378. Mitchell used the telephones off the pile to contact the preparation
plant employee twice during the first part of his shift. After Mitchell's
last telephone call, about 2:30 a.m., no one had contact with him until
his bulldozer, which had backed or fallen into a void and was buried in
coal, was discovered about 6:00 a.m. Tr. 38-9, 199-200.
In concluding that Old Ben violated section 77.1700, the judge
found that Mitchell was working alone in a hazardous area and was not
"under observation" or in "sufficient communication with others to avoid
a violation of the standard. 11 3 FMSHRC at 1891-92. On the grounds
articulated below, we agree. We turn first to the threshold questions
of whether Mitchell was working "alone'' in an "area where hazardous
conditions exist[ed] that would endanger his safety."
The term, 11 alone,1t which is not defined in the regulation, refers
in common usage to being separated or isolated from others. Webster's
Third New
Die
at 60 (1971). In our

1801

view, the standard is directed at situations where miners are effectively,
or for practical purposes, working alone notwithstanding some occasional
contact with others. Here, there is no dispute that Mitchell was working
by himself on the coal pile. Old Ben argues that Mitchell was part of a
"team," but the evidence shows that no one observed or had contact with
him on a regular or continuing basis and Old Ben has conceded that no
one was responsible for keeping in touch with him. Such interaction as
Mitchell had with the preparation plant employee was sporadic and
insubstantial. Under these circumstances, we conclude that Mitchell was
working alone within the meaning of the standard.
In concluding that the coal pile was an "area where hazardous conditions exist," the judge held that the standard applies where hazardous
conditions outside normal conditions in the mining industry are present.
3 FMSHRC at 1890-91. On review, Old Ben endorses the judge 1 s definition
of hazardous areas subject to the standard, but contends that the coal
pile did not constitute an abnormal hazard. The Secretary advocates
defining "hazard" in its ordinary sense, without reference to industry
norms. On the facts of this case, we are satisfied that Old Ben's coal
pile was a hazard under either definition or under any reasonable construction of the standard consistent with its protective purposes.
The pile was exceptionally large. As the coal pile grew and its
surface became packed down because of moisture and the pressure of the
bulldozers, voids were more likely to occur. Tr. 73-4, 84-5. It is
undisputed that collapsing bridges over voids were fairly frequent
occurrences at Old Ben's mine. The fact that these conditions had
existed for some time without having been the subject of a previous
citation by the Secretary does not, as Old Ben suggests, prove they were
not hazardous. Further, on the night of the accident, these general
risks would appear to have been aggravated. The weather was rainy and
misty and visibility was poor. Another bulldozer operator had fallen
into a void shortly before Mitchell's shift, and had requested better
communication for bulldozer operators working on the pile. This incident alone placed, or should have placed, the operator on notice of
the hazards. Under these circumstances, we are persuaded that substantial evidence supports the judge's conclusion that on the night of
the accident conditions atop the coal pile were hazardous within the
meaning of the standard. We emphasize that our conclusion is based on
the facts of this case. We do not mean to intimate that every coal
storage pile would come within the standard because it is inherently
"hazardous." Such determinations must be made on a case-by-case basis.
We next consider the central issue of whether Mitchell was in sufficient
communication or contact with others.

1802

The standard's requirements that a miner be able to communicate,
or be heard, or be seen are stated in the disjunctive, and an affirmative
finding with respect to any of the three would preclude a determination
of violation. The standard neither specifies its purpose nor the requisite
level of communication or contact and, before analyzing the facts, we
address these two subjects.
The judge assumed the standard was directed more towards rescuing
miners after an accident than towards preventing accidents. However,
nothing in the standard suggests that prevention is not a concern. Thus,
we adopt the Secretary's position, because it is more consistent with
the purposes of the Mine Act and the plain language of the standard: The
standard has a dual purpose, to prevent accidents by timely warning when
possible and to expedite rescue and minimize injury when an accident
does occur.
While the individual terms used in the standard, "communicate," "be
heard," or "be seen, 11 are ordinary words,
take on a more complex
meaning in the context of prevention and rescue. Obviously, they embrace
the physical acts of communicating, hearing, or seeing. Of necessity,
they also include equipment intended for such purposes as well as procedures for their use, In construing these terms, we reject either an
approach requiring constant comrrmnication or contact under all conditions,
or an approach allowing any minimum level of communication or contact to
satisfy the standard. Rather, we hold that the standard requires
communication or contact of a regular and dependable nature commensurate
with the risk present in a particular situation. As the hazard increases,
the required level of communication or contact increases, We now apply
this test to each requirement of the standard.
We disagree with Old Ben that the telephones located off the coal
pile satisfied the communication requirement. The telephones were not
actually available if, as here, an emergency arose on the coal pile. As
a practical matter, driving off the pile frequently to use a telephone
would interfere with the bulld0zer driver 1 s responsibilities, and he
would be reluctant to do so. Tr. 27, 82, 99, 201. Both the preparation
plant employee and another bulldozer driver testified that no procedures
had been established for communicating by telephone; they used the
phones solely on their own initiatives. Tr. 73, 111-12. Moreover, we
note that Old Ben was on notice as to the inadequacies of this telephone
system. The preparation plant employee (who was also a bulldozer driver)
and the driver who had fallen into a void the previous shift testified,
without effective rebuttal by Old Ben, that they had requested corrununication for the coal pile several times before. Tr. 75, 83, 87, 143,
161; see also Pet. Exh. 14. Thus, substantial evidence supports the
judger-s-conclusion that the operator failed to provide corrnnunication of
a regular or dependable nature commensurate with the risk involved.

1)

Old Ben mistakenly asserts that the judge held that the standard
required constant two-way radio communication. The judge held only that
the communication available was insufficient. He specifically stated
that two-way communication, while "a ~uch safer way to operate the raw
coal storage pile, 11 was not required by the standard. 3 FMSHRC at 1892,
These statements were dicta and we need not decide whether two-way
radios would be in excess of the standard.

1803

Evidence that Mitchell could be heard and seen at certain times and
under certain circumstances also fails to satisfy the standard. The
sound of the bulldozer back-up alarm was not a call for help, but merely
a signal that the machine was in reverse. Of course, a back-up alarm
offers no protection if trouble arises while a vehicle is going forward.
In any event, because no one was responsible for listening for Mitchell,
it is unlikely that anyone would have responded to the back-up alarm or
have heard a call for help. Tr. 176-77. Similarly, although Mitchell
could be seen at times by the preparation plant employee, the gob truck
driver, and other employees, there was a considerable discrepancy
between what miners theoretically could see and what they actually saw.
In our view, it is highly significant that the last known contact with
Mitchell was about 2:30 a.m., and that the accident was not discovered
until about 6:00 a.m. Mitchell was completely out of sight and hearing
for about 3-1/2 hours. Therefore, substantial evidence supports the
judge's conclusion that Mitchell was not "under observation."
In sum, we conclude that during a time when this employee was
working alone on a hazardous coal pile, he could not communicate with
others nor could he be heard or seen on a regular or dependable basis
commensurate with the risk involved. 4/ Accordingly, we affirm the
judge's conclusion that Old Ben viol -ed the standard. 5

Lawsr~Commissioner

4/

Old Ben argues that the judge erred because he imposed liability
even though he found no nexus between the fatal accident and the alleged
violation. As we have repeatedly emphasized in our decisions, the fact
of an accident or injury does not by itself necessarily prove or disprove the existence of a violation. See, for example, Lone Star Industries,
Inc., 3 FMSHRC 2526, 2529-30 (November 1981). A violation may occur
absent an accident, and an injury or death does not ipso facto make out
a violation. As here, however, an accident may sometimes shed light on
an unsafe situation that had escaped previous notice or citation. Our
holding means that the standard would have been violated under the
circumstances present on the night of the accident regardless of whether
Mitchell had fallen into a hole and been hurt, escaped injury, or avoided
an accident altogether.
Commissioner Nelson assumed office after this case had been considered by the other Commissioners. A new Commissioner possesses legal
authority to participate in pending cases, but such participation is
discretionary and is not required for the Conunission to take official
action. The other Commissioners reacned agreement on the disposition of
the case prior to Commissioner Nelson 1 s assumption of office, and participation by Commissioner Nelson would therefore not affect the outcome.
Accordingly, in the interest of efficient decision-making, Commissioner
Nelson elects not to participate in this case.

1804

Distribution
Edmund J, Moriarty, Esq.
Old Ben Coal Company
69 West Washington Street
Chicago, Illinois 60602
Ann S. Rosenthal, Esq.
Office of the Solicitor
U.S.
of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Charles Moore
Fed. Mine Safety & Health Rev. Commission
5203
Pike, 10th Floor
Falls Church, Virginia 22041

1805

Administrative Law Judge Decisions

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

80204

r

l.\J

)

CIVIL PENALTY PROCEEDINGS

)

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

)
)
)
)
)

Petitioner,

)
v.

)
)
)
WASHINGTON CORPORATION, d/b/a/
)
WASHINGTON CONSTRUCTION COMPANY,
)
)
Respondent.
)
)
~~~~~~~~~~~~~~~~~-)

DOCKET NO. WEST 81-63-M
A/C No. 10-00556-05010
DOCKET NO. WEST 81-64-M
A/C No. 10-01382-05002
DOCKET NO. WEST 81-102-M
A/C No. 10-00556-05012 F
DOCKET NO. WEST 80-285-M
A/C No. 10-00556-05008
MINE: State Pit El 109 and
Dry Valley
DOCKET NO. WEST 81-351-M
A/C No. 10-00634-05004
MINE: Monsanto Quartize Quarry
(Consolidated)

DECISION
Appearances:
Ernest Scott, Esq., Office of the Solicitor
United States Department of Labor, 8003 Federal Building
Seattle, Washington 98174
For the Petitioner
Mr. James A. Brouelette, Safety Officer
P.O. Box 8989, Missoula, Montana 59807
For the Respondent
Before: Judge Virgil E. Vail
These consolidated cases arising under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (Supp. III 1979), "hereinafter
the Act", involve the same parties, andTetitions for assessment of civil
penalties by the Secretary against the respondent. A hearing on the above
cases was held on July 27, 1982, at Idaho Falls, Idaho. The parties waived
filing post-hearing br fs.
DOCKET NOS. WEST 81-351-M and WEST 81-64-M
At the connnencement of the hearing, the Secretary moved to dismiss
Docket No. WEST 81-351-M involving Citation No. 353269 and Docket No. WEST
81-64-M involving Citation No. 350433. The reason presented for dismissing
these two cases was that the principle witnesses, the mine inspectors, could
not be located and therefore were unavailable for the hearing.

180?

Counsel for the Secretary stated that reasonable effort had been made to
locate the inspectors but due to the release of these men from their duties
because of a reduction-in-force he was unable to find them. The Secretary
stated that without this testimony, he was unable to prove these cases.
The motion was unopposed and based on good cause presented, I granted
same.
DOCKET NOS. WEST 80-285-M and WEST 81-63-M
Regarding the above two cases, respondent had stated in the answer in
both cases the same defense, that is, the timeliness of the Secretary in
issuing its proposal for assessment of a penalty. It was agreed by the
parties at the hearing that they would present the facts at that time for a
ruling thereon.
In Docket No, WEST 80-285-M, Citation No. 351050 was
sued to the
respondent on August 4, 1978 and abated on August 9, 1978. Citation No,
sued on July 18, 1979 and was terminated on January 30, 1980.
349218 was
On May 19, 1980, a petition for the assessment of a penalty was proposed
for these two citations by the Secretary and filed with the Commission. On
December 10, 1981, the Secretary filed a motion to amend its petition for
assessment of penalty by vacating Citation No. 349218 as he did not believe
that he could prove this citation. This motion is granted and Citation No.
349218 is vacated.
In Docket No. WEST 81-63-M, Citation Nos. 351056, 351057, and 351059
were all issued to the respondent on August 4, 1978. The date of
termination of all citations was August 9, 1978 and the proposal of a
penalty was made on November 13, 1980. The Secretary filed its petition
for assessment of penalty on August 19, 1981. Respondent argues that
Section 105(a) of the Act requires that the operator must be notified
within a reasonable time after the termination of such inspection or
investigation of the penalty proposed. Respondent points out that in
Docket WEST No. 81-63-M, the citations were terminated on August 9, 1978
and penalty was not proposed until November 13, 1980, which is more than
two years later. In Docket No. WEST 80-285-M, the Citation No. 351058 was
terminated on August 9, 1978 and proposal for a penalty was issued on March
11, 1980 which was over a year and a half later. As to both cases,
respondent contends that this delay has prejudiced its ability to present a
proper defense as it was not feasible to preserve the necessary evidence
and is now difficult to know what witnesses would be required or available
for presentation at the hearing (Tr. p. 7 and 10).
The Secretary argues that the respondent must show it has been
prejudiced by the delay and also whether it had any defense in the first
place for without a defense, the passage of time would not prejudice it.
Also, that the respondent was put on notice that the violation existed and

1808

that it was reasonable to assume the respondent would preserve such
evidence necessary in defense of its position in these pending cases.
The Secretary stated that the delay in filing the proposal of a
penalty in these cases was due to the fact that the department responsible
for processing these assessments found its established method was not
compatible with the volume of citations issued and they had to change their
procedures (Tr. p. 9-10).
In these two cases, I reject the Secretary's arguments.
lOS(a) of the Act states in part as follows:

Section

If, after an inspection or investigation, the Secretary
issues a citation under section 104, he shall, within a
reasonable time after the termination of such inspection
or investigation, notify the operator by certified mail
of the civil penalty proposed to be assessed under llO(a)
for the citation cited*** (Emphasis added).
Obviously, the words "reasonable time" is crucial here. In a recent
decision, the Connnission considered a similar defense as that raised by the
respondent here. In Secretary of Labor v. Salt Lake Count Road Dept., 3
FMSHRC 1714, (July 28, 1981), the Commission reasoned that consideration of
procedural fairness to operators, must be balanced against the severe
impact of dismissal of the penalty proposed upon the substantive scheme of
the statute and, hence, the public interest itself. The Connnission
proposes two reasoned excuses to reach a fairness for both parties in such
procedural matters and states as follows:
In order to help strike a proper balance and to insure
that the Secretary does not ignore section lOS(d)'s
injunction to act "irrnnediately", we hold that if
the Secretary does seek permission to file late, he
must predicate his request upon adequate cause.
C.F. Valley Camp Coal Co., 1 FMSHRC 791, 792 (1979)
(excusing the late filing of an operator's answer for
"adequate cause"). Such a requirement will guard against
cases of abuse and also comports with analogous leeway
extended to private litigants before the Corrnnission. Valley
Camp Coal Co., supra. Nevertheless, cases may arise where
procedural justice dictates dismissal. While the requirement of showing adequate cause for a filing delay
may guard against administrative abuse, a stale penalty
proposal may substantially hinder the preparation and
presentation of an operators case.
The Commission therefore has established two tests to determine if the
late filing of the proposal is in substantial compliance with the Act and,

1809

therefore, should not be dismissed. The Secretary must show that there was
adequate cause for the delay. The mine operator on the other hand must
show it has been prejudiced by the delay. These two requirements are
balanced against each other with the scales weighing heavily on the side of
enforcement.
The above tests can be directly applied here. The delay of over two
years in Docket No. WEST 81-63-M and over a year and a half in WEST No.
80-285-M is on its face a serious disregard of the objectives established
by Congress for prompt assessment of a penalty for effective enforcement of
the Act. A reasonable time to implement the assessment procedures by the
Secretary should be condoned, but I am persuaded that the time limits of
reasonableness were violated in the above two cases. I also find that the
lengthy delay here has been inherently prejudicial to the operator's
preparation of a proper defense.
For the above stated reasons, the citations in Docket Nos. WEST 8163-M and WEST 80-285-M are dismissed with prejudice
DOCKET NO. WEST 81-102-M
STIPULATION
The parties at the hearing jointly agreed to submit the above case
upon a stipulation of the facts. The issue for decision herein is, whether
a violation of the Act occurred and, if so, whether a penalty should be
assessed, and, if so, what the amount of the penalty should be.
The parties stipulated as follows:
1. Paragraph 1 of the petition for assessment of a penalty
admitted.
2.

Respondent for all purposes of this proceeding is covered by the

Act.
3. At all times material to this action, the respondent was engaged
in the operation of a mine located in Soda Springs, Caribou County, Idaho.
The name of such mine is Dry Valley Mine.
4. Respondent admits paragraph III of the petition for assessment of
penalty.
5. As a result of an investigation of the aforesaid mine by an
authorized representative of the Secretary of Labor on or about September
24 and 25 of 1980, Citation No. 350197 was issued to the respondent.
6. A copy of said citation may be admitted into evidence for the
purpose of showing what was issued. (Joint Exhibit No. 6)

7. A total penalty of $5,000.00 was proposed for the aforesaid
alleged violation.
8. A copy of MSHA's assessed violation history report may be admitted
into evidence. (Joint Exhibit No. 5)
9. Respondent employed approximately 325 full time employees from
September, 1980 to November, 1981. From December, 1981 to the present time
respondent has employed approximately 75 full time employees.
10. Respondent mined approximately 2.5 million tons of phosphate per
year on a contract basis during the years 1980 and 1981.
11. Payment of the proposed penalty would not affect respondent's
ability to continue in business.
12. Respondent demonstrated good faith in achieving abatement after
notification of the alleged violation.
13. The investigation report of John M. Moore, metal and nonmetal
mine inspector, United States Department of Labor, may be admitted into
evidence as representative of facts supporting the issuance of Citation No.
350197~ and the facts pertaining to the accident which he investigated,
(Joint Exhibit No. 4)
14. That it is Washington Construction Company's policy and practice
that employees engaged in moving rail cars wear safety belts.
15. Respondent's employees are made aware at safety meetings and in
training, of the requirement that they utilize safety belts when engaged in
moving rail cars.
16. Joint exhibit No. 1 is a photograph of a portion of the rail car
in which Todd Martindale was standing at the initial time of the accident.
The platform has been encircled.
17. Joint exhibit No. 2 depicts a full side view of the type of rail
car on which Todd Martindale was standing at the initial time of the
accident.
18. Joint exhibit No. 3 depicts, among other things, the tipple which
is in the irmnediate area where Todd Martindale was working on the night of
the ace ident.
19. Joint exhibits 1, 2, and 3 may be admitted into evidence. Each
fairly or accurately represents the scenes photographed by Mine Safety and
Health inspector John Moore.

1811

DISCUSSION
Following a fatal accident which occurred at respondent's mine at Soda
Springs, Idaho, on September 23, 1980, a duly authorized representative of
the Secretary conducted an investigation and issued Citation No. 350197
alleging a violation of 30 C.F.R. § 55.15-5. The citation alleges as
follows:
Todd Martindale, Social Security No. 518-94-7830, victim
of a fatality at the Dry Valley Mine Tipple, was not
wearing a safety belt at the time of the accident, The
victim was standing on the braking systems work platform
of the railroad car, The height of the platform from the
ground was approximately 7 feet. The victim was knocked
to the ground by cars up track striking the cars being
loaded.
30 C.F.R. § 55.15-5 prov
Mandatory. Safety belts and lines shall be worn when
men work where there
danger of falling; a second
person shall tend the
fe line when bins~ tanks, or
other dangerous areas are entered,
From the facts included in the stipulation and the arguments of the
parties at the hearing, it does not appear that there is an issue as to
how the accident occurred, Further, respondent has a requirement that
employees wear safety belts while moving rail cars. Predicated on this, I
find that there was a violation of mandatory safety standard § 55.15-5.
The respondent argues that it has an established safety program and
that in force in that program
the requirement that men wear safety belts
while moving rail cars. That the foreman at the time of the accident was
having a problem with start-ups and did not have time to check each individual on the job. The foreman was unaware of the fact that men were not
wearing safety belts.
James A. Brouelette, safety officer for respondent, testified at the
hearing that they have had problems with miners not wearing their safety
belts and have threatened them with firing if they didn't comply.
No one had been fired as the operator has a large turnover of employees and
firing is the last resort (Tr. p. 23-24). He argued that the operator had
not incurred an injury in the past for miners not wearing a belt or been
cited for this and that the violation was a result of misconduct on the
part of the employee and should not be charged as a violation against the
operator.
This argument by the operator has been addressed by the Connnission in
the past. To prove a violation of the standard involved herein, as with
most standards, "noncompliance with the standards terms need only be

1812

11
shown
Eastern Associates Coal Corporation v. Secretary, 4 FMSHRC 835
(May 3, 1982). The mere occurrence of the infraction of the safety
standard constitutes a violation since liability is imposed on the mine
operator without regard to fault. El Paso Rock Quarries, 3 FMSHRC 35
(1981).

The failure of the miner in this case to wear the safety belt resulted
in his death. This was a violation of the standard. Although the operator
had a rule regarding the wearing of such belts, they also knew the men did
not always comply and should have foreseen that an accident would result.
The Court in Heldenfels Bros. v. Marshall, 636 F. 2d 312 (5th Cir. 1981)
(unpublished opinion), involving an accident which also resulted solely
from fault on the part of an employee, affirmed the principle of both
strict liability and vicarious liability peculiar to the mine safety law
and stated as follows:
Heldenfels claims they were denied due process by the
imposition of a civil penalty for this alleged violation,
Underlying this due process argument is Heldenfel's
assertion that there was noth~ng they could have done
to prevent the accident in question. The Secretary
responds by pointing out the fact that the Act imposes
strict liability on operators for violation of regulations. This argument misses the mark. Heldenfels is
not claiming that it should not be held liable since
it was not negligent; Heldenfels argues that it should
not be held liable because it did not cause the violation
of the regulation. However, Section llO(a)(l) of the
Act, 30 U.S.C. § 820(a)(l), authorizes assessment of a
civil penalty against the operator of a mine when a
violation of a mandatory regulation occurs at the mine.
Thus, Congress has provided for a sort of vicarious
liability to accompany the provision for strict liability.
(emphasis added).
Therefore, it is found that respondent is liable for the violation of
the mandatory safety standard committed by its employee.

ASSESSMENT OF PENALTY
The rema1n1ng issue is the amount of the penalty to be assessed
against the respondent. The amount of the penalty must relate to the
degree of the operator's culpability in terms of wilfulness or negligence,
the seriousness of the violation, the size of the business, number of
previous violations and respondent's good faith in abating the violative
condition.
The stipulation in this case provided that respondent operates a small
to moderate size mine and the imposition of a penalty in this case would

1813

not impair their ability to continue in business. The history of prior
penalties as shown in joint exhibit No. 5 did not reflect a large number of
violations but did show several violations for which large assessments were
made indicating several serious types of violations involved. The
respondent demonstrated good faith in achieving abatement after
notification of the violation in this case.
The uncontrovert~d evidence of record shows that the respondent made
an effort to enforce safety rules at its mine including the use of safety
belts. The Secretary in its argument for a penalty related that the mine
inspector represented to him that respondent had a good safety policy.
(Tr. p. 20) Further, the accident was such that it inflicted injury resulting in death only upon the employee himself and not upon other
employees. However, there can be no shifting of responsibility from
employer elsewhere for maintaining strict enforcement of its safety rules
and although at times the operator may become discouraged, it must still
continue to press for compliance from its employees. Because the record is
void of evidence that the respondent was willful or grossly negligent in
enforcing compliance with the mandatory standard herein, I believe a
penalty less than that originally proposed is in order. However, because a
grievous injury resulted from the non-compliance herein, a penalty of
$1500.00 is assessed.
ORDER
In Docket No. WEST 81-351-M, Citation No. 353269 is vacated.
In Docket No. WEST 81-64-M, Citation No. 350433 is vacated.
In Docket No. WEST 80-285-M, Citation No. 349218 and 351058 are both
vacated.
In Docket No. WEST 81-63-M, Citations Nos. 351056, 351057, and 351059
are vacated.
In Docket No. WEST 81-102-M, respondent is ORDERED to pay the
Secretary the sum of $1500.00 as a civil penalty for the violation of 30
C.F.R. 55.15-5 within 40 days of the date of this decision.

Virgil JOVail
Administrative Law Judge

Distribution:
Ernest Scott, Esq.
Off ice of the Solicitor
United States Department of Labor
8003 Federal Building
Seattle, Washington 98174
Mr. James A. Brouelette, Safety Officer
P.O. Box 8989
Missoula, Montana 59807

1815

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

22041

0CT6
SECRETARY OF LABOR,
MI 'lE SAFETY fu~D HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
WADE KEMP III, WILLIAM KURE,
RUSSELL COLLINS, VIRGIL KELLY,
EUGENE WEIGENSTEIN, DONALD
DARRELL GOODMAi~,
Respondents

Civil Penalty Proceedings
Docket Nos. CENT 81-186-N
CENT 81-187-M
CENT 81-188-M
CENT 81-189-11
CENT 81-190-M
CENT 81-191-M
Annapolis Quarry and Mill

The captioned matters came on for a consolidated
before the
trial judge in St. Louis, Missouri on July 13 through 16, 1982. Respondents
were charged, as agents, with violating section llO(c) of the Act by
knowingly authorizing, ordering, or carrying out the corporate mine
operator's violation of the mandatory safety standard set forth in 30
C.F.R. § 56.9-2. The standard cited requires that equipment defects
affecting safety be corrected before the equipment ~~ used. The gravamen
of the charge was that the individual respondents with knowledge that
the braking system on a large haulage truck was defective authorized or
ordered miners to operate the truck on a haulage road with several steep
grades thereby endangering their lives. The corporate operator, GAF
Corporation, had previously paid a modest civil penalty for the violation
pursuant to section llO(a) of the Act.
On the third day of the hearing, Thursday, July 15, 1982, counsel
for the Secretary moved to dismiss with prejudice the charges against
respondents Kemp, Kure, Weigenstein and Goodman on the ground there was
insufficient evidence to show they authorized or ordered use of the
Euclid truck in question with knowledge of the alleged defective braking
system. This motion was granted (Tr. 605).
Thereafter, the trial judge denied a motion to dismiss for failure
to make a prima facie case against the other two respondents and they
proceeded to present their defense-in-chief. After both parties rested,
on Friday, July 16, 1982 counsel for the last two respondents moved to
dismiss the charges against them on the ground that the Secretary failed

1816

to establish their complicity in the violation charged by a preponderance
of the reliable, probative and substantial evidence in the record
considered as a whole. Counsel for the Secretary opposed this motion.
After considering the arguments of counsel, together with their proposed
findings and conclusions, the trial judge entered a tentative bench
decision in which he found that because the Secretary had failed to
prove either the violation charged or respondents' knowing participation
therein the charges should be dismissed.
On September 20, 1982, counsel for the Secretary filed a motion to
join respondents' motion to dismiss at the close of the evidence stating:

"After reviewing the hearing transcript, particularly the
testimony given by Respondents' witness,
Weigenstein,
(hearing transcript, pp. 814-924), Petitioner agrees that there
is insufficient evidence to show that Respondents knowingly
authorized, ordered or carried out the corporate mine operator's
violation of 30 C.F.R. § 56.9-2. Accordingly, Petitioner now
joins in Respondents 1 motion to dismiss on this particular ground,
In the alternative, Petitioner independently moves to dismiss the
Petitions against Respondents on said ground,"
Counsel for respondents advised of his concurrence in the Secretary's
motion on September 24, 1982.
The premises considered, it is ORDERED that the parties joint motion
to dismiss the charges against respondents Kelly and Collins be, and
hereby is, GRANTED and the captioned petitions be DISMISSED AS TO ALL
RESPONDENTS WITH PREJUDICE.

Administrative Law
Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Patrick E. Daly,
., EEO/Labor Attorney, GAF Corp., 140 West 5lst
Street, New York, NY 10020 (Certified Mail)
Mike Mathes, Esq., United Steelworkers of America, P.O. Box 351,
Ellington, MO 63638 (Certified Mail)

1817

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

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

)
)

)

OCT 7 1962

CIVIL PENALTY PROCEEDING

)

Petitioner,

)

DOCKET NO. WEST 80-380-M

)

)

v.

MINE: FMC

)
)
)
)
)

FMC CORPORATION,
RespondentD
~~~~~~~~~~~~~~~~~~~

Appearances:
Robert J. Lesnick~ Esq.s Office of
Henry C. Mahlman~ Associate Regional Solicitor
United States Department of Labor
Denver, Colorado
for the Secretary of Labor
John A. Snow, Esq.
Vancott, Bagley, Cornwall and McCarthy
Salt Lake City, Utah
for the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Federal Mine Safety and
Health Administration, (MSHA), charges respondent, FMC Corporation, (FMC),
with violating two safety regulations adopted under the authority of the
Federal Mine Safety and Health Act, 30 U.S.C. 801 ~~·(Supp. III 1979).
After notice to the parties a hearing on the merits was held in Green
River, Wyoming on September 1, 1981.
FMC filed a post trial brief.
ISSUES
The issues are whether respondent violated the regulations and, if so,
what penalties are appropriate.

1818

CITATION 575950
This citation alleges a violation of Title 30, Code of Federal
Regulations, Section 57.9-2, which provides as follows:
Mandatory. Equipment defects
affecting safety shall be
corrected before the equipment
is used.
The evidence: on March 13, 1980 MSHA respresentative Merrill Wolford
inspected a GMC pickup truck owned by Western Steel Company, a
subcontractor for FMC (Tr. 3, 19, 27-28).
Another person turned the steering wheel of the truck while Inspector
Wolfo_rd checked the suspension system. Re observed that the idler ann,
the ball joint, and the tie rods were loose. The loose linkage showed
excessive wear (Tr. 4-7, PS).
In the opinion of the inspector excessive play in the steering system
could cause the driver to loose control of the vehicle (Tr. 17-18). In
addition, there could be a complete failure of the ball joint. It could
come out of the socket or crystallize and break (Tr, 15).
The truck was being operated in the mine area in the presence of
numerous workers (Tr. 9-10).
DISCUSSION
The evidence establishes a violation of the regulation, 30 C.F.R.
Section 57.2.
Respondent attacks the credibility of MSHA's evidence, and relies on
its own evidence.
I find MSHA's evidence to be credible. Inspector Wolford has had
considerable experience in motor vehicle mechanical work. And the experience included work with front end alignments, tie rods, and ball
joints. (Tr. 1, 2). In addition the credible evidence establishes the
linkage and tie rods were loose and showed excessive wear (Tr. 6, 7, P6).
The record establishes that there existed an "equipment defect" within the
meaning of Section 57 .9-2. It is also apparent that the defect "affected safety" since such excessive play could cause the operator to loose
control of the vehicle (Tr. 17-18).
On the other hand I am not persuaded by FMC's defense. FMC offered no
evidence to contradict the inspector's testimony as to the condition of the
suspension system. The fact that Wolford did not drive the truck to check
its steering would not, in my view, destroy his credibility. The inspector
used a proper method to check the truck's suspension system.

1819

In support of its view FMC relies on Judge George Koutras's decision
in Medusa Cement Company, 1 MSHC 2554, (1980). It is apparent in Medusa
Cement that Judge Koutras concluded that the worn steering control arm did
not present a real safety hazard. I find to the contrary in this case: the
defective parts, that is, the loose tie rods and the loose ball joints did
affect safety.
For similar cases. construing the meaning of 30 C.F.R. 57.9-2 compare
Phelps Dodge Corporation, 4 FMSHRC 1078 (1982), and Allied Chemical
Corporation, 4 FMSHRC 503 (1982).
The citation should be affirmed.
The parties do not address the proposed civil penalty of $106,
Considering the statutory criteria, 30 U.S.C. 820(i), I deem that the
proposed penalty is appropriate.
CITATION

575955

This citation al
a violation of Title 30, Code of Federal
Regulations, Section 57.12-16 which provides as follows:
Mandatory. Electrically powered equipment shall be
deenergized before mechanical work is done on such
equipment. Power Switches shall be locked out or
other measures taken which shall prevent the equipment from being energized without the knowledge of
the individuals working on it. Suitable warning
notices shall be posted at the power switch and signed
by the individuals who are to do the work. Such locks
or preventive devices shall be removed only by the
persons who installed them or by authorized personnel.
The evidence: before the FMC electrician began to soder the lines on
the 480 volt air conditioner he turned the electrical switch to "off." (Tr.
3-6, 8). The air conditioner could not become operational with the switch
off (Tr. 15). But the unit remained energized where the lines entered it
and at the top of the contactors (Tr. 17, 20).
As he was sodering the electrician's left arm was two feet from the
energized portion of the unit (Tr. 30). It was not necessary to have the
unit energized in order to soder the lines (Tr. 48).
The center and bottom cover plates were removed because the worker
intended to attach his air-conditioning hoses to the high side pressure
valves (Tr. 15, 43). The electrical switches in the motor control center
controlling this unit were not tagged or locked out (Tr. 32).
DISCUSSION
The evidence establishes a violation of the regulation. The 480 volt
air conditioner was not deenergized before the FMC electrician sodered the
lines.

1820

FMC contends that the condition described in the citation is
authorized by 30 C.F.R. Section 57-12. 32 and in any event, FMC asserts no
violation occurred.
FMC initially contends that a different regulation, 30 C.F.R. Section
57-12.32, specifically authorizes the removal of cover plates during
testing and repairs. And FMC says the citation was only issued because of
the hazard that the worker might contact the energized portion of the air
conditioner which were exposed because the cover plates had been removed.
The exception for "testing or repairs" contained in 30 C.F.R, 57.12-32
provides:
Mandatory. Inspection and cover plates on
electrical equipment and junction boxes shall be
kept in place at all times except during testing
or repairs.
I disagree with FMC 1 s view of the evidence. The FMC electrician was
sodering at the top right portion of the unit (Tr. 9, Pl). At that point
the energized portion of the unit were below him and to the left (Pl).
The removal of the bottom cover plate appears completely unrelated and
several feet from the sodering repair. I agree that the cover plate had to
be removed after the sodering but it was removed in order tt'r attach the
high pressure hoses to the valves, But the FMC electrician indicated he
could have locked out the equipment while he was doing the welding, then
reenergized it, and thereafter checked the pressure (Tr. 20). These
circumstances render 30 C.F.R. 57.12-32 inapplicable.
FMC cites Bill's Coal Companft, 1 MSHC 2088 (1979), a decision by Judge
Forrest Stewart which involves a rtesting or repairs" regulation similar to
the one relied on by FMC. In that decision a cover plate had been removed
in order to replace a drive motor. Judge Stewart vacated the citation as
he concluded that the repair exception applied. This pivitol fact did not
occur in the instant case. The record is clear: the electrician did not
have to remove the cover plate to weld the lines (Tr. 13, 14, 15). It was
more convenient to do so because after the welding was completed he could
hook up the high side pressure valves and then test the unit.
Repondent has the burden of proving that an exception rather than a
mandatory regulation is applicable. On this record FMC did not carry its
burden.
FMC further contends that Section 57-12.16 is designed to protect
workers from mechanical rather than electrical hazards. FMC bases this
view on the grounds that the contested regulation does not refer to
"circuits". And the succeeding regulation, Section 57.12-17, is designed
to prevent electrical hazards.
A reading of Section 57.12-16 indicates it refers to "electrically
powered equipment." An air conditioner would be such equipment. On the
other hand Section 57.12-17 clearly refers to power circuits.

1821

FMC's final argument is that its worker deenergized the air
conditioner by use of the "off" switch which was always in view of the
worker and 4 1/2 feet away from where he was sodering (Tr. 13-14).
No defense is presented. The regulation requires that the equipment
be deenergized. Merely turning the air conditioning switch to "off" did
not deenergize it. The unit remained energized at the points where the
power entered the unit and at the top of the conductors (Tr. 18-20, Pl).
The failure to deenergize the equipment establishes the violation.
The citation should be affirmed.
The parties raise no issue as the proposed civil penalty of $52.
Considering the statutory criteria, 30 U.S.C. 820(i), I deem that the
proposed penalty is appropriate.
Based on the foregoing findings of fact and conclusions of law I enter
the following
ORDER
1. Citation 575950 and the proposed civil penalty of $106 are
affirmed.
2. Citation 575955 and the proposed civil penalty of $52 are
affirmed.

Distribution:
Robert J. Lesnick, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
John A. Snow, Esq.
Vancott, Bagley, Cornwall & McCarthy
50 S. Main Street, Suite 1600
Salt Lake City, Utah 84144

1822

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

OCT 7 1982
)

FMC CORPORATION,

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

CONTEST OF CITATION PROCEEDINGS

Contestant,

DOCKET NO. WEST 81-131-RM
MINE: FMC

)
~~~~~~~~~~~~~~~~~

)

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

CIVIL PENALTY PROCEEDINGS
DOCKET NO. WEST 81-234-M
MINE: FMC

)
~~~~~~~~~~~~~~~~~

Appearances:
John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy
Salt Lake City, Utah
for the FMC Corporation
Robert J. Lesnick, Esq., Office of
Henry C. Mahlman, Associate Regional Solicitor
United States Department of Labor, Denver, Colorado
for the Secretary of Labor

Before: Judge John J. Morris
DECISION
In these consolidated cases the FMC Corporation, (FMC), contests an
order of withdrawal issued by the Mine Safety and Health Administration,
(MSHA), for an alleged violation of Title 30, Code of Federal Regulations,

1823

57.6-177. 1/ The Secretary of Labor, on behalf of MSHA, seeks to
impose a civil penalty for the alleged violation.
All of the proceedings herein arise under the Federal Mine Safety and
Health Act, 30 U.S.C. 801 ~seq. (Supp III, 1979).
After notice to the parties a hearing on the merits was held in Green
River, Wyoming on September 2, 1981.
FMC filed a post trial brief,
ISSUES
The issues are whether FMC violated the regulation and, if so, what
penalty is appropriate.
SUMMARY OF THE EVIDENCE
Armnonium nitrate, (ANFO), a blasting agent, has the appearance and
texture of BBs. The explosive is mixed with fuel oil (Tr, 5, 49). In its
underground trona mine FMC explodes the ANFO with high velocity cap and
dynamite. These serve as a primer. An 18 inch water bag acts as a
stemming device (Tr. 6, 11, 44).
After the blast the area is mucked out,
protection (Tr. 6).

Roof bolts provide overhead

On the day of the inspection an MSHA representative found two misfires
(Tr. 7, 8, Pl, P2). Ignition wires were sticking out of one of the
drilled holes. FMC washed out the misfire holes after the withdrawal order
was issued (Tr. 9, P2).
The top hole: was shot "clear through" and both sides of the hole
could be seen. No cap or primer could be seen. No cap or primer washed
out (Tr. 9, 31, 39, 42-43, 50-51).

1/

The cited regulation reads:

57.6-177 Mandatory. Misfires shall be reported to the proper supervisor.
The blast area shall be dangered-off until misfired holes are disposed of.
Where explosives other than black powder have been used, misfired holes
shall be disposed of as soon as possible by one of the following methods:
(a) Washing the stemming and charge from the borehole with water;
(b) Reattempting to fire the holes if leg wires are exposed; or
(c) Inserting new primers after the stemming has been washed out.

1824

The bottom hole: detonation wires were sticking out. It could not be
determined if the hole had fired. Only the blasting agent (ANFO) could be
seen in the hole (Tr. 50-51).
The holes had been primed and fired on the swing shift the previous
night. This was 11 hours before the inspection (Tr. 12, 15). The day
shift foreman hadn't seen the misfires (Tr. 13).
In everyday use ANFO is as inert as cement. It is insensitive to
friction, drop weight, and cap sparks. Shooting it with a bullet will not
cause it to explode (Tr. 67, 68).
If over compacted, as from a blast, ANFO will desensitize (Tr. 68),
But the compaction of ANFO to the point of being inert cannot always be
determined (Tr. 70, 74).
DISCUSSION
MSHA's witness defines a misfire as a drilled hole loaded with
explosives which did not fire on the initial detonation (Tr. 27).
The Secretary 1 s definition in Title 30, Code of Federal Regulations~
Section 57.2 states:
Misfire means the complete or partial failure of
a blasting charge to explode as planned.
The facts here establish a violation of the regulation.
and bottom holes had misfired.

Both the top

The misfire in the top hole was somewhat more obscure than the bottom
hole since it had "shot through," that is, the hole on the back side of the
blast would indicate that the primer and cap had exploded (Tr. 27). No
evidence was presented as to precise appearance of a drill hole after it
is "shot through".
The misfire in the bottom hole was more readily apparent since the
detonation wires were still hanging out of the hole after the blast (Tr.
39, P2).

The presence of ANFO, the explosive, in the drill hole after the
blast, fairly indicates at least a partial failure of the blasting charge.
It accordingly falls within the definition of a misfire.
CONTENTIONS
FMC contends that no misfire occurred, further, the drill holes
contained only ANFO, and, finally, that even if a violation occurred the
proposed civil penalty is excessive.

1825

FMC's initial contention is that the drill holes observed by the MSHA
inspector were not misfires. This position evolves in this fashion:
30 C.F.R. 57.6-8 2 / and 30 C.F.R. 57.6-190 3 / refer to ammonium
nitrate as blasting agents therefore ammonium nitrate is not a "blasting
charge" as contemplated in the regulatory definition of a mis fire.
FMC correctly observes that the term "blasting charge" is not defined
in the regulations. However, a common definition in a mining dictionary is
that a "c~arge" is the explosive that is loaded into the borehole for
blasting. I In short, the charge is the total explosive package. In
this case-it includes the primer, the ammonium nitrate, and the dynamite.
FMC places considerable reliance on the fact when the drill holes were
washed out no cap or primer were observed. Therefore, it concluded the
holes contained only ANFO.
FMC's view of the evidence is based on hind sight. With the wires
sticking out of the bottom hole a strong possibility of a misfire existed.
It is true that no cap or primer were found in either hole but one cannot
ignore the fact that some of the material in the hole was originally a part
of the explosive charge. FMC aptly states that the obvious purpose of 30
C.F.R. 57.6-77 is to avoid the possibility of an unplanned detonation of a
live charge. In short, what appears to be a misfire should be treated as a
misfire.
FMC also argues that any ANFO in the drill hole would have been inert
after an explosion. Therefore, it presented no hazard,

2/ 57.6-8 Mandatory. Ammonium nitrate-fuel oil blasting agents shall be
physically separated from other explosives, safety fuse, or detonating cord
stored in the same magazine and in such a manner that oil does not
contaminate the other explosives, safety fuse, or detonating cord.
3/

Sensitized Ammonium Nitrate Blasting Agents

All of the standards in this § 57 .6 in which the term "explosives" appears
are applicable to blasting agents (as well as to other explosives) unless
blasting agents are expressly excluded.
General -- Surface and Underground
57.6-190 Sensitized ammonium nitrate blasting agents, and the components
thereof prior to mixing, should be mixed and stored in accordance with the
recommendations in Bureau of Mines Information Circular 8179, "Safety
Recommendations for Sensitized Ammonium Nitrate Blasting Agents," or
subsequent revisions.
4/ A dictionary of Mining, Mineral, and related terms, United States
Department of Interior, 1968.

1826

I disagree. The evidence establishes that it is impossible to tell
when and if a blast has compacted ANFO to a point where it becomes inert
(Tr. 70, 74).
The nexus of this violation lies in the fact that an unplanned
detonation could have occurred had a cap, or a primer, or ANFO exploded
after the initial firing. The possibility of this occurring establishes
that a misfire exists. This in turn mandates the remedial action contained
in Section 56.9-177.
FMC cites Day Mines, Inc., 2 FMSHRC 1720, (1980), and Mulzer Crushed
Stone Company, 2 FMSHRC 2497, (1980). While these cases involve the
regulation in contest Judges Koutras and Moore did not address the issues
raised here.
CIVIL PENALTY
The Secretary seeks to impose a civil penalty of $1000 for this
violation.
FMC asserts that the penalty is excessive. I agree. While the
gravity is severe the negligence is low. In the only the prior citation
against FMC involving a misfire the inspector wrote up the citation as one
involving unexploded materials (Tr. 84). Further, in this case MSHA issued
the citation at 11 a.m. and the abatement was accomplished 11:23 a.m. (Tr.
18, Citation). This would indicate rapid abatement after notification of
the violation.
Considering the statutory criteria, 30 U.S.C. 820(i), I deem that a
penalty of $200 is appropriate.
Based on the foregoing findings of fact and conclusions of law I enter
the following order:
1. Citation 577230 is affirmed.
2.

A penalty of $200 is assessed.

3.

The contest of Citation 577230 filed by respondent is dismissed.

Judge

1827

Distribution:
John A. Snow, Esq.
Vancott, Bagley, Cornwall & McCarthy
50 S. Main Street, Suite 1600
Salt Lake City, Utah 84144
Robert J. Lesnick, Esq.
Of
of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294

1828

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

)

OC1 8 \98'l

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

CIVIL PENALTY PROCEEDING

)

DOCKET NO. CENT 80-140-M

)
)

A/C No. 39-00055-05022 W

Petitioner,
v.

)

HOMESTAKE MINING COMPANY,

)

MINE: Homestake

)

Respondent.
)
~~~~~~~~~~~~~~~~)
)

)
)
)
)
)
)
)
)
)
)

UNITED STEELWORKERS OF AMERICA,
LOCAL UNION 7044, DISTRICT 33,
Complainant,

v.
HOMESTAKE MINING COMPANY,
Respondent.

COMPLAINT FOR COMPENSATION
DOCKET NO. CENT 80-198-CM
MD 79-107 Through 125
MINE: Homestake

~~~~~~~~~~~~~~~~~~

DECISION
Appearances:
Robert J. Lesnick, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building, 1961 Stout Street
Denver, Colorado 80294
For the Petitioner
Robert A. Amundson, Esq.
215 West Main Street, P.O. Box 898
Lead, South Dakota 57754
For the Respondent
Mr. Harry P. Tuggle
Safety & Health Representative, United Steelworkers of America
Five Gateway Center
Pittsburgh, Pennsylvania 15222
Before: Judge Virgil E. Vail
JURISDICTION AND PROCEDURAL HISTORY
On June 21, 1979, an inspector employed by the Mine Safety and Health
Administration (hereinafter MSHA) issued an order of withdrawal for the

1829

Ross shaft area from the collar to the 4500 foot level of the Homestake
Mine of the Homestake Mining Company (hereinafter Homestake). The order of
withdrawal was issued pursuant to section 103(k) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 813(k) (hereinafter the Act), based upon
the inspector being told by Homestake officials that there was smoke in the
Ross shaft area.
On August 22, 1979, a special inspection was conducted by MSHA at the
Homestake Mine and citation No. 329655 was issued to Homestake pursuant to
section 104(a) of the Act (30 U.S.C. § 814) alleging that Homestake had
worked miners in the Ross shaft area in violation of the 103(k) withdrawal
order issued on June 21, 1979. On February 6, 1980, Local Union No. 7044,
District 33, of the United Steelworkers of America (hereinafter USWA) filed
a complaint for compensation under section 111 of the Act (30 U.S.C. § 821)
for its members who are employees of Homestake, On February 19, 1980, MSHA
filed a proposal for assessment of a civil penalty pursuant to section 105
and 110 of the Act (30 U.S.C. § 815 and 820). On March 20, 1980, Homestake
filed an answer to MSHA's proposal for assessment of a penalty. On October
30, 1980, Homestake filed a motion for surrnnary decision alleging that
USWA's complaint for compensation was untimely filed and an answer denying
miners were required to work in areas of the mine covered by the l03(k)
order. On November 28, 1980, an Order was issued denying respondent's
motion for summary decision based upon a showing by USWA of good cause for
its delay in this matter,
These two cases were consolidated pursuant to Procedural Rule 12 of
the Federal Mine Safety and Health Review Commission, 29 C.F.R. § 2700.12
and a hearing was held in Lead, South Dakota. All three parties filed
post hearing briefs.
ISSUES
1. Whether Homestake, having previously failed to seek administrative
review of 103(k) order issued by MSHA is now foreclosed from contesting
validity of the order in a 104(a) penalty proceeding and a section 111
compensation proceeding.
2. Whether Homestake worked miners in violation of a 103(k) order on
June 21, 1979, as charged by MSHA and, if so, the amount of the civil
penalty which should be assessed?
3. Whether Homestake employees were forced to work in areas of the
mine in violation of the 103(k) order and, if so, whether they are entitled
to compensation under section 111 of the Act and, if so, the amount of
compensation which they are entitled to receive?
4. Whether Homestake employees who reported for work on June 21, 1979
at 6:00 a.m. and were subsequently released from duty at 11:00 a.m. as a
result of the 103(k) withdrawal order are entitled to compensation under

1830

section 111 of the Act in addition to the four hours show-up pay provided
for in Article 5, Section C(l) of the collective bargaining agreement
between Homestake and employees.
APPLICABLE LAW
Section 103(k) of the Act, 30 U.S.C. § 813(k) (Supp. 111, 1979),
provides as follows:
In the event of any accident occurring in a coal or
other mine, an authorized representative of the
Secretary, when present, may issue such orders as he
deems appropriate to insure the safety of any person
in the coal or other mine, and the operator of such
mine shall obtain the approval of such representative,
in consultation with appropriate State representatives~
when feasible, of any plan to recover any person in
such mine or to recover the coal or other mine or return affected areas of such mine to normal.
30 C.F.R.
follows:

§

50.2(h) defines an "accident" as pertinent herein as

(6) An unplanned mine fire not extinguished within
30 minutes of discoveryo
Section 104(a) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 814(a) (Supp. III, 1979), provides as follows:
If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator
of a coal or other mine subject to this Act has violated
this Act, or any mandatory health or safety standard,
rule, order, or regulation promulgated pursuant to this
Act, he shall, with reasonable promptness, issue a citation
to the operator. Each citation shall be in writing and
shall describe with particularity the nature of the violation,
including a reference to the provision of the Act, standard,
rule, regulation, or order alleged to have been violated.
In addition, the citation shall fix a reasonable time for
the abatement of the violation. The requirement for the
issuance of a citation with reasonable promptness shall
not be a jurisdictional prerequisite to the enforcement
of any provision of this Act.
Section 111 of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 821, (Supp. III, 1979), provides in part as follows:
If a coal or other mine or area of such mine is closed
by an order issued under section 103, section 104, or

1831

section 107, all miners working during the shift when
such order was issued who are idled by such order shall
be entitled, regardless of the result of any review of
such order, to full compensation by the operator at
their regular rates of pay for the period they are idled,
but for not more than the balance of such shift. If
such order is not terminated prior to the next working
shift, all miners on that shift who are idled by such
order shall be entitled to full compensation by the
operator at their regular rates of pay for the period
they are idled, but for not more than four hours of
such shift, ••• Whenever an operator violates or fails
or refuses to comply with any order issued under section
103, section 104, or section 107 of this Act, all miners
employed at the affected mine who would have been withdrawn from, or prevented from entering, such mine or
area thereof as a result of such order shall be entitled
to full compensation by the operator at their regular
rates of pay, in addition to pay received for work performed after such order was issued, for the period beginning when such order was issued and ending when such
order is complied with, vacated, or terminated. The
Commission shall have authority to order compensation
due under this section upon the filing of a complaint
by a miner or his representative and after opportunity
for hearing subject to section 554 of title 5, United
States Code.
STIPULATIONS
Homestake and the Secretary stipulated the following:
1.

Homestake is the operator of the Homestake Mine.

2. Homestake is subject to the jurisdiction of the Federal Mine
Safety and Health Act.
3. The Administrative Law Judge has jurisdiction over this
proceeding.
4.

Homestake is a large gold mine operator.

5. Homestake's ability to continue in business after imposition of a
reasonable civil penalty is not at issue.
6.

The citation at issue was properly served on Homestake.

1832

7. Homestake exhibited good faith
or order.

in

abating the contested citation

8. Homestake's history of previous violations will be reflected by
MSHA's computer print-out of past violations subject to review and
concurrence by counsel for Homestake.
9. USWA and Homestake stipulated to the identity of the miners,
hourly wage rates, and work assignments relative to the 103(k) order issued
on June 21, 1979 as set forth in Appendix "A" attached hereto and incorporated herein.
SUMMARY OF THE EVIDENCE
Homestake is a large gold mine located in Lead, South Dakota, the
deepest level being 8000 feet underground, The
has three distinct
ventilation systems including three air intake and two exhaust shafts, The
Ross and Yates shafts, located approximately one-half mile apart and
descending parallel from the surface collar to the 4550 foot level are the
two main access, hoisting, and ventilation shafts,
At the start of a working shift and preparatory to going underground,
miners walk to and assemble in the "ramp" which is an area constructed of
concrete and steel located approximately 20 feet below the surface collar,
The first working level located 100 feet below the surface collar of
the Ross and Yates shafts is a haulage-way called a tramway. Ore is
hoisted up the shafts and dumped in crushers and bins located in the
tramway to be later hauled along the tramway to the mill. The tramway runs
partly underground and partly above ground with a portion covered by a
snowshed for protection from the weather. The tramway is open at both ends
to the atmosphere and is not dependent upon the ventilation systems served
by the Yates and Ross shafts. Doors are installed at the entrances to the
shafts to prevent intake of air from the ventilation system to enter the
tramway or air from the tramway to enter the shaft. The tramway runs
approximately 300 yards underground at the 100 foot level from the Ross
shaft to the first open portal or open surface area and connects with the
tramway from the Yates shaft and continues on to the mill which is located
above ground.
On June 21, 1979, at 6:00 a.m., miners being lowered in the Ross shaft
to commerce working the day shift reported the smell of wood smoke from the
2000 foot to the 4500 foot level. Sam Grover, acting safety director for
Homestake, was notified of the smoke and called Earl Phelps of the safety
department at approximately 6:10 a.m. to go underground to invest
e,
Phelps rode the man-cage down the Ross shaft checking for "bad air" with a
Drager tester. Phelps testified that CO (carbon monoxide) was not detected
in the shaft until he reached the 2150 foot level where he got out of the
man-cage and conducted several tests. A level of CO at the 2150 foot level

183~1

at 6:25 a.m. was tested at 90 parts per million. Larry Issac, a miner who
had been lowered before Phelps, reported that the smell of wood smoke was
stronger on the 2600 foot level than it was on the 2150 foot level. Phelps
reported this information to Sam Grover and it was decided not to lower any
more miners and that those miners who had previously been lowered would be
taken out of the mine. Phelps continued on to the 2600 foot level and
tested for CO finding 90 parts of CO per million at that level but further
testing at the 4800 and 5000 foot levels revealed only traces of CO.
Phelps continued checking areas until 9:30 a.m. at which time he returned
to the surface. The miners who had been lowered earlier were all removed
from underground by 7:30 a.m.
Ray Smith, mine superintendent, was in the ramp area of the Ross shaft
at 6:10 a,m, when the report of the smell of wood smoke in the shaft was
received and remained in that area until 10:30 a.m. Smith testified that
he had several conversations with the miners assembled in the ramp area to
keep them informed as to the results of the investigation into the cause of
the smoke. At 7:00 a.m. an announcement was made by authority of Ray
Smith, to the miners assembled in the Ross shaft ramp area that any miner
who chose to could go home and would receive four hours show-up pay as
provided in the Union's contract with Homestake. It was also announced
that management thought the mine would be cleared of smoke during the
day-shift and that the miners would be allowed to go to their regular
working places. A few miners left at this time and some left later on in
the morning, the exact number being unknown.
At approximately 9:15 a.m., the remaining miners were told to report
to their bosses for reassignment to other jobs. Three bosses were selected
for clean-up in the tramway area and three for clean-up around the
headframe and the miners remaining in the ramp area were assigned to these
bosses. It took approximately 15 to 30 minutes to assemble the miners and
take them to their respective job assignments. At 11:00 a.m., the miners
from the Ross shaft area who were not allowed to work at their regularly
assigned locations and duties were released to go home. This was the end
of the four hour show-up period.
At 7:30 a.m., on June 21, 1979, Dallas Tinnel, president of local
union 7044 of USWA at Homestake telephoned the MSHA office in Rapid City,
South Dakota to report high levels of CO and smoke in the Ross shaft of the
Homestake Mine. At 8:10 a.m. on the same day, Sam Grover telephoned MSHA's
office and made a similar report. At 10:00 a.m., MSHA inspectors William
Donley, Wayne Lundstrom, Guy Carstens and Jeram Sprague arrived at the mine
to investigate the reported incident.

1834

A meeting betweeen MSHA inspectors and members of Homestake's
management was held in the map room of the mine office at which time a
discussion occurred as to what Homestake's management had determined was
the cause of the CO and smoke in the Ross shaft area. Management stated
that there were concentrations of CO from the 2150 foot level to the 4500
foot level of the Ross shaft and that a sizeable VCR (vertical crater
retreat) blast had been set off at the 4243 D stope, 9 ledge 4700 level at
the end of the night shift at approximately 3:30 a.m. on June 21, 1979.
Homestake's management was of the opinion that the wooden spacers used in
the VCR blast had ignited and was the source of the wood smoke smell which
the miners on the day shift encountered as they were lowered in the shaft
and that this "bad air" was being exhausted outside through the ventilation
system. Inspector Donley asked of management if they had positively
determined that the VCR blast was the cause of the CO and smoke. Members
of management stated that they could not be certain but they were
reasonably certain that there was not a fire in the mine.
At 10:12 a.m., following the above discussion and upon an order from
supervising inspector Donley, inspector Lundstrom issued 103(k) order No.
329637 1/ which states as follows:
High concentration of CO in Ross shaft from collar
to 4500' level. All persons except Company officials
MSHA personnel and Union representatives are not
allowed in the area until an investigation has been
made to determine the concentration of CO and other
gases.
Following further discussions with management, Donley instructed Lundstrom
to insert the word "area" after the words "Ross shaft" in the order and
told them he would exclude the Ross shaft itself from the 103(k) order so
that the shaft could be used to lower men and materials if it was necessary
to fight a fire. Donley further explained to management that areas below
the 4500 foot level of the Ross shaft and all of the Yates shaft were not
to be included in the order based upon information from management that
there was no evidence of CO or smoke in those areas. The tramway was never
discussed at this meeting.
After the 103(k) order was issued, the MSHA inspectors, miners and
management representatives went underground and inspected the various
levels of the Ross shaft from the 4100 to 4850 foot levels taking various
readings for air contaminants. Based upon this inspection, the 103(k)
order was terminated at 1:45 p.m. on June 21, 1979. A meeting was held at
the mine on the following day, June 22, 1979, between MSHA inspectors and
Homestake's management to discuss the procedures followed by Homestake the
day before.

1/

Exhibit P-1.

1835

On August 21, 1979, Donley received a telephone call from Tinnel
requesting MSHA investigate complaints of miners that they were forced to
work on June 21, 1979 in violation of the 103(k) order. Donley and
Lundstrom met with Tinnel and several miners that day and on the following
day, August 22, 1979, Citation No. 329655 was issued to Homestake alleging
a violation of section l04(a) of the Act and alleging as follows:
On June 21, 1979, Homestake officials worked approximately 30 men in violation of a 103(k) order
number 329637 issued 10:12 hours June 21, 1979. '!:.._!
This citation was terminated immediately as the condition complained of no
longer existed.
DISCUSSION
The first issue to be addressed is whether Homestake, having
previously failed to seek administrative review of the 103(k) order issued
on June 21, 1979, is now precluded from contesting the validity of the
order in the subsequent 104(a) citation and section 111 compensation
proceedings?
All of the parties herein contend, and I must concur, that there is no
specific provision, either in the Act or the Connnission's Rules of Procedure, 29 C.F.R. Part 2700, setting forth what procedures should be followed
in contesting a 103(k) order, be it administrative or otherwise. Other
sections of the Act do specifically provide for administrative review.
Under section 105, 30 U.S.C. § 815(d), an operator may contest a citation
or order issued pursuant to section 104 of the Act and orders issued under
section 107 of the Act before the Federal Mine Safety and Health Review
Commission (hereinfa~er the Commission), pursuant to the language of
section 107 itself. _/

2/

Exhibit 2

3/

30 U.S.C. 2700.20 of Connnission rules states as follows:

••• (a) Section 105(d) of the Act, 30 U.S.C. § 815(d), provides, in
part: If within 30 days of receipt thereof, an operator of a coal or other
mine notifies the Secretary that he intends to contest the issuance or
modification of an order issued under section 104 ••. the Commission shall
afford an opportunity for a hearing
30 U.S.C. 2700.21 Commission's Rules provides as follows:
••• (a) When to file an application for review of an order of
withdrawal issued under section 107 of the Act, 30 U.S.C. § 817,
shall
be filed within 30 days of receipt by the applicant of the order sought
reviewed ••.•

1836

Homestake argues that the reason there is no mention in the
Connnissions Rules of a procedure for review of a 103(k) order is that such
an order does not entail or contemplate the issuance of a citation or
proposal for a penalty. I reject this argument as there are more than a
few cases reported up to the present time in which both the 103(k) order
and either a citation or compensation proceeding followed. Harman Mining
Corporation v. Secretary of Labor,
F. 2d
(4th Cir. l98l)(Unpublished), Secretary of Labor v. MTIIer Mining Co., Inc., Docket No. WEST
81-267-M, (August 1982), Secretary of Labor v. B & N Construction, Inc.,
Docket No. WEST 80-226 and 260-M (1981).
The Secretary argues that Homestake failed to raise this issue in its
July 3, 1980 prehearing statement and should not be allowed to raise it at
this time. He also contends that Homestake is precluded from raising the
validity of the order in a 104(a) proceeding having failed to do so prior
to its issuance and cites as its authority therefore C F & I Steel
Corporation v. Morton, 516 F. 2d 868, 871-872 (10th Cir, 1975)~
USWA argues that Homestake was required to raise the validity of the
103(k) order within 30 days of its issuance for the reason that the
Commission Rules provides time frames of 30 days to contest other orders.
It suggests that although such references do not specify such 30 days for a
103(k) order, a time frame should be no more or less than those established
for all other orders under the Act.
I reject all of these arguments as there appears to be no doubt that
the operator has a right to administrative appeal of a 103(k) order. In
the case of American Coal Company v. United States Department of Labor, 639
F. 2d 659, (Tenth Cir. 1981), the Court considered the fact that there was
no provision within the Act for administrative review of the 103(k) order
but concluded such a right existed and stated as follows:
We do not believe, however, that merely because 30 U.S.C.
§ 813(k) makes no specific references to administrative
review, such omission means that there
no administrative
review. A reading of the entire Act, coupled with its
legislative history leads us to conclude that the action
taken ••• under 30 U.S.C. § 813(k)(section 103(k)) was
subject, first to administrative review, with final action
by the Review Connnission to then be subject to judicial review in the appropriate Court of Appeals under 30 U.S.C. § 816.
The Connnission in the case of Secretary of Labor v. Eastern Associated
Coal Company, Docket No. HOPE 75-699 (1980), considered the right to appeal
an order issued under section 103(£) of the Coal Act of 1969, 30 U.S.C.
§ 801 et seq. (1976)(Amended 1977), which is the statutory predecessor to
section-103(k) of the 1977 Act. The Commission concluded that there was no

1837

express provision precluding a review of such order and agreed with the
Board of Mine Operators conclusion that the Interior Secretary had
established an administrative adjudication system for review of 103(f)
orders and further concluded that the Commission succeeded to the Interior
Secretary's powers to adjudicate the cases under consideration relating to
this section.
That Homestake has a right to contest the validity of the 103(k) order
issued on June 21 1979, appears clear from the decisions in the American
Coal and Eastern cases. However, neither case addressed the question of
when such an appeal must be commenced or whether its validity would be
precluded from being raised in a subsequent case involving a 104 citation
or a compensation proceeding. The Secretary cites the Court's decision in
CF&I Steel Corporation v. Morton, 516 F. 2d 868, 871-872 (10th Cir, 1975),
as authority for his argument against Homestake raising the issue, This
case arose under the 1969 Coal Act and is distinguishable from the present
case in that the withdrawal order in the CF&I case was issued under section
104(a) of the Act and provision is made
the Act requiring that
administrative review of such order must be obtained under provisions of
section 815 prior to the expiration of 30 days of the issuance or
modification of such order, I find that there is a d tinguishing feature
between 103(k) orders and those contemplated under section 104 and 107 of
the Act. The 107 order is issued in the event of an imminent danger
occurring in the mine which may or may not give rise to a subsequent
citation and proposal for a penalty against the operator. Usually a
citation is included as part of the basis for issuing orders under section
104 and 107 of the Act. In those cases involving accidents, section 103(k)
provides for the issuance of orders" ••• as appropriate to insure the
safety of any person in the coal or other mine • • • • 11 (
The issuance of citations as a result of such an occurrence, if such
arises, usually would come later. The Commission in the Eastern case in
footnote No. 6 stated as follows:
••• the philosophy of review of both the 1969
and 1977 Acts is that operators are to comply with
administrative orders first and litigate their merits
later • • • .
This philosophy is most appropriate when applied to those situations
involving accidents in the mines. It follows that an operator should not
be expected to file for an administrative review of the order until he has
been notified that the Secretary believes that a violation occurred in
connection with the accident which gave rise to the order. Prior to the
notice or issuance of a citation, the operator would not likely have cause
for requesting a review and only after such notice or issuance of a
citation and anticipation of a proposal for a penalty does the validity of
the order become material. Also, the very same evidence involved in the

1838

validity of the order may be material to consideration of the citation
although the basis for the issuance of the order is sacrosanct. I
therefore conclude that Homestake had the right to have the validity of the
103(k) order reviewed in the present 104(a) citation and compensation
proceeding. I also find that the general denial in the respondent's answer
raises this issue. All the parties at the hearing and in subsequent
post-hearing briefs were given ample opportunity to present evidence on
this matter and argue the law and facts as pertinent therein.
Having concluded that Homestake has the right to administrative review
of the 103(k) order in this case, the next question is whether or not such
order was valid,
Homestake argues that the 103(k) order was vague and indefinite and
that it was erroneously issued because there was neither an 11 accident 11 or
an 11 unplanned fire" as contemplated in the Act.
I reject Homestake's arguments and find that there was a valid basis
for issuing the 103(k) withdrawal order on June 21, 1979, The pertinent
portion of 103(k) of the Act provides that in the event of any accident
occurring in a coal or other mine, an authorized representative of the
Secretar may
sue such orders as he deems appropriate to ensure the
safety of any person in the coal or other mine, 30 C.F.R. § 813 k , It is
apparent that this section is broad enough to permit the closing of any
section of or the whole mine upon the occurrence of an accident, if under
the circumstances it is deemed appropriate. The Secretary's regulations at
30 C.F.R. Part 50 provides several definitions of an accident. The one
applicable here is section 50.2(h)(6) which states in part as follows:
Accident means,
An unplanned mine fire not extinguished within 30
minutes of discovery.
Homestake contends that the evidence of record does not establish that
there was an accident on June 21, 1979 within the meaning of the Act and
that the "bad air" detected in the mine was a result of the VCR blast which
was planned and set off at the end of the night shift. On the other hand,
the Secretary contends that there was an accident which warranted the
inspector issuing the order of withdrawal. He relies on the fact that the
inspectors upon arriving at the mine over 6 hours after the VCR blast were
informed by Homestake management that they had found high concentrations of
CO in the amount of 90 parts per million on the 2150 level and that they
were not certain as to the cause although they believed it was a result of
the VCR blast.
A reasonable assessment of the facts known by Homestake at 6:30 a.m.
prompted management to withdraw the miners from the Ross shaft that
morning. Further, as late as 10:00 a.m. when the inspectors arrived,

1839

Homestake management had not made a positive determination as to the cause
of the CO and smell of wood smoke in the shaft. Based on these facts, it
is reasonable for the inspectors to believe there were grounds to issue the
103(k) order for the health and safety of the miners. If subsequent
investigation revealed that the condition causing the CO and smoke in the
shaft had abated, this would not make the original decision wrong.
However, the facts support the conclusion that the results achieved by
Homestake with their VCR blast were unplanned and that it was not correctly
determined within 30 minutes of the blast that a fire did not exist. The
evidence established that thousands of board feet of pine spacers were used
in the blast and this could have caused the wood smell and CO in the shaft,
It is clear to me that section 103(k) of the Act clearly authorized the
inspectors to issue the order of withdrawal on June 21, 1979, The
language of this provision of the Act and related regulations authorizes
respresentatives of the Secretary to issue such orders as they deem
necessary to protect the health and safety of the miners. As the
conditions existed at the time of the inspectors arrival at the mine, a
prudent reading of the potential perils warranted the action taken in
issuing the order and conducting the subsequent inspection of the affected
area. Until the inspectors could he assured there was no further danger to
the miners from a fire or CO, the issuance of the 103(k) order was valid
and proper.
The next question to be considered in these two cases is whether
Homestake worked miners on June 21, 1979 in violation of the 103(k) order.
To resolve this issue, a determination must be made as to the scope of the
area of the mine intended to be covered by such withdrawal order.
Homestake argues that the order was vague and indefinite as to the
area of the mine that MSHA inspectors intended to have miners withdrawn
from. A review of the evidence shows that the order was issued at 10:12
a.m. in the map room of the mine office. Charles Tesh, mine production
superintendent testified that he was present and had a discussion with the
inspectors when the order was written and it initially stated that the area
to be closed was "The Ross shaft. 11 Tesh told the inspectors that this
created many problems, including being unable to make ambulance runs from
the 4500 foot level to the surface which might be necessary as the other
areas of the mine were operating. Also, Tesh argued that if the shaft was
totally shut down Homestake would be unable to bring materials into the
mine. Further, that the Ross shaft was a fresh air intake system and there
were no contaminants in the shaft itself. He testified that the inspectors
then offered to modify the order by inserting the word "area" after the
word shaft which would allow Homestake to continue to use the hoist.
Homestake agreed to this and the order was so modified. Tesh testified
that from this discussion, he understood that once the inspector inserted
"area" into the 103(k) order, that the Ross shaft itself was not closed and
only the area between the 2150 and the 4550 was closed. He recalled no
discussion regarding the tramway, although he knew men were working there.
Allen S. Winters,
mine manager, was present at this meeting and

1840

testified that following the issuance of the order, he explained to Ray
Smith that it covered the Ross shaft down to the 4500 foot level and from
the outer stations where they T off to the various drifts.
The Secretary contends that the order as written was clear as to its
meaning by reason of common usage of the terms in the body of the order and
rejects the arguments of Homestake that the order was vague.
A careful review of all of the testimony convinces me that the members
of Homestake's management and inspectors fully discussed the areas intended
to be covered by the order at the meeting in the map room of the mine
office and resolved whatever differences they had or anticipated from such
closure at that time, All of the witnesses agreed that the tramway was not
discussed at this time. Inspector Donley was familiar with the various
areas of the mine as his testimony was that he had started inspecting the
Homestake mine in 1972. Also, various members of Homestake 1 s management
testified that they knew men were working in the tramway when the order was
issued and did not discuss the consequences of this in relationship to the
scope of the order.
In view of the above~ either the parties to the discussion of the area
to be covered by the order at the time of its issuance did not consider the
tramway a part of the Ross shaft or did not consider that area to be
potentially hazardous to the health and safety of the miners working there.
The tramway by description, as deduced from the evidence of record, is,
distinguishable from the drifts that connect with the Ross shaft at the
various levels. It is located 100 feet under the collar and runs approximately 300 yards underground in the area of the Ross shaft. However,
the tramway runs both underground and on the surface and also connects with
the Yates shaft. Its source of air supply is independent of the Ross shaft
which receives its air from the outside through its portals. Winter
described the tramway as a tunnel that begins on the north side of the
mountain and travels through to the south side with doors that are kept
closed at the Ross shaft so that fresh air from the outside does not enter
the shaft from the tramway. He stated that traditionally he did not
consider the tramway a part of the mine.
Based upon the above testimony and all of the other evidence of record
I find that the tramway as located and utilized in the Homestake mine was
not understood to be covered by the order as issued on June 21, 1979 and
it was not a violation of the 103(k) order to work miners therein. I am
persuaded by the evidence that it was not just a mistake that the tramway
was not discussed at the meeting in the mine office when the order was
issued but rather was not a concern to the parties at that time. Further,
there is no evidence that any danger existed to the miners in the tramway
area from the CO or smoke in the Ross shaft. Therefore, I find Homestake
did not violate the 103(k) order when it continued to work the tramway crew
after the order was issued or assigned miners to clean-up in the tramway
area June 12, 1979. Citation No. 329655 is hereby vacated.

1841

The remaining question to be decided is whether the Homestake
employees who showed up for work on June 21, 1979 at 6:00 a.m. and were
subsequently released at 11:00 a.m. are entitled to compensation under
section 111 of the Act for the balance of their shift in addition to the
four hours show-up pay provided for in their collective bargining
agreement.
A review of the evidence shows that the facts are not in dispute as to
this issue. On June 21, 1979, at approximately 6:00 a.m. the miners
assigned to work in the Ross shaft area arrived at the ramp area to prepare
to go to their designated work areas. Due to the smell of wood smoke and
CO in the Ross Shaft, the miners who had been lowered were removed and the
remaining miners were not allowed to enter the mine. After an investigation of the cause of the CO in the shaft, Homestake made a
determination that the miners would be assigned to other work duties until
11:00 a.m. and then sent home. Homestake paid the miners four hours of
show-up pay in accordance with the provision of their collective
bargaining agreement with the USWA.
Charles Tesh testified that the miners in the ramp area that morning
were kept advised of the progress being made by Homestake in investigating
the "bad air" in the shaft and that a decision was made by management and
announced by Tesh to the miners at 8:53 a.m. that they would be assigned to
crews for work in the tramway and headframe areas and would be sent home at
11:00 a.m. The evidence further shows that the miners were assigned to the
work crews and arrived at their various assigned areas around 10:00 a.m. or
shortly thereafter. The 103(k) order was issued at 10:12 a.m.
A careful review of section 111 of the Act and prior decisions of the
Connnission support the position of the USWA herein. The first sentence of
section 111 of the Act reads as follows:
If a coal or other mine or area of such mine is closed
by an order issued under section 103, section 104, or
section 107, all miners working during the shift when
such order was issued who are idled by such order shall
be entitled, regardless of the result of any review of
such order, to full compensation by the operator at their
regular rates of pay for the period they are idled but
for not more than the balance of such shift. *** (Emphasis
added).
The purpose of the above section is to provide limited compensation
solely for regular pay lost because of the issuance of an order designated
in that section.
Homestake argues that it had informed the miners prior to the time the
order was issued that concentrations of gas in the affected area of the
mine had exhausted and they could go back to work. However, the miners

1842

were uncomfortable about the situation and did not want to go to work in
that area of the mine. Homestake then made the decision between 8:30 a.m.
and 9:00 a.m. not to have the miners return to the affected area but to pay
the miners 4 hours show-up pay. Homestake argues that the decision in UMWA
v. Eastern Associated Coal Corp., 3 FMSHRC 1175 (May 11, 1981) applies.
find a distinction exists between the situation in the present case and
that which occurred in Eastern, supra, wherein the miners had withdrawn
from the mine prior to the issuance of an order to observe a memorial
period which the union had contracted for. In the case involved here, the
Homestake miners were idled by the same condition which led to the issuance
of the order, i.e., the smoke and CO in the shaft on June 21, 1979" There
was therefore, a clear "nexus between the underlying reasons for the
idlement and pay loss and the reason for the order"" Id at 1178" The
reason for the issuance of the withdrawal order was the existence of the
"exigent or emergency conditions" created by the conditions in the Ross
shaft portion of the mine. Id. at 1178.
Homestake also argues that the miners were not idled by the order, but
rather a mutual decision was made between management and the miners to not
return to production prior to the issuance of the order. They cite Royal
Coal and Cowin and Company, Inc., 2 FMSHRC 1738, (July 7, 1981) and contend
that this supports their position that miners are entitled to compensation
only if they are "idled by 11 such an order and that in the instant case,
the miners were not idled by the order as they were assigned to other areas
of the mine and working therein when the order was issued.
The argument above misses the mark in that the claim herein for
compensation does not cover the period when the miners were working at the
tramway and head frame. It is for the balance of the shift after the
miners had put in their four hours and were sent home. The decision in the
Royal Coal case, supra. supports the USWA argument. The decision states:
Royal and Cowin concede that the miners idled in the
shift in which the order was issued are entitled to
full compensation for the balance of that shift at
their regular rate of pay ••• The dispute over compensation here at issue concerns the second part of
section 111. ***
The claim in the instant case
similar to the facts in the case of
UMWA v. Old Ben Coal Company, 3 FMSHRC 2793, (December 7, 1981) where a
fire occurred at approximately 7: 30 a.m. in the "A" shaft and miners were
irmnediately withdrawn. At 8:15 a.m. an inspector for MSHA issued a 103(k)
withdrawal order. At 12:45 p.m. the order was modified to allow rehabilitation of the area and to resume normal operations. The afternoon
shift worked their full shift for that day but the morning shift was paid

1843

four hours reporting pay pursuant to the USWA contract. The operator in
above case raised the same arguments as Homestake does in this case and the
Judge found such arguments without merit and stated as follows:
In the legislative history accompanying section 111
Congress made clear" ••• miners should not lose pay
because of the operator's violation, or because of an
imminent danger which was totall outside their control."
(Emphasis added • S. Rep. No. 95-181, 95th Cong. 1st
Sess. 46-47 (1977), in Legislative History of the Federal
Mine Safety and Health Act of 1977, at 634-635. ***
Homestake's argument that they voluntarily withdrew the miners before
the 103(k) order was issued, and therefore the miners were not withdrawn by
the order and should not have compensation under section 111 is rejected.
In Clinchfield Coal Co., 1 IBMA 31 (1971), the former Board of Mine
Operators Appeals rejected a similar argument and said that
••• [r]egardless of the sequence of the events or the
method by which the miners were originally withdrawn,
a mine, or section thereof, is officially closed upon
the issuance of an order pursuant to 104, and the miners
are officially idled by such order.
In this proceeding, the miners were working at other jobs when the
103(k) order was issued at 10:12 a.m., but they were officially idled by
the order when they were sent home at 11:00 a.m. Those 117 miners listed
in Item 4, page 2, 3 and 4 of the stipulation entered into between
Homestake and USWA are entitled to full compensation for the balance of
their shift at their regular rate of pay, which pay is in addition to the
show-up pay they received for the first four hours.
The USWA failed to request interest in either their petition for
compensation, or at the hearing, or in their briefs. However, the
Commission considered this situation in Peabody Coal Company v. Secretary
of Labor and UMWA, 1 FMSHRC 1785 (November 14, 1979) and stated as
follows:
Furthermore, to deny interest would be to award the miners
less than the full compensation mandated by section llO(a).
Although the Peabody case, supra, concerned the 1969 Act, the application
of this provision is the same as section 111 in this instance. In that
case the Commission awarded interest at the rate of six percent per year
from the date compensation was due to the date payment was made. However,
I find it more reasonable at this time to award interest at the rate of 12
percent per year from the date compensation was due to the date payment is
made. This is in accordance with the "make whole" policy of the Act to

1844

award interest on the sums due miners from the date of idlement to the date
of payment. UMWA v. Youngstown Mines, 1 FMSHRC 990 (August 14, 1979); UMWA
v. Beatrice Pocahontas Co., 3 FMSHRC 2004, 2013 (August 27, 1981); Johnny-Howard v. Martin Marietta Corp., 3 FMSHRC 1876 (July 31, 1981); UMWA v. Old
Ben Coal Company, 3 FMSHRC 2793 (December 7, 1981). The decision that 12
percent interest, rather than 6 percent awarded in Peabody is based upon a
realistic view that the rate of interest has risen to new levels within the
past year and even at that rate is below the rate of interest in most
commercial transactions.
CONCLUSIONS OF LAW
Based upon the entire record in these two cases, and consistent with
the findings embodied in the narrative portion of this decision~ the
following conclusions of law are made:
(1)

The Commission has jurisdiction to hear and decide this matter.

(2) Homestake, having previously failed to seek administrative review
of the 103(k) order, is permitted to contest the validity of the order in a
104(a) penalty proceeding and a section 111 compensation proceeding filed
as a result of such order.
(3) Homestake did not violate the 103(k) order by working miners in
the tramway for the reason that it was not within the scope of the order.

(4) The 117 miners identified in section 4, pages 2, 3, and 4 of the
stipulation entered into between USWA and Homestake (Addendum A) are
entitled to full compensation at their regular rate of pay for the balance
of such shift in addition to the show up pay they received for the first
four hours.
(5) In addition to the above, the 117 miners are entitled to interest
on the balance of pay they are due at the rate of 12 percent from the date
the compensation was due to the date payment is made.

ORDER
WHEREFORE, for the reasons herein before given, it is ordered:
(A)
vacated.

That Citation No. 329655 issued on August 22, 1979 is hereby

(B) The complaint for compensation filed on February 6, 1980, is
granted, only in part, as it pertains to those 117 miners listed in section
4, pages 2, 3, and 4 of the stipulation (Addendum A), and Homestake is

1845

ordered to pay the 117 miners listed therein, within 40 days from the date
of this decision, full compensation at said miners regular rate of pay for
the period described as the balance of such shift. The compensation shall
be paid with interest at 12 percent per annum from June 21, 1979, to the
date of payment.

Virgil Evvail
Administrative Law Judge
Distribution:
Robert J. Lesnick~ Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Robert A. Amundson, Esq.
215 West Main Street
P.O. Box 898
Lead, South Dakota 57754
Mr. Harry P. Tuggle
Safety & Health Representative
United Steelworkers of America
Five Gateway Center
Pittsburgh, Pennsylvania 15222

1846

'~.

I

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
.

•

•• 11.,..

•, ''.

t'
<.

"

1730 K Street NW, 6th Floor
Washington, D.C. 20006
UNITED STEELWORKERS OF AMERICA
LOCAL 7044, DISTRICT 33,

)

Petitioner,

)
)

)
)
)
)

-vsHOMESTAKE MINING COMPANY,

Docket No.
CENT 80-198-CM
MSHA Case No. MD
79-107 through 125

)

)
Respondent.

Homestake Mine

)

STIPULATION
The undersigned representatives of the above
captioned parties, pursuant to a stipulation entered on the
record at the close of the hearing held in the above
captioned matter, hereby submit the following written
stipulation for the Court's consideration:
1.
The following employees of Respondent did work
their full and normally assigned shift on June 21, 1979, as
the "normal tramway crew" in Homes take Mine, with the
tramway being shown on exhibits which were entered at the
time of hearing. These employees reported to work at the
Yates Shaft work area and are as follows:
Miners Submitting Complaint
For Compensation
James Vitel
Linda Washburn
Robert Ford
Gary Rath

Hourly Wage Rate
June 21, 1979
$ 7.55
$ 7.55
$ 7.55
$ 7.55

2.
It is further agreed that the exact amount of time
that the above named employees were in fact performing their
work duties in the allegedly affected area of the 103
Closure Order, which is the subject of this litigation,
cannot be exactly calculated, nor has any testimony been
submitted on the part of the Petitioner setting forth the
exact amount of time these employees were in the allegedly
affected area while performing their duties on June 21,
1979, during their normal eight-hour shift.

1a4·1

,

'(I'

3.
It is further stipulated by the parties that the
employees listed below were in fact assigned clean-up duties
in the "Ross Tramway Area" of the Homestake Mine on June 21,
1979, between the hours of 10:12 a.m. and 11:00 a.m. of that
day, and were employees whose normal work area was the "Ross
Shaft 0 , who had shown up for work on June 21, 1979, and were
paid for a total of four hours of work that day. These
employees and rates of pay for that day are as follows:
Miners Submitting Complaint
For Compensation
Paul Sterk
David Holmes
Roger Meyer
Don Mayhugh
Barry Martin
Leo Lipp
Donald Hiltebridle, Jr.
Herbert Burnett
Kenneth Rowan
Charles Dorothy
Leroy Bertsch
Adam Lewis
Harold Covell
Homer Watson
Bernard Zastrow
Richard Weise
Terry Allerdings
David Fredericksen
Fred Raubach

Hourly Wage Rate
June 21, 1979
$ 7.55
$ 7.55
$ 7.55
$ 7.45
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.07
$ 7.55
$ 7.55
$ 7.45
$ 7,55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55

4.
It is further specifically agreed by the parties
that the employees and miners listed below were paid four
hours "show-up" pay, per contract agreement for June 21,
1979, and were released from their jobs at 11:00 a.m. on
June 21, 1979. The following are the names and rates of pay
of these employees and miners for that date:
Miners Submitting Complaint
For Compensation
Bob L. Perry
James R. Richard
Jerome A. Wallin
Broderick E. Stevens
Ken Britiga.n
William J. Cooper
Donald S. Sanders
Darwin R. Aldinger
Gary J. Bown
Gerald A. Clement
Claude E. Crane

1848

Hourly Wage Rate
June 21, 1979
$ 6.01
$ 7.07
$ 7.07
$ 6.70
$ 6.70
$ 7.33
$ 7.55
$ 7.55
$ 7.45
$ 7.07
1. 45

s·

Anthony Desimone, II
Duane Dillman
Leonard O. Dittus
Jerome G. Feterl
Leonard Feterl
Janet M. Fonder
Charles G. Geffre
Lennie R. Grove
Hilmur E. Hanson
Ron R. Hayes
Donald J. Hendrickson
Stephen A. Kilmer
Katherine L. Kimball
Richard R. Kleinheksel
Don J, Kleinheksel
Arlen D. Kl
Robert J. Kruske
Herbert L. Burnett
Richard Cottrill
Thomas E. Jones
Barry E. Martin
Donald E. Mayhugh
Roger D. Meyer
Paul V. Sterk
Paul Strecker
David 1. Sykes
Wesley A. Schaffer
Ricky D. Allen
Charles Culver
Keith M. Ehnes
Lowell D. Labau
Jimmy D. Snow
James J. Grosek
Raymond S. Grosek
Daryle J. Poling
Terry J. Wermers
Mark J. Geffre
Norman E. Stuen
George J. Huck
Ralph Huck, Jr.
Michael R. Isaak
John P. Kraft
Kenneth E. Prue
Gerald L. Rempfer
Dennis D. Shumacher
Jerry L. Barton
Russell L. Burton
Javier Barrios
Blain M. Brown
Robert L. Carl
Charles B. Donner
Donald J. Gifford
Albert Grantz
Raymond F. Hertel

1849

$ 6.70
$ 7.45
$ 7.55
$ 7.55
$ 7.55
$ 7.45
$ 7.45
$ 7.07
$ 7.45
$ 7.07
$ 7.45
$ 7.07
$ 7.07
$ 7.55
$ 6.70
$ 7.26
$ 7.55
$ 7.55
$ 7.45
$ 7.55
$ 7.55
$ 7.45
$ 7.55
$ 7.55
$ 7.55
$ 7.33
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.45
$ 7.45
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.33
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55

Ralph L. Long
Robert G. Murray
Larry D. Ostwald
Joseph J. Shinabarger
Clarence W. Young
Vernon W. Fisher
Richard A. Goe~z
Palmer E. Carlson
Terry R. Allerdings
Leroy E. Bertsch
Barry J. Brierly
Harold G. Covell
Charles G. Dorothy
David D. Frederickson
Roger G. Hanson
Donald L. Heltibridle
Adam S. Lewis
Leo J. Lipp
Fredrick L. Rauback
Homer W. Watson
Richard W. Weisz
Bernard F. Zastrow
Timothy P. Dillman
Cecil Holman
David J. Holmes
Everett A. Johnson
Michael A. Kilmer
Donald R. King
Rick J. Tinnell
Bruce A. Tracy
Joe B. Sterri.a
Robert C. Steeves
Julius E. Adam
Henry J. Bowers
Leonard R. Bowling
Jinrrny R. Dower
George T. Gross
William A. Hall
John B. Perkovich, Jr.
Robert W. Raines
Dale L. Rear
James F. Richards
Kenneth J. Rowan
Leo Silvernagel
Donald D. Spry
Ramon N. Sterry
Deborah M. Wood
Alfred H. Brinkman
Laverne Caldwell
Oren Knightlinger
Edgar Mutchler
Charles Wuitschich

1850

$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.18
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.45
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.55
$ 7.45
$ 7.55
$ 7.55
$ 7.55
$ 7.45
$ 7.33
$ 7.55
$ 7.45
$ 7.55
$ 7.45
$ 7.45
$ 7.45
$ 7.45
$ 7.45
$ 7.07
$ 7.55
$ 7.55
$ 7.45
$ 6.70
$ 6.70
$ 7.55
$ 7.55
$ 7.55
$ 7.55

HOMESTAKE MINING COMPANY

UNITED STEELWORKERS OF AMERICA

Respondent

Petitioner

By?
Ro ert A.
Date f-f- 'if l

By~k~
Daas Tinne;reBlerit

Date

1851

g;/; / 7/

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

oc112

HERLE E. lJEGHER,

Complaint of Discharge,
Discrimination, or Interference

Complainant
v.
ASPHALT :rrnrnG & CONCRETE COHPANY'

Docket Ho. \TEST 82-59-Dl'i
11SHA Case No. ifD 31-133

Respondent
Higley lload Pit
DECISION
Appearances:

Frank Spiegel, Esq.,
, Arizona, for Complainant;
Daniel F. Gruender, Esq., Shimmel, Hill, Bishop &
Gruender, P.C., Phoenix, Arizona, for Respondent.

Before:

Administrative Law Judge Broderick

STATEl1ENT OF THE CASE

Complainant was discharged on July 14, 1981, from the position he
had with Respondent as a truck driver. Be contends that the discharge
resulted from complaints he voiced to Respondent concerning the safety
of the vehicle he operated. Respondent contends that he was discharged
for unsatisfactory and unsafe performance of his job.
Pursuant to notice, the case was heard on the merits in Phoenix,
Arizona, on Hay 27 and Nay 28, 1982. 'ferle ~·Tegner, Leonard Van '.Jagenen,
Leon Richardson, Stewart Powers and Rodney Lippse testified on behalf of
Complainant. Therese Sanders was called by Complainant for crossexarnination. Clarence Ellis, '.Jilliar.1 A. Ireland, James W. Lake, Robert
Kreilins, Chris Reinesch, Verle Snodgrass, Gary Nord and Bryon Handy,
testified on behalf of Respondent.
Both parties have filed posthearing briefs. Based on the entire
record and considering the contentions of the parties, I make the
following decision.

185~~

FINDINGS OF FACT
1. Respondent is engaged in the mining, constructing and supplying
of materials for building roads and paving parking lots - primarily
asphalt. It is a mine as that term is used in the Federal Mine Safety
and Health Act.
2. Complainant worked for Respondent as a truck driver from
September 12, 1930 to July 14, 1981. He was a miner as that term is
used in the Act.
3. From about May 14, 1981 to July 14, 1931, Complainant operated
a "water-pull," which consisted of a diesel operated tractor pulling a
large water tank. It was used to spray water on the haulage road and
around the pits, yard and scale house. It carried approximately 8,000
gallons of water, and, when fully loaded, weighed approximately 75,000
pounds. It was equipped with air brakes.
4. During the period of Complainant's employment, Respondent had
irregular employee safety meetings held at least monthly.
5. At every safety meeting attended by Complainant while he drove
the water pull, he complained that the brakes on the water pull were
inadequate.
6. Leonard Van Wagenen, a truck driver for Respondent from about
April 1980 to November 1981, operated the water pull for about 3 months.
He complained of inadequate brakes on the vehicle many times at safety
meetings. Leon Richardson, a truck driver for Respondent for about
10 months, and Stewart Powers, who worked for Respondent from September
1980 to November 1981, and who drove the water pull on occasion, both
were present at safety meetings when the subject of the inadequacy of
the water pull brakes was discussed.
7. Respondent instructed its truck drivers to submit a nDrivers
Repair Report" also called a "cry sheet" at the end of each shift to
point out equipment items needing repair. Of the 38 reports on the
water pull introduced in evidence, six refer to the brakes. Three of
these were submitted by Complainant. On July 9, he reported that
"brakes are bad." On July 13, he reported that the left rear drive had
a brake pancake. On July 14, he reported that "brakes are bad."
3. The brakes on the water pull were adjusted on July 13, 1981,
and a brake pancake was installed. On July 14, 1981, after the accident
described below, the brakes were checked and found to be in good
condition.

1858

DISCUSSION
I am generally accepting the testimony of Verle
s, the
heavy equipment shop foreman, as to the condition of the brakes on the
water pull. I also find that because of the kind and
of the
vehicle, it was often difficult to stop even with good brakes. I also
find that the brakes required frequent adjusting. I am specif
rejecting the testimony of Complainant and the other drivers that
were told at safety meetings and by the mechanics that the water
did not have brakes or had inadequate brakes.
9. At some time between :fay and July, 1981, Complainant asked
Chris Reinesch, Ifanager of the Quarry for Respondent, if he could have
a canopy or umbrella constructed on the water pull to
shade.
Reinesch refused on the ground that a canopy would interfere with the
1
s standing to see back underneath the standp
Sometime
later, when Reinesch was away from the quarry,
asked Therese
Sanders, Respondent's President to have the canopy installed and she
\Jhen Reinesch returned he was upset and the canopy was removed.
10. On one or more occasions, Complainant
Kreil
truck foreman and later Assistant to the
ion
Manager, about alleged unsafe driving on the part of Chris Reinesch and
near accidents between the vehicle driven by Reinesch and the water
1
driven by Complainant. He made the same complaints to Therese Sanders
at least once.
11. On July 13, 1981, Complainant drove the water pull to the Salt
River loading area. As the tanks were being filled with water the
vehicle motor stalled and Complainant was unable to restart it. He
asked a truck driver in the vicinity to call the shop and have someone
come down to start it. He then sat in the vehicle with his head resting
on the steering wheel. After some minutes, Chris Reinesch drove up and
accused him of sleeping on the job. Complainant told Reinesch that he
could not start the motor. Reinesch told him he could
cables
from the crusher plant but Complainant refused,
Reinesch that he
did not take orders from him and threatening to "kick his ass." After
about 20 minutes, a mechanic came from the shop and the water
was
started.
12. Reinesch reported the incidents described above to Byron
Handy, Vice-President and general manager of Respondent. Reinesch
recommended that Complainant be dischar3ed.
13. Robert Kreiling, the truck foreman and later assistant to
James Lake, Transportation Hanager, hired Complainant. He assigned
Complainant to drive the water pull and generally Complainant was
answerable to Kreiling for the operation of the vehicle. When the water
pull was operated in the area of the crusher, watering the yard roads,
Reinesch had authority over the operator. This was never made clear to
Complainant
to July 13, 1981, however.

14. Following the incidents described in Finding of Fact ~o. 11,
Complainant, Lake, Reinesch and Hs. Sanders had a meeting concerning the
incidents. Lake told Complainant that although he was under the direct
supervision of Lake, he was also subject to direction by Reinesch when
in the crusher plant area. Lake stated that Complainant declined to
follow Reinesch's directions and that this was insubordination and
would not be tolerated. There was also discussion of the canopy incident concerning which Reinesch was still upset. Reinesch said that he
found Complainant
at the wheel of his vehicle and that
threatened to kick Reinesch's ass. Lake reprimanded Complainant, but
did not further discipline him at that time.
15. On July 14, 1981, while Complainant's water pull was be
filled, he picked up a snake near the pond. The snake wrapped itself
around Complainant's arm as he operated the
watering the haulage
road. He deviated from his normal course and drove with one hand,
holding dowll the arm on which the snake was to avoid letting Reinesch
see him with the snake on his arm. He later threw the snake away and
continued on his normal duties.
16. On July 14, 1981, the water pull operated
Complainant
collided with a road grader, also called a blade, which was grading or
regrading the haul road. Prior to the accident, the blade was
tioned in the center of the road and was
westerly. According
to a company rule, the blade has the
over other vehicles on
the road. The blade operator saw Complainant in the water-pull approximately 175 feet away coming in the opposite direction. The blaJe operator stopped his vehicle and stood up and waived because he wanted
Complainant to discontinue watering the road at that time.
17. The water pull continued coming and attempted to pass the
blade on the right but the left rear tire of the water pull struck the
corner of the mold board on the blade. The
was stopped when the
collision occurred.
18. As a result of the collision, the left rear tire of the water
pull was cut and the wheel rim was bent. The control arm on the blade
was broken and the blade later fell off.
19. The
was visible from the
collision from at least 175 feet.

prior to the

20. There was room on the road for the water pull to pass the
grader without
with it.
2L The brakes on the \later pull were operative at the time of the
accident.

22. Following the accident, Complainant drove up to the yard and
was told by the
to go home since the other water-pull was
inoperative.

1855

23. When Lake arrived at work on July 14, 1981, he was told of the
accident by Kreiling. Lake examined the vehicles and talked to the
blade operator and a truck driver who witnessed the accident. Be also
discussed the condition of the brakes with the heavy equipment mechanic.
He was told by Kreiling about Complainant driving earlier that morning
with a snake on his arm. Lake decided to terminate Complainant because
he concluded that Complainant was driving the water pull in an unsafe
manner and that this caused the accident.
24.

The decision to terminate Complainant was made

Lake alone.

25. Lake was appointed to the position of Transportation :1anager
on July 1, 1981. He did not attend any saf
meet
prior to
Complainant's termination and was not aware of any complaints of bad
brakes on the water pull made at those meetings. He was aware of the
"cry sheet" which Complainant submitted on July 13, 1981.

STATUTORY PROVISION
Section lOS(c) of the Act provides in part as follows:
(c)(l) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal
or other mine subject to this Act because such miner,
representative of miners, or applicant for employment
• • • has filed or made a complaint under or related to
this Act, including a complaint notifying the operator
or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine . • .
or because of the exercise by such miner, representative
of miners or applicant for employment on behalf of himself
or others of any statutory right afforded by this Act.
ISSUES

1. Whether Complainant was terminated from his employment because
of safety complaints.
2.

If so, what is the appropriate relief.

1856

CONCLUSIONS OF LAW
1. Complainant and Respondent were subject to the provisions of
the Nine Safety Act at all times pertinent hereto, and the undersigned
Administrative Law Judge has jurisdiction over the parties and subject
matter of this proceeding.
2. The complaints made by Complainant orally and in writing about
the inadequacy of the brakes on the water pull described in Findings of
Fact ~os. 5 and 7 related to
and constituted
protected
under the Act.
3. Complainant failed to establish that he was terminated as a
result of the safety complaints referred to above.
DISCUSSION
I accept the testimony of James Lake that at the time he discharged
Complainant, Lake was not aware of any complaints concerning the brakes on
the water pull voiced by Complainant at safety meet
He was aware
of the July 13, 1981, cry sheet whicn stated "Left rear drive has a brake
pancake." I generally accept Lake 1 s test
that he discharged Complainant because of (1) the accident; (2) the snake incident; and (3)
the reprimand issued to Complainant on July 13, 1981, for insubordination.
Whether Complainant was fairly blamed for the accident, and whether the
reasons given for the discharge were sufficient to justify discharge are
not issues before me. See Secretary/Chacon v. ~helps Dodge Corporation,
3 FMSHRC 2508 (1981). Further, the reasons for Complainant's personality
clash with Reinesch and Complainant's contention that he was not adequately informed as to his supervisors, are of no importance to a
decision in this proceeding. I think the evidence establishes that the
brakes on the water pull caused difficulty to the operators of the
vehicle. The evidence establishes that Complainant complained of inadequate brakes on the vehicle. These complaints were made in good faith,
were reasonable and were related to employee safety. But the evidence
does not show a nexus between the complaints and Complainants discharge.
4. Complainant failed to establish a violation of section lOS(c)
of the Act.

ORDER
On the basis of the above findings of fact and conclusions of law,
the complaint and this proceeding are DISUISSED.

J

;ifd:f;vrk/t.--i el(_

ti,vrt-£5
James A. Broderick
Administrative Law Judge

185?

Distribution:

By certified mail

Frank Spiegel, Esq., 2609 W. Southern 1152, Tempe, AZ 85282
Daniel F. Gruender, Esq., Shimmel, Hill, Bishop & Gruender, P.C.,
10th Floor, 111 \Jest Honroe, Phoenix, AZ 85003

1858

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

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

22041

OC114 \982
Complaint of Discharge, Discrimination
or Interference

HAROLD CRUMLEY,
Complainant

Docket No. WEST 82-128-DM

v.

Twin Buttes Mine

ANAMAX MINING COMPA.i.'IT,
Respondent

ORDER OF DISMISSAL
On September 15, 1982 a combined Notice of Hearing and Prehearing
Order was issued by the undersigned and duplicate service by certified
mail was attempted at Complainant's last known address. The envelopes
containing said documents were returned unopened and marked presumably
by postal authorities "not deliverablen, "records searched, no address
on file", "moved, left no address" and "unable to forward". Additional
efforts were made to locate Complainant but without success.
Commission Rule S(c), 29 CFR § 2700.S(c), requires, and common
sense dictates, that a party "promptly" give to the Commission "written
notice" of "any change in address or business telephone number". It is
apparent that Complainant has failed to comply with t e requirements of
said rule, thereby making further prosecution of thistcase impossible.
Accordingly, I have no alternative but to dismiss thi~ case for lack
of prosecution.
·

G
A

Distribution:
Charles L. Fine, Esq., O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, 3003 North Central, #1800, Phoenix, AZ 85012
(Certified Mail)
Mr. Harold Crumley, 1331 East Wyoming, Tucson, AZ 85706 (Certified Mail)

1859

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

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

Civil Penalty Proceeding
Docket No. KENT 82-27
A/O No. 15-08906-03046
No. 1 Mine

v.

NBC ENERGY, INCORPORATED,
Respondent
DECISION
Appearances:

W. F. Taylor, Esq., Trial Attorney, Office of the Regional
Solicitor, U.S. Department of Labor, Nashville, Tennessee;
Messrs Uayne W. Clark and Jack D. Bush, Co-Owners, NBC
Energy, Inc., Prestonburg, Kentucky.

Before:

Judge Kennedy
Statement of the Case

This matter is before me on the Secretary's unopposed motion for
summary disposition.

The motion is supported by (1) affidavits of the

•
federal mine inspectors responsible for the charges made, (2) answers
to interrogatories by Mr. Clark on behalf of the corporate respondent,
NBC Energy, Inc. (NBC), (3) depositions of the co-owners and principal
officers of NBC, Messrs Clark and Bush, (4) the transcript, exhibits
and decision of the trial judge in Secretary v. NBC Energy, Inc., 4 FMSHRC
1498 (August 2, 19R2), and (5) financial statements and corporate and
individual tax returns of the corporate respondent and its co-owners for
the period July 1979 through May 1982.

1860

The principal issue presented is whether imposition of the penalties
proposed, $1,680, for the ten violations charged, will adversely affect
the ability of the corporate respondent and its co-owners to continue in
business.

After discovery, the Secretary invokes the alter ego or "single

enterprise entity" doctrine to pierce the corporate veil of NBC and its
affiliated corporation, C&B Coal Company (C&B), and thereby subject NBC,
C&B, their successor corporations and their co-owners, Messrs Clark and
Bush, to liability for the penalties proposed"
The Supreme Court has encouraged use of the

0

s

enterprise

entity" theory to penetrate schemes that employ corporate shells or
proprietary corporations to circumvent enforcement of regulatory statutes
and orders.

];/

NLRB v. Deena Artware, Inc., 361 U.S. 398, 403 (1960). l

As explained by the Court:
" •• the question [is] whether in fact the economic enterprise
is one, the corporate forms being largely paper arrangements that
do not reflect the business realities. One company may in fact
be operated as a division of another; one may be only a shell,
inadequately financed; the affairs of the group may be so intermingled that no distinct corporate lines are maintained. These
are some, though by no means all, of the relevant considerations

"

Id.

The seminal exposition of the theory is set forth in Berle, The
Theory of Enterprise Entity, 47 Col. L. Rev. 343 (1947). It is
based on a recognition of the fact that, despite its long history
of entity, a corporation or group of corporations are at bottom
but an association of individuals united for a common purpose and
permitted by law to use a common name. When the corporate fiction
is disregarded, an actual underlying enterprise entity may be
made to appear. According to Berle:
"
• the underlying principle seems plain. Whenever corporate
entity is challenged, the court looks at the enterprise. Where
the enterprise as such would be illegal or against public policy
for individuals to conduct, that enterprise is equally illegal
when carried on hy a corporation, and the corporate form is not

1861

Thus, in Deena Artware, supra, the Court held that a regulatory agency
is entitled to show in an enforcement proceeding that a group of "separate
corporations are not what they appear to be, that in truth they are but
divisions or departments of a 's

enterprise'".

Id. at 402.

A subsidiary issue is whether the penalties proposed are excessive
to the policy of deterrance and should, therefore, be reduced to more
realistically reflect the seriousness of the violations chargedo
Under the Commission's rules when a motion for summary decision is
made and supported as provided in the rule, an adverse party may not
rest upon the mere

ions or denials of his

pleadings~

but his

response, by affidavits or as otherwise provided in the rule, must set
forth specific facts showing there is a genuine issue for trial.

If

he does not so respond, summary decision, if appropriate, will be entered
against him.

fn. ];_/ (continued)
a protection. This is, in essence, not so much a 'disregard
of the corporate fiction' as it is a holding that the economic
enterprise is illegal or criminal, or in violation of public
policy, or fraudulent, or otherwise objectionable, as the case
may be. The nature of the enterprise determines the result,
iving the corporate personality or any other form of
organization of that enterprise.
"If it be shown that the enterprise is not reflected and comprehended by the corporate papers, books and operation~ the
court may reconstruct the actual enterprise, giving entity to it,
based on the economic facts. Thus one corporation may be shown
to be only an 'instrumentality' of a larger enterprise, or to be
so intermingled with the operations of such larger enterprise as
to have lost its own identity. On such reconstruction of the
true entity the court may assign the liabilities of the paper
fragment to the economic whole • • • • n Id. at 354.

1862

Because the operator has the burden of proof on the issue of financial
jeopardy and appears pro se, the trial judge has subjected the Secretary's
motion and evidence to close scrutiny and made an independent audit
and de novo evaluation of the propriety of granting the motion. Applying
this standard, I find there is no triable issue of fact and that the
Secretary is entitled to summary decision as a matter of law. !:_/
2/ The parallel penalty proceeding cited above was heard and decided
by another Commission judge in May 1982 on a record that embraced the
same time frame, the same parties and the same claims and issues with
respect to financial jeopardy. The final disposition issued in August
was not appealed or docketed by the Commission for review. Because
the decision did not specify the basis on which the judge chose to
disregard the separate identities of NBC and C&B or why they should
together with their co-owners~ Clark and Bush, be considered part of
a single integrated business entity, I have undertaken to make a de
novo review of the evidence and the applicable law and precedents-.same lack of articulation in the earlier decision also leads me
to conclude that application of the twin doctrines of res judicata
and collateral estoppel would be inappropriate.
While the Secretary did not name Clark and Bush as individual
respondents in either proceeding, both had notice and appeared
se
to defend on the ground of limited liability (corporate shield and
inability of their corporate instrumentality, NBC, to respond without
allegedly jeopardizing their ability as individuals to continue in the
business of mining coal. If, as the Secretar~ contends, therefore,
NBC and the other corporate entities are the alter egos of Clark and
Bush they have no right to any additional notice. Valley Finance, Inc.
v. United States, 629 F.2d 162, 169 (D.C. Cir. 1980). On the other
hand, if Clark and Rush prevail in their view that NRC and C&B and
their successor corporations should be recognized as a shield against
derivitive liability they obviously need no additional notice.
Further, since the fact of violation is admitted and the only issue
is the amount of the penalties warranted for the ten violations charged
this is not a proceeding to determine responsibility for violating the
law but only who shall pay for the violations admitted. Under these
circumstances, the Court of Appeals for the Second Circuit has held
that the thrust of Deena Artware, supra, is that an already adjudicated
or, as here, judicially admitted liability may be imposed on parties
not themselves charged in the initial proceedings where, under the
single enterprise theory, they are found to be derivatively liable as
part of the single business enterprise involved in the violations
admitted or adjudicated. NLRB v. C.C.C. Associated, Inc., 306 F.2d
534, 539 (2d Cir. 1962).

1863

Findings and Conclusions
The Capitalization of NBC
The corporate respondent, NBC Energy, Inc., a Kentucky corporation,
began operat

the Noo 1 Mine, a non-union mine, near Coal Run, Pike

County, Kentucky on or about July 23, 19790
operations at the mine on or about

The company ceased active

17, 1982, and was immediately

succeeded by Wayne Clark, Inc., a Kentucky corporation owned by the
same individual, Wayne Clark, who appears on respondent's behalf in
this matter and who succeeded to sole ownership of NBC in February
1982.

The ten violations charged occurred during the period April

1981 through September 1981 at a time when Wayne Clark and Jack Bush,
who also appears on behalf of respondent in this proceeding, each
owned 50% of NBC.
Wayne Clark, the president of NBC functioned as the outside man
and managed business.

Jack Bush, the vice president and secretary of

NBC, functioned as the inside man and was in charge of producing coal.
As Mr. Clark noted, they started the business on a "shoestring."
Clark, Bush and a man named Stanley Neese each put up $1,000 for a
total capitalization of only $3,000. 1_/

Neese dropped out in 1980

and thereafter Clark and Bush owned equal shares of NBC.

The company

operated on a fiscal year that ran from June 1 to May 31.
3/ When Clark and Bush started the C&B Coal Company a few years earlier,
they capitalized it at $25,000.

186t1

Operation of NBC and C&B
According to Bush, Clark worked only part time, about 20-hours a
week, at managing NBC.

Bush as mine superintendent and foreman worked

more or less full time on the production end of the business. 4/

NBC

was incorporated May 29, 1979 and operated the mine under a lease from
Kentucky Coal Companyo

Kentucky Coal paid NBC a royalty on the coal

produced that averaged $16.00 a tono

In February 1982, Clark bought

out Bush's interest in NBC and after May 1982 declared NBC insolvent
and continued the business through Wayne Clark, Inco, another of
Mr. Clark's proprietary corporations.
At the time it commenced operations, NBC owned $28~000 worth of
mining equipment. 5/

It leased equipment from Kentucky Coal for which

4/ The record shows that for the three years NBC was in business it
produced approximately 185,000 tons of coal for which it received an
average price of $16.00 a ton. Its gross revenues from the sale of
coal were approximately $2.9 million dollars. According to the operator's
unaudited financial statements and answers to interrogatories, its cost
of production for the three year period totalled approximately $2.7
million dollars. Its gross profit for the pertod was therefore approximately $200,000. Despite this, the operator claims a loss on the
operation of approximately $189,000. The Secretary's response is that
<luring at least the first two years of its operations NBC leased coal
mining equipment valued at $60,000 from Clark and Bush doing business
as the C&B Coal Company for which they paid themselves $177,832 in
equipment rentals. In addition, the Secretary claims Clark and Bush
through NBC paid management fees and administrative salaries to C&B
that C&B in turn paid to them individually that totalled $153,120.
These allegedly unwarranted diversions of funds totalled $330,952.55
for the first two years of NBC's operations.

2_/ By the time it ceased operations, NBC had increased the value of
these assets to $75,000. Of this, $37,500, was owned outright and the
rest was held subject to the usual installment credit arrangements on
mining equipment.

1865

it paid an equipment rental of $61,571.61 during its first year of
operations.

It also leased equipment from C&B Coal Company, Inc. C&B

was a non-operating company jointly owned by Clark and Bush.

C&B

hecarne inoperative in September 1979, a few months after NBC
operations.

C&B was shut down because it was subject to the collec-

tive bargaining agreement between the BCOA and the ill-fl~A.

Mr. Clark

testified that C&B's mining equipment was not needed to operate the
No. 1 Mine because the "Kentucky Coal Company had enough
the NBC Energy Number One Mine to operate it." 6/
Clark and Bush leased C&B's equipment to NBC.

at

Despite this,

The first year 1 s rental

on unneeded equipment that Clark valued at only $60,000~ was $116,720.26.
During its second year of operations, NBC paid C&B an additional equipment rental that totalled $61,112. J./

NBC apparently continued to pay

an equipment rental to C&B until some time between February and May
1982 when NBC turned operation of the No. 1 Mine over to Wayne Clark,
Inc.

I find this leasing arrangement was not a bona fide arms-length

transaction and was designed to cloak the true. nature of the financial
condition of the affiliated corporations and their co-owners.

I also

find (1) that as the controlling stockholders of NBC and C&B Clark and
Bush were at all times relevant the beneficiaries and true parties
in interest with respect to revenues and income received and disbursed

6/ This testimony was given in the parallel proceeding and appears at
pages 58, 61-62 of the transcript in Docket Nos. KENT 81-133, ~al.
]_/ During this period, C&B claimed almost $50,000 in depreciation on
this and other equipment it leased out.

1866

by NBC and C&B and (2) that the corporations were the mere alter egos
of the two individuals and part of a single, integrated, economic entity.

Analysis of NBC and C&B's Financial Condition

An analysis of the financial condition of the single enterprise
entity (NBC, C&B) as disclosed by unaudited data and the testimony of
Clark and Bush discloses the following.

For the period ending May 31,

1980, NBC had gross revenues of Sl,061,591 but claimed a net loss of
$108,860.

Its itemized cost of production included the $116,720 paid

C&B for equipment rental as well as $76,700 paid C&B for management
fees.

During the first year of operations, Clark and Bush took their

salaries from the sums paid C&B for management fees and drew no salaries
from NBC.

Clark was paid a salary of $30,975 and Bush was paid $32,975.

It is not clear what the remainder of this fee was used for.

If the

management fee is considered a wash, the revenue from the equipment
rental still more than offset the claimed loss of $108,860 and resulted
in a profit before taxes, and after handsome salaries, of almost $8,000,
a four fold return on each individual's initial investment of $1,000.

Further analysis shows NBC's profit was even greater because Clark
and Bush charged as a cost of production the unpaid civil penalties
assessed against NBC by MSHA.

For the first year of their operations

this totalled $8,026 and for the second year $19,859.

Penalties are,

of course, a cost of doing business, but they are not tax deductible. 8/

8/ Treasury Regulation ~rl.162-21 (1975). Apparently IRS is not policing
this as NBC's accrued but unpaid civil penalties for both 1979 and 1980
were claimed and allowed as deductible costs on NBC's tax returns for

1867

Nor, in my view, is it proper to consider

penalty assessments

as contributing to an operator's financial impairment where the monies
were actually used to fund operations.
Thus, instead of net losses for the first year of operations
NBC, C&B and their owners had a return on investment during that time
of something like 100% on equipment rental alone ($60,000, investment
v. $117,000 rental).
rental
of approximate
took home a

In fact, Mr. Clark admitted that the first year

between C&B and NBC resulted in a profit to C&B
$37,000.

In addition, as we have seen, each individual

of over $30,000. J./

For the second year, it appears the

rental was $61,112,

most of which was sheltered by a $50,000 deduction for depreciation.
NBC also paid C&B $13,650 for management fees during the second year.
During the second year, Bush was paid a salary by NBC of $34,450 plus
$6,825 in management fees by C&B for a total compensation of $41,275.
Clark was paid a salary of $28,320 by NBC plus $6,825 in management

cont
those years. For just those two years the amount totalled almost $28,000,
almost twice the amount of NBC's present civil
liability of
$16,520. The reduction from the amount initially assessed of $35,598
resulted from 80% reductions that were approved on settlement by a trial
judge who apparently was unaware of the true business and financial
relationship of Clark, Bush and their alter
corporations. Secretary
v. NBC Energy, Inc., Dkt. Nos. KENT 80-185, et al.; Secretary v. NBC
Energy, Inc., Dkt. Nos. KENT 80-173, et al., (Decisions Approving Settlement issued
14 and December 29, 1981).
9/ Curiously enough, neither individual seems to have reported any
investment income or loss on his individual income tax return.

1868

fees by C&B for a total compensation of $35,145.

Clark, who worked at

management only part time, curtailed his salary in the latter part of
1980 but still drew a salary from NBC of approximately $23,000 in 1980.
The amount of Mr. Clark's unearned or investment income from C&B for
the second year was not disclosed.

It must have been substantial since

C&B reported rental income for that year of $87,000.
Furthermore in the second year NBC's gross

t would have been

$105,492 if the equipment rental siphoned off by C&B for the benefit
of Clark and Bush had been available as operating or working capital
for NBC.

Even after paying management fees and administrative salaries

to Clark and Bush of $76,420 this would have left NBC a net profit
before taxes of approximately $16,000.

Again, it was the diversion of

working capital coupled with the initial undercapitalization that
created the illusion of a losing operation that was, in fact, quite
profitable.

Even more profitable than appears from the face of the

financial records because almost $20,000 in accrued but unpaid assessments were diverted and expended for purposes chat apparently served
the personal interests of Clark and Bush.

Thus, NBC's profit before

taxed during its second year may actually have been almost $36,000.
The unaudited records of NBC's third, and last year of operations,
May 1981 to June 1982, shows NBC produced approximately 60,000 tons of
coal at a gross revenue of approximately $975,000.

Net earnings after

all expenses for the first eight months totalled $16,900.

Mr. Clark's

salary for this period was at least $20,000 and Mr. Bush received
approximately $30,000.

Again neither individual's investment income

was disclosed.

1869

The Successor Corporations
After Messrs Clark and Bush dissolved their association in February
1982, Mr. Clark decided to declare NBC "insolvent," to rent NBC's
equipment to his successor proprietary corporation, Wayne Clark, Inc.,
and to continue operation of the No. 1 Mine. 10/

Mr. Bush, also, and

without interruption, continued in the business as the J&L Coal Company,
operating the No. 2 ~ine in Pike County, Kentucky.

There is no sugges-

tion, let alone evidence, that payment of the modest penalties assessed
for these ten violations would create any cash flow problem or otherwise
have an adverse effect on the continued viability of either of the two
successor corporations. 11
10/ Mr. Clark testified that in May 1982 he had twelve miners working
the mine, was mining 4,000 tons of coal a month, and was meeting a $20,000
a month payroll.
11/ In fact, the record shows that Messrs Clark and Bush are not really
concerned with paying the $1,680 involved in this case. What they are
seeking is a declaration by a Commission judge that they can cite as
establishing once and for all their right to violate the Mine Safety Law
on a discount basis. After years of persistent effort this was the type
of relief obtained by the Davis Coal Company. Compare Secretary v. Davis
Coal Company, 4 FMSHRC 1168 (1982) [despite small operator's history o
poor compliance, marginally safe operation and prior decisions establishing
its financial responsibility, operator granted right to write off dozens
of violations at 20 cents on the dollar] with Secretary v. Davis Coal
Company, Dkt. Nos. WEVA 82-111, et al. (September 15, 1982), [same small
operator allowed to write off violations at 20 cents on the dollar before
same judge based on his earlier decision and fact that operator had filed
a petition in bankruptcy]. Here, unlike Davis however, the solicitor has
compelled the production of sufficient financial data concerning the
totality of Messrs Clark and Rush's business dealings to permit an objective analysis and evaluation of the operator's self-serving declarations
and accounting practices. More aggressive and imaginative use of discovery
and the single enterprise theory should do much to curb the belief among
small operators that the Commission is prepared to confer a prescriptive
right to violate the Act on almost any small operator who is willing
to swear his operation is unprofitable. Congress never intended that

1870

I find that NBC, C&B, J&L and Wayne Clark, Inc. were and are the
alter egos of their individual owners, Clark and Bush, and that to
recognize them as separate corporate identities would merely further
a scheme to circmnvent effective enforcement of the Mine Safety Lawe
There is for application therefore the principle that:
Although a corporation and its shareholders are deemed
separate entities for most purposes, the corporate form
may be disregarded in the interests of justice where it
is used to defeat an overriding public policyo New
Colonial Ice Co. v. Helvering, 292 U.S. 435, 442~934);
Chicago M. & St. P.R. Co. v. Minneapolis Civic Assn.,
247 U.S. 490, 501 (1918). In such cases, courts of
equity, piercing all fictions and disguises, will deal
with the substance of the action and not blindly adhere
to the corporate form. Bangor Bunta Operations v.
Bangor & A.R. Co., 417 U.S. 702, 713 (1974).
The precedents establish there where, as here, a closely held proprietary
corporation is undercapitalized, and its financial resources drained off
by the controlling stockholders the corporate form may be disregarded
if its recognition as an entity separate and distinct from its ownership
will enable the corporate shield to be used to defeat a regulatory
statute.

Schenley Distillers Corp. v. United States, 326 U.S. 432, 437

(1945); Bruhn's Freezer Meats v. United States Dept. of Agr., 438 F.2d
1332, 1343 (8th Cir. 1971).

See als6 1 Fletcher, Corporations ,45

(Rev. F.d. 1974).

fn. ll_/ (continued)
a mitigating factor should be invoked to systematically deprive miners
of the protection of the law or to justify a policy of tokenism in
the assessment of civil penalties. Clark and Bush have used the
administrative process to their advantage in obtaining an 80% reduction
on the 81 violations previously settled. One coalscam is more than
enough.

1871

Further, it is clear that where enforcement of a regulatory statute
or order may be frustrated because a corporation has been inactivated,
dissolved or rendered judgment proof while the individuals involved
under the cloak of a new corporation continue to engage in proscribed
activities the corporate fiction will not be permitted to "stand athwart"
the regulatory purpose.
Company, Inc. v. FCC

Bruhn's Freezer,

Capital Telephone

498 F.2d 734, 738 n. 10 (D.C. Cir. 1974).

Under

these and similar circumstances a federal regulatory agency is entitled
to look through the corporate veil and to treat the individual owners
and the separate entities as one for purposes of regulation.

General

Tel. Co. v. United States, 449 F.2d 846, 855 (5th Cir. 1971).
Indeed, the fiction of a corporate entity must be disregarded whenever it has been adopted or used to defeat a paramount public policy such
as that designed for protection of a vital national resource--the nation's
miners.

This doctrine is firmly entrenched in our jurisprudence.

cases collected in footnotes 95, 107 of Quinn v. Butz

See

510 F.2d 743 (D.C.

Cir. 1975); l' Fletcher, Corporations n41-46 (Rev. Ed. 1974).
Consequently, whenever recognition of the corporate device will
frustrate the clear intendement of the law such as the ability of the
Government to collect taxes or penalties, the courts have not hesitated
to ignore the fiction of separateness and approve a piercing of the
corporate veil.

Valley Finance, Inc. v. United States 1 629 F.2d 162,

171 (D.C. Cir. 1980); Casanova Guns, Inc. v. Connally, 454 F.2d 1320?
1322 (7th Cir. 1972).

1872

Nor does application of the doctrine require allegation or proof
of actual fraud; it suffices that the corporate fiction has actually
been used to frustrate the statutory scheme.

Addressing the contention

that an intent to circumvent must be shown the court in Kavanaugh v.
Ford Motor Co., 353 F.2d 710, 717 (7th Cir. 1965) held:
Intention is not controlling when the fiction of corporate
entity defeats a legislative purpose. The question is whether
the parties did what they intended to do and whether what they
did contravened the policy of the lawo
Nor in cases involving the frustration of a regulatory statute
is the single enterprise entity or alter ego doctrine subject to the
strict standards that govern application of the doctrine in tort or
contract cases.

Capital Telephone, supra, at 738. State law limita-

tions on the alter ego theory are not controlling in determining the
permitted scope of remedial orders under federal regulatory statutes.
Sebastopol Meat Company v. Secretary of Agriculture, 440 F.2d 983,
958 (5th Cir. 1971).

Even under the strictest of standards a controlling

factor in denying stockholders the defense of limited liability is a
showing of obvious inadequacy in the capitalization of a corporation.
Anderson v. Abbott, 321 U.S. 349, 362 (1944).
For these reasons, I conclude that where, as here, the corporate
device was manipulated to create an erroneous appearance of a failing
corporate operator, it is my duty to look through form to substance
and to fashion an order that will preclude evasion of either corporate
or individual responsibility.

Anderson v. Abbott, supra, at 362-363.

1873

This conclusion is based on undisputed evidence which shows:
1.

That if C&B~s unneeded mining equipment had been
contributed as part of the capital contribution of
NBC, or

2.

If the unnecessary leasing arrangement had not been
used to create a dearth of working capital while
funneling funds to Clark and Bush through C&B,

there would have been no deficit in NBC's operating account or balance
sheet for the three years of its operationo
Turning now to the claim that the individual penalties assessed
are excessive in the light of the negligence, gravity, and the operator 1 s
history or prior violations, I find that for the reasons detailed in the
Secretary's motion as supported by the uncontradicted affidavits of the
inspectors involved the penalties assessed for the violations charged
are, with one exception, fully warranted and in accord with the statutory
criteria. 12/
The exception is the charge that the operator was violating its
approved roof control plan by driving two entries four to eight feet in
excess of the 20 foot width specified.

This violation was aggravated

by the fact that (1) two scoop operators were required to work under
unsupported roof; (2) that it was a violation which the operator knew
or should have know existed; and (3) that during the previous 14 month

12/ I specifically find that NBC's history of prior violations, approxi;:;ately 200 over a three year period at an average rate of 66 per month is
indicative of a serious lack of concern for mine safety on the part of the
operator.

1874

period there had been six roof control violations. l.ll

For these

reasons, I find the amount of the penalty warranted for this violation (Citation 958072) should be increased from $295 to $500. }}:_/
Summary
In summary, during the three year period the No. 1 Mine was operated
under the control of Clark and Bush through NBC they (1) compiled a record
of some 200 violations (at the rate of 66 violations a month), (2) paid
only $425 in civil penalties, (3) sold 83,000 tons of coal during the
first year of operations at $16.00 a ton and produced a gross revenue of
approximately $1,300,000; (4) sold 50,000 tons of coal a year the last
two years of their operations that produced a gross revenue of approximately $1,600,000; (5) had gross revenues over the three year period of
13/ The MSHA District Manager after canvassing his inspectors furnished
the following with respect to the contractor's attitude toward safety:
"Approximately two weeks prior to the beginning of a regular
mine safety AAA (11/30/81) inspection, the mine management
replaced the mine foreman (inside foreman), with a foreman
who is a more mine safety regulation oriented individual.
This foreman has reduced the number of citations with little
or no expense to the operator.

An opinion by our inspectors is that much of the previous
inability to comply with the mine safety law was due to a lack
of effort instead of inadequate working capital. In previous
inspections, there were instances of deluge fire suppression
systems dismantled on belt drives, face ventilation devices not
being used during production and loose coal and float coal dust
being allowed to accumulate on equipment and working section.
Many of these violations could have been avoided by good management practices. In the most recent regular inspection conducted
after the new foreman had taken over, only one violation of the
law was observed."
14/ Roof falls this year, as every year, are again the leading cause of
death in the mines accounting for 39 of the 94 deaths as of September 15,
1982.

.1875

approximately $2.9 million dollars; (6) diverted approximately $200,000
of NBC's working capital or revenues to themselves through unneeded
equipment rentals paid C&B, (7) reaped a 7% return on sales; (8) almost
doubled their assets; (9) persuaded the Secretary and one judge to
approve settlements on 81 violations that reduced the penalties proposed
by 80% on the ground NRC was a "small" operator in "dire financial
condition"; (10) but, in May 1982, left another judge 11 unconvinced 11 of
their claimed "dire" financial straits when, as the result of financial
disclosure made pursuant to discovery orders, the answers to interrogatories, the depositions taken in April 1982, and the testimony adduced
at the hearing in May 1982 a preponderance of the probative evidence showed
conclusively that Clark and Bush had taken advantage of "opportunities for
asset concealment and manipulation" through the use of "multiple corporations."

Secretary v. NBC Energy, Inc., 4 FMSHRC supra, at 1501.

I conclude therefore that:
1.

The undisputed evidence in the recora considered as a
whole shows there is no genuine issue of material fact.

2.

That Clark and Bush operated NBC and C&B as a single
integrated business profitably and successfully during
the period July 1979 through May 1982, notwithstanding
the failing company appearance reflected on the face of
NBC's unaudited financial statements.

3.

Applying the alter ego or single entity doctrine, Clark,
Bush, NBC, C&B, J&L and Wayne Clark, Inc. are jointly
and severally liable for payment of the penalties hereinafter assessed.

4.

The Secretary is entitled to summary decision as a
matter of law.

, 1876

Order
The premises considered, it is ORDERED:
1.

That for the violations found the following penalties
be, and hereby are, ASSESSED:
Citation 953508 ••••••••••••••••••••••••••••••• $130.00
Citation 957626 ••••••••••••••••••••••••••••••• 98.00
Citation 958069 ••••••••••••••••••••••••••••••• 114.00
Citation
140000
Citation 958071 •••••••••••••••••••••••••.••••• 114.00
Citation 9580724•o~oosooo~oooooooooooooooooooo 500000
Citation 957222 ••••••••••••••••••••••••••••••• 114.00
Citation 966468 ••••••••••.•••••••••••••••••••• 225.00
Citation 966469 ••••••••••••••••••••••••••••••• 225.00
Citation 966470 ••••••••••••••••••••••••••••••• 225.00
Total $1,885.00
95807000000000•0000000000000000000000

2.

That Wayne W. Clark, Jack D. Bush, NBC Energy, Inc.,
C&B Coal Company, Inc., J&L Coal Company and Wayne
Clark, Inc., jointly or severally pay the amount of
the penalties assessed, $1,885, on or before Friday,
November 26, 1982, and that su ject to payment the
captioned matter be DISMISSE •

Distribution:
William B. Taylor, Esq., Office of the Solicitor, U.S. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Mr. Jack Bush, Route 2, Harold, KY

41635

(Certified Mail)

Mr. Wayne Clark, P.O. Box 147, Prestonsburg, KY
Mail)

187'/

41653 (Certified

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

DELMONT RESOURCES, INCORPORATED,
Contestant

OC1Z5 \982

Contest of Citation
Docket No. PENN 80-268-:1

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
AD:1INISTRATIOfl C1SHA).

Respondent

Appearances:

Harvey A. Zalevsky,
• ; Greensburg, Pennsylvania, for
Contestant;
David Bush,
., Office of the Solicitor, U.S.
Department of Labor, Philadelphia, ?ennsylvania, for
Respondent.

Before:

Administrative Law Judge Broderick,
on remand from the Commission

This proceeding were originally heard by Judge John F. Cook on
September 16, 1930. Judge Cook issued a decision on April 23, 1981,
in which he found that the contested citation was properly issued under
the Federal :1ine Safety and Health Act of 1977, that the violation
charged in the citation was caused by the unwarrantable failure of
Contestant to conply with the safety· standard; but that the evidence
did not support a finding that the violation was of such nature as
could significantly and substantially contribute to the cause and
effect of a mine safety or health hazard. On the basis of the latter
finding, Judge Cook modified the citation from one issued under section
104(d) to one under section 104(a).
The Secretary filed a petition for discretionary review, seeking
review of the Judge's finding that the violation was not "significant
and substantial." The United Hine ~'1orkers of Ar;lel)ica sought review on
the same ground. Both petitions were granted by the Commission on
June 2, 1931.

1878

The Commission remanded the case on Hay 3, 1982, "to give the
parties an opportunity to present evidence relevant to the National
Gypsum test" (on the meaning of significant and substantial). Following
remand, the case was assigned to me. Pursuant to notice a hearing was
held in Washington, Pennsylvania on June 29, 1982. Anthony Russo and
Roger Uhazie testified on behalf of the Secretary of Labor. Homer
Hiller, Kenneth Cutlip and John Cunnard testified on behalf of
Contestant. The United Mine Horkers of A.'Tierica did not ap;:;ear at the
hearing. Both parties filed posthearing briefs. Based on the entire
record and considering the contentions of the parties, I make the
followine decision:
I accept as res judicata the conclusion of Judge Cook that the
"evidence establish(es) a practice at the Delmont mine in violation of
the roof-control plan 1 s 18-foot width requirement for entries and
crosscuts. The evidence is sufficient to establish the existence of
the individual conditions cotlprising the practice only at those locations where measurements were actually taken." (Judge Cook 1 s decision,
p. 13). The Judge found three such locations on January 15, 1980, in
each of which the conditions existed for a distance of 2 to 3 feet:
(1) the second open crosscut between No. 2 and No. 3 entries; (2) the
last open crosscut between No. 1 and No. 2 entries; (3) a 11 spot 11 in
No. 1 entry approximately 60 feet outby the face. In each of these
locations, the crosscut or entry was from 19 to 21 feet wide, and there
were no additional supports.
The issue before me in this proceeding is whether this practice
as shown by the conditions referred to above is of such nature as
could significantly and substantially contribute to the cause and
effect of a mine safety or health hazard.
FINDINGS OF FACT
1. On the date of the violation, January 15, 1980, the immediate
roof in the No. 1 entry was composed of sandstone. The roof conditions
were good and there was no evidence of cracks or scaly material in
the roof.
2. The excessive widths found to be involved in the violation
resulted from the mine floor in the area sloping to the right which
caused the miner to drift toward the right rib when cuttin3 the coal.
3. In at least two of the areas of excessive width found by
Judge Cook, the last row of roof bolts were from 4 to 6 feet from the
right rib. The approved roof control plan called for bolts not more
than 3 feet from either rib.

1879

4. There was a fault running across the overburden in entries 2
and 3, consisting of a separation of sandrock, so that the sandrock
went up into the covering strata instead of running parallel to the
coal seam. As of January 15, 1980, it was not clear in what direction
the fault was running, or whether it would intersect entry No. 1.

5. An unintentional roof fall occurred in the subject mine in
March 1980 in a crosscut between entries No. 1 and 2.
6. The practice of driving entries wider than permitted by the
roof control
, without additional roof supports, creates a greater
stress on the roof and is more likely to cause the strata above to
deteriorate and separate than would be the case if the roof control
plan were followed.

7. The failure to maintain supports within 3 feet of the rib
results in an area of unsupported roof which creates a
stress
on adjacent roof.
STATUTORY PROVISION
Section 104(d)(l) provides in part as follows:
If, upon any inspection of a coal or other mine,
an authorized representative of the Secretary finds
that there has been a violation of any mandatory health
or
standard, and he also finds that, while the
conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or
health hazard, and if he finds such violation to be
caused by an unwarrantable failure of sucn operator to
conply with such mandatory health or safety standards,
he s'.1all include such finding in any citation given to
the operator under this Act . ~ • •
ISSUE
1. Whether the
ice followed by Contestant of driving entries
wider than the 18 feet prescribed by the roof control plan as evidenced by the three locations of excessive width found by Judge Cook
was reasonably likely to result in an injury or illness of a reasonably
serious nature?

1880

THE NATIONAL GYPSUM DECISION
The Commission, in a decision issued April 7, 1981, Secretary v.
Cement Division, National Gypsum Company, 3 FMSHRC 822, interpreted the
significant and substantial provisions of section 104(d) as follows:
We hold that a violation is of such a nature as
could significantly and substantially contribute to the
cause and effect of a mine
or he~lth hazard, if,
based on the particular facts surrounding the violation,
there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a
reasonably serious nature. Id. at 825.
[nder this test it is necessary (1) to consider the particular
facts surrounding the violation; (2) to determine whether an injury or
illness is reasonably likely to occur as a result of the hazard; (3) if
so, to determine whether the injury or illness will be of a reasonably
serious nature.
CONCLUSIONS OF LAU
The hazard contributed to by the violation found is this case is a
roof fall. If a roof fall occurred, a resulting injury would clearly
be of a reasonably serious nature. The only substanLial question in the
case is whether under the conditions present, a roof fall was reasonably
likely to occur.
The evidence in this record establishes that roof falls are quite
unpredictable. What appears to be good roof may unexpectedly fall even
if supported in accordance with the roof contrql plan. A sandstone
roof is more stable and much safer than a soapstone roof. However,
unsupported roof, of whatever kind, is per sea saf
hazard and
to fall and cause injury to miners.
The practice of driving entries at widths in excess of those called
for in the roof control plan creates an area of unsupported roof since
the roof bolt supports only a small area of roof (the plan in question
calls for bolts on 11 4 foot centers." The theory is that a bolt provides
support to the roof only for 2 feet to either side). The rib acts as
a roof support for a distance of 1 to 2 feet. Therefore, a practice of
installing the first row of bolts more than 4 feet from the rib creates
an area of unsupported roof between the rib and the bolt.

1881

I conclude that the practice constituting the violation of the roof
control plan found by Judge Cook was reasonably likely to result in a
roof fall which would injure a miner. There is the further fact that a
fault was running through the roof strata and it was not certain at the
time the citation was issued what course it was following. Should it
intersect with No. 1 entry what was a solid sandstone roof would become
a much less stable soapstone roof, and a fall would become even more
likely. I have already found that if an injury occurred it would be
reasonably serious.
Therefore, I conclude that the violation found by Judge Cook to
have occurred, and to have been the result of Contestant's unwarrantable
failure to comply with the regulation in question, was of such a nature
as could significantly and substantially contribute to the cause and
effect of a mine safety hazard.

ORDER
Based on the above findings of fact and conclusions of law,
Citation No. 624406 issued under section 104(d)(l) is AFFIRHED as
issued; the Notice of Contest is DENIED and this proceeding is
DISMISSED.
...

J
Distribution:

(ltill.f

/4-/ic<.fc t 1~c,£

James A. Broderick
Administrative Law Judge

By certified mail

Harvey A. Zalevsky, Esq., 102 N. ~lain Street, Suite 200, Greensburg,
PA 15601
David T. Bush, Esq., Office of the Solicitor, U.S. Department of
Labor, Room 14480 Gateway Building,.3535 Market Street, Philadelphia,
PA 19104

1882

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

oc126\8

Civil Penalty Proceeding

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

Docket No. KENT 82-44
A.O. No. 15-11652-03015

v.

Ely Hollow Deep

STERLING ENERGY, INC.,
Respondent
DECISION
Appearances:

Carole M. Fernandez, Attorney, U.S. Department of Labor,
Nashville, Tennessee, for the petitioner; Ralph Ball,
Corbin, Kentucky, .J2.E2_ se, President, Sterling Energy 9 Inc,,
respondent.

Before:

Judge Koutras
Statement of the Proceedings

This proceeding concerns a proposal for assessment of civil penalties
filed by the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a),
charging the respondent with 11 alleged violations issued pursuant to the
Act and the implementing mandatory safety and health standards. Respondent
filed a timely answer in the proceedings and a pearing was held on
August 24, 1982, in London, Kentucky, and the parties appeared and
participated fully therein.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regulation as
in the proposal for assessment of civil penalties
filed in this
, and, if so, (2) the appropriate civil penalties
that should be assessed against the respondent for the alleged violations
based upon the criteria set forth in section llO(i) of the Act.
In determining the amount of civil penalty assessments, section llO(i)
of the Act requires consideration of the following criteria: (1) the
operator's history of previous violations, (2) the appropriateness of

1883

such penalty to the size of the business of the operator charged, (3)
whether the operator was negligent, (4) the effect on the operator's
ability to continue in business, (5) the gravity of the violations, and
(6) the demonstrated good faith of the operator in attempting to achieve
rapid compliance after notification of the violations.
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 ~·
2.

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

3.

Commission Rules, 29 C.F.R.

§

§

820(i).

2700.1 et~·

Discussion
Citation No. 987853, October 19, 1981, 30 CFR 75.1715, states as
follows:
The check-in and check-out system at the mine did
not provide positive identification of every
person underground at the mine.
Citation No. 987854, October 19, 1981, 30 CFR 75.200, states as
follows:
The operator's roof control plan requiring roof
bolts to be installed when loose or drummy
roof are encountered was not being followed in
that loose roof was present at one location in the
No. 3 intake road way entry located about 300 feet
inby the portal.
Citation No. 987855, October 20, 1981, 30 CFR 75.400, states as
follows:
Loose coal and float coal dust were deposited on
rock dusted surfaces in the No. 2 belt conveyor
entry beginning at the portal and extending inby
for a distance of about 350 feet.
Citation No. 987857, October 20, 1981, 30 CFR 75.503, states as
follows:
The lights on the permissible type mark 20 Wilcox
Continuous mining machine being used in the face
area of 001 working section was inoperative.

1884

Citation No. 987858, October 20, 1981, 30 CFR 75.523-1, states
as follows:
The Wilcox roof bolting machine in 001 working
section was not provided with a deenergization
device.
Citation No. 987859, October 20, 1981, 30 CFR 75.326, states as
follows:
The main intake and the conveyor coal haulage
belt was not separated, in that rock had fallen and
crushed out a portion of the 5th stopping inby the
intake portal.
Citation No. 988361, October 21, 1981, 30 CFR 75.316, states as
follows:
The operator's ventilation methane and dust control
plan requiring at least 20 water sprays to be operative
on the Wilcox continuous mining machine was not
being followed in that none of the water sprays
were operating.
Citation No. 988364, October 21, 1981, 30 CFR 75.1103, states as
follows:
The sensor cable to the automatic fire warning
devices on the No. 1 main belt conveyor was not
maintained in that the sensor cable was broken
in to and laying on the mine floor.
Citation No. 988365, October 23, 1981, 30 CFR 75.1725, states as
follows:
There were 14 bottom belt conveyor rollers stuck
on the No. 1 Mine belt conveyor.
Citation No. 988367, October 26, 1981, 30 CFR 75.316, states as
follows:
The operator's ventilation methane and dust control
plan requiring permanent stoppings up to and including the third open cross cut outby the face
area was not being followed, in that permanent
stoppings had not been installed in the third
open cross cut outby the face area in first
right 001 section.

1885

Citation No. 988369, October 27, 1981, 30 CFR 75.400, states as
follows:
Loose coal and float coal dust was deposited on rock dusted
surfaces beginning at the belt drive and extending inby
for a distance of about 150 feet. This condition existed
in the No. 2 entry 001 first right section.
Stipulations
The parties stipulated that the respondent's mine is subject to
MSHA's enforcement jurisdiction (Tr. 5). In addition, the respondent
indicated that it does not contest citations 987855, 988365, and 988367,
and admits the fact of violations insofar as those citations are
concerned
6),

MSHA Inspector Robert Sawyers confirmed that he inspected the
mine in question in October 1981, and he confirmed that he issued all
of the citations which are the subject of these pro
He testified
as to the conditions and practices which he observed, and which led him
to issue each of the citations. He also testified as to the
gravity, and good faith abatement concerning each of the citations
• 8-19; 19-28; 35-49; 50-68; 68-85).
Respondent's testimony and evidence
Mine operator Ralph Ball appeared
se in this case and was
a full opportunity to present testimony and evidence in defense of all
of the citations, including an opportunity to cross-examine the inspector
as to all of his findings. Aside from the fact that he was Lot present
on at least two occasions when the inspector conducted his inspections,
Mr. Ball asserted that the citations resulted from the fact that he was
in the process of moving his mining equipment from one underground mine
area to another. However, he candidly admitted that on the days the
citations issued work was in fact being performed in the mine and that
the areas which were cited were active working areas of the mine (Tr. 94).
Inspector Sawyers testified that during the days of his inspections
which resulted in the issuance of the citations in question in this case
the mine was operating and producing coal. The haulage road was in use,
the main belt conveyor haulage system was operational, the continuous
mining machine was in operation cutting coal, and the roof bolter and
other mine equipment was in use during the coal producing shifts (Tr. 53-57,
77, 21-35, 44). In addition, Mr. Sawyers indicated that the mine is
still considered an active mine by MSHA (Tr. 83), and that if this were
not the case he would not have conducted the inspections in question (Tr. 35).

1886

Findings and Conclusions
Fact of violations
I conclude and find that the testimony and evidence adduced by
MSHA in these proceedings establishes the fact of violations as to each
of the citations issued, and all of the citations are therefore AFFIRMED.
Negligence
The inspector testified that the respondent had a mine foreman who
was required to insure that all of the areas cited were preshif ted or
inspected sometime during the daily mining operations so as to preclude
the conditions or practices cited (Tr. 11, 12, 22-23, 30, 69, 78). I
conclude and find that the conditions cited resulted from the respondent 9 s
failure to exercise reasonable care, and that this failure on its part
constitutes ordinary negligence as to all of the citations which have
been affirmed.
History of prior violations
MSHAvs counsel asserted that for the period October 19, 1979 to
October 18, 1981, the mine had 8 citations issued against it, five of
which were assessed civil penalties for which payment was made (Tr. 90).
Respondent's prior history of violations appears to indicate a satisfactory
safety record for an operation of its size, and I cannot conclude that
additional increases in the assessments made are warranted.
Good Faith Abatement
Inspector Sawyers testified that with the exception of Citation No.
987854, all of the remaining citations were abated within the time fixed
and that the respondent demonstrated good faith compliance (Tr. 9-12,
15, 29, 37, 53, 69, 78).
With regard to Citation No. 987854 for failure to roof bolt a loose
roof area in the roadway, Mr. Sawyers testified that he gave the respondent
until the next morning to bolt the area. However, when he returned the
next morning and found that the bolting had not been done, he was .concerned
that the loose roof could fall and therefore issued an order. Abatement
was then immediately achieved (Tr. 22). In defense of this lack of timely
abatement, Mr. Ball testified that it took longer than the time originally
fixed by the inspector because roof bolting equipment had to be moved
down to the area of loose roof (Tr. 26). The inspector did not dispute
this fact, but there is nothing to suggest that anyone from mine management
indicated that more time was required to abate the loose roof conditions
(Tr. 27).
In view of the foregoing, I conclude and find that all of the
conditions and practices cited by the inspector in this case were corrected
by the respondent in good faith and timely compliance was achieved. With

1887

regard to the situation which necessitated the issuance of an order to
achieve compliance, I have considered the fact that the equipment
necessary to achieve rapid compliance had to be moved to the affected
/
roof area and that immediate compliance was then achieved. Under these
circumstances, and in view of the inspector's agreement with the fact
that an equipment problem may have existed, I cannot conclude that the
respondent exhibited a total lack of good faith in achieving compliance
once the order issued.
Gravity
Citation

7

The inspector indicated that the conditions cited could have resulted
in a serious interruption to the mine ventilation (Tr. 9).

The inspector stated that stuck rollers constitute a fire hazard
in that they could heat up when not turning properly, and while the mine
is wet, a fire hazard was still present (Tr. 10-11).
Citation
The Inspector indicated that the loose coal and float coal in
the cited areas presented a possible fire or explosion hazard in the
event methane or float coal dust were present. Although he detected
no methane, he still considered the conditions cited to be hazardous
(Tr. 12-13).
Citation 987853
The inspector believed that the lack of a positive individual
miner identification system did not per se pre$ent any danger, and
was not likely to cause any injury (Tr. 15).
Citation 987854
The inspector stated that the lack of roof bolts at the loose roof
area on the roadway where men and equipment traveled presented a dangerous
situation and exposed miners to possible injuries or death (Tr. 21).
Citation 987857
The inspector believed that the lack of lights on the continuous
mining machine exposed anyone in the area to a possible hazard since all
they would have for illumination would be their cap lamps (Tr. 29-31).
Citation
The inspector believed that the lack of a "panic bar" on the roof
bolting machine would prevent the operator from stopping or controlling

1888

it sufficiently in the event of any emergency. The machine had been
used to bolt the roadway, and the machine operator would have been
exposed to a hazard if the machine were in motion and could not be stopped
(Tr. 38-40).
Citation 987859
The inspector stated that the rock fall here crushed out a portion
of the ventilation stopping, thereby resulting in the interruption to
the mine ventilation system in that no separation was maintained between
the intake and return aircourses. This could have short-circuited the
ventilation (Tr. 54).
Citation 988361
The inspector indicated that the lack of required water sprays
on the miner prevented the proper suppression of mine dusts, and the
miners would be exposed to this dust (Tro 56-57).
Citation 988364
The inspector believed that the broken sensor cable to the automatic
fire warning device on the same belt which had stuck rollers presented a
hazard in that in the event of a fire the sensor would not give any
warning or activate the surface warning device (Tro 68-71),
Citation 988369
The inspector indicated that the presence of loose coal and float
coal dust at the belt drive and entry in question presented a possible
explosion hazard which would have affected the eight men on the section
(Tr. 78-79).
In view of the foregoing testimony and evidence presented by the
inspector, I conclude and find that all of the' citations except for one
constituted serious violations of the cited safety standards. I conclude
that citation 987853 is nonserious.
Size of Business and Effect of Civil Penalties on the Respondent's
Ability to Remain in Business
Inspector Sawyer testified that at the time the citations issued,
the mine was operating two production shifts and one maintenance shift,
employing approximately eight miners on each of the production shifts
(Tr. 17; 81). He also indicated that the mine was first opened in 1979,
and was operated by a prior owner (Tr. 51). Mine production was approximately
140 tons of coal a shift and when he last visited the mine in June 1982,
mine production was down to one shift (Tr. 82). The mine is still active,
and respondent is still in the mining business (Tr. 83).

1889

Mine operator Ball testified that he became the operator of the mine
when he leased it on July 1, 1981, and he confirmed that mine production
averaged about 140 tons of coal for each production shift, or approximately
280 tons a day when the mine is working (Tr. 86-87).
Mr. Ball testified that it could be difficult for him to pay the
civil penalties proposed by MSHA in this case because he is not producing
or selling as much coal as he has in the past. Due to the depressed coal
market, he is not certain that he can remain in business for the "next
few weeks" (Tr. 87-90).
MSHA's counsel stated that she had no reason to question the economic
state of respondent's mining operation, and that the inspector confirmed
that he observed little mining activity going on when he last visited
the mine and that mine production had been reduced (Tr. 91).
I conclude and find that the respondent is a small mine operator.
Although respondent did not produce any credible evidence to support a
conclusion that the assessment of civil penalties will put him out of
business, his testimony that his mining operation is marginal remains
unrebutted by the petitioner. Further, the asserted decrease in mine
production is supported by the testimony of the inspector.
It is clear that in litigated civil penalty proceedings, the
determination of appropriate civil penalty assessments for proven
violations is made on a
novo basis by the presiding judge and he is
not bound by any assessment method of computation utilized by MSHA's
Assessment Office, Boggs Construction Company, 6 IBMA 145 (1976);
Associated Drilling Company, 6 IBMA 217 (1976); Gay Coal Company, 7 IBMA
245 (1977); MSHA v. Consolidated Coal Company, VINC 77-132-P, IBMA 78-3,
decided by the Commission on January 22, 1980.
In the instant proceedings, the initial civil penalty assessments
which appear as part of the petitioner's initial pleadings and civil
penalty proposals in the form of "assessment w~rksheets" as exhibits
to the proposals, reflect proposed penalty amounts derived from the
application of "points" assessed for each of the statutory criteria set
out in section llO(i) of the Act, made pursuant to Part 100, Title 30,
Code of Federal Regulations. It is clear that I am not bound by those
initial assessments, and the penalty assessments which I have imposed
have been made after full consideration of the record evidence concerning
the respondent's small size, its reduced mine production, and its marginal
mining operation, as well as the other statutory criteria found in section
llO(i) of the Act.
Penalty Assessments
On the basis of the foregoing findings and conclusion, and taking
into account the requirements of section llO(i) of the Act, I conclude
that the following civil penalty assessments are appropriate for the
citations which have been affirmed:

1890

CFR Section

Date

No.

75.1715
75.200
75.400
75.503
75.523-1
75.326
75.316
75.1103
75.1725
75.316
75.400

10/19/81
10/19/81
10/20/81
10/20/81
10/20/81
10/20/81
10/21/81
10/21/81
10/23/81
10/26/81
10/27/81

987853
987854
987855
987857
987858
987859
988361
988364
988365
988367
988369

Assessment
10
100
40
15
30
45
35
42
60
35
30
$ 442

$

ORDER
Respondent IS ORDERED to pay civil penalties in the amounts shown
above within thirty (30) days of the date of this decision and order,
and upon
t of payment by the
ioner this matter is DISMISSED.

hK~ra~
Administrative Law Judge

Distribution:
Carole M. Fernandez, Esq., U.S. Department of Labor, Office of the
Solicitor, 280 U.S. Courghouse, 801
, Nashville, TN 37203
Mail)

Ralph Ball, President, Sterling Energy, Inc., P.O. Box 407, Corbin, KY
40701 (Certified Mail)

1891

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

SECRETARY OF LABOR,
l1INE SAFETY AND HEALTH
ADHIHISTRATION (HSHA),
Petitioner
v.

Civil Penalty Proceedings
Docket No. LAKE 82-27-;'1
A/O No. 20-00603-050015-A
Docket No. 1&1<.E 82-28-~1
A/O No. 20-00608-05017-A

HILLAI'J) BENTGEN,

GRANT HACKLIN,
RUSSELL HEEHAN,
Respondents

Docket No. LAKE 82-29-~
A/O No. 20-00608-050019-A
Ottawa Silica Company
Michi5an Division Quarry and Nill
DECISION

Appearances:

J. Philip Smith, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for Petitioner;
Frank X. Fortescue, Esq., Brown, McGlynn, Fortescue and
Smith, Bloomfield Hills, Michigan, fur Resporidents.

Before:

Administrative Law Judge Broderick

STATE~1ENT

OF THE Cl\SE

Petitions were filed in each of the above cases under section
llO(c) of the Federal Mine Safety and Health Act of 1977, alleging that
each of the Respondents, acting as agent of the Ottawa Silica Company,
a corporate mine operator, knowingly. authorized, ordered, or carried
out a violation of the mandatory standard contained in 30 C.F.R.
§ 56.9-2 committed by the mine operator between October 31, 1980 and
November 25, 1980. On motion of Petitioner, the three cases were consolidated for hearing and decision since they involved the same corporate
mine operator and the same violation is charged against each Respondent.
Pursuant to notice, the case was heard on the merits in Detroit,
Hichigan, on Au3ust 4, 1982. 1rwin Uowitzke, :'lonald J. Baril and Russell
Spencer testified on behalf of Petitioner. Peter Roan and Hillard
Bentgen testified on behalf of Respondents. Counsel for Petitioner and
Respondents waived their rights to file posthearing briefs and each submitted oral arguments on the record at the cloee of the testimony.
Based on the entire record, and considering the contentions of the
parties, I make the following decision.

1892

FINDINGS OF FACT
1. Ottawa Silica Company at all times pertinent hereto was the
operator of a mine in Hayne County, Michigan, known as the lfichigan
Division Quarry and Uill, the products of which entered interstate and
foreign commerce. Ottawa Silica Company is a Delaware Corporation \lith
headquarters in Ottawa, Illinois.

2. At all times pertinent hereto, Respondent Hillard Hilliam
Bentgen was employed by Ottawa Silica Company as Industrial Relations
Safety Supervisor at the Michigan Division Quarry and HilL
3. At all times pertinent hereto, Respondent Grant }~cklin was
employed by Ottawa Silica Company as pit foreman at the Michigan
Division Quarry and MilL
4. At all times pertinent hereto, Respondent Russell Heeman was
employed by Ottawa Silica Company as maintenance foreman at the :1ichigan
Division Quarry and Mill.
5. Ottawa Silica Company owned and used a piece of equipment known
as a Grove Cherry Picker Crane #33. This was a large crane with four
rubber tired wheels. It weighed between 15 and 20 tons, and had a
lifting capacity of 14 tons. There were brakes on all four wheels.
6. Ottawa Silica Company required all employees operating powered
industrial equipment, including the cherry picker, to complete and
submit each day a forn called Nobile Equipment Daily Operator Inspection.
7. At all times pertinent hereto, the employee who operated the
Grove Cherry Picker Crane #33 at the subject mine was Erwin ~owitzke.
8. The report submitted by Nowitzke on Odtober 30, 1980, indicated
a defect in the emergency brake at the beginning and end of the shift.
No defect was noted in the service brakes. On the reports submitted
beginning October 31, 1980 and continuing through November 24, 1980,
a defect was noted in the service brakes both at the beginning and the
end of each shift. Thirteen such reports were submitted during that
period of time. In addition to the written reports, Nowitzke orally
complained of the brakes to his supervisors.
9. The reports referred to above were submitted to the mine office.
They were turned over to Respondent Bentgen. After the first such
report, Bentgen talked to the mechanics. Brake fluid was added to the
service brakes. As the reports continued to indicate a defect, Bentgen
was told that the brakes tended to fade after use, and could be brought
back to an acceptable level by adding fluid. At some time between
October 31, 1980 and November 6, 1980, the master cylinder was replaced,
but the problem continued.

1893

10. Ottawa Silica's mechanics were unable to fix the brakes so
Contractors ;.fachinery Company, which sold and serviced construction
equipment, was called on November 6, 1980.
11. The Contractors Machinery Company representative found
defective seals in the front wheel cylinders. Because parts had to be
ordered, the brakes were "blocked off," that is, rendered entirely
inoperative. This was done with the knowledge and authorization of
Ottawa Silica officials. New parts were 01'.'dered by Contractors
Machinery.
12. Respondents
, Macklin and Heeman were aware that the
brakes had been blocked off on the Grove cherry picker crane at the
time or shortly after this was done.
13. The Grove cherry picker crane in question was operated on
sand and gravel surfaces some of which were roughly graded, and had
bumps. It traversed a long curved hill with a pond at the bottom and a
dropoff at the side of 50 to 60 feet. Other vehicles travelled in the
area including pick up trucks. The crane had a normal speed when emp
of 10 to 20 miles per hour. When loaded, it would travel 5 to 10 miles
per hour. Where Nowitske travelled down a grade, he tried to keep the
speed down to 2 to 3 miles per hour.
14. While the crane was carrying a load up or down
travelway
described above, the rear wheels would sometimes be raised off the
ground on striking a bump in the road. Hhen the rear wheels were off
the ground, the crane had no brakes at all after the front brakes were
blocked off. On occasion, during this time, it was neceFsary for the
crane operator to shift into reverse gear to slow the crane down.
15. During the period in question, Nowitzke was not involved in
any accident with the crane, nor did he ever lose control of the
vehicle.
16. On one or more occasions subsequent to November 6, 1930,
Nowitzke was directed by Respondent Macklin to operate the crane to
pick up and carry pumps to and from the pit. These weighed from
400 pounds for small pump motors to over 1,000 pounds for sand pump
motors. Macklin was aware that the front brakes were blocked off
during this time.

17. On one or more occasions subsequent to November 6, 1980,
Nowitzke was directed by Respondent Heenan to operate the crane. Heeman
was aware that the front brakes were blocked off during this time.

18. Respondent Bentgen knew that the crane was being operated
after its front brakes were blocked off. Bentgen told Macklin and
Reeman that in his opinion the crane was safe to operate.

19. On November 25, 1980, Federal Mine Inspector Ronald J. Baril,
a duly authorized representative of the Secretary of Labor, issued a
citation to the Ottawa Silica Company charging a violation of 30 C.F.R.
§ 56.9-2.
The citation
that the company was aware that Grove
cherry picker No. 33 had defective brakes which should have been
corrected on October 31, 1980, or the machine should have been removed
from service. It further alleged that equipment operator inspection
forms had reported the defect from October 31, 1980 on 13 separate work
days.
20. The citation referred to above was terrainated on the
it
was issued when the Saf
Manager informed company supervision that
they must review the employee equipment reports and correct defects
affecting safety. The brakes were repaired on l~ovember 26, 1980, and
the cherry
crane was returned to service.
2L HSHA assessed a penalty of $1,000
Ottawa Silica
Company for the alleged violation and the assessment was paid in
September, 1981.
STATUTORY
Section llO(c) of the Act provides in part as follows:
Whenever a corporate operator violates a mandatory
health or s~fety standard or knowingly violates or fails
or refuses to comply with any order issued under this
Act • • • , any director, officer, or agent of such
corporation who knowingly authorized, ordered or carried
out such violation, failure or refusal shall be subject
to the same civil penalties • • . that may be imposed
upon a person under subsection[s] (a) . . • •
REGULATORY PROVISION

30 C.F.R. § 56.9-2 provides as follows: "Equipment defects affectsafety shall be corrected before the equipment is used."
ISSUES
1. Whether the corporate operator, Ottawa Silica Company, violated
the mandatory safety standard charged in the citation involved herein?

1890

2. If the corporate operator violated the saf
standard charged,
in the case of each Respondent, did he, acting as an
of the
corporation, knowingly authorize, order, or carry out such violation?
3. If Respondents or any of them did knowingly authorize, order,
or carry out the violation, whet is the appropriate penalty therefor?
CONCLUSIONS OF LAW

1. Ottawa Silica Company violated the mandatory safety standard
contained in 30 C.F.R. § 56.9-2 in failin~ to correct the defective
brakes on the Grove
picker crane #33 during the period
October 31, 1980 to
tember 25, 1981, while it continued to operate
the crane.
DISCUSSION
There is no question that the crane had defective brakes: from
October 31, 1980 to November 6, 1980, the front wheel cylinders leaked
and the brakes lost their hold
power each day while be
used.
From November 6 to November 25, the front brakes were blocked off and
inoperative.
s contend that the defect did not
affect safety. This flies in the face of common sense. The vehicle
was equipped with four wheel brakes and obviously
brakes on only
the rear wheels seriously diminished the ability of the operator to
stop. The most important evidence in this regard is the testinony of
Mr. Nowitzke, the equipment operator. He stated that he considered
driving the crane without brakes to be hazardous, especially when
lifting and carrying loads. The crane operator and other employees
working or travelling in the area of the crane were endangered by the
defective brakes.

2. Each of the Respondents was an agent of Ottawa Silica Company,
a corporation, during the months of October and November, 1981.

3. Respondent Grant Nacklin and Respondent Russell Reem.an knowingly ordered the crane operator to use the crane without having the
defective brakes corrected. They thereby knowingly ordered the
commission of the violation found herein to have been committed by the
corporate operator.
4. Respondent Hillard Bengten, the Safety Director of the corporate operator, knowingly authorized the use of the crane without havin~
the defective brakes corrected. He thereby knowingly authorizeq,--the
violation found herein to have been committed by the corporate operator.
DISCUSSION
There is no question but that each of the Respondents knew that
the crane had defective brakes. I conclude further that each of them
knew or should have known that this was a defect affecting safety. It
is not necessary in order to establish a violation under section llO(c)
that wilfullness or bad faith be shown. See Secretary v. Kenny Richardson,
1 FHSIIRC 8 (1981).

1896

5. The violation was a serious one in the case of each Respondent,
who was responsible
and very serious in the case of Respondent
The defect was
for
to the safety of all employees at
an obvious one, known to all Respondents for many
and reported
and in writing on many occasions by the
operator.

6. There is no evidence in the record
the ability or
lack of ability of any of the Respondents to pay penalties that may be
assessed.

7.

After the violation was cited
the
it was
abated and, so far as the record shows, each of the Respondents
in the abatement.

8. I conclude that appropriate
ies for the knowing violations
should be imposed as follows: on Respondent
, $700; on Respondent
Macklin, $500; on Respondent Heeman, $500.
ORDER
Based on the above findings of fact and conclusions of law, IT IS
ORDERED:
1. That within 30 days of the date of this decision,
Respondent Hillard Bentgen pay the sum of $700 as a civil
penalty for the violation found herein to have occurred;
2. That within 30 days of the date of this decision,
Respondent Grant Macklin pay the sum of $500 as a civil
penalty for the violation found herein to have occurred;
3. That within 30 days of the date of this decision,
Respondent Russell Heeman pay the sum of $500 as a civil
penalty for the violation found herein to have occurred.
/ (!., (1AA: -;

...../
Distribution:

/f,/3c,Vrk Vl e ;l

James A. Broderick
Administrative Law Judge

By certified mail

J.
Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson J3lvd., Arlington, VA 22203
Frank X. Fortescue, P.C., Brown, HcGlynn, Fortescue and Smith, Attorneys
at Law, 500 North Woodward, Suite 320, Dloomfield, Hills, HI 48013-7164

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

22041

Civil Penalty Proceedings

SECRETARY OF LABOR,

unrn SAFETY k~D HEALTH
ADMINISTRATION (11SHA),
Petitioner

Docket ::-lo. LAKE 82-27-'.1
A/0 No. 20-00608-050015-A

v.
Docket No. LAKE 82-28-~1
A/O No. 20-00603-05017-A

HILLARD BENTGEN,
GRANT HACKLIN,

RUSSELL HEEMAN,
Respondents

Docket No. LAKE 82-29-"J
A/O No. 20-00603-050019-A
Ottawa Silica Company
Hichigan Division Quarry and :Iill

CORRECTIONS TO DECISION
ISSUED OCTOBER 26; 1982
On page 5, Conclusion of Law No. 1 should read as follows:
1.

Ottawa Silica Company violated the mandatory
standard contained~in 30 C.F.R. § 56.9-2 in
failing to correct the defective brakes on the Grove
cherry picker crane i/33 during the period October 31,
1980 to November 25, 1930, while it continued to
operate the crane.
On page 5, Conclusion of Law No. 2 should r.ead as follows:
2. Each of the Respondents was an agent of Ottawa
Silica Company, a corporation, 9uring the months of
October and November, 1980.

j-a<~u.7/5 /.vi:1.'{/dt1~6L
James A. Broderick
Administrative Law Judge

Distribution:

By certified mail

J.
Smith,
., Office of the Solicitor, U.S. Department of
Labor, 4015 \lilson Blvd. , Arlington, VA 22203
Frank X. Fortescue, P.C., Brown, McGlynn, Fortescue and Smith, Attorneys
at Law, 500 Horth Woodward, Suite 320, Bloomfield, Hills, MI 48013-7164

1898

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

CONSOLIDATION COAL COMPANY,
Contestant-Respondent

ocr 26198Z

Contest of Citation
Docket No. WEVA 82-30-R
Citation No. 861598; 9/24/81

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

McElroy Mine
Civil Penalty Proceeding
Docket No. WEVA 82-120
A.O. No, 46-01437-03115
McElroy Mine

DECISIONS
Appearances:

Robert Vukas, Esquire, Pittsburgh, Pennsylvania, for
Consolidation Coal Company; Janine C. Gismondi, Attorney,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for MSHA.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a citation issued by an
MSHA inspector pursuant to section 104(a)' of the Federal Mine Safety
and Health Act of 1977, charging the Consolidation Coal Company with an
alleged violation of mandatory health or safety standard 30 CFR 70.207(a).
Docket WEVA 82-30-R is the Contest filed by Consolidation Coal challenging
the legality of the citation, and Docket WEVA 82-120, is the civil
penalty proposal filed by MSHA seeking a civil penalty assessment for
the alleged violation. The cases were consolidated for trial in
Washington, Pennsylvania, on July 14, 1982, and the parties appeared
and participated fully therein. Consolidation Coal filed a post-hearing
brief, but MSHA did not. However, I have considered the oral arguments
made by both counsel during the course of the trial, as well as
Consolidation Coal's written brief, in the course of these decisions.
Applicable Statutory Provisions

1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801

et~

1899

2.
Section llO(i) of the 1077 Act, 30 U.S.C. § 820(i), which
requires consideration of the following criteria before a civil penalty
may be assessed for a proven violation: (1) the operator's history of
previous violations, (2) the appropriateness of such penalty to the size
of the business of the operator, (3) whether the operator was negligent,
(4) the effect on the operator's ability to continue in business; (5)
the gravity of the violation, and (6) the demonstrated good faith of
the operator in attempting to achieve rapid compliance after notification
of the violation.
3.

Commission Rules, 29 C.F.R.

§ 2700.1

.::_!._ ~

Issues
The issues presented in these proceedings includes the following:
(1) whether the conditions or practices cited by the inspector on the
face of the citation constituted a violation of the cited mandatory
safety standard, (2) whether the violation was of such a nature as could
significantly and substantially contribute to the cause and effect of
a coal or other safety or health hazard, and if such violation was caused
by the unwarrantable failure of the operator to comply with the mandatory
health or safety standard, (3) the appropriate civil penalty which should
be assessed against the operator for the alleged violation based upon
the criteria set forth in section 110 of the Act. Additional issues
raised are identified and disposed of where appropriate in the course
of these decisions.
Stipulations
The parties stipulated to the following (Tr. 4-5):
1.

The McElroy Mine is owned and operated by the
Consolidation Coal Company.

2.

The respondent and the mine are subject to the
jurisdiction of the Act and the Commission.

3.

Citation No. 871598 was properly served on the
respondent by a duly authorized representative of
the Secretary of Labor.

4.

The McElroy mine produces approximately 1,419,120
tons of coal annually.

5.

The assessment of a civil penalty in this case will
not adversely affect the respondent's ability to
continue in business.
Discussion

The citation issued by the inspector in this case, No. 861598,
September 24, 1981, (Exhibit G-1), describes the condition or
practice cited as a violation as follows:

1900

Only one of the five required valid respirable dust
samples were taken by the operator from the 036 continuous
miner operator designated occupation on the 079-0 4D mechanized
mining unit for the July-August 1981 bimonthly sampling cycle,
as evidenced by Advisory No. 0029 dated September 8, 1981.
According to mine records, there were 65 production shifts
from July 1 to August 18, 1981 when production on this section
temporarily ceased. John Kulavik, Health and Safety Technician,
stated that sampling for this section was scheduled for
August 18-24, 1981, but after sampling on 8-19-81 was informed
that this section was shut down immediately due to needing
air for a new longwall on 1 South face section.
MSHA 1 s testimony and evidence
John M. Dower, MSHA Mining Engineer, testified as to his mine
training and experience, and he indicated that his duties include the
inspection of mines. His current duties include the inspection and
investigation of respirable dust and noise problems in underground
mines in MSHA's District 3. Mr. Dower confirmed that he issued citation
861598 on September 24, 1981, and served it on John Kulavik, respondent 1 s
health and safety technician employed at the McElroy Mine (Tr. 8-12;
Exhibit G-1),
Mr. Dower stated that he issued the citation on the basis of a
September 8, 1981, MSHA "advisory 11 computer print-out which indicated
that for the bi-monthly respirable dust sampling cycle period July through
August 1981, only one sample had been received. The regulations require
that five valid designated occupation samples be taken and submitted.
The occupation samples required were for the 036 continuous miner operator,
operating in the 079-0 mechanized mining unit (Tr. 12-15; Exhibit G-2).
Mr. Dower testified that when he spoke with Mr. Kulavik at the mine
on September 24, 1981, he confirmed that only one respirable dust sample
was taken of the miner operator in question du~ing the July-August
sampling period and that this sample is reflected on the "advisory" as
cassette number 43877984. Mr. Dower stated further that according to the
mine records there were 65 production shifts from July 1 to August 18, 1981,
when production ceased on the 4-D section. He also indicated that the
purpose of sampling is to assure that the mine ventilation methane and
dust control systems are adequate to control any miners respirable
dust exposure to a level at or below 2.0 milligrams per cubic meter in
any 8-hour work shift (Tr. 15-16).
On cross-examination, Mr. Dower testified that his inspection
confirmed that the 079-0 mechanized mining unit was located on the 4-D
section. He also confirmed that during the time period in question the
section was operating three shifts a day, and that Mr. Kulavik was the
person performing dust sampling for the mine. Mr. Dower did not know when
the 65 production shifts in question took place, and he did not check
the records in this regard. He also stated that he did not check Mr. Kulavik's
dust sampling schedule to determine what he was doing during the shifts
in question (Tr. 17-18).

1901

Mr. Dower explained the procedures used to take the required dust
samples, and he confirmed that MSHA's District Manager may require a
mine operator to submit its proposed sampling procedures. Once the plan
is placed in writing and submitted to MSHA, the operator must inform the
district office of any mine operational change of status which may preclude
the taking of samples. Mr. Dower confirmed that Mr. Kulavik advised him
that he took only one sample on August 18, and took no others because
the section in question was shut down for the remainder of the month
of August. However, Mr. Dower did not know whether Mr. Kulavik submitted
an operational status change form showing that it was
to be impossible
to sample the section, nor could he recall checking MSHA's records to
determine whether he did or not (Tr. 18-23).
Mr. Dower stated that he checked the mine operational records and
confirmed that section 4-D was not a producing section for the period
August 18 through 31, and he confirmed that the
require that
five valid
be taken only on a production shift (Tr. 24).
Consolidation Coal Company's testimony and evidence
John
, testified that during July and
t 1981, he was
responsible for the taking of
dust and noise samples at the
mine. He stated that the first two weeks of July was the miner's vacation
period, and that it ended on July 12. He was not at work during the
subsequent week due to a death in his family. He started sampling the
long wall section during the last week of July through August 11th. He
indicated that he submitted an operational status change fo,r the 4-D
section after production on that section was shut down, and he stated
that he started sampling on that section late because of vacations and
personal reasons. During his nine years of taking samples, the citation
issued in this case was the first one he has received for non-compliance
(Tr. 77-80).
Mr. Kulavik explained that 40 of the 65 skifts noted by the inspector
were shifts during the period after the miner's vacation to the end of
July, and that he spent his time sampling the longwall section (Tr. 81).
He also conducted noise surveys during May and June (Tr. 82).
In response to questions from the bench, Mr. Kulavik confirmed that
he was first notified of mine management's decision that section 4-D
was to be shut down after he came out of the mine on the midnight shift
on August 18th, and at that time he had taken one dust sample on the
morning shift (Tr. 86). The 4-D section was shut down until August 31,
and it reopened on that day (Tr. 87), and it remained in production during
the months of September and October. He sampled during these two months,
and the section was in compliance (Tr. 88). The 4-D section was also in
compliance during the months of May and June (Tr. 88).
Mr. Kulavik stated that he discussed the citation in question with
the inspector, and his understanding of-the reason for the citation was

1902

the inspector's belief ,that he should have sampled during the 65 shifts
which had passed (Tr. 91). Mr. Kulavik indicated that had he known in
advance that the 4-D section would be shut down he would have rearranged
his sampling scheduled, but that he had no role in the decision to
shut the section down (Tr. 91).
Consol's Arguments
Respondent-contestant Consolidation Coal Company (Consol), takes
the position that the cited standard has not been violated in this case
because Consol had two full months within which to take the required
respirable dust samples. Since the 4-D Section was not in production
after August 18, Consol argues that the inspector acted prematurely
in issuing the citation, and that compliance was impossible because the
section had been shut down (Tr. 24-28). In short, Consol takes the
position that under the mandatory standard in question it has a fu:l two
months within which to take its samples, and that it has the discretion
and option of scheduling sampling at anytime during the two months sampl
period (Tr. 63-64; 67-68).
MSHA's Arguments
MSHA counsel conceded that the standard, on its face, allows a mine
operator to schedule its respirable dust sampling at any time during any
bi-monthly sampling period. However, counsel argued further that a mine
operator must advance some legitimate reason for ceasing production on
a section, thereby excusing itself from the requirement that it take and
submit five valid respirable dust samples. Counsel also argued that
any shut-down or cessation of production must be made in good faith and
that a shut down in production for the purpose of avoiding compliance
with the dust sampling requirements of the regulation should not be
permitted (Tr. 28-34). On the facts of this case, MSHA's counsel takes
the position that since 65 production shifts elapsed from July 1, 1981,
to the day the section ceased production, Consol had ample time to take
and submit the required respirable dust samples (Tr. 43).
MSHA's counsel argued further that the Act, as well as the cited
regulation, imposes strict liability on a mine operator, and even though
the standard permits an operator a full two months within which to take
its respirable dust samples, when the operator decides to shut doW-U
production it must show that the shut down was made in good faith and
not for the purpose of avoiding compliance, and that the shut down was
occasioned by circumstances which were unforeseen and outside its control
(Tr. 44). Even if it can establish these two factors, MSHA's counsel
nonetheless takes the position that if the samples are not taken, a
violation is established, but that the two factors may be considered
in mitigation of any civil penalty which may be assessed for the violation
(Tr. 45-46) .
MSHA's counsel conceded that section 70.220 puts the burden on a
mine operator to notify MSHA when there is a change in the operational

1903

status of the mine. Assuming that an operator advised MSHA that it
intended to take its dust samples during the last two weeks of August,
counsel conceded further that a citation for failure to take samples
could not be issued before the expiration of the full two month period
(Tr. 73-74).
Findings and Conclusions
In this case Consol is charged with a violation of mandatory standard
30 CFR 70.207(a), which provides in pertinent part as follows:
(a) Each operator shall take five valid
respirable dust samples from the designated
occupation in each mechanized mining unit during
each bimonthly period beginning with the bimonthly period of November 1, 1980. Designated
occupation
shall be collected on consecutive
normal production shifts or normal production
shifts each of which is worked on consecutive
days. The bimonthly periods are:
January l
February 28 (29)
March 1 - April 30
May l - June 30
July 1 - August 31
September 1 - October 31
November 1 - December 31
Inspector Dower testified that the mine in question has an excellent record
and that the one respirable dust sample which was submitted, and which
reflected 0.7, was well within the compliance range required by the standard
(Tr. 38, 42). He also indicated that he did not know what Consol's past
dust inspection routine practice was at the mine in question (Tr. 41).
He also conceded that Mr, Kulavik advised him that he had no prior knowledge
that the 4-D section would be shut down during• the scheduled sampling
period (Tr. 59). As for any MSHA policy guidelines concerning the application of section 70.207(a), MSHA's counsel confirmed that the existing
policy does not address the issue of any possible extenuating circumstances
that would permit an operator not to take the required dust samples without
leaving itself open to a citation for noncompliance (Tr. 76).
The facts in this case show that the first dust sample taken by
Mr. Kulavik was on August 18. The section was then shut down, and
Inspector Dower confirmed that from August 18 through 31, which constituted
the remainder of the sampling period, the section was not in production.
Since it was not a producing section, the remaining four samples were
not required to be taken.
On the facts of this case, MSHA has advanced no credible evidence
to support a conclusion that mine manag~ment had arbitrarily shut down the

1904

section simply to avoid the taking of the required samples. Mr. Kulavik
impressed me as a competent respirable dust technician and I find him
to be a completely straightforward and credible witness. I am particularly
impressed with his unrebutted testimony that in the nine years he has
been sampling dust in the mine, the instant citation for noncompliance
was his first one, and the one sample which he did take indicated that
the mine was in compliance.
MSHA's position of absolute liability even though an operator can
establish that it acted in good faith by shutting down production and
that the circumstances surrounding the shutdown were beyond its control
is rejected. The fact that a number of working shifts had elapsed prior
to the shut down is not persuasive, particularly where the standard itself
allows an operator a full two months to take samples, and particularly
where MSHA conceded that a citation may not issue before the expiration
of the two month sampling cycle. In this case, Mr. Kulavik indicated
that had he known in advance that the section would have been shut down,
he would have arranged to take the required samples before the shut down.
Since he had no control over the shut down and had no decision making
authority in that regard, I conclude and find that he did act in good
faith, and did not fail to take the samples simply to avoid compliance.
While it is true that section 70.220(a) requires a mine operator
to report any operational changes that affects the respirable dust sampling
requirements, Consol is not charged with a violation of that standard.
ORDER
In view of the foregoing findings and conclusions, I find that MSHA
has failed to establish a violation of the standard cited in the section
104(a) Citation No. 861598, issued on September 24, 1981, and it IS
VACATED and the civil penalty proposal filed against Consol in Docket No.
WEVA 82-120 is DISMISSED. Further, Consol's Contest filed in Docket
WEVA 82-30-R is sustained, but in view of my disposition of the civil
penalty case that matter is terminated.

~K4ras

Administrative Law Judge

Distribution:
Janine C. Gismondi, Sidney Salkin, Esqs., U.S. Department of Labor, Office
of the Solicitor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)
Robert Vukas, Esq., Consolidation Coal Company, Consol Plaza, 1800
Washington Rd., Pittsburgh, PA 15241 (Certified Mail)

1905

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

0C7 2 ·; i91Jl

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

VIRGINIA POCAHONTAS COMPANY,
Contestant

Contest of Citations
Nos.

Docket Nos.

Date

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

VA 79-131-R
VA 79-137-R

696067
696089

8/17/79
8/17/79

Virginia Pocahontas No. 2 Mine

DECISION AFTER REMAND AND ORDER OF DISMISSAL
Counsel for contestant filed on October 19, 1982, in the above-entitled
proceeding a motion to dismiss the notices of contest with the understanding
that the dismissal will not prejudice contestant's rights in any civil penalty proceeding arising from the same citations which were the subject of
the notices of contest, Section 2700.22 of the Commission's procedural
rules, 29 C.F.R. § 2700.22, provides that the failure to file a notice of
contest of a citation "* * * shall not preclude the operator from challenging the citation in a penalty proceeding." An operator who has filed a
notice of contest and who has subsequently asked that it be dismissed should
be no less entitled to challenge the citation in a civil penalty proceeding
than one who has not filed such a notice at all. Therefore, I conclude
that dismissal of the notices of contest in this proceeding will be without
prejudice to contestant's rights in any civil penalty proceeding which may
develop at some future time.
In an order issued May 20, 1982, the Commission remanded these cases to
me for further proceedings consistent with the decision of the United States
Court of Appeals for the District of Columbia Circuit in United Mine Workers
of America v. Federal Mine Safety and Health Review Connnission. 671 F.2d 615
(1982), cert. denied, No. 82-33, October 12, 1982. My original decision (2
FMSHRC 2586 (1980)) in this proceeding vacated Citation Nos. 696067 and
696089 because they had the effect of requiring contestant to pay a miners'
representative for accompanying an inspector during a "spot" inspection.
My decision had followed the precedent enunciated by the Commission's decisions in The Helen Mining Co., 1 FMSHRC 1796 (1979), and Kentland-Elkhorn
Coal
.• 1 FMSHRC 1833 (1979), in which the Connnission had held that
operators do not have to pay miners' representatives for accompanying inspectors who are engaged in making "spot" inspections. The Connnission's decisions in The Helen Mining and Kentland-Elkhorn cases were reversed by the
court in the UMWA case, supra.
In the circumstances described above) it appears to me that granting
the motion to dismiss without reinstating the citations might leave some
doubt as to the prospective status of the citations. Inasmuch as my original decision had granted the notices of contest at the same time as the

1906

citations were vacated, it is possible that granting the motion to dismiss
would have the implied effect of reinstating the citations, but the procedure which will remove all doubt as to the present validity of the citations
under the court's UMWA decision, supra, is for me specifically to reinstate
the citations. Therefore, my order will hereinafter reinstate the citations
as well as grant the motion to dismiss the notices of contest.
WHEREFORE, it is ordered:
(A) Paragraph (B) of the order accompanying my decision issued
September 11, 1980, in this proceeding (2 FMSHRC at 2588) is rescinded and
Citation Nos. 696067 and 696089 dated August 17, 1979, are reinstated.
(B)
granted.

The motion to dismiss filed by contestant on October 19, 1982, is

(C) The notices of contest filed in Docket Nos. VA 79-131-R and
VA 79-137-R are dismissed and this proceeding is terminated.

l!!'/!:6.1

t.i/h-

te1fef
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:

Marshall S. Peace, Esq., Attorney for Virginia Pocahontas Company,
Island Creek Coal Company, 2355 Harrodsburg Road, P.O. Box 11430,
Lexington, KY 40575 (Certified Mail)
Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (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

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

l

Civil Penalty Proceeding
Docket No. VA 81-63
Assessment Control
No. 44-04460-03014

v.

No. 1 Mine
S & P COAL COMPANY,
Respondent

AND ORDER
Counsel for the Secretary of Labor filed on October 22, 1982, a motion
for approval of settlement. Under the settlement agreement, respondent would
pay a reduced penalty of $5 instead of the penalty of $38 proposed by the
Assessment Office for the single violation of 30 C.F.R. § 70.208(a) which is
involved in this proceeding.
The motion for approval of settlement gives the following reaso0 for reducing the penalty proposed by the Assessment Office (p. 2):
Citation No. 9924829 was issued when MSHA records indicated that
the operator had failed to submit a valid respirable dust sample. A
civil penalty of $38 was proposed, but it is believed that it should
be reduced to $5.00 as the operator's negligence is very low. It was
discovered that the operator had submitted a respirable dust sample.
However, in transmitting the sample the operator indicated the incorrect section number for the sample, resulting in an invalidation of
the sample by MSHA's computer. As the sampling period had passed,
the operator was unable to submit the necessary sample. While the
operator was somewhat negligent in submitting the sample in an incorrect form, thus rendering it invalid, it is felt that the negligence involved was very low thus warranting the proposed reduction.
In addition, the gravity of such a violation, essentially a bookkeeping one, is extremely low further justifying the proposed settlement. The good faith of the operator was normal. The operator
is small, payment of the proposed penalty will have no effect on
the operator's ability to remain in business. In the 24 month
period prior to the issuance of this citation the operator had a
history of 10 assessed violations, a good history.
Respondent's answer to the show-cause order issued in this proceeding
states as follows:
The reason why we disagree with the violation is we sent in a
dust sample on this section, but in filling out the dust card, we
made a mistake on the number. Instead of 200-0, we put 200-2.

1908

This is only a small 1 section mine. The sample was voided. When
a sample is voided, we are notified. Another sample is taken and
sent in. We were never notified. I got M.S.H.A. office in Richlands, Va., to trace it to find out what happened. We were issued
a violation by Richlands Office by direction of Computer. Therefore, we don't think we deserved this violation.
In Co-Op Mining Co., 2 FMSHRC 3475 (1980), the Conn:nission reversed an
administrative law judge's decision which had accepted a settlement agreement in circumstances very similar to those which exist in this. proceeding.
In the Co-Op case, a respondent had submitted a respirable dust sample for
an employee who did work for it but had not submitted a sample for a person
who MSHA mistakenly thought worked for respondent. The Commission said that
no violation of section 70.250(b) had occurred in that case. The Commission
observed that the deterrent effect of paying penalties would not be advanced
by having a penalty paid for a violation which had not occurred.
Section 70.208(a) provides as follows:
(a) Each operator shall take one valid respirable dust sample
from each designated area on a production shift during each bimonthly
period beginning with the bimonthly period of December 1, 1980. * * *
The violation here involved was for the first bimonthly period referred to in
section 70.208(a), that is, from December 1, 1980, to January 31, 1981. Both
the motion for approval of settlement and respondent's answer to the showcause order agree that the respirable-dust sample was taken and submitted to
MSHA for the bimonthly period beginning December 1, 1980. The provisions of
section 70.208(a) were complied with when respondent took the respirable--dust
sample and submitted it within the required sampling period. The only mistake,
respondent made was in writing "200-2" on the dust card instead of "200-0".
.
Since MSHA's computer had been programmed to give respondent credit for submitting a sample for section 200-0, it naturally rejected a sample bearing
the number "200-2".
Inasmuch as the sample here involved appears to be the very first submittal required by section 70.208(a), it is understandable that respondent
may have thought the proper designation to enter on the dust card was 11 200-2".
Respondent's answer to the show-cause order notes that it is customary for it
to be advised when MSHA voids a sample so that a new sample may be submitted,
but respondent states that it was not advised of the fact that its sample had
been voided by the computer.
It is true that section 70.208(a) provides that "each operator shall take
one valid respirable dust sample" [Emphasis supplied.]. It would be possible
to argue that a dust sample is not "valid" unless it has been given the correct section number by the operator. If an operator were to persist in submitting its samples with an incorrect number on them for two or three bimonthly periods in succession, and such repeated mistakes were to prevent a
determination from being made on a long-term basis as to whether respondent's
miners were being exposed to an excessive concentration of respirable dust,
then a finding might eventually have to be made that respondent was deliberately engaged in thwarting MSHA's enforcement of its respirable-dust program.

1909

In the factual situation which existed in this proceeding, however, it appears that respondent made a single mistake in submitting the first bimonthly
sample required by section 70.208(a). In such circumstances, there is considerable merit to respondent's contention that it did not "deserve this violation."
In Amherst Coal Co., 4 FMSHRC 1236 (1982), a case almost identical to
this one, I held that no violation of the respirable-dust standards had occurred. In the Amherst case, I stated that respondent should not have to pay
a civil penalty for having made a clerical error. In that proceeding, I cited
Old Ben Coal Co., 2 FMSHRC 1187 (1980), as an example of a case in which an
inspector made a clerical error in writing section 104(c)(l), instead of section 104(c)(2), on four different unwarrantable-failure orderso Yet, it was
held in the Old Ben case that the inspector 1 s clerical error should not be
considered as a reason for invalidating the orders in that proceeding because
the inspector's mistake did not in any way prejudice Old Beno
The facts in this case do not show that MSHA 1 s respirable-dust program is
going to be adversely affected if respondent is absolved of the violation of
section 70.208(a) alleged in Citation Noo 99248290 As the motion for approval
of settlement notes, respondent has been assessed for only 10 violations during the 24-month period preceding the writing of Citation Noo 99248290 An
operator with as favorable a history of previous violations as the respondent
in this proceeding has is not likely deliberately to submit successive respirable dust samples with incorrect section numbers on themo Consequently, for
the reasons given above, I find that no violation of section 70o208(a) occurred and that the petition for assessment of civil penalty should be
dismissed.
WHEREFORE, it is ordered:
(A) Citation No. 9924829 dated February 12, 1981, was issued in error
and is hereby vacated.
(B) The Petition for Assessment of Civil Penalty filed June 17, 1981,
in Docket No. VA 81-63 is dismissed.
(C)
denied.

The motion for approval of settlement filed on October 22, 1982, is

~ e. r<i7eJ!AyRichard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
David T. Bush, Esq., Office of the Solicitor, U. S. Department of Labor,
Room 14480-Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
S & P Coal Company, Attention: Gratho Stiltner, Co-Owner, Route 3,
Box 10, Cedar Bluff, VA 24609 (Certified Mail)

1910

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

OC12 a \982

Complaint of Discharge,
Discrimination, or Interference

ELMER HARRIS,
Complainant

v.

Docket No. KENT 82-7-D

McGINNIS COAL COMPANY, INC.,
Respondent

Mine No. 2

CLARENCE JUSTICE,

Complaint of Discharge,
Discrimination, or Interference

Complainant
v,

Docket No. KENT 82-68-D
Mine No. 2

McGINNIS COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Ransome C. Porter, Esq., Inez, Kentucky, for Complainants;
Michael J. Schmitt, Esq., Porter, Schmitt, Preston & Walker,
Paintsville, Kentucky, for Respondent.

Before:

Administrative Law Judge Steffey

Pursuant to an order consolidating issues and providing for hearing
issued June 17, 1982, a hearing in the above-entitled proceeding was held
on August 24 through August 28, 1982, in Prestonsburg, Kentucky, under
section 105(c)(3), 30 U.S.C. § 815(c)(3), of the Federal Mine Safety and
Health Act of 1977.
After the parties had completed their presentations of evidence, I
rendered the bench decision which is reproduced below (Tr. 1325-1357):
This proceeding involves two complaints 'of discharge, dis..:.
crimination, or interference filed by Elmer Harris and Clarence
Justice against McGinnis Coal Company, in Docket Nos. KENT 82-7-D
and KENT 82-68-D, respectively, pursuant to section 105(c)(3)
of the Federal Mine Safety and Health Act of 1977.
Both complainants filed a joint complaint with the Mine
Safety and Health Administration on July 29, 1981, alleging
that they were discharged on May 7, 1981, by respondent in violation of section 105(c)(l) of the Act, because they had made
safety complaints to respondent about the handling of explosives
and had refused to operate an end loader with bad brakes on a
mountain road. The complaints were filed with the Commission

1911

under section 105(c)(3) of the Act after complainants were advised by MSHA that its investigation had shown that no violation of section 105(c)(l) of the Act had occurred.
I shall make some findings of fact on which my decision
will be based. These facts will be set forth in enumerated
paragraphs.
1. McGinnis Coal Company, respondent in this pro
was incorporated in January 1980. Its business office is in
Beauty, Kentucky, and its president is Ted McGinnis who testified in this
Its first business consisted of operating a small coal mine, known as the No. 1 Mine, which was
located in the Pevler complex owned by Island Creek Coal Company. McGinnis leased his coal from Island Creek and his contract with Island Creek required him to abide by the terms of
the 1978 and 1981
Agreements between the United Mine
Workers of America and the coal operators. McGinnis was required to hire miners who were members of UMWA.
2. The No, 1 Mine had already been prepared
Island
Creek for coal production before McGinnis began operating it
and McGinnis produced coal from the Coalburg coal seam on two
production shifts, employing a total of about 15 miners on
both shifts combined. The coal produced by McGinnis was high
in sulphur content and waste materials which made the coal difficult for Island Creek to process in its plant. Therefore,
Island Creek asked McGinnis to reduce the output of coal from
his No. 1 Mine. He first laid off the second shift. During
the latter part of 1980, Island Creek ceased to accept coal
for about 2 weeks. When Island Creek resumed accepting coal,
it reduced the amount of coal it would accept to such an extent
that McGinnis could work his day-shift crew of five miners for
half a day and produce in less than a 5-day week all the coal
that Island Creek would accept.
3. Island Creek advised McGinnis he could open a No. 2
Mine at a different location and deliver coal produced from the
No. 2 Mine to Island Creek's Gund Mine, instead of to the Pevle
complex, but McGinnis was told that Island Creek would not prepare the mine for him, and that he would be required to obtain
the necessary Federal and Kentucky authorizations and construct
a road and prepare a bench on the side of a mountain to serve
as a means of access to the No. 2 Mine. McGinnis first offered
to let the United Mine Workers of America miners at the No. 1
Mine work half a week at the No. 1 Mine and the other half at
the site of the
No. 2 Mine, but only three of the
miners wanted to do that kind of work. McGinnis did not have
the heavy equipment, such as a dozer and a loader, required for
preparing the No. 2 Mine site. Consequently, all the three

1912

miners were able to do initially was cut down trees and brush
to commence
the mine site.
worked up to the
commencement of the UMWA general strike which began on March 28,
1981, and ended on June 7, 1981, when UMWA and the coal operators entered into a new contract which is Exhibit "P" in this
proceeding.
4. About the time the strike
, McGinnis realized that
he would not be able to prepare the No. 2 Mine site unless he
could hire someone who possessed heavy equipment and ability to
perform surface construction work in mountainous terrain,
McGinnis first engaged an independent contractor named Charles
Moore, who purported to have the
to do
but
Moore had
equipment
and did not
enough time in
to make
progress. Moore became dissatisfied with the arrangement and
withdrew his equipment and personnel, but during the last week
that Moore worked, Moore's "ace" dozer operator, Clyde Fitch, Jr.,
was sent to the site and Fitch was such a skillful operator of
a dozer that he accomplished more in 1 day than the other dozer
operators had done in 2 weeks,
5. After Moore had withdrawn his equipment, Fitch made an
offer to McGinnis to the effect that he would prepare the mine
site if he (Fitch) could rent heavy equipment from Moore, or anyone else. Fitch was unable to obtain the necessary
and
made a counterproposal to McGinnis to the effect that he would
work for $700.00 per 60-hour week if McGinnis would furnish all
equipment and supplies. McGinnis eventually accepted Fitch's
of fer after he had determined that he could obtain a D-8 Caterpillar dozer, an end loader, and a Joy Air Track drill from
Island Creek Coal Company. Fitch knew that he could personally
operate the dozer and end loader as much and as of ten as would
be required, but a second person was needed to operate the drill,
Fitch knew that one of the complainants in this proceeding,
Clarence Justice, could operate· a drill. Therefore, Fitch obtained McGinnis's permission to offer Justice $600.00 per 60-hour
week, and Justice was asked to
the drill for $600.00,
but very shortly after Fitch had offered Justice $600.00 per
week, Fitch decided it would improve his relationship with Justice
if they were both paid $650.00 per 60-hour week. In essence,
Fitch proposed that his $700.00 per-week payment would be reduced
from $700.00 to $650.00 and that Justice's $600.00
payment would be increased to $650.00.
6. McGinnis and Fitch also realized that they would need a
laborer to cut timber, haul supplies, and do other odd jobs.
McGinnis
to pay such a perso~ $6.00 per hour but left the
selection of the third person to Fitch. Justice
that
the other complainant in this proceeding, Elmer Harris, be given
the job as a laborer. Harris happened to be Fitch's cousin, but

1913

Harris lives about a quarter mile from Justice, and it was
Justice's suggestion that Harris be offered the laborer's job.
7. Both Justice and Harris claim that they thought they
were being hired by McGinnis Coal Company not only for preparing
the No. 2 Mine site, but also for prospective work in McGinnis 1
No. 2 Mine after they had finished getting the site prepared so
that actual underground coal production could commence. Harris
testified that he was in the process of building a house for
Mary Prater, who works for a bank in Inez, Kentucky. Harris
had a partner helping him, and it was understood that the partner would finish the house. Harris was not actually working on
Mrs, Prater's house at the time he began working at the No. 2
Mine site because he had just undergone an appendectomy and was
recuperating from the operation. At Fitch's suggestion, McGinnis
told Harris on May 7, 1981, that Harris was not needed any longer
at the mine site unless McGinnis needed Harris to help with installation of some drainage tiles at a future time. After Harris
stopped working at the No. 2 Mine, he returned to working on
Mrs. Prateris house and that work was completed. Harris' partner had not finished the house in the interim between the time
that Harris began working at the No. 2 ~fine site in March of 1981
and the time Harris was relieved from work there by McGinnis on
May 7, 1981.
8. Harris also claims that he obtained an oral promise
from McGinnis on Monday, the first day he reported for work at
the No. 2 Mine, to the effect that McGinnis would employ Harris,
possibly as an electrician, in the No. 2 Mine after it began
producing coal. Both Fitch and McGinnis deny that any discussion
took place involving employment of Harris as a coal-production
worker at the No. 2 Mine.
9. As to the understanding Harris had at the time he left
the No. 2 Mine site, Harris claims that McGinnis told him to take
a week off until some drains had been put in, and Harris thought
he would be called back to work when the No. 2 Mine was ready to
produce coal. McGinnis testified he installed the drain tile himself and never did have any more work for Harris to do. Harris
never did go back personally and ask McGinnis for a job, but on
one occasion, Harris did go to McGinnis' office at Beauty, Kentucky, and ask McGinnis' bookkeeper, Homer Wright, to tell
McGinnis that Harris wanted to talk to McGinnis about a job.
The bookkeeper left a note for McGinnis to call Harris, but
McGinnis says there was no phone number on the note and that he
did not return the call because he did not take the time required
to see if Harris had a phone number listed in the phone book.
10. Justice claims, just as Harris does, that he understood
that he would be used as an underground worker in the No. 2 Mine

1914

and that he specifically asked McGinnis for a job as an operator
of a roof-bolting machine. Both Fitch and McGinnis deny that
Justice was ever promised a job as operator of a roof-bolting
machine. Exhibit 7 in this proceeding is a list of the companies for which Justice worked from 1953 to 1973. Two auto
service stations and a lumber company are listed among the employers, besides coal companies, and Justice did not work for
any employer for more than 2 years before changing jobs. Justice
also received the maximum benefits which the state of Kentucky
pays when a miner has been found to be totally disabled from
silicosis. Justice applied for, but failed to obtain, any benefits under the Federal program which awards payment for disability incurred from pneumoconiosis.
11. Since Justice was laid off on May 19, 1981, while
Harris was laid off on May 7, 1981, Justice was employed at the
No. 2 Mine site for 12 calendar
longer than Harris was.
Justice testified that McGinnis told him on May 19, 1981, that
it was too wet to work in the hollow fill. Justice said that
they had often had to stop working when it was wet and that he
expected to be called back to work when it became dry enough,
but he says that since he was told it was too wet to work, it
Justice also claims that Fitch brought his last check
to Justice's home, and that Fitch told him that McGinnis would
call him back to work, but that McGinnis did not intend-to call
Harris back.
12. McGinnis testified that he let Justice know that he
was no longer needed after Fitch told McGinnis that no more
drilling needed to be done and no more shooting with explosives
was required. As to Justice's allegation that Fitch delivered
Justice's last check to Justice's home, Fi~ch claims that Justice
and he both picked up their checks in McGinnis' office in Beauty
just as they had throughout the entire No. 2 Mine site operation,
and that McGinnis made it clear"at that time that Justice's part
of the work had been completed because McGinnis shook hands with
Justice and thanked Justice for having done good work on getting
the mine site ready for the underground mine to be opened.
13. Justice returned to the No. 2 Mine on two occasions between May 19, Justice's last working day at the mine site, and
July 29, 1981, when Justice and Harris filed a joint complaint
with the Mine Safety and Health Administration which resulted in
the filing of the complaints involved in this proceeding. Justice
claims that McGinnis promised to call him back to work on each of
those occasions after a further state of mine development had occurred. On each occasion, one or two other persons went to the
mine with Justice and one of those persons, Cubert Spence, testified
that he heard McGinnis tell Justice he would give Justice his job back

1915

in about 8 days after they had completed the second line of breaks
at the No. 2 Mine. Another witness, Darvin Morrison, testified
that he was help
erect a chain link fence at Justice's home
and told Justice that McGinnis was going to rewhen Fitch came
hire Justice, but not Harris. Edward Moore was with Justice on
one of Justice's trips to the mine and Moore testified that he
heard McGinnis tell Justice that Justice would be called back to
work in a couple of weeks,
14. McGinnis testified that Justice did come to the No. 2
Mine after it had begun to produce coal, but McGinnis claims that
Justice did not ask when he would be rehired and that Justice
merely asked in general terms how the mine was progressing. In
fact, McGinnis said that when Justice came to the mine the last
time, Justice looked at the unusually high roof from which draw
rock had fallen and remarked that he did not believe he would
like to work in that mine and that he could earn whatever he
needed from selling scrap metal, Moreover, McGinnis stated that
if he had ever been aware that Harris or Justice had agreed to
work in preparing the No. 2 Mine site on the assumption that they
would be
a job in the No. 2 Mine after it was opened, that
he would have explained that he could not give them jobs in the
mine and that he would have made that clear to them even if both
of them had stopped working upon finding that to be true.
15. McGinnis testified further that hundreds of experienced
miners have been laid off within the last 2 years, and that he
has as many as 15 to 20 skilled miners per day come to the mine
seeking employment. McGinnis stated that he has a practice of
telling applicants that he will consider them along with all
other applicants for jobs when and if he has an opening. At that
time, he compares all applicants' background experience and inquires about their performance from past employers. McGinnis
stated that he did not know for several weeks after Harris began
working at the No. 2 Mine site that Harris had served some time
in a penitentiary for conviction of interstate transportation of
a stolen motor vehicle, and that that would have been a factor to
be considered, along with others, if he had ever had a reason to
consider Harris for a job in the No. 2 Mine after it was opened.
McGinnis said he did not know that Harris had taken over 1200
hours of electrical training at the Pikeville Mayo Technical
School. Harris conceded, despite his electrical training, that
he had never held a job as a mine electrician and that he would
have had to have taken additional training to have qualified for
such a position.
16. McGinnis did not know when Justice worked at the No. 2
Mine site that Justice had a history,of having applied for and
been denied benefits under the Federal pneumoconiosis program and

1916

did not know that Justice had actually received the maximum
benefits available under the State program for total disability
as a result of silicosis. McGinnis said Justice's health problem would have been a strong deterrent to McGinnis' hiring him
for an underground job because McGinnis' exposure to payments
for black lung benefits would have been subject to an increase.
17. McGinnis also claimed that the UMWA miners who had
worked at his No. 1 Mine were placed on a panel which, under
union procedures, required him to offer all of them jobs before
he could have offered either Harris or Justice a job. McGinnis
had 17 UMWA workers at the No. 1 Mine, and all but two of them
elected to be on the panel. McGinnis did need to hire a continuous-mining machine operator and a shuttle car operator on
or about July 27, 1981. He was fortunate in obtaining experienced miners to fill both positions.
had been laid off
at another mine and had been
equipment identical to
that used by McGinnis for Island Creek's operations. Neither
Harris nor Justice could have been considered for either job
because neither was qualified to fill either position, even if
McGinnis had known either of them was an applicant for such
employment.
18. McGinnis maintained throughout the hearing that Fitch,
Justice, and Harris had been hired as independent contractors
to prepare the No. 2 Mine site. Although McGinnis personally
paid each man for all the work he did, McGinnis wrote their
checks from a general account and did not deduct any amount
for income taxes, Social Security, or any other purpose. At
the end of the year, each man was sent a Form 1099-NEC, as
shown by Exhibit N in this proceeding. The letters "NEC" mean
"Non-Employee Compensation." After Harris and Justice obtained
a
to represent them in this proceeding, each wrote a
letter upon advice of counsel
McGinnis to send him a
W-2 Form instead of the Form 1099-NEC. Those letters are Exhibits 0 and 00 in this proceeding. Homer Wright is an accountant who works for McGinnis. He produced samples of checks
written to actual employees of McGinnis Coal Company. Their
checks are written on a payroll account, and those checks are
accompanied by stubs showing deductions for income tax, Social
Security, and other purposes.
19. A copy of each check written to Harris was introduced
as Exhibits A through F; a copy of each check written to Justice
was introduced as Exhibits G through M; and a copy of each check
written to Fitch was introduced as Exhibits S through FF. As
previously indicated, Harris was paid through May 7, 1981, when
he was laid off, and Justice was paid through May 19, 1981, when
he was laii off. Fitch was paid through August 8, 1981, because

1917

all grading on the road and bench area of the mine was not completed until that time. Fitch also worked for Stafford Trucking
Co1._;->any for 1 month after he had stopped working for McGinnis.
During the month Fitch worked for Stafford, he drove a truck
which was used in hauling McGinnis' coal to Island Creek's Gund
Mine. Fitch's job as a truck driver was obtained on the basis
of a recommendation made by McGinnis.
20. Harris claims that the reason he was not given a job in
McGinnis' No. 2 underground mine after preparation of the site had
been completed, was that he had complained about the lack of brakes
on the end loader, and had declined to operate the end loader for
that reason after being asked by McGinnis to operate it. Justice
claims that he was not hired because he also complained about the
lack of brakes on the loader. Justice admits that he did operate
the end loader on level ground for 2 days, but he says he declined
to operate it on a hillside or steep grade. Justice additionally
stated that he offered to repair the brakes himself, but that the
mechanic, Morris Booth, told him it would take too much time to
do so, particularly since Justice wanted to move a slack adjuster
and Booth said they sometimes had to be cut off with a torch.
21. Harris presented five pictures which he had personally taken of the trailer in which the explosives were stored
for use at the No. 2 Mine site. McGinnis did not realize that
the pictures had been taken, and had not seen them until they
were introduced as Exhibits 1 through 5 at the hearing. McGinnis
and Fitch both agreed that the explosives, consisting of ammonite,
permacord, detonators, and blasting powder, had been stored in
a single trailer on an aluminum floor. Such storage of explosives
is at least in violation of 30 C.F.R. §§ 77.1301(b), 77.130l(c)(6),
and 77.130l(f). Both McGinnis and Fitch denied that either Harris
or Justice had ever mentioned to them that•the explosives were
being stored in an unsafe manner. Harris and Justice requested
that a special inspection of the explosives trailer be made by
MSHA, pursuant to section 103(g)(l) of the Act, but that request
was not made until July 29, 1981, the same day that Harris and
Justice filed their joint discrimination complaint with MSHA.
They claimed that they had tried to make complaints about the
poor brakes on the loader and the improper storage of explosives
while they were working at the No. 2 Mine site, but that they
never could get in touch with the appropriate MSHA office.
22. MSHA did inspect the No. 2 Mine site on July 30, 1981,
the day after Harris and Justice had made the request for a
special investigation, but the inspectors found no violations
because, by that time, only ammonite was stored in the trailer,
and the inspector said that storage.of ammonite, by itself, in
a trailer having an aluminum floor was not in violation of the
mandatory health or safety standards (Exhibit PP).

1918

23. McGinnis claims that Fitch was actually in charge of
preparing the No. 2 Mine site and that Justice and Harris received all instructions and orders from Fitch, who knew the number of hours they worked. Although McGinnis found it necessary
to explain the construction plans to Fitch, the actual construction work was performed by Fitch, who was acquainted with the
required procedures for moving dirt and arranging it in accordance with the plan.
24. Roger VanHoose, an operator of a continuous-mining
machine at the No. 2 Mine, and Derek Merion, a roof bolter at
the No. 2 Mine, testified that McGinnis operates the safest mine
in which they have ever worked. They both stated that McGinnis
readily considers, discusses, and shuts down production any time
there is a problem about safety, and that it has never been necessary to invoke any kind of grievance procedures under the
union contract in order to get McGinnis to carry out or perform
or abide by safety regulations or maintain a safe mine. There
was introduced as evidence in this proceeding as Exhibit RR, a
list of results of inspections submitted to McGinnis by MSHA
inspectors, and those reports show that inspections were made
at McGinnis' No. 2 Mine on June 4, 1981, June 10, 1981, July 14,
1981, July 30, 1981, and July 31, 1981, and at no time did the
inspectors ever write citations for any violations at the
McGinnis No. 2 Mine during those inspections.
I believe that those are the primary findings of fact which
need to be made in this proceeding.
The primary issue to be considered is whether McGinnis Coal
Company violated section 105(c)(l) of the Act when its president
failed to give Harris and Justice jobs in McGinnis' No. 2 Mine
after it was opened.
Before the primary issue can be considered, however, a
preliminary question must be resolved. Specifically, it must
be determined whether Harris and Justice were employees of
McGinnis Coal Company or merely independent contractors who were
hired for a single construction project, upon the completion of
which, both Harris and Justice would be considered to have fulfilled the purpose for which their services had been sought in
the first place. In 30 C.F.R. § 45.2(c), an independent contractor is defined as "any person, partnership, corporation,
subsidiary of a corporation, firm, association or other organization that contracts to perform services or construction at a
mine."
Harris, Justice, and Fitch are persons who agreed to perform services and construction at the No. 2 Mine site. Therefore, they come within the definition set forth in section 45.2(c).

Part 45 was promulgated for the purpose of enabling MSHA to cite
independent contractors for violations they commit at mines and
Part 45 became effective on July 31, 1980, and was in effect when
Harris, Justice and Fitch agreed to prepare the No. 2 Mine site
in March 1981. Since Harris, Justice, and Fitch come within the
definition of an independent contractor, each of them could have
been cited for storing explosives improperly and for operating an
end loader with bad brakes.
The Commission has held in such cases as
Coal
Company, 1 FMSHRC 347 (1979), Kaiser Steel Corporation,
FMSHRC
343 (1979), Monterey Coal Company, 1 FMSHRC 1781 (1979), Old Ben
Coal Company, 1 FMSHRC 1480 (1979), and Republic Steel Corporation, 1 FMSHRC 5 (1979), that MSHA may cite operators for violations committed by independent contractors. Therefore, even if
the unsafe brakes and improper storage of explosives could be
attributed to Harris, Justice, and Fitch, McGinnis Coal Company
may also be cited for those same violations. Courts have also
held that operators may be cited for violations committed by independent contractors and their employees. (Bituminous Coal
Operators' Association v.
547 F.2d
240 (4th Cir. 1977); Association
Bituminous Contractors, Inc.
v. Cecil D. Andrus, 581 F.2d 853 (D.C. Cir. 1978); and Cyprus
Industrial Minerals Company v. FMSHRC and Secretary of Labor,
664 F.2d 1116 (9th Cir. 1981).
The Commission held in the Old Ben case, supra, that it
would not approve MSHA's citing of an operator for an independent contractor's violation if MSHA did so purely for administrative convenience, and in Phillips Uranium Corp., 4 FMSHRC 549
(1982), the Commission declined to uphold MSHA's citing of an
operator for the independent contractor's violation. Among the
reasons for the Commission's refusal was its belief that the
health and safety purposes of the Act would best be served by
citing the independent contractor who is responsible for the violations of its own employees. Also, the Commission believed
that large independent contractors, like the one involved in
Phillips Uranium, are in the best position to eliminate the
hazards. Moreover, the Commission majority said that citing
the operator for the independent contractor's violation caused
the operator to be charged in subsequent civil penalty cases
with a history of previous violations, for which the operator
might be unfairly charged, just for MSHA's administrative convenience.
In this proceeding, I believe that the operator, McGinnis,
should be cited or held responsible for unsafe brakes, if any,
on the end loader, because McGinnis- had agreed to obtain the
equipment used at the mine site, and McGinnis had agreed to provide fuel and maintenance for the eq4ipment used. Likewise,

1920

McGinnis had agreed to obtain the explosives, and had purchased
the explosives from the Independent Powder Company which supplied the trailer in which the explosives were stored. Therefore, McGinnis Coal Company, or the operator, should have been
cited for the explosive-storage violations which occurred.
It has been shown above that McGinnis Coal Company was
liable for the violations of the mandatory health and safety
standards alleged by Harris and Justice, but the question still
remaining to be decided is whether McGinnis Coal Company can be
cited for a violation of section lOS(c)(l), when the person alleging the violation qualifies as an independent contractor
under the definition of an independent contractor
in section 45.2(c). Section lOS(c)(l), in pertinent part, reads as
follows:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause
discrimination
t or otherwise interfere with
the exercise of the statutory rights of any miner,
representative of miners or applicant for employment
in any coal or other mine subject to this Act because
such miner, representative of miners or applicant for
employment has filed or made a complaint under or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal
or other mine, * * * or because of the exercise by
such miner, representative of miners or applicant for
employment on behalf of himself or others of any statutory right afforded by this Act.
Section 3(f) of the Act defines a "person" as: "any
individual, partnership, assoc~ation, corporation, firm, subsidiary of a corporation, or other organization," and section
3(g) defines a "miner" as: "any individual working in a coal
or other mine." McGinnis Coal Company is a person as that term
is used in section lOS(c)(l), and Justice, Harris, and Fitch
were miners as the term "miner" is used in section lOS(c)(l).
Therefore, regardless of whether McGinnis hired Harris, Justice,
and Fitch as independent contractors, those independent contractors were also miners within the meaning of section lOS(c)
(1), and if McGinnis Coal Company declined to hire Harris and
Justice because they made safety complaints, or disengaged them
as independent contractors before their services as independent
contractors had been completed, because they made safety complaints, McGinnis Coal Company viclated section lOS(c)(l) in so
doing.

1921

The Commission, in Pasula v. Consolidation Coal Company, 2
FMSHRC 2786 (1980), gave its rationale as to what must be shown
by a complainant to establish a violation of section lOS(c)(l).
The Fasula decision was reversed in Consolidation Coal Company v.
Marshall, 663 F.2d 1211 (3d Cir. 1982), but the Commission has
indicated in Northern Coal Company, 4 FMSHRC 126 (1982), and in
Phelps Dodge Corporation, 3 FMSHRC 2508 (1981), that its Pasula
rationale was not changed by the court's reversal which was
based on the court's belief that the Commission had improperly
used certain evidentiary facts. Therefore, the Pasula test is
still applicable law, and according to Pasula (2 FMSHRC 27992800):

* * * the complainant has established a prima facie
case of a violation of section lOS(c)(l) if a preponderance of the evidence proves (1) that he engaged in
a protected activity, and (2) that the adverse action
was motivated in any part by the protected activity.
On these issues, the complainant must bear the ultimate
burden of persuasion. The employer may affirmatively
defend, however, by proving by a preponderance of all
the evidence that, although part of his motive was unlawful, (1) he was also motivated by the miner's unprotected activities, and (2) that he would have taken
adverse action against the miner in any event for the
unprotected activities alone. On these issues, the
employer must bear the ultimate burden of persuasion.
It is not sufficient for the employer to show that the
miner deserved to have been fired for engaging in the
unprotected activity; if the unprotected conduct did
not originally concern the employer enough to have resulted in the same adverse action, we will not consider
it. The employer must show that he did in fact consider the employee deserving of discipline for engaging in the unprotected activLty alone and that he would
have disciplined him in any event. [Emphasis is
integral part of quotation.]
I believe that the evidence shows that Justice and Harris
engaged in a protected activity. Both of them claimed that the
brakes were defective on the end loader. Fitch, who was the
primary equipment operator, said there was nothing whatsoever
wrong with the loader's brakes, but McGinnis, who also operated
the loader at times, candidly stated that while he had no diffi~ulty in operating the loader, even on a grade, he would have to
admit that the brakes were not as effective as they might have
been. Justice is a mechanic, and his testimony about volunteering
to move the slack adjuster sounds v~ry much like somethi.ng that
might have occurred. McGinnis' mechanic refused to let Justice
perform that work because he felt it would take excessive time to

1922

do so. While Fitch claimed that a loader without brakes could
not be operated at all, his efforts to explain why that was so
were unconvincing, and McGinnis' effort to explain what Fitch was
trying to say increased my belief that a loader can be
with poor brakes if an experienced operator really wants to
his employer by doing so.
I believe that Justice, rather than Harris, was the person
who complained about the loader's brakes, because Harris had no
experience at all in operating heavy equipment, whereas Justice,
on occasion, did operate heavy equipment and, for 2 days, did
run the loader on level ground.
On the other hand, I believe that Harris was the person who
complained about the
storage of explosives. Justice was
quite knowledgeable in use of explosives, and Justice prepared
the shots or
Harris and McGinnis in preparing the shots.
Still, it was Harris who most often obtained explosives from the
trailer and brought them to the holes for use in actual
operations. If Harris had not been concerned about the unsafe
storage methods, he would hardly have had any reason to make five
photographs of the
trailer, particularly since the pictures were made before Harris was told that his services were no
longer needed
Fitch and McGinnis both claim that neither Harris ·nor Justice
ever complained about any unsafe condition, but they both admitted
that a lot of joking about explosives occurred. It may be that in
the kidding that existed, both Fitch and McGinnis simply ignored
the warnings which Harris and Justice expressed. McGinnis conceded that he was not careful in checking into the fact that
neither Harris, Justice, Fitch, nor he himself was a licensed
shot firer. Some of the evidence thus supports a finding that
Harris and Justice
in protected activities when they complained about unsafe brakes on the loader and improper storage
and handling of
The preponderance of the evidence, however, fails to show
that when McGinnis told Harris and Justice their services were
no longer needed, that he was motivated in letting them go by
the fact that they had complained about unsafe brakes on the
loader or improper storage of
Although both Harris
and Justice claim that they were let go with the understanding
that they would be recalled to work when the No. 2 Mine began
to produce coal, they failed to show that the work for which
they had been hired remained uncompleted at the time they were
laid off.

1923

The work which Harris had been performing consisted of getting explosives out of the truck, taking it to the holes drilled
by Justice, and helping in filling the holes and in firing shots.
Harris also greased equipment and obtained supplies, such as
fuel, for the equipment. Justice conceded that most of his time
was used in drilling holes and preparing shots •. There was no
dispute by Harris or Justice about the fact that no drilling or
shooting on the surface needed to be done at the time McGinnis
let them go. The only work to which they could have been recalled would have been to a position as an underground miner in
the No. 2 Mine after it was opened, Harris was unable to show
that he was qualified to do a
job in the mine without
taking additional training as an electrician, and Justice cou'_d
not have qualified for a roof bolter without taking some trainIn short, Justice and Harris were unable to show that
McGinnis had any further need for their services at the time
they were told that no work remained for them to do. Moreover,
they were unable to show that all dozer work had been completed
at the time they left. Consequently, no finding can be made
that McGinnis discriminated against them by continuing to pay
Fitch for operating the dozer for several weeks after they had
left.
Assuming that another person reading the testimony in this
proceeding might disagree with my finding that Harris and Justice
failed to satisfy the second step of the Pasula test by showing
that their dismissal was motivated by their
complained
about unsafe brakes and improper storage of explosives, I shall
now examine the evidence to determine whether McGinnis would
have taken the adverse action of dismissal, or refusal to rehire,
in any event because of Harris' and Justice's having engaged in
unprotected activities.
In the Commission's Phelps Dodge decision, supra, the Commission stated (3 FMSHRC at 2516):

* * * Once it appears that a proffered business justification is not plainly incredible or implausible, a
finding of pretext is inappropriate. We and our judges
should not substitute for the operator's business judgment our views on "good" business practice or on whether
a particular adverse action was "just" or "wise". i< * *
The proper focus, pursuant to Pasula, is on whether a
credible justification figured into motivation and, if
it did, whether it would have led to the adverse action
apart from the miner's protected activities. If a
proffered justification survives pretext analysis and
meets the first part of the Fasula affirmative defense
test, then a
examination of its substantiality

192 11

becomes appropriate. The question, however, is not
whether such justification comports with the judge's
or our sense of fairness or enlightened business
practice. Rather, the narrow statutory question is
whether the reason was enough to have legitimately
moved that operator to have disciplined that miner.
McGinnis provided several reasons for his failure to rehire
Harris and Justice over the experienced Ul'TI~A miners from his No. 1
Mine.
(1) There is no doubt but that McGinnis was required by
Article XVII of the UMWA Coal
Agreements of 1978 and 1981
(Exhs. P and R) to fill
at the No. 2 Mine
taking miners
from the panel o miners formed when McGinnis ceased to operate a
second shift at the No. 1 Mine. There was an enlargement of UMWA
miners with seniority rights for transfer to the No. 2 Mine when
McGinnis closed the No. 1 Mine entirely before opening the No. 2
Mine.

(2) The
openings at the No. 2 Mine not filled by
transfer of U11'~.JA miners from the No. 1 abandoned Mine were the
positions of an operator of a continuous-mining machine and an
operator of a shuttle car, and neither Harris nor Justice was
qualified to fill either of those positions.
(3) There was never a showing
Harris or Justice that
McGinnis knew that they wanted jobs as underground miners.
Neither of them actually alleged that they were qualified to
fill even the jobs
claim to have discussed, that is, roof
bolter as to Justice, and electrician as to Harris.
(4) There is little doubt but that Harris and Justice
could have gone to school and could have become qualified for
some sort of underground miner's job, but neither of them
specifically discussed with McGinnis the actual schooling they
would need, and neither got McGinnis' approval that he would
undertake to hire either of them for a specific job if they
had arranged to obtain the necessary training. While it is
true that McGinnis may inadvertently have misled them by saying
that he would consider them when he had an opening, McGinnis
claims he tells all applicants that and does consider all applicants in light of their qualifications when such openings do
occur.
If Harris and Justice did work at clearing the site for
the No. 2 ~ine solely because they thought they would be hired
for a position at the No. 2 Mine wh~n it was opened, and even
if McGinnis deliberately led them to think that they would get

1925

positions in the underground mine, McGinnis' failure to hire
them as underground miners after the site was cleared was not
a violation of section lOS(c)(l), inasmuch as McGinnis did not
refuse to hire them as underground miners because of safety
complaints.
One reason for making the foregoing conclusion is that
McGinnis does not use end loaders underground and complaints
about brakes on surface equipment would not have been an overriding consideration when Harris' and Justice's lack of qualification is examined in light of ~cGinnis' obligation to hire
UMWA miners on the panel from the No. 1 Mine and the highly experienced unemployed miners otherwise available. The same consideration would also apply to complaints about improper storage
of explosives, because McGinnis did not need explosives to operate his No. 2 underground mine since the coal was produced by
a continuous-mining machine which does not rely upon explosives
for extracting coal. That McGinnis did not need explosives
after the site had been cleared for opening the No. 2 Mine is
indicated in Finding No. 22, supra, where it is noted that before McGinnis began operating the No. 2 ~line, he had removed
from the surface area of the mine all explosives except some
ammonite which, when stored by itself, was stated by an HSHA
inspector to be nonhazardous.
The foregoing examination shows that McGinnis' letting
Harris and Justice go and his failure to rehire them as underground miners, were decisions based on business justifications,
which were "not plainly incredible or implausible". I believe
that the preponderance of the evidence shows that McGinnis
would have taken the actions he did take as to Harris and Justice
for the reasons he gave, regardless of whether they had complained
about unsafe brakes on the loader or improper storage of explosives.
WHEREFORE, it is ordered:
The complaints filed by Elmer Harris and Clarence Justice,
in Docket Nos. KENT 82-7-D and KENT 82-68-D, respectively, are.
denied.

~ c.rifi#:r

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

1926

Distribution:
Ransome C. Porter, Esq., Attorney for Elmer Harris and Clarence
Justice, P. 0. Box 507, Inez, KY 41224 (Certified Mail)
Michael J. Schmitt, Esq., Attorney for McGinnis Coal Co., Wells,
Porter, Schmitt, Preston & Walker, P. O. Box 1179, Paintsville,
KY 41240-5179 (Certified Mail)
Mr. Elmer Harris, Route 3, Box 74A, Job, KY
Mr. Ted McGinnis, Box 301, Warfield, KY
Mr. Clarence Justice, Box 72, Job, KY

1927

41225 (Certified Mail)

41267-0301 (Certified Hail::
41225 (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

SECRETARY OF LABOR,
Petitioner

Civil Penalty Proceeding
Docket No. WEVA 82-18
AC No. 46-01867-03088V

v.
CONSOLIDATION COAL COMPANY,
Respondent
CONSOLIDATION COAL COMPANY,
Contestant

Contest of Citation
Docket No. WEVA 81-552-R
Citation No. 856134
Dated: July 20, 1981

SECRETARY OF LABOR,
Respondent
DECISION
Appearances:

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department
of Labor, for Petitioner and Respondent
Jerry F. Palmer, Esq., Consolidation Coal Company, for Respondent
and Contestant

Before:

Judge Fauver

These proceedings involve the same citation issued under the Federal
11ine Safety and Health Act of 1977, 30 U.S.C. § 801, ~seq. The
Secretary seeks a civil penalty for a violation of a mandatory safety
standard as alleged in the citation. The company seeks to have the
citation reviewed and vacated.
The cases were consolidated and heard at Morgantown, West Virginia.
Having considered the contentions of the parties and the record as a whole,
I find that the preponderance of the reliable, probative, and substantial evidence
establishes the following:

1928

FINDINGS OF FACT
1. At all pertinent times Consolidation Coal Company ("Consol")
operated an underground mine known as Blacksville No. 1 Xine,
which produced coal for sale or use in or substantially affecting
interstate commerce.

2. On July 20, 981, MSHA Inspector William Ponceroff observed a roof
condition that he found to be in violation of 30 CFR § 75.200, and, on the
basis of this finding, issued Citation No. 956134; the citation was modified
the next day to insert one word left out in the citationo The citation,
as modified, reads:
The mine roof was not adequately
supported 35' inby the old 1 West loader
switch. There were 3 dislodged roof
bolts that fell out and these bolts were
installed in a fall cavity. The distance
between the last permanently installed
roof bolts to a arch located inby
measured 9'3" and 10'4"" The width of
this area measured 13 1 10 11 o The height
of this cavity was approximately 15 1
high. There were loose pieces of rock
in this area and the roof was broken.
This area was no~ supported between the
bolts and arch. Motormen travel through
this area to switch emply mine cars. The
condition was reported to Bill Galeota,
the day shift foreman, by Glen Clutter on
7/10/81. This condition should have been
reported in the preshift examination book,
and roof bolts should have been installed.
Neither action was taken.
3. The facts alleged in the citation were proved by a preponderance
of the evidence. Some of the roof bolts had been dislodged, leaving the
roof unsupported for about 9 feet, 3 inches on one side and 10 feet, 4
inches on another side. There were loose pieces of roof hanging and some
had already fallen. Miners normally traveled under this area of the roof.
The cited area was in a track haulageway where empty cars were switched
off by motormen to a rotary dump. The motormen did not have canopies
on their vehicles.
4. The roof condition was hazardous, and could significantly and
substantially contribute to a mine hazard.

1928

5. The roof condition was readily observable and had existed for
a substantial period before the inspection on July 20, 981. Mine management
was negligent in not detecting and correcting the hazardous roof condition
before the inspection.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction over the parties and subject matter
of these proceedings.
2. Consol violated 30 CFR § 75.200 on July 20, 1981, as alleged
in Citation No. 856134, modified on July 21, 1981. The facts showed an
unwarrantable failure to comply with the safety standards of this section,
specif
the sentence: "The roof and ribs of all active underground
roadway, travelways, and working places shall be supported or otherwise
controlled adequately to protect persons from falls of the roof or ribs."
3. Based upon the statutory criteria for assessing a civil penalty
for a safety violation, Consol is assessed a penalty of $1,500 for the
above violation.
Proposed findings of fact or conclusions of law inconsistent with the
above are
ected.
ORDER
WHEREFORE IT IS ORDERED:
1. Citation No. 856134, issued on July 20, 1981, and modified on
July 21, 1981, is, as modified, AFFIRMED.
2. Consol shall pay to the Secretary of Labor the above-assessed civil
penalty of $1,500 within 30 days from the date of this decision.

/t)~~v~
WILLIAM FAUVER)JUDGE
Distribution Certified Mail:
Jerry F. Palmer, Esq., Consolidation Coal Company, 1800 Washington Road,
Pittsburgh, PA 15241
Robert Cohen, Esq., US Derartment of Labor, Office of the Solicitor,
4015 Wilson Boulevard, Ar ington, VA 22203

19aO

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

22041

OC129

Civil Penalty Proceeding

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

Docket No: SE 81-26-M
A.O. No: 00212-05001-IP 9
Lee Creek Mine

v.
A. B. WHITLEY, INC.,
Respondent

Notice of Contest

A. B. WHITLEY, INC.,
Contestant

Docket No: SE 81-11-RM
Citation No. 109908; 11/18/80

v.
SECRETARY OF LABOR, et al
Respondent

Lee Creek Mine
DECISION

Appearances:

Ken S. Welsch, Esq., Office of the Solicitor, U.S.
Department of Labor, Atlan·ta, Georgia for Petitioner
James W. Stephens, Safety Associates, Inc., P.O.
Box 4113, Charlotte, North Carolina for Respondent

Before:

Judge Moore

The Respondent is accused of violating 30 C.F.R. 55.13-21 which
provides:
"Except where automatic shut-off valves are used, safety
chains or other suitable locking devices shall be used at
connections to machines of high pressure hose lines of 3/4"
inside diameter or larger, and between high pressure hose
lines of 3/4" inside diameter or larger, where a connection
failure would create a hazard."
It was admitted that the hose connection which lead to the citation
issued in this case was between a high pressure hose line of a diameter
3/4 11 or greater and a sand box or grit pot, and that there was no separate
safety chain or other locking device used except the device which initially
couples the two parts of the connector hose together. The purpose of
the regulation is to prevent injuries that can occur and have occurred
when high pressure hoses have parted. The whipping action of the hose is
what creates the hazard.
Petitioner exhibit 3 is a report prepared by Roy L. Jameson of the
Department of the Interior's Denver Technical Support Center on December
18, 1975. The title of the exhibit is "Report on Air Hose Couplings~

193.i

Clamps and Restraining Devices. 11 The third paragraph in the report was
referred to on several occasions. It states:
11

the whipping action of an unsecured or burst
air hose or pipe has resulted in many severe injuries and
uncounted and unrecorded near-miss accidents. Confined
areas in underground mines causes this hazard to be particularly
acute; the victj_m(s) often has few, if any, avenues of escape
from the lashing and whipping action of an
hose,"
It is the
of the respondent and two of his witnesses that
because of the above quoted paragraph the report is concerned
with
underground
I
ect that contention even though it is plain
that the hazard could be greater in a confined area. The second accident
described in
E attached to petitioner's exhibit 3 describes an
accident at "the Columbia Quarry and Mill, an open pit
's exhibits 1 and 2 -are photographs of the
of
pressure hose coupling that Respondent was using at the time the citation
was issued. Respondent's exhibit 2 shows the mechanism when it is
disconnected and Respondent's exhibit 1 is a picture of the connected
hose. The exhibit should be held with the red or orange p
at the
bottom. The
at the bottom of the upper connector on
;s
exhibit 2 is
over the threads on the orange pipe and turned
approximat
4 revolutions before it is fully connected as shown in
Respondent's exhibit l, The flange is not circular but has
which
are hit with a sledge hammer to tighten the connection. The unrefuted
testimony was that if this flange should -become loose and untightened by
one turn, sufficient air would be lost so that the machinery could not
be
The chance that this connection could suddenly part and
whip around
uring unwary miners is almost negligible. The
would be when the machine stopped its function of sand blasting and also
the noise that would escape when the flange had unscrewed one turn. As
stated it takes 4 turns to disconnect the flange and hose from the
machine to which the pipe is attached.
Douglas K. Wortham, is assistant director of the mine and quarry
division of the North Carolina Department of Labor. He testified that
he had observed numerous sand-blasting operations and that in about 90%
of those
the type of connector involved in the instant case,
was used. He testified that a separate locking device was not used in
those operations, that it was not required by the state of North Carolina
and that it was not necessary because the connector was safe,
Andrew B. Williams, a manufacturer's agent has had wide
with compressed air equipment. He testified that the type of connector
used by the Respondent in this case was the safest compressed air connector
available and that it did not need a separate chain or other
device.

1932

"

There are a number of different types of high pressure hose connectors.
(See Petitioner's exhibit 3). The two types referred to most in the
testimony in the instant case were the type used by Respondent and a
quick disconnect Chicago type connector. In the quick disconnect type
one end of the hose is inserted into the other and a quarter turn (90°)
is made to secure the connection. MSHA accepts .a pin through the connector
in such a way as to block rotation as a suitable locking device. There
is no requirement that the hose itself, as distinguished from the connector
fixed at its end be connected to the other hose or machine if there is
no other hose involved. As to the type of connector used by Respondent,
Inspector Darryl Brennan stated that he would require that the chain or
cable be affixed to the flexible hose itself and that the other end be
affixed to the
pot end of the connector. It appears to be a
double standard. In the case of the quick disconnect type MSHA is
concerned only with the metallic coupling separat
, whereas with the
type Respondent uses MSHA, or at
t Inspector Brennan, is concerned
not only that the metallic parts of the connection might separate, but
that the hose itself might separate from the metallic connector. The
mechanism that holds th~ connector or more properly, half of the connector
to the hose is shown on Respondent 1 s exhibits 1 and 2. It is above the
rotating flange and has what appears to be H-37 stamped on it.
It is
held by 4 bolts but the actual means by which it is attached to the hose
was not explained. I do not know whether there is any danger of the
hose separating from the 11 clamp" which contains the H-37. I am construing
the standard as MSHA does with respect to the quick disconnect type, as
requiring the metal connectors to be secu·red by an extra locking device.
The hose itself could break anywhere and the only way whipping could be
prevented would be to attach a safety chain to each 3 or 4 foot section
of the hose and the standard certainly does not require that.
I would like to dismiss this case, because I think the connector is
safe but I can not overlook the fact that the standard requires
chains or suitable locking devices in addition to the normal attaching
mechanism of the connectors if a connection failure would create a
hazard. Since there were men within 2 or 3 feet of the hose (Tr. 21) a
sudden disconnection would create a hazard. I find the negligence and
gravity low but that the violation did occur. A nominal penalty of $1 is
assessed and Respondent is Ordered to
that amount to MSHA within 30
days of the issuance of this decision. The citation is affirmed.

Charles C. Moore, Jr.,
Administrative Law Judge
Distribution: By Certified Mail
Ken S. Welsch, Esq., Office of the Solicitor, U.S. Department of Labor, 1371 Peachtree Street, Atlanta, GA 30309
Mr. James W. Stephens, Safety Associates, Inc., P.O.B, 4113
Charlotte, N.C. 28204

1933

*U,S, GOVllRNMENT PRINTING OFFICE : 1962 0-381-638/4376