MAY 1993

COMMISSION DECISIONS AND ORDERS

05-18-93
05-21-93
05-25-93.
05-25-93
05-25-93
05-27-93
05-27-93

c.w. Mining Company
WEST 92-210
Glen Burwick employed by Burwick Constr.
CENT 92-341-M
Higman Sand & Gravel
CENT 93-18-M
Higman Sand & Gravel
CENT 93-19-M
Jim Walter Resources, Inc.
SPECIAL 92-01
Davis Trucking Company
LAKE 92-421-M
A-1 Grit Company
WEST 92-527-M

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

773

775
777

780
782
795
797

ADMINISTRATIVE LAW JUDGE DECISIONS

05-04-93
05-06-93
05-06-93
05-06-93
05-07-93
05-07-93
05-07-93
05-10-93
05-12-93
05-17-93
05-17-93
05-19-93
05-19-93
05-19-93
05-25-93
05-25-93
05-26-93
05-07-93

Walter L. McMickens v. JirnWalter Resources SE 93-452-D
Concrete Materials
CENT 92-358-M
Prabhu Deshetty, employed by Island
creek Coal Company
KENT 92-549
Sec. Labor on behalf of Donald
Bowling v. Perry Transport, et al.
KENT 92-1052-D
Phelps Dodge Chino, Inc.
CENT 92-266-M
Yarbrough Construction Company
SE 92-27-M
Consolidation Coal Company
WEVA 92-917
Douglas E. Derossett v. Martin County
Coal Corporation
KENT 93-203-D
Elmer Darrell Burgan v. Harlan Cumberland
Coal Company
KENT 92-915-D
Wallace Enterprises, Inc.
LAKE 92-342
Consolidation Coal Company
WEVA 92-798
KEM Coal Incorporated
KENT 92-611
KEM Coal Incorporated
KENT 93-59
Garden Creek Pocahontas Company
VA 92-188
c & B Mining Company
PENN 92-351
Sec. Labor on behalf of Paul H. Brooks
v. R.B.S., Incorporated
WEVA 93-89-D
Raleigh R. Hunt v. canada Coal Company
KENT 92-367-D
T & D Construction
CENT 92-88-M

Pg. 799
Pg. 828
Pg. 830
Pg.
Pg.
Pg.
Pg.

836
838
841
855

Pg. 883
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.
Pg.

889
902
904
910
912
915
917

Pg. 928
Pg. 929
Pg. 930

ADMINISTRATIVE LAW JUDGE ORDERS

02-03-93
05-03-93

Power Operating Co. (previously unpub.)
Triangle sand & Gravel

PENN 92-849
WEST 92-613-M

Pg. 931
Pg. 933

MAY 1993

The following cases were granted for review during the month of May:
Secretary of Labor, MSHA v. Spurlock Mining Company and Sarah Ashley Mining
Company, Docket Nos. KENT 92-380, etc. (Judge Melick, April 2, 1993.)
Secretary of Labor, MSHA v. W-P Coal Company, Docket No. WEVA 92-746.
Melick, April 9, 1993.)

(Judge

Secretary of Labor, MSHA v. Glen Burwick, employed by Burwick Construction,
Docket No. CENT 92-341-M.
(Chief Judge Merlin, Default Decision of April 22,
1993- unpublished.)
secretary of Labor, MSHA v. Higman Sand & Gravel, Docket No. CENT 93-18-M, CENT
93-19-M. (Chief Judge Merlin, Default Decision of April 22, 1993 -unpublished.)
Secretary of Labor, MSHA v. A-1 Grit Company, Docket No. WEST 92-527-M.
Judge Merlin, Default Decision of April 22, 1993 -unpublished.)

(Chief

Secretary of Labor, MSHA v. Davis Trucking Company, Docket No. LAKE 92-421-M.
(Chief Judge Merlin, Default Decision on April 23, 1993- unpublished.)
The following case was denied for review during the month of May:
Secretary of Labor, MSHA v. Cyprus Tonopah Mining Corporation, Docket No. WEST
90-202-M, etc. (Judge Lasher, April 9, 1993.)

COMMISSION DECISIONS AND ORDERS

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

20006

May 18, 1993

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

Docket No. WEST 92-210

C.W. MINING COMPANY
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
ORDER

BY THE COMMISSION:
Counsel for the Secretary of Labor has filed an unopposed motion to
dismiss this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"). For the reasons that
follow, we grant the motion.
On July 18, 1991, an inspector of the Department of Labor's Mine Safety
and Health Administration ("MSHA") issued to C.W. Mining Company ("C.W.") a
citation alleging a violation of 30 C.F.R. § 75.1103-4(a)(l), a safety
standard that, in general, requires the installation of automatic fire sensor
and warning device systems along belt conveyors in underground coal mines.
The citation alleged that no fire sensor was located at the tailpiece of a
belt flight. C.W. contested the citation and this matter proceeded to hearing
before Commission Administrative Law Judge August F. Cetti. In his decision,
Judge Cetti concluded that C.W. violated the safety standard, affirmed the
citation, and assessed a $20 penalty. 15 FMSHRC 178, 180-84 (January
1993)(ALJ). The Commission subsequently granted C.W. 0 s Petition for
Discretionary Review, which challenged the judge's interpretation of the
standard. C.W. contended that the 24 hour grace period for the installation
of heat sensors set forth in 75.1103-4(a)(3) applied to the tailpiece and
that, as a consequence, it had not violated the safety standard.
After the Commission granted review, the Secretary filed a Notice of
Intent to Vacate Citation and Request Dismissal. The Secretary stated that
"[a]fter a careful review of the relevant aspects of his enforcement policy
regarding 30 C.F.R. § 75.1103-4," he determined that the grace period set
forth in 75.1103-4(a)(3) applied to the cited conditions at the tailpiece and
that C.W. was not in violation of the safety standard "on the day in
question." Sec. Notice at 1-2. The Secretary also represented that counsel
for C.W. "consents to vacating the citation and dismissing the appeal." Sec.
Notice at 2. On May 3, 1993, an MSHA inspector vacated the subject citation.
The Secretary, on May 7, 1993, filed a motion to dismiss this proceeding on

773

the basis that C.W.'s appeal is moot.
The Commission has "responsibility under the Mine Act ... to ensure that
Youghiogheny
& Ohio Coal Co., 7 FMSHRC 200, 203 (February 1985). A motion by the Secretary
to dismiss a review proceeding in which he has vacated the underlying citation
or order will ordinarily be granted if "adequate reasons" to do so are
present. See Southern Ohio Coal Co., 10 FMSHRC 1669, 1670 (December 1988) and
authorities cited. We conclude that adequate reasons exist in this case. The
Secretary, as the prosecutor charged with enforcing the Mine Act, determined
that he should vacate the citation and seek to dismiss this appeal. The
operator does not object to the Secretary's motion and nothing in the record
indicates that C.W. will be prejudiced by dismissal of this proceeding.
a contested case is terminated ... in accordance with the Act."

For the foregoing reasons, the Secretary's dismissal motion is granted,
the Commission's direction for review is vacated, as is that part of the
judge's decision wherein he affirmed the citation, and this civil penalty
proceeding is dismissed.

Arlene Holen, Chairman

'(:"__/~/

Richard V. Backley, CommiSSiOiler

L. Clair Nelson, Commissioner
Distribution
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Carl E. Kingston, Esq.
3212 S. State Street
P.O. Box 15809
Salt Lake City, Utah 84115
Administrative Law Judge August Cetti
Federal }1ine Safety & Health Review Commission
1244 Speer Boulevard, Suite 280
Denver, Colorado
80204

774

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

20006

May 21, 1993

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

Docket No. CENT 92-341-M

GLEN BURWICK,
Employed by Burwick
Construction Co.
BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners
ORDER

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 22,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default,
finding respondent Glen Burwick, an employee of Burwick Construction Co., in
default for failing to answer the notice of proposed civil penalty filed by
the Secretary of Labor or the judge's February 9, 1993, Order to Show Cause.
The judge assessed the civil penalty of $400 proposed by the Secretary. For
the reasons that follow, we vacate the default order and remand this case for
further proceedings.
The Commission has received a letter from Ms. Tanya Burwick dated April
27, 1993, stating that on February 22, 1993, Glen and Therell Burwick
responded to the Proposal, showing their opposition to the charges brought
against them. The February 22 letter contained no docket numbers and was
filed only in the official record in Therell Burwick. emp. by Burwick
Construction Co., Docket No. CENT 92-340-M, a related case.
The judge's jurisdiction over this case terminated when his decision was
issued on April 22, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem the
April 27 letter to be a timely filed Petition for Discretionary Review, which
we grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September
1988). On the basis of the present record, we are unable to evaluate the
merits of the respondent's position. In the interest of justice, we remand
this matter to the judge, who shall determine whether a default order is
warranted.

775

For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

L. Clair Nelson, Commissioner

Distribution
Tanya Burwick
Burwick Oilfield Services, Inc.
Drawer P
Bronte, Texas 76933
J. Philip Smith, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd~
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Hine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

776

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

20006

Hay 25, 1993

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

Docket No. CENT 93-18-M

HIGMAN SAND & GRAVEL, INC.

BEFORE:

Holen, Chairman; Backley, and Doyle, Commissioners
,_ ORDER

BY: Holen, Chairman; Backley, and Doyle, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). Commission
Chief Administrative Law Judge Paul Merlin issued an Order of Default on April
22, 1993, finding respondent Higman Sand & Gravel, Inc. ("Higman") in default
for failure to answer the civil penalty proposal of the Secretary of Labor
("Secretary") and the judge's February 24, 1993, Order to Show Cause. The
judge assessed the civil penalty of $362 proposed by the Secretary. For the
reasons that follow, we vacate the default order and remand this case for
further proceedings.
On April 30, 1993, Higman filed a letter with the Commission, which
stated, in essence, that Higman believed it had done everything necessary to
obtain a hearing. A letter dated March 19, 1993 was attached, which Higman
alleges it mailed to the Department of Labor's Mine Safety and Health
Administration ("MSHA") Civil Penalty Compliance Office in Arlington,
Virginia.
The judge 9 s jurisdiction in this proceeding terminated when his decision
was issued on April 22, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and
the Commission's procedural rules, relief from a judge's decision may be
sought by filing a petition for discretionary review with the Commission
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. §
2700.70(a). We will treat Higman's letter as a timely filed petition for
discretionary review of the decision. See, ~. Middle States Resources.
Inc., 10 FMSHRC 1130 (September 1988).
On July 15, 1992, an MSHA inspector issued to Higman a citation pursuant
to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of

777

30 C.F.R. § 56.14132(a), a mandatory audible warning device standard for
surface metal and nonmetal mines. On October 6, 1992, MSHA's Office of
Assessments, under the regular assessment procedures of 30 C.F.R. § 100.3,
notified Higman that it proposed a civil penalty of $362 for the alleged
violation. On October 21,, 1992, Higman filed its "Blue Card" request for a
hearing before this independent Commission. On December 18, 1992, the
Secretary filed a complaint proposing the assessment of a civil penalty for
the violation. Under the Commission's rules of procedure, the party against
whom a penalty is sought was obligated to file its answer with the Commission
within 30 days after service of the penalty proposal. 29 C.F.R. § 2700.5(b) &
.29. The record indicates that Higman did not file an answer to the complaint
with the Commission. When no answer to the penalty proposal was filed, the
judge, on February 24, 1993, issued an order directing Higman to file an
answer within 30 days or to show good cause for its failure to do so.
It appears that Higman, proceeding without benefit of counsel, may have
confused the roles of the Commission and MSHA in this adjudicatory proceeding
and may have attempted to respond to the judge's show cause order by sending
its response to MSHA. We are unable, on the basis of the present record, to
evaluate the merits of Higman's position. Because Higman has asserted an
attempt to respond, we will, in the interest of justice, permit Higman the
opportunity to present its position to the judge, who shall determine whether
relief from default is warranted. Therefore, we vacate the default order.
Higman is reminded that it must file all documents and correspondence with the
Commission, and serve the Secretary with copies of all of such filings. 29
C.F.R. §§ 2700.5(b) & .7.

~·
Richard V. Backley, Commissioner

778

Distribution
Harold Higman, Jr.
Higman Sand & Gravel, Inc.
P.O. Box 106
Akron, Iowa 51001
Margaret A. Miller, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout St.
Denver, Colorado 80294
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

779

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C.

20006

Hay 25, 1993

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

Docket No. CENT 93-19-M

HIGMAN SAND & GRAVEL, INC.

BEFORE:

Holen, Chairman; Backley, and Doyle, Commissioners
ORDER

BY: Holen, Chairman; Backley, and Doyle, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). Commission
Chief Administrative Law Judge Paul Merlin issued an Order of Default on April
22, 1993, finding respondent Higman Sand & Gravel, Inc. ("Higman") in default
for failure to answer the civil penalty proposal of the Secretary of Labor
("Secretary") and the judge's February 24, 1993, Order to Show Cause. The
judge assessed the civil penalty of $292 proposed by the Secretary. For the
reasons that follow, we vacate the default order and remand this case for
further proceedings.
On April 30, 1993, Higman filed a letter with the Commission, which
stated, in essence, that Higman believed it had done everything necessary to
obtain a hearing. A letter dated March 19, 1993 was attached, which Higman
alleges it mailed to the Department of Labor's Mine Safety and Health
Administration ("MSHA") Civil Penalty Compliance Office in Arlington,
Virginia.
The judge's jurisdiction in this proceeding terminated when his decision
was issued on April 22, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and
the Commission's procedural rules, relief from a judge's decision may be
sought by filing a petition for discretionary review with the Commission
within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. §
2700.70(a). We will treat Higman's letter as a timely filed petition for
discretionary review of the decision. See, ~. Middle States Resources.
Inc., 10 FMSHRC 1130 (September 1988).

On July 16, 1992, an MSHA inspector issued to Higman a citation pursuant
to section 104(a) of the Mine Act, 30 U.S.C. § 814(a), alleging a violation of

780

30 C.F.R. § 56.20008, a mandatory toilet facility standard for surface metal
and nonmetal mines. On September 15, 1992, another MSHA inspector issued to
Higman an order pursuant to section 104(b) of the Mine Act, 30 U.S.C. §
814(b), for failure to abate the violation. On October 6, 1992, MSHA's Office
of Assessments, under the regular assessment procedures of 30 C.~.R. § 100.3,
notified Higman that it proposed a civil penalty of $292 for the alleged
violation. On October 21, 1992, Higman filed its "Blue Card 11 request for a
hearing before this independent Commission. On December 18, 1992, the
Secretary filed a complaint proposing the assessment of a civil penalty for
the violation. Under the Commission's rules of procedure, the party against
whom a penalty is sought was obligated to file its answer with the Commission
within 30 days after service of the penalty proposal. 29 C.F.R. § 2700.5(b) &
.29. The record indicates that Higman did not file an answer to the complaint
with the Commission. When no answer to the penalty proposal was filed, the
judge, on February 24, 1993, issued an order directing Higman to file an
answer within 30 days or to show good cause for its failure to do so.
It appears that Higman, proceeding without benefit of counsel, may have
confused the roles of the Commission and MSHA in this adjudicatory proceeding
and may have attempted to respond tiG the Judge's show cause order by sending
its response to MSHA. We are unable, on the basis of the present record, to
evaluate the merits of Higman's position. Because Higman has asserted an
attempt to respond, we will, in the interest of justice, permit Higman the
opportunity to present its position to the judge, who shall determine whether
relief from default is warranted. Therefore, we vacate the default order.
Higman is reminded that it must file all documents and correspondence with the
Commission, and serve the Secretary with copies of all of such filings. 29
C.F.R. §§ 2700.S(b) & .7.

Arlene Holen, Chairman

Richard V. Backley,

781

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

Hay 25, 1993

JIM WALTER RESOURCES, INC.

v.

Docket No. SPECIAL 92-01

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

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this proceeding arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), Jim Walter
Resources, Inc. ("JWR") filed with the Commission a Notice of Contest and
Motion for Partial Relief from Final Order seeking to reopen certain
uncontested civil penalty assessments in which JWR had paid in full the
penalties proposed by the Secretary of Labor. As the basis for its motion,
JWR cites Rule 60(b), Federal Rules of Civil Procedure ("Fed. R. Civ. P."),
and principles of equity.
This is the lead case in a group of 19 special proceedings in which
similar notices of contest and motions for relief from final orders were filed
by mine operators (Docket Nos. SPECIAL 92-02 through -16; and 93-01 through
-03). The operators contend that the penalties in dispute were invalidly
augmented on the basis of the interim "excessive history" program set forth in
the Secretary's Program Policy Letter No. P90-III-4 (May 29, 1990)(the "PPL"),
which the Commission concluded in Drummond Co.~ 14 FMSHRC 661, 692 (May 1992),
and related cases, could be accorded no legal weight or effect. The operators
seek refunds of those portions of paid penalties attributable to augmentations
under the PPL.
The Commission granted the motions of the American Mining Congress
("AMC") and National Coal Association ("NCA") to participate as amici curiae
and heard oral argument. For the reasons that follow, we hold that the
Commission possesses jurisdiction to reopen final orders, including orders in
which uncontested penalties were paid, but conclude that JWR's request does
not meet the requisite criteria under Fed. R. Civ. P. 60(b) or principles of
equity for the grant of such relief. Accordingly, we deny JWR's motion to
reopen and we dismiss this proceeding.

782

I.
Back~round

A.

General Le~al and Re~ulatory Back~round

The Mine Act establishes a bifurcated civil penalty system in which the
Secretary proposes and the Commission assesses, based on specified criteria, 1
all civil penalties for violations of the Act, of mandatory safety and health
standards, and of other regulations issued under the Act. 30 U.S.C. §§ 815(a)
& (d), 820(a) & (i); ~. ~. Sellersburg Stone Co,, 5 FMSHRC 287, 290-92
(March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Section lOS(a) of the Act
states in pertinent part that, after the Secretary has issued a citation or
withdrawal order to a mine operator for an alleged violation, he "shall ...
notify the operator ... of the civil penalty proposed to .be assessed ... for
the violation .... " 30 U.S.C. § 815(a). Section 105(a) allows the operator 30
days within which to contest a proposed penalty and further provides that, if
the operator does not contest it, the assessment "shall be deemed a final
order of the Commission and not subject to review by any court or agency."
The Secretary, acting through the Department of Labor's Mine Safety and
Health Administration ("MSHA"), promulgated regulations at 30 C.F.R. Part 100
to implement the proposal of penalties. 2 Two methods were provided for
calculating proposed penalties, regular and special assessment. In 1982, MSHA
added a "single penalty" assessment of $20 for a timely abated non-significant
and substantial ("non-S&S") violation. 3 See Drummond, 14 FMSHRC at 663-64.

l

Section llO(i) of the Act provides in relevant part:
In assessing civil monetary penalties, the Commission
shall consider the operator's history of previous
violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether
the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation.

30 u.s.c. § 820(i).
2 The civil penalty regulations were adopted pursuant to section 508 of the
Mine Act. 30 U.S.C. § 957. See Drummond, 14 FMSHRC at 663.
3
The S&S terminology is taken from section 104(d) of the Act, which
distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or
health hazard." 30 U.S.C. § 814(d)(l).

783

In Coal Employment Project v. Dole, 889 F.2d 1127, 1136-38 (D.C. Cir.
1989), the D.C. Circuit found that the Secretary's procedure for assessing
single penalties failed to take into account violation history, one of the
Mine Act's penalty criteria. The Court remanded the case to MSHA "for
appropriate amendment of the regulations." 889 F.2d at 1128. The Court
ordered MSHA, in the interim, to consider an operator's history of non-S&S
violations in proposing single penalties and to include an operator's history
of single penalties in proposing regular assessments. 889 F.2d at 1138, 1139.
Issuance of the PPL was one of the actions taken by MSHA in response to
the Court's interim remand. See Drummond, 14 FMSHRC at 678. The Secretary
did not publish the PPL in the Federal Register but sent it to all operators
on May 29, 1990. In addition to incorporating single penalties in the
violation history scheme, the PPL augmented penalty assessments by specified
percentage amounts, depending on the degree of "excessive history." 4 On
December 28, 1990, the Secretary published proposed rules, "Criteria and
Procedures for Proposed Assessment of Civil Penalties," which generally
incorporated the provisions of the PPL. 55 Fed. Reg. 53482, 53483. See
Drummond, 14 FMSHRC at 667-68.
B.

The Drummond Litigation and Related Developments

The Secretary began proposing civil penalties based on the PPL in May
1990. The Commission docketed 2,803 contests from mine operators contending
that the proposed penalties were improper because they were not based on the
Part 100 penalty regulations alone but, instead, were increased in accordance
with the PPL's interim excessive history program, which, the operators argued,
had been unlawfully issued outside the notice-and-comment rulemaking process
required by the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1988)
("APA"). The operators also moved to have the proposed penalties remanded to
the Secretary for recalculation without reference to the PPL. The Commission
granted seven petitions for review of decisions by its administrative law
judges and, while these cases were pending on review, proceedings in the other
excessive history contests were stayed. The petitions for review resulted in
Drummond and related decisions. 5 See Drummond, 14 FMSHRC at 661-62, 669-70.

4

The PPL provided that non-S&S violations, if associated with excessive
history, would no longer be eligible for a single penalty but would be assessed
under the regular assessment formula. PPL at 2. S&S violations associated with
excessive history would receive a regular assessment augmented by a percentage
increase of 20%, 30% or 40%.
Violations specially assessed would receive a
similar percentage increase for excessive history. Id.
5

Also issued the same date were a second Drummond decision, 14 FMSHRC 695
(May 1992), as well as: Cyprus-Plateau Mining Corp., 14 FMSHRC 702 (May 1992);
Utah Power and Light Co .. Mining Div., 14 FMSHRC 709 (May 1992); Habet Mining.
Inc., 14 FMSHRC 717 (May 1992); Texas Utilities Mining Co., 14 FMSHRC 724 (May
1992); and Zeigler Coal Co., 14 FMSHRC 731 (May 1992).

784

In Drummond, the Commission determined that it possessed subject matter
jurisdiction to review the validity of the PPL and to require the Secretary to
propose penalties in a manner consistent with the Part 100 penalty
regulations. 14 FMSHRC at 673-78. It further determined that the PPL
exceeded the Coal Employment Project interim mandate. 14 FMSHRC at 678-80.
The Commission determined that, under established APA precedent, the PPL could
not be regarded as an interpretative rule, policy statement, or agency
procedure excepted from notice-and-comment rulemaking (see 5 U.S.C. § 553(b)
(3)(A)) (14 FMSHRC at 684-88), and that it did not otherwise qualify for
exception from that process (14 FMSHRC at 689-90). The Commission held that
the PPL was an "invalidly issued substantive rule" that could not be "accorded
legal effect." 14 FMSHRC at 692. Accordingly, the Commission remanded the
proposed penalties in Drummond and the related matters to the Secretary for
recalculation in accordance with the existing Part 100 regulations, without
use of the PPL. The 2,779 other pending penalty matters were also remanded to
the Secretary for reproposal in accordance with Drummond.
By letter dated June 3, 1992, the Department of Labor's Associate
Solicitor advised the Commission's ..<:;hief Administrative Law Judge that the
Secretary had decided that he would not appeal Drummond. The Associate
Solicitor also stated, in effect, that new penalties would be proposed for S&S
violations with excessive history, i.e., to rescind penalty augmentations, but
not for non-S&S violations with excessive history.
While Drummond was pending on review, certain final Part 100 rules were
published, containing, as relevant her~. the final version of MSHA's interim
action in response to the Coal Employment Project order to include single
penalties in an operator's history of violations. 57 Fed. Reg. 2968-71
(January 24, 1992). That same day, the Secretary published a revised proposed
penalty rule .. 57 Fed. Reg. 2972-77. On January 29, 1992, MSHA also issued
Program Policy· Letter No. P92-III-l ("PPL-II"), which superseded the PPL and
mirrored the new proposed penalty rule. PPL-11, like the earlier PPL, was not
published in the Federal Register. Drummond, 14 FMSHRC at 668.
A final penalty rule, taking into account an operator's history of
violations in determining eligibility for a single penalty assessment, was
issued by the Secretary on December 21, 1992, completing MSHA's response to
the Coal Employment Project order. 6 57 Fed. Reg. at 60690-97. The penalty
system underlying the final rule continues to incorporate the Mine Act's
penalty criteria, including violation history. The fi~al rule, however, is
significantly different from MSHA's two PPL's and the two proposed rules in
that it does not provide for percentage augmentations of penalties based on
excessive history.

6

The Coal Employment Project Court had retained jurisdiction over its
remand to MSHA.
889 F. 2d at 1138, 1139.
Upon receiving the Secretary's
Notification of Completion of Rulemaking, the Court issued an order removing the
case from its docket on January 19, 1993, thus terminating its jurisdiction in
the case.

785

C.

JWR's Motion

Relying on Drummond's invalidation of the PPL, JWR filed its Notice of
Contest and Motion for Partial Relief from Final Order on June 29, 1992.
Eighteen similar pleadings from other operators followed. In all these
matters, the operators had failed to contest, within the time provided by
section 105(a) of the Act, the proposed penalties and, instead, had paid the
penalties in full. The Commission heard oral argument on January 28, 1993.

II.
Disposition of Issues
Two major issues are presented: (1) whether, in view of the language in
section 105(a) of the Mine Act, the Commission possesses jurisdiction to
reopen these final orders; and (2), if the Commission does have such
jurisdiction, whether JWR has satisfied appropriate criteria for such
reopening. We answer the first question in the affirmative and the second in
the negative.
A.

Commission Jurisdiction
1.

Parties' arguments

JWR and the amici (hereafter, the "operators") do not seek refund of the
basic penalty amounts nor do they contest the underlying citations. Rather,
they request reduction of the penalties by the amount attributable to
augmentation under the PPLs. They assert that Fed. R. Civ. P. 60(b) ("Rule
60(b)"), which the Commission has invoked frequently to reopen final orders
such as default judgments, may serve as the basis for reopening these matters,
which have become "final orders of the Commission" by operation of section
105(a). The operators point to case law under the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 651 et seq. (1988)(the "OSHAct"), permitting
Rule 60(b) relief, notwithstanding analogous "final order" language in section
lO(a) of that statute, 29 U.S.C. § 659(a). See,~. J.I. Hass Co. v. OSHRC,
648 F.2d 190, 192-95 (3rd Cir. 1981). The operators also note that section
105(a) specifically precludes "agency" but not "Commission" review and, thus,
does not bar this Commission's review of these matters.
The Secretary contends that the Commission is without jurisdiction to
consider JWR's challenge because JWR failed to timely contest the penalty
proposals as provided in section 105(a) of the Mine Act. He relies on the
language in section 105(a), which provides that a final order of the
Commission is not subject to review "by any court or agency." 30 U.S.C.
§ 815(a). Thus, by operation of the statute, these matters are final and may
not be reopened for review by the Commission.
2.

Disposition

In construing the Act, the Secretary, this Commission, and the Courts of
Appeals must give effect to the "unambiguously expressed intent of Congress."
Chevron U.S.A. v. Natural Res. Def. Council. Inc., 467 U.S. 837, 843 (1984).

786

In general, the Commission also is required to accord "weight" to the
Secretary's interpretations of the statute and his implementing regulations.
S. Rep. No. 181, 95th Gong., 1st Sess. 49 (1977)("S. Rep."), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Gong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act of 197Z,
at 637 (1978)("Legis. Hist."). However, as the Commission stated in Drumroond,
"we perceive no indication in the statute or its legislative history, or in
sound policy, that [Commission] deference to the Secretary's views of
Commission jurisdiction is required." 14 FMSHRC at 674 n.l4.
The Secretary argues that the language of section 105(a), "not subject
to review by any court or agency," is unambiguous and precludes the Commission
itself from reopening its final orders. We disagree. In our view, section
lOS(a) merely sets forth a general principle of finality covering the
procedure for the contest of citations and proposed penalties. The Commission
has recognized that, in appropriate circumstances, it may grant various forms
of relief from final Commission orders. See generally, ~. Danny Johnson v.
Lamar Mining Co., 10 FMSHRC 506, 508 (April 1988); M.M. Sundt Const. Co., 8
FMSHRC 1269, 1270-71 (September 1986). In reopening final orders, the
Commission has found guidance in, 'and has applied, "so far as practicable,"
Rule 60(b), dealing with relief from judgments or orders. 7 See Commission
Procedural Rule l(b), 29 C.F.R. § 2700.l(b).
The legislative history indicates that Congress enacted section 105 to
end the lengthy and repetitive procedure of penalty assessment and collection
under the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
seq. (1976)(amended 1977) ("1969 Coal Act"). UMWA v. Ranger Fuel Co., 12
FMSHRC 363, 372-73 (March 1990). Under the 1969 Coal Act, operators had the
right to seek de novo review of those penalties in United States District
Courts. See S. Rep. at 16, 44, 45, reprinted in Legis. Hist. at 604, 632,
633. The legislative history makes clear that the "not subject to review"
language was intended to abolish this cumbersome process by preventing
collateral attacks on penalty determinations. See, ~. S. Rep. at 34, 4546, reprinted in Legis. Hist. at 622, 633-34; see also Legis. Hist. at 89
7

In relevant part, Rule 60(b) provides:
Mistakes: Inadvertence: Excusable Neglect: Newly
Discovered Evidence: Fraud. etc. On motion and upon
such terms as are just, the court may relieve a party or
his legal representative from a final judgment, order,
or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; ...
(3) fraud (whether heretofore denominated intrinsic or
extrinsic) , misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; ... or (6) any
other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable
time, and for reasons (1) ... and (3) not more than one
year after the judgment, order, or proceeding was
entered or taken ....

787

(remarks of Sen. Williams introducing S. 717, the bill upon which the Mine Act
was based). There is nothing in the legislative history to suggest that
Congress intended to bar the Commission itself from granting Rule 60(b) type
post-judgment relief in appropriate circumstances. 8
The Commission's view of section lOS(a) is supported by analogous case
law. Section lO(a) of the OSHAct, 29 U.S.C. § 659(a), also provides that an
uncontested citation or proposed penalty "shall be deemed a final order of the
[Occupational Safety and Health Review] Commission and not subject to review
by any court or agency." In J.I. Hass, the Third Circuit held that section
lO(a) of the OSHAct cannot be reasonably construed to prohibit all late-filed
notices of contest:
The Secretary contends that the final clause of
section lO(a) is jurisdictional and must be read
literally to prohibit review of citations if an
employer files no timely notice of contest. Under
lthis interpretation of s~ction lO(a), once any
employee of the employe;r: signs the certified receipt
for the citations, no circumstances would permit a
late notice of contest. Thus, if an employee signed
for citations and then was killed while returning from
the post office, and the letter destroyed, an employer
with a meritorious defense could still get no relief
if 15 working days elapsed before he learned of the
citations. We do not believe that Congress intended
such a harsh result.
648 F.2d at 194. See also Capital City Excavatini Co. v. Donovan, 679 F.2d
105, 109-10 (6th Cir. 1982).

8
Amicus AMC argues that section l05(a) precludes review only by other
agencies and courts but does not explicitly preclude Commission review. AMC
Reply at 7. The Secretary argues that Commission Procedural Rule 25, 29 C.F.R.
§ 2700.25, which stated that section 105(a) orders were not subject to review by
the Commission or a court, precludes relief. Procedural Rule 25 first appeared
in Rule 23 of the Interim Procedural Rules published on March 10, 1978, prior to
the assumption of office by Commission members.
43 Fed. Reg. 10320, 10324
(1978),
No explanation of the Interim Rule was provided.
Id.
When the
Commission adopted its Procedural Rules in 1979, Interim Rule 23, which departed
from section 105(a) of the Mine Act, was substantially retained in Rule 25,
without comment. 44 Fed. Reg. 38227, 38229 (1979). The Commission has published
new final Procedural Rules, which took effect on May 3, 1993, and, in a number
of instances, has revised the text of rules to conform to the statute. 58 Fed.
Reg. 12158-74 (March 3, 1993). Revised Rule 27, which replaces prior Rule 25,
conforms the earlier rule to the language of section 105(a) of the Mine Act, "not
subject to review by any court or aiency."
(Emphasis added.) 58 Fed. Reg.
12167. In any event, we construe the prior rule in a manner consistent with the
language of the Mine Act and the analysis set forth in this decision.

788

For the foregoing reasons, we hold that a final order of the Commission
may be reopened by the Commission in appropriate circumstances pursuant to
Rule 60(b).
B.

Whether JWR Meets Criteria for Post-Jud~ent Relief
l.

Parties'

ar~ents

JWR invokes Rule 60(b)(3), alleging misrepresentation by the Secretary
in the proposal of the penalties, and Rule 60(b)(6), asserting that the
requested relief would ensure that justice is served. JWR alleges that, in
proposing the penalties, the Secretary misrepresented his actions by stating
that the proposals had been calculated pursuant to 30 C.F.R. Part 100, when,
in fact, that was not the case. Only when the Commission in Drummond found
the PPL to be invalid, did JWR realize that it had paid invalidly determined
penalties. The operators argue that it is unfair to require the payment of
illegally proposed penalties and contend on separate equitable grounds that
they should be relieved from these final orders.
The Secretary responds that the criteria of Rule 60(b) have not been
satisfied. The Secretary points out that the penalty proposals stated on
their face that the penalties had been increased under the excessive history
program. (See Attachment A to JWR's Notice of Contest.) He also notes that
the PPL was disseminated to all regulated operators and, in light of such
notification, the operators cannot claim misrepresentation as to the penalty
calculations. He further argues that these motions are essentially attempts
to change litigating positions in light of subsequent legal developments, and
that neither Rule 60(b) nor other equitable relief is appropriate under such
circumstances.
2.

Disposition

Motions to reopen under Rule 60(b) are committed to the sound discretion
of ·the judicial tribunal in which relief is sought.
~. Randall v.
Merrill Lynch, 820 F.2d 1317, 1320-21 (D.C. Cir. 1987).
However, discretion
in this regard is not open-ended. As the Court stated in Randall: "Rule 60(b)
is the mechanism by which courts temper the finality of judgments with the
necessity to distribute justice. It is a tool which ... courts are to use
sparingly .... nn 820 F. 2d at 1322. See also Ronald Tolbert v. Chaney Creek
Corp., 12 FMSHRC 615, 619 n.l (April 1990).
We reject JWR's Rule 60(b)(3) claim alleging misrepresentation by the
Secretary. In a Rule 60(b)(3) motion, misrepresentation must be shown by
clear and convincing evidence. 11 Wright & Miller, Federal Practice and
Procedure: Civil§ 2860 (1973), and authorities cited. The Secretary's
notifications to JWR and other operators of the proposed penalties stated
expressly that the penalties were augmented by the excessive history program.
As to the invalidity of the PPL, a conclusion subsequently reached in
9

Because we dispose of JWR's motion on substantive grounds, we do not
reach issues of time limitation.

789

Drummond, we do not regard this as a "fact" that the Secretary would be
obligated to disclose in proposing penalties. Rather, it is a legal
conclusion that was reached following timely challenges to penalty proposals.
Accordingly, we discern no misrepresentation for Rule 60(b)(3) purposes.
We are similarly.unpersuaded by the operators' Rule 60(b)(6) arguments.
Rule 60 (b) ( 6) provides for relief for "any other· reason justifying relief,"
but cannot be used to relieve a party from the duty to take legal action to
protect its interests by challenging dubious enforcement actions. See, ~.
Ackermann v. U.S., 340 U.S. 193, 199-202 (1950); McNight v. U.S. Steel Corp.,
726 F.2d 333, 336 (7th Cir. 1984); Wright & Miller, supra§ 2864. Nor does
Rule 60(b)(6) obviate the general principles of finality of judgments. Here,
JWR chose to pay certain penalties rather than to contest them. JWR now
attempts to rely on the litigation efforts of other operators who questioned
and successfully contested penalties augmented under the PPL. Many operators
questioned the validity of the excessive history program and pursued their
rights under Mine Act review procedures.
As noted in Parks·v. U.S. Life and Credit Corp., 677 F.2d 838 (11th Cir.
1982):
An unsuccessful litigant may not rely on appeals by
others and share in the fruits of victory by way of a
Rule 60(b) motion.
The strong interest in the finality of
litigation demands rejection of appellant's
suggestion. During the pendency of an appeal, the
parties recognize the possibility of reversal; thus,
modification of a judgment being appealed impacts not
at all on finality concerns. "There must be an end to
litigation some day, and free, calculated, deliberate
choices are not to be relieved from." [Ackermann v.
United States,] 340 U.S. 193, 198, 71 S.Ct. 209, 211,
95 L.Ed. 207 [(1950)].
677 F.2d at 840-41.
The operators argued that a large operator such as JWR must regularly
process hundreds of notifications of proposed penalties. Its decisions to
contest are largely administrative and cannot realistically be characterized
as deliberate litigation choices. Tr. Oral Arg. 20, 23-26, 32-34. Under the
Mine Act, however, JWR is required to make such deliberate choices and its
failure to contest proposed penalties as provided in section 105 is at its
peril.
As to the equity principles invoked, the Commission is not a court of
general equity.· Cf. Kaiser Coal Corp., 10 FMSHRC 1165, 1169-71 (September
1988), In any event, it is a fundamental premise that equity aids those who
have vigilantly pursued their rights. ~. 27 Am. Jur. 2d Equity § 130
(1966). JWR was less than vigilant.

790

We conclude that the operators have failed to make a clear and
convincing demonstration of justification for Rule 60(b)(3) or (b)(6) relief
or for general equitable relief. 10
C.

Res Judicata and Sovereign Immunity

The Secretary argues that the paid penalties have a res judicata effect,
precluding JWR's attempt at relitigation. He further contends that sovereign
immunity has not been waived by the United States as to recoupment of these
penalties and, accordingly, any refund is barred, and that the proper forum
for monetary claims is the Court of Claims or a United States District Court.
The operators argue that res judicata is inapplicable under the circumstances
and contend that, notwithstanding sovereign immunity, the Commission possesses
ample power under the Act to direct relief. Given our preceding disposition,
we need not rule on the Secretary's res judicata and sovereign immunity
arguments.
D.

Merits of

Although we are constrained to deny JWR's motion, we express our
disapproval of the Secretary's actions regarding attempted compliance with the
Coal Employment Project mandate. The Secretary has pursued a confusing course
of action, issuing proposed rules for comment at the same time as he issued
and implemented PPLs outside the aegis of the APA. See Drummond, 14 FMSHRC at
678-90. A joint industry and labor comment received during the rulemaking
process "contended that the proposed excessive history criteria and program
were inherently flawed because they did not target the appropriate [i.e.,
higher fatality rate] mines." 57 Fed. Reg. at 60693 (preamble to final rule).
Based on further substantive analysis, the Secretary deleted from the final
rule percentage augmentations of penalties based on excessive history.

10

Amicus AMC also argues that Rule 60{b)(4) relief is justified in that
the underlying section lOS{a) final orders are "void" pursuant to the principles
announced in Drummond. We decline to reach this issue. JWR premised its motion
only on Rule 60{b)(3) and (b)(6) and on equitable principles. Absent exceptional
circumstances, not shown here, an amicus cannot expand the scope of an appeal
beyond the issues raised by the parties. ~. Richardson v. Alabama State Bd.
of Educ., 935 F.2d 1240, 1247 (11th Cir. 1991); Christopher M. v. Corpus Christi
Ind. Sch. Dist., 933 F.2d 1285, 1292 (5th Cir. 1991).

791

The Secretary has argued that making the requested refunds would be
administratively chaotic, because thousands of cases would have to be reopened
and approximately $1,500,000 refunded. Sec. Opp. at 19. However, following
the Commission's remand of penalty cases in accordance with Drummond, the
Secretary recalculated thousands of penalties that had been proposed pursuant
to the PPL and reduced the assessments involved by $859,038. Letter from
Secretary's Counsel to Commission (in response to Commission's written
inquiries) at 2 (February 4, 1993)( 11 Sec. Letter"). 11 The Secretary further
argues that he is barred from granting refunds, relying, in part, on a
Comptroller General opinion issued more that fifty years ago in matters that
are not analogous. Sec. Surreply Br. at 8-10 & n.7. The Secretary, however,
has not requested the Comptroller General's opinion as to the legality of
refunds in these matters nor did the Secretary seek such opinion on the
refunds he made voluntarily.
Oral Arg. Tr. at 38-39; see also Sec. Letter
at 2. The Secretary has informed the Commission that, as of February 4, 1993,
he had refunded to operators $249,513 in excessive history penalty
overpayments based on "retroactivity considerations." Sec. Letter at 1-2.
These refunds were made by MSHA to remove any "doubt as to the fairness and
consistency of [MSHA' s] Assessment''J>olicies and procedures." Notification to
Mine Operator[s], Attachment C to JWR's Notice of Contest.
In not appealing Drummond, in reproposing many penalties in accordance
with Drummond, and in modifying the final penalty rule, the Secretary has
implicitly recognized that percentage augmentations based on excessive history
were misplaced. In other cases involving the excessive history program, the
Secretary has undertaken penalty recalculations and has made refunds on a
broad scale. We urge the Secretary to evaluate further the legality and
feasibility of providing refunds in these matters and to reconsider his
position.

11

We note that, in addition to those reproposals for S&S violations, the
Secretary has agreed, based on Drummond, to reduce penalty proposals for non-S&S
violations with excessive history. See JWR Citation of Supplemental Authority
(Letter of May 21, 1993).

792

III.
Conclusion
For the foregoing reasons, JWR's motion for relief is denied and this
proceeding is dismissed.

Arlene Holen, Chairman

~~/~&~
Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

793

Distribution
David H. Smith, Esq.
J. Alan Truitt,
}~ynard, Cooper, Frierson & Gale, P.C.
1901 Sixth Avenue North
2400 AmSouth/Harbert Plaza
Birmingham, AL 35203
Harold Rice, Esq.
Stanley Morrow, Esq.
Jim Walter Resources, Inc.
P.O. Box 133
Brookwood, AL 35444
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq., for
American Mining Congress
McDermott, Will & Emery
1850 K Street, N.W.
Washington, D.C. 20006
Henry Chajet, Esq.
L. Poe Leggette,
Jackson & Kelly
2401 Pennsylvania Ave., N.W., Suite 400
Washington, D.C. 20037
Timothy M. Biddle, Esq.
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.Wo
Washington, D.C. 20004

794

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

20006

Nay 27, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 92-421-M

v.

DAVIS TRUCKING COMPANY, INC.
BEFORE: Holen, Chairman; Backley, and Doyle, Commissioners
ORDER
BY: Holen, Chairman; Backley, and Doyle, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 23,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Davis Trucking Co. ("Davis") for failing to answer the notice of proposed
civil penalty filed by the Secretary of Labor or the judge's February 24,
1993, Order to· Show Cause. The judge assessed the civil penalty of $2,000
proposed by the Secretary. For the reasons that follow, we vacate the default
order and remand this case for further proceedings.
On April 30, 1993, the Commission received from Davis' counsel a motion
to vacate and set aside the default order. Davis' counsel explained that
Davis had been negotiating a settlement in this matter, and did not understand
that a default judgment would be entered against it during ongoing settlement
negotiations.
The judge's jurisdiction over this case terminated when his decision was
issued on April 23, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the
Commission 6 s procedural rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
after its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem
Davis' motion to be a timely filed Petition for Discretionary Review, which we
grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September
1988). On the basis of the present record, we are unable to evaluate the
merits of Davis' position. In the interest of justice, we remand this matter
to the judge, who shall determine whether default is warranted. See HickotY
Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

795

For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

Arlene Holen, Chairman

c;L:_<--(_~~L .
Richard V. Backley, Commissione~~

~tt~

J yce A. Doyle,

Distribution
Marshall B. Douthett, Esq.
239 Main Street
Jackson, OR 45640
Kenneth Wilson, Esq.
Office of the Solicitor
U.S. Department of Labor
881 Federal Bldg.
1240 East Ninth St.
Cleveland, OR 44199
Ghi~f

Administrative Law Judge Paul Merlin
Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

796

Commiss~one

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

20006

Hay 27, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 92-527-M

v.

A-1 GRIT COMPANY

BEFORE:

Holen, Chairman; Backley and Doyle, Commissioners
ORDER

BY: Holen, Chairman; Backley and Doyle, Commissioners
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On April 22,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
A-1 Grit Company ("A-1") for failing to answer the notice of proposed civil
penalty filed by the Secretary of Labor or the judge's October 27, 1992, Order
to Show Cause. The judge assessed the civil penalty of $942 proposed by the
Secretary. For the reasons that follow, we vacate the default order and
remand this case for further proceedings.
On May 13, 1993, the Commission received a letter from A-1 asserting
that it had timely responded to the judge's show cause order. A-1 attached to
this +etter a copy of a U.S. Postal Service return receipt purporting to show
that it filed a response. We note, however, that the order to show cause was
issued on October 27, 1992, not on November 27, 1992, as A-1 asserts. A-1
requests that the order of default be vacated.
The judge's jurisdiction over this case terminated when his decision was
issued on April 22, 1993. 29 C.F.R. § 2700.69(b). Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
filing a petition for discretionary review with the Commission within 30 days
of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). We deem
A-l's letter to be a timely filed Petition for Discretionary Review, which we
grant. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September
1988). On the basis of the present record, we are unable to evaluate the
merits of A-l's position. In the interest of justice, we remand this matter
to the judge, who shall determine whether default is warranted. See Hickory
Coal Co., 12 FMSHRC 1201, 1202 (June 1990).

797

For the reasons set forth above, we vacate the judge's default order and
remand this matter for further proceedings.

Arlene Holen, Chairman

-t:~~~/

Richard V. Backley, Commissioner

Distribution
Samuel Newman
A-1 Grit Company
P.O. Box 12
Redlands, CA 92373

J. Mark Ogden, Esq.
Office of the Solicitor
U.S. Department of Labor
3247 Federal Bldg.
300 N. Los Angeles St.
Los Angeles, CA 90012
Chief Administrative Law Judge P~ul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

798

~

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAY 4 1993
WALTER L. McMICKENS,
complainant

v.

..
.:
..:

DISCRIMINATION PROCEEDING
Docket No. SE 92-452-D

0

JIM WALTER RESOURCES, INC.,
Respondent

:

BARB CD 92-29
No. 7 Mine

DECISION
Appearances:

Ralph E. Coleman; Esq., Coleman & Friday,
Birmingham, Alabama, for the Complainant;
David M. Smith, Esq., Mark Strength, Esq.,
MAYNARD, COOPER, FRIERSON & GALE, R. Stanley
Morrow, Esq., Jim Walter Resources, ·Inc.,
Birmingham, Alabama, for the Respondent.

Before:

Judge Koutras
statement of the case

This proceeding concerns a discrimination complaint filed by
the complainant Walter L. McMickens against the respondent Jim
Walter Resourcesv Inc. (JWR)u pursuant to section l05(c) of the
Federal Mine Safety and Health Act of 1977 0 30 U.S.C. § 815(c).
Mr. McMickens filed his initial complaint with the Secretary of
Labor, Mine Safety and Health Administration (MSHA), on April 15,
1992, and by letter dated July 17, 1992, he was advised by MSHA
that after review of the information gathered during its
investigation of his complaintv MSHA determined that a violation
of section 105(c) of the Act had not occurred. Subsequently, on
August 17 0 l992u Mr. McMickens filed his complaint with the
Commission.
The complainant alleges that the respondent discriminated
against him when it laid him off from his employment as a foreman
after he was examined by x-ray pursuant to section 203 of the Act
and found to have evidence of category I simple pneumoconiosis.
He further alleges that his layoff was the result of his having
exercised his right to request a dust free environment, and that
the respondent responded to his request by placing him on a job
that subjected him to dust, and that during subsequent mine
inspections, kept him away from his work area before the
inspections in order to meet the requirements of MSHA's
respirable dust regulations.

799

The respondent filed an answer to the complaint denying any
discrimination and contending that the complainant was laid off
during an approximate 25% reduction in its work force. A hearing
was held in Birmingham, Alabama, and the parties filed posthearing arguments which I have considered in the course of my
adjudication of this matter.
Issue
The critical issues in this case are whether or not the
complainant's termination was prompted or motivated in any way by
his Part 90 miner status, and whether or not the respondent
discriminated against the complainant by placing him on a job
subjecting him to dust after he had requested a dust free working
environmento
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977,
et seq. , " ··

3 0 U.S • C. § 3 o1

2. Sections 105(c)(1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. §§ 815(c)(l),
(2) and (3).
3.

Commission Rules, 29 C.F.R.

4.

Part 90, Title 30, Code of Federal Regulations.

§

2700.1, et seq.

stipulations
The parties stipulated to the following (Tro

17-21)~

1. The respondent is a large operator covered by the Mine
Actu and operates underground coal mines in Tuscaloosa
County, Alabama.

The complainant was a salaried employee at the
respondent 9 s No. 1 Mine from January 3 0 1980 0 to April lOu
1992.

lo

J. When the complainant was laid off, the respondent laid
off approximately 25 other salaried personnel and
approximately 125 union personnel from the No. 7 Mine9

4. The complainant claimed Part 90 status on September 10,
1991, and after exercising his Part 90 rights, he continued
to receive the same salary as he had before he exercised
such rights.

800

5. At the time of his layoff, the complainant received
severance pay equivalent to three and one-half months salary
and all accrued vacation pay of fifteen days• salary.
Complainant's Testimony and Evidence
Walter L. McMickens testified that he previously worked for
another mining company for 22 years as a union and salaried miner
working in different jobs, and that he was hired by the
respondent in 1980 as a salaried section foreman supervising a
coal production crew. Within 13 months he was advanced to
assistant mine foreman supervising other coal production
supervisorso In approximately 1983, there was "a big layoff" and
all union employees and 20 supervisors were laid off.
Approximately 14 employees were called back and he supervised
them in "setting timbers" to protect the beltline and "doing dead
work".. When the mine started up again, he was assigned as a
construction foreman. No one complained about his work, and
while serving as a construction foreman he became familiar with
the other jobs in the mineu including production, blasting and
shooting, and did 0'just anything they said to do". He remained a
construction foreman for approximately seven years from 1984 to
either 1990 or 1991u and shortly before he became a Part 90 miner
lhe was assigned to a a'setup crew". After he filed for a Part 90
Miner designation, general mine foreman Gerald McKinney spoke
with him about the matter and nasked me what did I expect"
(Tr. 22-33)o Mr. McMickens stated that he responded to
Mre McKinney as follows (Tr. 33):
THE WITNESS: I told him I didn't expect any difference
whatsoever because I felt like that I was in about as
good
=~ as a setup foremanu out of the dust about as
good as any place I could be in the mine because
theregs no
dust free atmosphere in the mine.

And I told him the only thing I wanted was to get it
on record that if I lived to retire, I might get black
lunge or ~f I
maybe my
would get black lungo
I didngt expect to be changed from the job, even though
asked for dust free atmosphere. That was to comply
with the Federalo
!

Mr~ McMickens confirmed that a second mine layoff occurred
in 1984 or 1985 0 and although he was retained on the job, several
union employees and several foremen were laid off, and others
were transferred to other mines (Tr. 51).

Mr. McMickens identified a copy of a September 6, 1991,
statement he executed on that date exercising his option to
transfer as a Part 90 Miner (Tr. 34: Exhibit C-4). He also

801

identified a copy of a September 10, 1991, letter from MSHA to
the respondent informing it of the fact that his medical
examination reflected that he was eligible for Part 90 miner's
rights pursuant to the Coal and Mine Acts (Tr. 36; Exhibit C-1).
Mr. McMickens confirmed that he had x-rays taken periodically,
beginning in 1965, each time the mobile x-ray unit came to the
mine (Tr. 36).
Mr. McMickens confirmed that in February, 1991, he was still
working as a construction foreman, or on "general projects", or
he would "fill in" and perform any job that he was assigned. He
stated that he did not request the special projects job, and that
other people also worked on special projects or on specific jobs,
but that he was "kind of this special projects foreman night
after night after I came off construction" (Tr. 38)e He
confirmed that after he requested Part 90 Miner status, the
respondent was required to test him for dust exposure and obtain
five samples. He identified Exhibit C~3, as the results of
sampling during the period october 22, 1991, through April 6,
1992 (Tr. 40).
··
Mr. McMickens stated that during his dust sampling the MSHA
inspector put the respirable dust testing pump on him at
11:00 p.m. before he went underground and instructed him to meet
him "at the end of the track" at 2:30 a.m. Mr. McMickens
explained that the track area in question was a "fresh air" area,
and he stated that he was there with the inspector, a company
representative, and a union safety man from 2:30 until 5:30.
Mr. McMickens stated that "we sat there and talked till 5:30 in
the morning", and he indicated that this was the last time he was
tested by an MSHA inspector before his layoff on April 10, 1992,
(Tr. 54-56). He confirmed that the inspector and company
representatives do not accompany him during the entire shift.
The inspector hangs the pump on him and starts it up before he
qoes undergroundu and the inspector removes the pump at the end
of the shift (Tr. 74)o
Mro McMickens believed that he was the only salaried
employee to ever file for that status at the mine. He stated
that he did so because he was told he had black lung and should
see his doctor. He identified two salaried employees with less
seniority who were not laid off when he was (Tr. 57u 65-66).
Mr. McMickens confirmed that company safety inspector Bobby
Taylor notified MSHA by letter dated October 1, 1991, that after
his designation as a Part 90 miner, he would primarily be working
as an outby labor foreman, and would also be subject to work as a
face supervisor if so designated by management (Tr. 77; Exhibit
C-2). Mr. McMickens confirmed that he did in fact work as an
outby labor foreman after his Part 90 designation, and that he
was qualified to do the work of a face supervisor, a job that is
still open and being performed (Tr. 78).

802

On cross-examination, Mr. McMickens stated that he was a
foreman or supervisor from 1980 until 1992, and at times had
Part 90 miners under his supervision. He confirmed that he never
harassed or intimated any miners because of their Part 90 status,
that mine management never instructed or encouraged him to
intimidate or discriminate against any Part 90 miners, and that
during his 12 years of employment with the respondent he knows of
no instances when a Part 90 miner was ever discriminated against
because of his status (Tr. 81).
Mr. McMickens confirmed that he was already working outby
when he was designated a Part 90 miner, and that before 1991 he
worked at different jobs involving construction and special
projects rather than coal production. He stated that he
supervised a continuous miner section during his first 13 months
of employment with the respondent, but after that he only
supervised such a section "for part of a shift from one time to
another" and not on a full time basis (Tr. 82). He confirmed
that the volume coal producti~n comes from the longwall and that
he never worked on a longwall section or supervised such a
section, and that as of the date of his layoff he was not
qualified or trained to perform the duties of a longwall foreman
(Tr. 83).
Mr. McMickens confirmed that he spoke with Mr. McKinney
after MSHA informed him of his Part 90 status, and that he
informed Mr. McKinney that he did not expect any work changes to
be made and that he simply wanted to document the fact that he
had black lung and to protect any future benefits that his wife
might receive. Mr. McMickens acknowledged that there was no dust
free atmosphere in the mine and that he expected no change. He
stated that 11 1 was
a setup foreman, which I think was in a
less dusty atmosphere there on that than where I was put"
{Tro 85)o In response to a question as to whether or not the
respondent kept him in an environment that was generally less
dusty than MSHA's regulations required after he was designated a
Part 90 miner, Mr. McMickens responded as follows (Tr. 85-87):
o

o

o

You never know what you 8 re going to kick up. When
you -- go from one section to another, you never know
how much dust is going to be on the ground or how much
the air volume is going to be after you get in there.

Ao

There would be a brattice outo You might not have no
ventilation. You never know until you go into an area
how much dust you•re gonna be kicking up in the air.
Q. I understand that. My question is: Did Jim Walter
seem to try and keep you in a less dusty environment
generally?

803

A.

Yeah.

Q. After you were Part 90, did Jim Walter or any
management person above you at Jim Walter ever try to
intimidate you about your Part 90 rights?

A.

No, sir.

Did they ever try to harass you about your Part 90
rights?

Q.

A.

No, sir.

Q.

Did they ever threaten you?

A.

No, sir.

Did they ever say, McMickens, you've declared this
Part 90 status, and I guarantee it•s going to come back
to haunt you?

Q.

A.

No, ain't nobody said nothing like that.

Did anybody ever say to you or say anything to
someone else that you heard about that was negative
about your Part 90 status.

Q.

A.

No, sir.

Before you filed this complaint could you tell the
Court any example any time in history when Jim Walter
has taken negative action against a Part 90 Miner
because of their Part 90 status?
Q.

A.

They never did.

Mr. McMickens confirmed that he has stated under oath to the
EEOC that his layoff was a result of his age and that his age was
the determinative factor (Tr. 87). He believed that 137 union
miners were laid off when he was laid off, and pursuant to the
labor agreement, they were laid off by seniority. However,
seniority did not apply to the layoff of salaried personnel
(Tr. 88). Mr. McMickens stated that he was not aware of any
economic condition that required a reduction in force in 1992,
and he did not know that this was the case. He simply believed
that someone else should have been laid off instead of him
(Tr. 89).
Mr. McMickens stated that he was assigned normal and routine
jobs to do during his respirable dust sampling period, and that
there was no "hanky panky" in connection with the dust sampling
(Tr. 90). He further stated that there was no avoidance of any

804

dusty conditions in an attempt to hide them from the inspector,
and he confirmed that the respondent was never cited for
assigning him work under conditions that were too dusty for Part
90 miners. He knew of no Part 90 miners ever being cited for
working in a dusty atmosphere, and as far as he knew, the
respondent was never cited for samples that exceeded MSHA's dust
exposure regulations (Tr. 92).
Tommy R. Boyd, testified that he has worked at the mine
since 1980, and that he is a longwall helper and serves as the
union safety representative. On numerous occasions he has
assisted MSHA inspectors and management in the taking of dust
samples for Part 90 miners (Tr. 108). He explained the
procedures followed at the time Mr. McMickens was sampled and
tested, and he confirmed that a sampling pump can malfunction at
any time. When this occurs, the miner is resampled in order to
obtain a full eight-hour sample (Tr. 113-114). He confirmed that
there were occasions when he was with an inspector during
midshift to look at Mr. McMicken•s sampling pump, and he
explained the incident when the inspector met with Mr. McMickens
at the end of the track as follows at (Tr. 115-116):
A. We went down -- I know -- I remember the occasion
you're talking of. We went down and met Mr. McMickens
at the end of the track, Mr. Phillips, the inspector
and myself. And we sat there for some three hours on
the end of the track talking.
Do you generally·make it a habit of sitting down at
the end of the track talking three hours?

Q.

THE WITNESS: No~ siro We usually don't do that
because it ties the mine foreman up, and the mine
foreman he oversees the whole mines.
And for that reason -- I don't know why the inspector
decided to sit and talk for three hours and joke and
laugh and cut upQ which it did interfere with mine
operations.
Mr. Phillips was just as astonished as I was because he
asked me several times, reckon when he's going to
leave. He said, we can't leave until the inspector
gets ready to leave as part of our aid and assist.
(By Mr. Coleman) Would that, in fact, affect -- as
far as the reading and the overall dust sample, would
that affect the --

Q.

A.

Well, that's three hours.

Q.

-- liability?

805

A. That's three hours that he's in fresh air that he
would have normally been in a possible more dusty area.
Mr. Boyd stated that the work performed by Mr. McMickens as
a setup foreman on special projects was 11 outby work" away from
the areas that were producing coal, and these areas were less
dusty (Tr. 118-119).
on cross-examination, Mr. Boyd acknowledged that Mr. Wiggins
was working as a rock foreman before Mr. McMickens was ever
declared a Part 90 miner. He also acknowledged that during the
three-hour conversation with the inspector at the end of the
track while Mr. McMickens was being sampled, shift foreman
Phillips wanted the inspector to leave so that Mr. McMickens
could return to work. Mr. Boyd confirmed that the inspector was
dictating the course of this event and 11 as long as the inspector
sits there, we have to sit there with him" (Tr. 124).
Respondent's Testimony and Evidence
Richard A. Donnelly, mine manager, No. 7 Mine, testified
that the workforce was reduced in April, 1992, because the world
coal market had declined and the respondent had problems in
selling its coal at a profit. It therefore became necessary to
reduce costs and the amount of tonnage produced at all of its
mines. He participated in the development of an operating plan
to accomplish the reductions, and he explained the plan as
follows at (Tr. 131-132):

A. The plan we came up with entailed running fewer
miner sections, fewer long walls sections, just
basically doinq a lot less of everything that we
normally dou thereby creating less tonnage.
At the same time, it reduced dramatically the number of
people that were required to do these jobs. A lot of
the expenses that we incurred were reduced.
So 0 in effectu we ended up eliminating -- I believe the
number was 134 union jobs and it was 24 supervisors.
We laid off 23 because one supervisor quit and went

with another company right in the midst of that.
it was actually a reduction of 24 jobs.

So,

Q. And the reduction in force of the labor force is
done by the collective bargaining agreement, right?

A.

Yes, it is.

How was the evaluation done of which salaried
persons to lay off?

Q.

806

A. What we did was look at what jobs had to be
performed at the reduced levels, how many miner
sections, how many long wall sections. Just,
basically, how many jobs there were. And then we went
through and looked at the people that were available,
the people that we had on the payroll at the time and
picked the best people to do those jobs until we filled
every job. And once we filled each of the jobs, the
people that were remaining were the people that got
laid off.
Mr. Donnelly stated that he arrived at the No. 7 Mine in
August, 1991, and that Mr~ McMickens received his Part 90 status
in September, 1991. Mr. McMickens was not involved in coal
production work and he basically performed "outby dead work" as a
special projects foreman (Tr. 134).
Mr. Donnelly confirmed that he participated in the final
decision to lay off Mr. McMickens and he did not consider his
Part 90 status to be a negative factor. He was not aware of
anyone making any negative reference to Mr. McMickens• status.
Mr. Donnelly confirmed that consideration was given to the fact
that Mr. McMickens did not like to do production work at the
face, and this was considered as part of his overall job
abilities. Mr. Donnelly explained that Mr. McMickens had made
statements that he did not want to work at the face, that he did
not want the responsibility of dealing with MSHA and the
regulations and the pressures involved and that he preferred to
continue doing work outby. Mr• Donnelly confirmed that this was
a factor in the decision to lay off Mr. McMickens (Tr. 135).
On cross-examination, Mr. Donnelly stated that he never
observed Mro McMickens at his jobu but he was told by other mine
foremen that Mr. McMickens was an 88 average" supervisor (Tr. 136).
Mr. Donnelly stated that fewer longwall and miner unit shifts
were going to be operated and the ability to operate each of
these sections was a very important consideration in the layoff.
Mr. Donnelly believed that the longwall faces were the dustier
areas in the mine 9 and that he would probably not assign a
Part 90 miner to those areas (Tr. 137).
Mro Donnelly stated that at the time of the layoff he was
the deputy mine manager and that Willis Coaxe was the mine
manager. He confirmed that layoff meetings were held to identify
and determine the jobs that were to be retained, and to begin to
select the best people to fill those jobs. Mr. Donnelly
confirmed that he relied on a large degree on Mr. Phillips or
Mr. McKinney to tell him who was going to be retained, but he was
not aware that anyone's personnel records were reviewed as part
of the selection process. He further confirmed that he and the
management officials making the selections were aware that
Mr. McMickens was a Part 90 miner (Tr. 139).

807

Mr. Donnelly stated that during his 16 years in a
supervisory capacity, Mr. McMickens was the only supervisor that
he was aware of that had Part 90 status. Mr. Donnelly believed
that such a status would not enhance Mr. McMickens' record with
the Company (Tr. 139). He confirmed that mine manager Coaxe
would be the final authority as to who would be laid off and who
would stay (Tr. 140)e Although seniority was considered, it was
not the only consideration. He confirmed that Mr. McMickens had
more seniority than Mr. Bo Wiggins, the person who replaced him,
and he may have had more seniority than another supervisor
(Parsons) (Tr. 140-141).
In response to further questions. Mr. Donnelly reviewed a
list of names of supervisors who were laid off in April, 1992
(Exhibit R-1), and he stated that Mr. McMickens may have been
retained if three more salaried people had been retained, but
it was his opinion that if only one more person had been retained
it would not have been Mr. McMickens. He believed that
Mr. McMickens probably was amongtbe top 10 or 11 people at the
mine. Mr. Donnelly did not believed that Mr. McMickens was
qualified for a communication supervisor•s job which involved a
TV computer network to monitor different mine work areas
(Tr. 143).
Mr. Donnelly stated that during the layoff there was no
particular list prepared of persons to be laid off in any
particular order. He explained that management knew that a
number of jobs would be retained and that a certain number of
people would be laid off. He confirmed that prior to the layoff
there were numerous jobs in the category of special projects
outby foreman on all three shiftsu but that after the layoff 6
there were very few of those jobs 9 and they were the majority of
jobs that were eliminated from the operating pl~n (Tr. 144-145).
Mr. Donnelly stated that Mr. Wiggins and Mr. Parsons are
presently working on construction foreman jobs, and that
Mr. McMickens would only fill in temporarily on that job.
He confirmed that Mr. McMickens performed outby special projects
work 0 and that Mr. Wiggins and Mr. Parsons previously performed
that kind of work on a very limited basis (Tr. 145).
Mro Donnelly stated that for the last several years no
written evaluations of supervisors were made, and he confirmed
that he and Mr. Coaxe and Mr. McKinney were the main participants
in the discussions as to who would be retained in the layoff
(Tr. 147).
Mr. Donnelly stated that he would not hesitate to put a
Part 90 miner to work at the face if the mine were in compliance
with the 1.0 milligram respirable dust requirement. He confirmed
that he was told that Mr. McMickens did not want to work at the
face (Tr. 148).

808

Gerald E. McKinney, General Mine Foreman, No. 7 mine,
testified that he has worked with Mr. McMickens and has given him
work assignments. He stated that Mr. McMickens was a
construction foreman for several years and changed to a special
projects foreman in February, 1990, approximately 18 months
before his Part 90 status, and he was one of many outby 11 dead
work" foremen (Tr. 151).
Mr. McKinney stated that he was involved in the evaluation
of salaried personnel in 1992, in connection with a reduction of
the work force. He believed that he knew of the work that
Mr. McMickens could do and not do. He stated that sometime after
February, 1990, Mr. Phillips informed him that Mr. McMickens told
him (Phillips) that he did not want to be on a coal production
face because of the additional pressures and responsibility of
that job. This occurred prior to Mr. McMickens' Part 90 status,
and Mr. McMickens himself told him (McKinney) of his desire not
to work at the face during a conversation in his office
(Tr. 153).
Mr. McKinney reviewed a list of supervisory personnel,
(Exhibit R-1), and he explained the consideration given to those
listed during the layoff as follows at (Tr. 154-155):
Q. All right. And in the context of deciding what
miners to keep, what salaried personnel to keep, were
there persons who would have been kept before Mr.
McMickens on that list; that is, Exhibit 1?

A. Just glancing over it, there's a couple of people
that I know were ex-coal runners on the face that did
produce coal at one time and a couple of long wall
experienced peopleo
I would probably myself -- and maybe even some of the
maintenance people. There would be probably be four or
five that I would probably -- would fall in line before
Mra McMickens wouldo

Q.

And you 9 re referring to Exhibit 1?

Jli..

Right.

Did you at any time consider Mr. McMickensw Part 90
status?

Q.

A.

No, sir, I did not.

Did you in any way retaliate against Mr. McMickens
for exercising his rights as a Part 90 Miner?

Q.

809

A.

No, sir.

on cross-examination, Mr. McKinney stated that Mr. McMickens
was his supervisor at one time in the past when he (McKinney) was
first hired at the mine in 1982. Mr. McKinney recalled an
incident in which Mr. McMickens was called on to assist in a rock
fall situation and that he probably commended Mr. McMickens for
doing a good job. He believed that Mr. McMickens was "a good
company man" (Tr. 157).
Mr. McKinney confirmed that one of the criteria for
retaining an employee during the reduction in force "was that
everyone we kept we tried to have them where they could either
fill in on the longwall face or be able to run a miner section "
(Tr. 158). He denied that Part 90 miners cannot work at the
face, but did not know where they are assigned on a regular
basis. He was only familiar with Part 90 miners that operaue
dust pumps, and stated that there are many such miners that never
invoke their rights. He confirmed that Mr. Mickens was the only
supervisor in his mining experience that had Part 90 status and
that he "was very surprised" at this because he believed that
such a status was for union employees (Tr. 159).
Mr. McKinney confirmed that Mr. McMickens was retained
during two prior layoffs in 1982 and 1985 prior to his Part 90
status (Tr. 162). He explained the work experience of
Mr. Parsons and Mr. Wiggins and stated that "we had an
opportunity to hire two ex-rock people and we did so. We felt
that our mines may need them in the future" (Tr. 164).
Mr. McKinney confirmed that safety director Taylor's letter of
October 1u 1991, to MSHA, reflects that Mr. McMickens "will be on
t.he owl shift working primarily as an outby laborer"u and he
stated that Mro McMickens was already doing that work at that
time and that he was also subject to working at the face
(Tr. 165)~ However, due to low coal production, the salaried
people doing the outby work were all former section foreman who
were moved to outby jobs to fill in for people who were off
~Tro

166)o

Paul A. Phillips, shift foreman, No. 1 mine, stated that
Mr. McMickens worked under his supervision as a supervisory work
foreman on the owl shiftu and that in April, 1992, at the time of
the reorganization Mr. McMickens was working as an outby foreman.
Hedescribed his duties as "changing from night to night"
depending on the work to be done, and that "it could go anywhere
from setting timbers to building seals" (Tr. 168). He considered
the position of special projects foreman to be the same as an
outby section foreman. He explained that "outby" involved the
maintaining of the rest of the mine away from where coal is being
extracted from the face (Tr. 168).

810

Mr. Phillips stated that Mr. McMickens informed him on
several occasions that "he did not want anything to do with the
face work, the production of coal" and wanted to stay outby
because there were less responsibilities, and that these
statements were made prior to September, 1991 (Tr. 169). He
confirmed that Mr. McMickens was a construction supervisor before
he became a special projects foreman, and he considered him to be
"an average construction foreman" (Tr. 170). He confirmed that
he was aware that Mr. McMickens elected to exercise his Part 90
rights. He could not recall exactly when this was done, but
confirmed that Mr. McMickens was already working in the outby
area when he learned of his status (Tr. 171).
Mr. Philips stated that he was not directly involved in the
decision-making process in connection with the reduction-in-force
that resulted in Mr. McMickens• layoff (Tr. 171). He evaluated
supervisors on a daily basis, and denied that anyone's Part 90
status had any part in his evaluations. He speculated that
efforts were made to keep sup~~isors who were able to work in
more than one mine area (Tr. 172).
Mr. Phillips described the supervisory duties performed by
Mr. Parsons and Mr. Wiggins, and he believed that Mr. McMickens
was able to "walk belts", but he would not use Mr. McMickens to
work at the face on a regular basis and he did not believe he was
qualified to install belts (Tr. 174-177).
Mr. Phillips explained what occurred at the time the MSHA
inspector tested Mr. McMickens for exposure to respirable dust.
·He stated that after Mr. McMickens put the pump on he was sent to
his job assignment and when he and the inspector went to check
the pump "we did sit there longer than usual" and that "the
inspector calls the shots when he's there" (Tr. 180).
on cross-examination, Mr. Phillips stated that he did not
directly or indirectly have anything to do with the decisions to
layoff or retain employees during the reduction in force which
affected Mr. McMickens, and he had no knowledge of the management
discussions which may have taken place concerning the
reorganization (Tr. 182). In his opinion, individuals who could
work at the face and "who could do everything" were retained
(Tre 183). He confirmed that Part 90 non-salaried miners have
been assigned to work at the face as a matter of choice by
bidding on certain jobs, and that the face, area is "a more dusty
place" (Tr. 184)e
Mr. McMickens was recalled by the presiding judge, and he
stated that he could not recall ever stating that he did not want
to work at the face. He stated that his job was mainly behind
the longwall rockdusting the crosscuts and that he liked the work
"because I could stay in the fresh air" and "kind of stay out of

811

it yourself and see that the work's done" (Tr. 198). He further
stated he "might have made that statement for that effect"
(Tr. 198). He confirmed that he does not deny making the
statement about not wishing to work at the face, but that he
could not recall doing so, (Tr. 200).
Complainant's Arguments
In his posthearing brief, complainant asserts that the
respondent discriminated against him when it terminated his
employment, after twelve years of service, in ~ because he
exercised his Part 90 miner rights. Complainant maintains that
the respondent's defense that he was laid off for economic
reasons is merely a pretext for one of the primary reasons he was
terminated during the layoff in question. Assuming that I accept
the respondent's argument that it was going through a period of
economic adjustment that required some layoffs, the complainant
points out that he was a good and experienced employee who had
survived two previous layoffs, and had seniority over some of the
employees who were retained,-and that in spite of these
qualifications, he was laid off while others with less seniority,
experience, and age, were retained.
In support of his conclusion that his Part 90 status was at
least one of the underlying reasons why he was not retained
during the layoff, the complainant asserts that deputy mine
manager Richard Donnelly and mine foreman Gerald McKinney both
testified that he was the only salaried employee or supervisor
that they had ever known who had elected to exercise his Part 90
rights. The complainant points to the statement by Mr. Donnelly
that a supervisor who elected part 90 status "would not enhance
his status with the company" by doing so, and that mine foreman
Gerald McKinney revealed his real opinion of his decision to
elect Part 90 status when he stated "I was very surprised when I
learned of it o o o l guess I just never • o • you just kind of
get in your head. I just kind of thought it was for the union,
the UMWA people really. And I just never • • • and it just kind
of shocked me when I learned of it". The complainant concludes
that these statements reveal bias against his decision to
exercise his Part 90 rights and shows that the very people who
made the decision about who was to be laid off took into account
his Part 90 status in making that decision.
Citing Pasula v. Consolidation Coal Company, 2 FMSHRC 2786
(October 1980), rev'd Qn other grounds sub nom. Consolidation
coal Company v. Marshall, 663 F.2d 1211 (3d Cir. 1981), and
several other leading cases, the complainant argues that
liability pursuant to section 105(c) of the Act is not dependent
on whether or not an employe has been discriminated against
solely because he has engaged in a protected activity, but
rather, whether his engagement in a protected activity is at
least part of the reason for the adverse discriminatory action

812

taken against him. The complainant concludes that because the
evidence shows that the respondent's decision to lay him off was
based in part on his Part 90 status, in direct violation of
section 105(c) of the Act, he is entitled to reinstatement and
back pay.
The complainant takes the position that the evidence
presented in this proceeding supports a reasonable inference that
the respondent's decision to terminate him during the 1992 layoff
was motivated, at least in part, by the fact that he was a part
90 employee. Under the circumstances, and given the fact that
the presiding judge refused to dismiss the matter at the close of
his case, the complainant concludes that it has established a
prima facie case. In support of this conclusion, the complainant
states that it is undisputed that his election to exercise his
Part 90 rights is considered a protected activity. The
complainant asserts that the evidence establishes that he was a
good, experienced and dedicated employee who had survived two
previous layoffs involving a,~arge number of people, and that he
was experienced and qualified to work in a number of different
areas in the mine. He cites the testimony of the miner's
representative and safety committeeman, Tommy Boyd, attesting to
his experience as a rock and pillar worker who was able to do
"whatever it took", and Mr. Boyd's confirmation of the fact that
the two employees (Wiggins and parsons) who took over his duties
after the layoff were not Part 90 miners and were not laid off.
The complainant points out that he had seniority over some
of the employees who were retained in the layoff, that seniority
was a consideration during the layoff, and that prior to the
layoff, he had never been told or informed in any way that his
work needed improvement, and there was never any indication of
any problem with his job performance at any time.
The complainant argues that even assuming that the
respondent's contention that he was terminated as a part of a
general layoff resulting from economic consideration is
supportableu the respondent must still establish by a
preponderance of the evidence that he would have been terminated
during this general layoff even if he had not engaged in
protected activity.
In response to the testimony of the witnesses who
participated in the decision to terminate him (Donnelly and
McKinney), the complainant points out that they produced no
personnel records or any other business records substantiating
that he_would have been laid off under any circumstance, and that
no records were kept regarding the discussions to determine who
was to be laid off, and none have been introduced by the
respondent. The complainant finds it "even more puzzling", that
mine manager Willis Coaxe, one of the supervisors making the
decision about who to retain and who to layoff, did not testify

813

in this case, and that his motive for the termination cannot be
ascertained.
The complainant further points out that although deputy mine
manager Donnelly, who participated in the layoff decision,
admitted that he had only been on the job site a short time and
knew nothing about his work or abilities, Mr. Donnelly did know
that he was a Part 90 employee. The complainant finds it
difficult to imagine that Mr. Donnelly could make any meaningful
evaluation of his work without his personnel records or other
information, except for the verbal input of foreman McKinney.
The complainant concludes that the only thing Mr. Donnelly was
sure of was that he was the only supervisor he ever knew of to
exercise his Part 90 rights, and that the exercise of those
rights would not "enhance his position with the company".
(I take note of the fact that the actual statement made by
Mr. Donnelly was that the complainant's status "would not ·enhance
his record with the company" (Tr. 139).
The complainant asserts 'that mine foreman McKinney was the
only witness who could testify about his true work skills and
qualities, and that Mr. McKinney had good things to say about
him, including selecting him to assist in the excavation of a
trapped miner on one occasion, and commenting that he had done a
"Good job" on another occasion. Complainant also makes reference
to Mr. McKinney's testimony that he was "a good company man" and
worked every day, and that these were his "strong points".
In response to the respondent's affirmative defense, the
complainant asserts that in Simpson v. Kent Energy, Inc.,
11 FMSHRC 770 (May 1989), the company alleged that economic
considerations justified the layoff of an employee who had
engaged in protected activity, but that "The Court" (Commission)u
rejected the argument after concluding that the company's failure
to produce any records or written evidence explaining the layoffs
was insufficient to prove the affirmative defense by a
preponderance of the evidence. The complainant cites the
following from the decision, at 11 FMSHRC 779:
The judge weighed respondentia evidence and found it
lacking. Jackson¥s testimony lacks specificity as to
how seniority was calculated. It also lacks certainty
as to the seniority of the two laid-off miners or the
retained miners in relation to Simpson, and as to how
"job qualification" and family considerations figured
into Jackson's decisions regarding layoffs. Further,
the respondents did not introduce seniority lists or
business records explaining the layoff decisions or the
effects of the alleged recession on the mine's
operation.

814

The complainant concludes that the facts in his case and
those presented in the Simpson case "are remarkably similar and
command the same result". In support of this conclusion, the
complainant asserts that in both cases the company was claiming
that general economic conditions were the reason for the layoff,
and in both cases the company produced no documentary evidence to
substantiate their affirmative defense. In the instant case, the
complainant points out that in the absence of any written
documentation to support the respondent's claim, and the positive
testimony of the only company witness (McKinney) who did have
personal knowledge about Mr. McMickens' skills and experience, it
is clear that the respondent has not proved by a preponderance of
the evidence that Mr. McMickens was laid off as part of a general
layoff. The complainant concludes further that the respondent's
defense is a mere pretext for the primary reason he was chosen
over other employees to be laid off -- his Part 90 status.
The complainant takes note of the fact that it appears from
"Exhibit E", a copy of which was attached to its brief, that a
number of Part 90 employees were affected by the April, 1992
layoff, although their names do not appear on the Exhibit
produced at the hearing in this matter. The complainant
concludes that if, in fact, a number of Part 90 employees were
terminated during the layoff, the case for discrimination against
him would be that much stronger. The complainant further notes
that while there is a discrepancy in the testimony as to why he
expressed a preference not to work at the face, (he said it was
because he wanted to avoid the dusty conditions which might
further exacerbate his pneumoconiosis and Mr. Donnelly and Mr.
McKinney were under the impression it was because he did not want
the responsibility)u the testimony of all of the witnesses is
consistent to the extent that he was merely stating a
owpreferencen -- u'if at all possible" not to work at the face, and
he did not give any indication that he would not perform the
work. In fact, the complainant points_ out that even after he
elected Part 90 status, the respondent notified the Department of
Labor that he would be subject to work at the face at the
discretion of his supervisors and that foreman Phillips testified
that he assigned him work on the face when ne~essary, although
not regularly"
The complainant asserts that the impact of the testimony
concerning his preference not to work at the face is significant
only to the extent that both Mr. Donnelly and Mr. Phillips
testified that "the face" probably would not be a suitable place
for a Part 90 worker because of the dusty conditions, even though
it may not be "forbidden" by the regulations. The complainant
concludes that if Mr. Donnelly and Mr. McKinney decided to
terminate him because they did not think that the face was an
appropriate place for a Part 90 worker, even though it might
technically qualify under Part 90, then they are, in effect,
discriminating against him because of his Part 90 status, which

815

is still a violation of Section 105(c). The complainant further
concludes that the fact that he also stated a "preference" not to
work on the face "if at all possible" was not a statement that he
would not do so, and he should not be penalized or discriminated
against because he stated that preference, particularly in light
of the fact that the supervisors also stated that they
"preferred" that a Part 90 employee not work on ·the face. The
fact that he had worked on the face at the direction of
Mr. Phillips since he had elected Part 90 status is sufficient
evidence of the fact that he was willing to do whatever was
necessary, although it was not his preference.
Respondent's Arguments
Citing several appropriate decisions, including cases
involving Part 90 miners, the respondent agrees that to support a
prima facie discrimination case under section 105(c) of the Act,
the complainant bears the burden of production and proof to
establish that (1) he engagad in protected activity, and (2} that
the adverse action complained of was motivated in any part by
that activity. Hatter v. Franklin Coal Co., 8 FMSHRC 1374, 1383
(September 1986): Mullins v. Beth-Elkhorn Coal Corp., 9 FMSHRC
891, 895 (May 1987); Goff v. Youghiogheny & Ohio Coal Co.,
8 FMSHRC 1860, 1863 (December 1986); Hall v. Clinchfield Coal
Co., 8 FMSHRC 1624, 1628 (November 1986); McCracken v. Valley
Camp Coal Co., 2 FMSHRC 928, 932 (April 1980). ·The respondent
further agrees that it may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no way motivated by the protected activity, and
that once it establishes a legitimate cause for the discharge,
the complaining miner must then show by affirmative and
persuasive evidence that the invocation of such cause was merely
~ pretext for unlawful motiveu and that the ultimate burden of
persuasion does not shift from himo
The respondent asserts that in order to establish a prima
facie case of discrimination, the complainant in this case has
the burden to show that he engaged in protected activity by
exercising his rights as a part 90 miner and that his termination
during the April 1992 reduction in force was motivated by the
exercise of those rightso The respondent takes the position that
the complainant has not established a prima facie case, and in
support of this conclusion cites the testimony of the complainant
that he became a 01 setup foreman" shortly before he became a
Part 90 mineru and that after achieving that status he told
foreman McKinney that he did not expect any different treatment
because he felt that the setup foreman position that he occupied
was ••out of the dust about as good as any place he could be in
the mine because there's no really dust free atmosphere in the
mine". The respondent points out that the complainant did not
request that Mr. McKinney transfer him to the setup foreman
position after he obtained Part 90 status, and in fact told

816

Mr. McKinney that he did not "expect any change whatsoever", and
"did not want a change made 9' , and that the only reason that he
filed for Part 90 classification was "to get it on record that if
I lived to retire, I might get black lung (benefits), or if I
died maybe my wife would get.black lung (benefits)".
The respondent further argues that the complainant confirmed
that he was already doing outby work prior to becoming a Part 90
miner, that he had been doing such outby work since before 1991,
and that this work involved construction and special projects,
and not coal production. The respondent points out that the
complainant admitted that the respondent seemed generally to keep
him in a less dusty environment after he became a Part 90 miner,
and that according to his own testimony, he did not assert any
Part 90 transfer rights. Citing Mullins Vo Beth-Elkorn Coal
~., 7 FMSHRC 1819 6 1837 (November 1985), the respondent argues
that a miner is not entitled to exercise his Part 90 rights
unless he is working in an atmosphere which has a concentration
of more than 1.0 milligrams of respirable dust, and that in this
case there is no notable evidence that the dust concentration in
the area in which the complainant was working prior to the
reduction in force exceeded the limits imposed by Part 90. Under
all of these circumstances, the respondent concludes that the
complainant could not have exercised any Part 90 rights even if
he had desired to do sou and that the testimony supports a
conclusion that he either did not assert any Part 90 transfer
rights or that he explicitly waived such rights.
The respondent concludes that the complainant has failed to
show that his layoff was motivated by an alleged exercise of his
Part 90 rights, and it takes the position that his case is
factually similar to McCracken Vo Valley Camp Coal Co., 2 FMSHRC
928 (April 1980)o In McCrackenu the complainant was laid off
during a reduction in force in which 137 union employees and 14
supervisors were laid off 0 and as in the instant caseq the
complainant asserted a claim that he was qualified for
underground mining positions and that he should have been
considered for such positions. The respondent took the position
that the complainant did not have the ability to perform
available work~ and Judge Melick ruled that the complainant 9 s
discharge resulted from a legitimate reduction in force.
McCrackenu 2 FMSHRC at 929.
In response to the complainantQs assertion that he had more
seniority andjor was more qualified than other supervisors who
were not terminated during he reduction in force, and that these
supervisors (Parsons and Wiggins) began performing all or part of
his job duties after the reduction in force, the respondent cites
the Commission's decision in Mullins v. Beth-Elkhorn Coal Corp.,
9 FMSHRC 891, 899 (May 1987), holding that the Mine Act "is not
an employment statute", and it concludes that the complainant's
claims as to who should or should not have been terminated during

817

the reduction in force are not appropriate subject matter for
t.hese proceedings.
In further support of its argument, the respondent points
out that when asked how it was that Part 90 affected his layoff,
the complainant stated that he only has a 60% hearing loss in one
ear, that he was a good employee for 12 years, and that the
respondent does not want MSHA inspectors coming to the mine to
take dust samples because they may discover other violations
while they are present at the mine. The respondent concludes
that there is absolutely no evidence in this case to indicate
anything other than the complainant was laid off during a
legitimate reduction in force, and that he has failed to
establish a prima facie case under section 105(c) of the Act.
Even assuming that the complainant has established a prima
facie case, the respondent argues that his layoff was in no way
motivated by any alleged protected activity. In support of this
conclusion, the respondent cites the uncontradicted testimony of
Mr. Donnelly that the work force at the No. 7 Mine was reduced in
April 1992, because the world coal market was in decline and the
respondent was experiencing difficulty selling its coal at a
profit. Under these circumstances, the respondent asserts that
it was necessary to reduce coal production at all of its mines,
and that the evaluation of which salaried employees were to be
laid off was accomplished by examining the number of jobs
available at the reduced level of operations and then filling
these jobs with the most qualified persons. Respondent states
that there is uncontradicted testimony that the complainant had
no desire to work in a coal production position and that his
preference for avoiding work at the face was pivotal in the
respondentas decision not to retain him.
The respondent cites Mr~ McKinney's undisputed testimony
that prior to his classification as a Part 90 miner, the
complainant told Mr. McKinney that he did not want to be assigned
to the coal production face due to additional job pressures and
responsibilities associated with face work, and that in
implementing the reduction in force 9 an effort was made to keep
~mployees who were able to fill in on a longwall face or who
could supervise a miner section.
The respondent also states
'that the uncontradicted testimony of Mr. Phillips reflects that
on several occasions prior to September 1991, the complainant
told Mr. Phillips that he did not want anything to do with coal
production at the face and that he wanted to continue to do outby
work so that he would not have to comply with the laws applicable
to face work.
The respondent concludes that it effectuated a legitimate
reduction in force in April 1992, properly followed its
procedures during the reduction in force, and that the
complainant was laid off during the reduction in force without

818

regard to his Part 90 status. Respondent further concludes that
it has rebutted the prima facie case that the complainant has
attempted to establish, and that the complainant has elicited no
affirmative and persuasive evidence that the legitimate cause for
his termination was merely a pretext for unlawful motive on the
part of the respondent.
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section lOS(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980) 6 rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (2d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981) :""Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Doge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981) rev'd on other grounds sub ngm. Donovan v.
Phelps Dodge Corp.u 709 F.2d 86 (D.C. Cir. 1983).
The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no way motivated by protected activity. If an
operator cannot rebut the prima facie case in this manner it may
nevertheless affirmatively defend by proving that it was also
motivated by the miner's unprotected activities alone. The
operator bears the burden of proof with regard to the affirmative
defenseo Haro Vo Magma Copper CompanyQ 4 FMSHRC 1935 (1982)o
The ultimate burden of persuasion does not shift from the
complainanto Robinetteu supra. See also Boich Ve FMSHRC, 719
Fc2 194 {6th Cire 1983); and Donovan v. Stafford Construction
Company, No. 83-1566 D.C. Cir. (April 20, 1984) (specificallyapproving the Commissionws Pasula-Robinette test). See also NLRB
Va Transportation Management Corporation, ___ U.So ____ v 76
ed~2d 661 ~198Jpf where the Supreme Court approved the NLRB;s
virtually identical analysis for discrimination cases arising
under the National Labor Relations Acto
Direct evidence of actual discriminatory motive is rareo
Short of such evidenceu illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev 1 d on other grounds sub nom.
Donovan~. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations

819

Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th
Cir. 1965):
It would indeed be the unusual case in which the link
between the discharge and the (protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the
discrimination can be proven only by the use of
circumstantial evidence. Furthermore, in analyzing the
evidence, circumstantial or direct, the [NLRB] is free
to draw any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
Knowledge by the operator of the miner's protected
activities; hostility towards the miner because of his
protected activity; coincidence in time between the
protected activity and the adverse action complained
of; and disparate treatment of the complaining miner by
the operator.
Protected Activity
Section 105(c) (1) of the Mine Act provides in pertinent part
as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner,
representative of miners or applicant for employment in
any coal or other mine subject to this Act * * *
because such miner, representative of miners or
applicant for employment is the subject of medical
evaluations and potential transfer under a standard
published pursuant to section 101 * * *· (Emphasis
addedc)
The mandatory health standards authorized by section
10l(a)(7) of the Mine Act, are found at 30 c.F.R. Part 90.
Pursuant to those regulations, a miner employed at an underground
coal mine or at a surface area of an underground coal mine may be
eligible to work in a low dust area of the mine where there has
been a determination that he has evidence of pneumoconiosis. Xf
there is evidence of pneumoconiosis, a miner may exercise his
option to work in a mine area where the dust levels are below
1.0 milligrams per cubic meter of air.
Xn Goff v. Youghiogeny & Ohio Coal Co., 7 FMSHRC 1776,
1780-81 ,(November 1985), the Commission held that section 105(c)
of the Act bars discrimination against or interference with

820

miners who are "the subject of medical evaluations and potential
transfer" under the Part 90 standards. However, the Commission
has recognized that a miner's Part 90 rights, and the protection
afforded him in that status, are not unlimited and that he is not
entitled to work in a mine environment totally free of respirable
dust. Goff v. Youghiogeny & Ohio Coal Co., 8 FMSHRC 1860, 1865
(December 1986).
In Martha Perando v. Mettiki Coal Corporation, 10 FMSHRC 491
(April 1988), the Commission held that even if the complaining
miner suffering from industrial bronchitis were included within
the scheme of MSHA's Part 90 regulations, she would not have had
a right under those provisions to transfer with pay retention to
a less dusty position since her underground work areas were
consistently below the required Part 90 respirable dust level of
1.0 mgjm3 • The Commission also observed that "Exposure to some
amount of respirable dust is inherent in virtually all
underground coal mining", FMSHRC at 496.
In Jimmy R. Mullins v. Beth-Elkhorn Coal Corporation, et
~,

9 FMSHRC 891 988 (may 1987), the Commission observed that

the Mine Act 11 is not an employment statute", and it held that
while a Part 90 miner has the right to be transferred to g
position satisfying the requisite Part 90 criteria, he is not
entitled to dictate to the operator or otherwise specify the
particular position to which the transfer must be made. The
Commission further held that "placement in A position meeting the
relevant dust concentration criteria is all that is required",
and that "the fundamental purpose of these transfer provisions is
the protection of miners' health--not the distribution of
specific jobs"u 9 FMSHRC 895 0 897o
The record in this case establishes that the complainant
engaged in a protected activity when he filed for, and received,
Part 90 miner status, and that he suffered an adverse personnel
action when he was laid off. However, the critical quesiton is
not whether the respondent treated the complainant in a
reasonably fair manner when it laid him off, but whether or not
the layoff was made in any part because of the complainant's
Part 90 status. As appropriately noted by Commission Judge
Broderick in Jimmy Sizemore and David Rife v~ Dollar Branch Coal
Company, 5 FMSHRC 1251, 1255 (July 1983), " • • • the Commission
has no responsibility to assure fairness in employment relations
or to determine whether an employee was discharged for cause, but
only to protect miners exercising their rights under the Act".
And, as_stated by the Commission in Bradley v. Belva Coal Co.,
4 FMSHRC 982 (June 1982), "our function is not to pass on the
wisdom or fairness of such asserted business justifications, but
rather only to determine whether they are credible and, if so,

821

whether they would have motivated the particular operator as
claimed".
The Alleged Discrimination
In his initial complaint filed with MSHA, the complainant
asserted that he elected to transfer to a less dusty atmosphere
upon notification of his option to transfer as a Part 90 Miner.
However, the evidence reflects otherwise, and the complainant
confirmed that he did not request or exercise any transfer rights
as a result of his Part 90 status. He admitted that he did not
expect or want any changes made in his work status, and that he
only filed for Part· 90 status in order to preserve any future
claims for black lung benefits. Further, the complainant
admitted that he was already doing work outby the face prior to
his Part 90 designation, and that the respondent generally kept
him in a less dusty environment after that designation.
Although the complainant alluded to his Part 90 status at
the time he filed his MSHA complaint, and expressed his belief
that his status contributed to his layoff, the thrust of his
complaint was his assertion that he was laid off because the
respondent wished to retain younger foremen. Indeed, in the
course of the heiarng, the complainant confiremd that in his
sworn complaint filed with the EEOC in connection wiht his age
discrimination complaint, he took the positon that his age was
the determinative factor for his layoff.
In the absence of any direct evidence that management's
decision to lay off the complainant was motivated in part by his
Part 90 statusu a discriminatory motive may be determined by
circumstantial evidence showing that management was hostile
towards him because
his statusu the coincidence in time
between his filing for and receiving that status 9 and any
disparate treatment accorded him because of his status. Although
a resonable inference of motivation may be drawn from such
circumstantial evidence, Secretary ex rel. chacon Ve Phelps Dodge
Corp.u supra; Sammons Vo Mine Services Co.u supra, there must be
credible evidence of discriminatory inent or credible evidence
from which a reasonable inference of discrimination or
driscriminatory intent can be drawn~ Branson Vc Price River Coal
Co.ff 853 F.2d 786 9 (lOth Cire 1988)o
I find no evidence of any disparate treatment of the
complainant by the respondent, and the record establishes that he
was not the only salaried foreman affected by the layoff. The
complainant confirmed that the respondent never intimidated,
harrasssed, or threatened him because of his Part 90 status, and
never said anything negative about his statuss The complainant
further confirmed that the respondent had never taken any
negative action against any employee because of their Part 90
status.

822

I find no evidence to support the complainant's claim that
the respondent placed him on a job which subjected him to dust in
response to his request for a dust free environment, and that the
respondent deliberately kept him away from his work area in order
to meet MSHA's respirable dust standards prior to any
inspections. The only incident alluded to by the complainant
concerned a three-hour discussion in "fresh air" in the company
of an MSHA inspector, a union safety representative, and a
company representative, at a time when the complainant was
wearing a respirable dust sampling device. The credible
testimony regarding that incident reflects that the inspector was
in control and responsible for any delay in the complainant's
returning to work. Further, the complainant himself confirmed
that during his respirable dust sampling period, he was assigned
to his normal work duties, that there was no "hanky panky"
connected with the sampling, and there was no avoidance of any
dusty working conditions in an attempt to hide them from an
inspector. The complainant also confirmed that the respondent
was never cited for assigning himwork under dusty conditions,
that he knew of no Part 90 miners ever being cited for working
under dusty conditions, and that the respondent had never been
cited for exceeding MSHA's dust exposure regulations.
Mr. Donnelly confirmed that the reduction in force which
affected the 134 union jobs was accomplished under the collective
bargaining agreement, and in the absence of any evidence to the
contrary, I assume that miners affected by the reduction were
afforded their appropriate union protection. However, as a
salaried supervisory management employee, and in the absence of
any evidence to the contrary, I assume that the complainant had
no formal layoff retention rights, and that his continued
employment was at the discretion of mine management. The
complainant confirmed that he had no seniority rights, and the
record reflects that he received severance and accrued vacation
pay when he was laid off.
Citing Simpson v. Kent Energy. Inc., 11 FMSHRC 770 (May
1989) 0 the complainant suggests that in order to establish the
legitimacy of the layoff 6 and to support its contention that the
reduction in force was necessary because of adverse economic
conditions affecting the world coal market, it was incumbent on
the respondent·to provide written documentation and business
records to support this claim. In the absence of such
documentation, the complainant would totally discount the
testimony presented by the respondent in support of the propriety
of the layoff.
In the Simpson case, the Commission observed that the trial
judge weighed the respondent's evidence and found it lacking in
specificity and certainty, and the Commission cited several
transcript references reflecting the respondent's rather
equivocal testimony, highlighted by a number of "guesses",

concerning certain critical facts connected with the layoff in
question. It was in this context that the Commission observed in
part at 11 FMSHRC 779 1 that the company "did not introduce
seniority lists or business records explaining the layoff
decisions or the effects of the alleged recession on the mine's
operation". In short, the Commission affirmed the trial judge's
credibility findings, and I find nothing in the decision to
support any conclusion or general rule that the only evidence
worthy of belief is written documentary business records.
The record in this case reflects that the respondent took
the pretrial deposition of the complainant. However, the
complainant did not depose any of the respondent's witnesses,
including the mine manager, (Willis Coaxe) 9 who made the final
decision to lay him offQ Although Mr. Coaxe was not called to
testify in this case, there is no evidence that he was not
available and the complainant did not subpoena him. Further, the
complainant apparently made no attempt to seek out any
documentary evidence from the·respondent through pretrial
discovery.
The evidence reflects that prior to 1991, the complainant
worked at different jobs tasks involving construction and special
projects, rather than coal production, and that his supervision
of a continuous miner section on a full time basis took place
during his initial 13 months of employment, and on a part-time
basis thereafter (Tr. 82). The complainant acknowledged that
.most of the coal production took place at the longwall sections,
and he conceded that he had never worked on, or supervised, such
a section and that he was not qualified or trained to perform the
duties of a longwall foreman (Tro 83)o The evidence also
reflects that most of the complainant 8 s work experience was in
the outby areas of the mineo
Shift foreman Phillipsu who supervised the complainant 1 s
worku confirmed that he evaluated his supervisors on a daily
basis and that he considered the complainant to be "an average
construction foremanv 8 o General mine foreman McKinney u who also
was familiar with the complainant 9 s work, confirmed that during
the layoff consideration he reviewed a list of salaried
supervisory personnel that included individuals with longwall and
coal face production experienceo and that four or five of these
individuals would be retained ahead of the complainant. Both
Mro Phillips and Mro McKinney confirmed that salaried personnel
with longwall or face coal production experience, or those
experienced in supervising a miner section, were given preference
during the reduction in force and layoff.
Mine Manager Donnelly acknowledged that he had never
personally observed the complainant's work, and he indicated that
no written evaluations of supervisors were made for several years
prior to the layoff in question. However, he confirmed that in

824

his discussions with other supervisory foreman who were aware of
the complainant's work, the complainant was characterized as an
"average" supervisor. Mr. Donnelly further confirmed that the
reduction in force brought about by the adverse coal market would
result in fewer longwall and continuous miner work shifts, and
that it was critical to retain personnel skilled in those jobs.
Mr. Donnelly acknowledged that he was aware of the
complainant's statements that he did not like to do face
production work because he did not wish to accept the
responsibilities and pressures of that kind of work and preferred
to continue working outby, and that this was a factor that he
considered in the decision not to retain him. Mr. McKinney
confirmed that the complainant told him that he did not want to
work on a production face because he did not want the additional
responsibilities and pressures of such a job, and that
Mr. Phillips also informed him about similar statements made to
him by the complainant. Mr. Phillips confirmed that the
complainant had indeed made such statements to him.
The complainant's testimony concerning the statements
attributed to him is both equivocal and unconvincing. He
testified that "he might have made" the statements, did not deny
making them, but indicated that he simply could not recall
(Tr. 200).
Having viewed Mr. Donnelly, Mr. McKinney, and
Mr. Phillips in the course of the hearing, I find them to be
credible witnesses, and I believe that the complainant made the
statements in question. Under the circumstances, I do not find
Mr. Donnelly's consideration of these statements during his
layoff deliberations to be unusual or unreasonable.
The record reflects that two prior layoffs occurred at the
mine i~ 1982 and 1986 prior to the layoff which resulted in the
complainant 8 s terminationu and there is no suggestion that those
layoffs were other than legitimateo With regard to the layoff
which resulted in the complainant's termination, Mr. Donnelly and
Mro McKinney presented credible and unrebutted testimony
concerning the facts and circumstances which prompted the
~eduction of the work force which affected a substantial number
of salaried personnel in addition to the complainant, and they
explained how the reductions were accomplished and the pertinent
factors and considerations which were made in deciding who would
be retained and who would be laid offe The fact that little or
nothing was reduced to writing is irrelevant, particularly when
salaried management personnel are involved. As the responsible
management officials, Mr. Donnelly and Mr. McKinney were free to
make certain managerial judgments and decisions regarding
salaried personnel, including who would be retained and who would
be laid off, and I conclude and find that these were matters
within their managerial authority and discretion. Further, after
careful consideration of all of the evidence and testimony
regarding the reduction in, force and layoff in question, I

825

conclude and find that their explanations of the events in
question are reasonable and plausible.
I find nothing unusual about Mr. McKinney's expressions of
surprise and shock at learning of the complainant's Part 90
status. Mr. McKinney's explanation that he had always been under
the impression that this was a status accorded only union
employees is believable. With regard to Mr. Donnelly's statement
that the complainant's Part 90 status "would not enhance his
record with the company", while it could possibly support an
inference that Mr. Donnelly was influenced by the complainant's
status during the layoff discussions, when considered in the
context of the drastic layoffs affecting a relatively large
number of people, including approximately 25 salaried supervisory
personnel, and the elimination of the majority of the remaining
special projects foreman jobs, I cannot conclude that the
statement, standing alone, establishes that Mr. Donnelly was
influenced by the complainant's Part 90 status, or that he was
predisposed not to retain him because of that status. I find
nothing in the statements made by Mr. Donnelly and Mr. McKinney
to suggest any retaliatory or ulterior motive on their part
simply because the complainant sought and received Part 90
status. Nor do I find any persuasive evidence to show that the
legitimate cause for the complainant's layoff was a pretext for
an unlawful motive on the part of the respondent.
Conclusion
I find no persuasive evidence, direct or circumstantial,
from which to draw a reasonably supportable inference of
discriminatory intent or motivation on the part of mine
management with respect to the layoff because of the
complainantis Part 90 miner status& I find no credible
evidentiary foundation for inferring or concluding that
management's decision not to select or include the complainant
among those salaried supervisory personnel who were retained
during the reduction in force was in any way related to his
Part 90 Miner statuso

ORDER
On the basis of the foregoing findings and conclusions, I
conclude and find that the complainant has failed to establish a
prima facie case of discrimination. EVen if the complainant had
established such a case, I would still conclude and find that it
was rebutted by the respondent's credible evidence establishing
reasonably plausible economic and management non-discriminatory
reasons for the reduction in force and layoffs in question.

826

Under the circumstances, the complainant's discrimination
complaint and claims for relief ARE DENIED AND DISMISSED.

~-~~
Administrative Law Judge

Distribution:
Ralph E. Coleman, Esq., Coleman & Friday, 2175 11th Court South,
Birmingham, AL 35205 {Certified Mail)
R. Stanley Morrow, Esq., Jim Walter Resources, Inc., P.O.
Box 133, Brookwood, AL 35444- (Certified Mail)
Mark Strength, Esq., David M. Smith, Esq., MAYNARD, COOPER,
FRIERSON & GALE, P.C., 1901 Sixth Avenue North, 2400 AmSouthHarbert Plaza, Birmingham, AL
35203-2602 (Certified Mail)
/ml

827

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

2CX}{)6

MAY 6 1993

..:

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-358-M
A. C. No. 39-00226-05506

v.
:

CONCRETE MATERIALS,
Respondent

Summit Pit

ORDER ACCEPTING RESPONSE
DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This case is before me upon a petition for assessment of a
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977. On December 17, 1992, the Solicitor filed a
motion to approve settlement of the one violation involved in
this case~ The Solicitor sought approval of a reduction in the
penalty amount from the original proposal of $690 to $50. On
February l8q 1993q an order was issued disapproving the settlement and directing the Solicitor to file additional information
to support her motion. On March 1, 1993, the Solicitor filed a
second motion to approve settlement.
Citation No. 3909835 was issued for a violation of 30 C.F.R.
56el2067 because the fence surrounding an electrical substation
was not six feet in height. According to the citation, the substation contained six mounted transformers with exposed enerqized
componentso The inspector concluded that contact with the energized high voltage components might result in a fatality. In her
original motion the Solicitor alleged that negligence was less
than originally assessed and that because the violation was
unlikely rather than likely to contribute to an accident the
significant and substantial designation should be deleted.
§

The Solicitor advises in her second settlement motion that
the fence is only two to three inches short of the required six
feet but does have some rips and tears. The Solicitor also avers
that photographs submitted by the operator show that it was
unlikely that a person would be able to reach any of the enerqized components over the fence. Therefore, although the fence

828

components unless a deliberate attempt was made to climb the
fence.
I accept the Solicitor's representations and I conclude thai
the settlement is appropriate under the six criteria set forth in
section llO(i) of the Act.
In light of the foregoing, it is ORDERED that the settlement
motion filed March 1 is ACCEPTED as a response to the February 18
order.
It is further ORDERED that the recommended settlement be
APPROVED and the operator PAY $50 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, u.s. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
co 80294 (Certified Mail}
Mro Jerome To Nusbaum, Concrete MaterialsH P.O. Box 84140, Sioux

Fallsa SD

57118

(Certified Mail)

fgl

829

FEDERAL JIINE SAFETY AND HRAI.Tft REVIEW COJIMISSIOH
OFFICE OF ADMINISTRATIVE LAY JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 6 1993

.. CIVIL PENALTY PROCEEDING

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

.
0

:

..
:

PRABHU DESHETTY, employed by
ISLAND CREEK COAL COMPANY,
Respondent

Docket No. KENT 92-549
A.C. No. 15-02706-03753-A
Hamilton No. 2 Mine

.
0

0

0

DECISION
Appearances:

Gretchen M. Lucken, Esq., Office of the
Solicitor, u.s. Department of Labor,
Arlington, Virginia, for Petitioner;
Timothy M. Biddle, Esq. and J. Michael Klise,
Esq., Crowell and Moring, for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil
penalties filed by the Secretary of Labor pursuant to
Section 110(c) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801, et seq., the "Act," charging
Prabhu Deshetty as an agent of a corporate mine operator,
i.eo Island Creek Coal Company (Island Creek) 8 with knowingly
authorizing, ordering, or carrying out a violation by that
mine operator of the mandatory standard at 30 CoFoR.
§ 75o400 as alleged in Order No. 3549013. 1

Section llO(c) provides as follows~
"Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or fails
or refuses to comply with any order issued under this Act
or any order incorporated in a final decision issued under
this Act, except an order incorporated in a decision issued
under subsection 105(c), any director, officer, or agent of
such corporation, who knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall be
subject to the same civil penalties, fines, and imprisonment
that may be imposed upon a person under subsections (a) and (b)."

830

Order No. 3549013, issued at 9:30 a.m. on January 15,
1991, alleges as follows:
Loose fine coal, coal dust and float coal dust
was permitted to accumulate in dangrous [sicJ
amounts under and along the #1 Unit MMU 003 panel
belt conveyor for a distance of approximately
eight hundred feet. The fine coal and coal
dust ranged in depth from four inches to
thirty six inches very black in color and dry,.
three damaged or frozen belt rollers was [sic]
flaged [sic] along the belt conveyor. The
belt examiners record book has the conditions
recorded from 1-7-91 to 1-14-91 no corrective
actions where [sic] shown in record book. Rockdust layers in the 36 11 coal dust where examined
showed it had been rockdusted over top of coal
dust at least two times.
The cited standard, 30 C.F.R. § 75.400, provides that
"(c]oal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials
shall be cleaned up and not be permitted to accumulate in
active workings, or on electric equipment therein."
Prabhu Deshetty, as mine manager of the Island Creek
Hamilton No. 2 Mine, does not dispute that he.was an agent
of the cited corporate mine operator, but denies that there
was a violation as charged and maintains that even assuming
there was a violation, he did not knowingly authorize, order,
or carry out such a violation.
I findu however 0 from the credible testimony of
experienced Mine Safety and Health Administration (MSHA)
Inspector Harold Gamblin alone, that the violation has been
proven as charged. I further find that Inspector Gamblin's
testimony is corroborated in significant respects by the
testimony of Respondent's witnesses. Indeed, Deshetty himself acknowledged that when he proceeded underground on
January 15 6 1991, shortly after the order at bar was issued
and presumably during the abatement cleanup, he observed
a pile of coal dust some eight inches to twelve inches in
height as it was being cleaned behind the head drive.
Deshetty also acknowledged that he thereafter walked the
length of the beltline and observed other areas with coal
spillage up to ten inches deep. He further acknowledged that
it took 16 miners nearly two hours to clean the cited area.
While admitting the existence of these loose coal
and coal dust deposits in the cited areas, including those
depicted in the photograph in evidence as Exhibit R-3,

831

Deshetty maintained only that these did not constitute a
.
hazard. While not denying the existence of the cited 36-inch
pile of coal dust Deshetty denied at hearing that even this
was an illegal accumulation based on his stated belief that
only coal dust which is touching a frictional area would be
illegal.
stan Bealmear, a shift foreman who was training for
the Island Creek safety department at the time the order
was issued, accompanied Inspector Gamblin on the No. 1 Unit
and acknowledged that this pile of coal dust at the takeup of
the drive of the No. 1 belt was measured by Gamblin at about
twelve inches by thirty-six inches& He further acknowledged
that this thirty-six inch deposit would probably have taken a
couple of shifts to have developed. This corroborates Gamblin's
discovery of several layers of rock dust in this coal deposit
and his conclusion that this deposit had therefore developed
over an extended period of time. While Bealmear also stated
that he did not see any rollers operating in coal dust, he
acknowledged that as a result of the withdrawal order issued
in this case they replaced three defective rollers.
Shuttle car driver James Hill, testifying on behalf of
the Respondent 8 also acknowledged the existence of a pile of
coal behind the header which he estimated to have been about
three feet high by three feet long. Island Creek Belt
Inspectors Henry Grisham and Garry Hatfield both testified
that even the coal dust piles along the cited belt line and
appearing in Respondent's photographs (Exhibit R-1 through R-9)
constituted accumulations that should have been cleaned up.
These photographs were taken by Island Creek after the order
had been issued and the cleanup had commencedo The photographs
admittedly did not even depict the worst deposits present along
t:.he
lineo
Within this framework of evidence it is clear that
significant loose coal and coal dust accumulations existed
along the Noo 1 beltline in violation of the standard at
30 CoFoRo § 75o400o In reaching this conclusion I have not
disregarded the testimony of Respondent 8 s witnesses that
much of the accumulated material was wet and, in particularu
the thirty-six inch accumulation was wet from water sprays
at that locationo Even assuming, arguendo, that this was
true, the Commission has observed in Black Diamond Coal Co.,
1 FMSHRC 1117 {1985) that such coal dust accumulations nevertheless present a serious hazard and are in violation of the
cited standard in light of the fact that accumulations may be
quickly dried.

832

The rema1n1ng issue to be decided is whether Mr. Deshetty
"knowingly authorized, ordered or carried out" any of the
violative conditions. The Commission defined the term "knowingly," as used in the statutory predecessor to Section ll.O(c),
in Kenny Richardson v. Secretary of Labor, 3 FMSHRC 8 (1981),
aff'd 669 F.2d 632 (6th Cir. 1982), cert denied, 461 u.s. 928
(1983) as follows:
'Knowingly,' as used in the Act, does not have
any meaning of bad faith or evil purpose or
criminal intent. Its meaning is rather that
used in contract law, where it means knowing
or having reason to know. A person has reason
to know when he has such information as would
lead a person exercising reasonable care to
acquire knowledge of the fact in question or
to infer its existence •••• We believe this
interpretation is consistent with both the statutory
language and the remedial-intent of the Coal Act.
If a person in a position to protect employee
safety and health fails to act on the basis of
information that gives him knowledge or reason
to know of the existence of a violative condition,
he has acted knowingly and in a manner contrary to
the remedial nature of the statute. 3 FMSHRC 16.
In this case there is no dispute that Deshetty, as mine
manager of the Hamilton No. 2 Mine during the latter part
of 1990 through the date of the violation here at issue,
was in a position of responsibility for the safety of the
mine 0 including the maintenance of the No. 1 beltline free of
illegal accumulations of coal dustu float coal dust and other
combustible materialso Furthermoreu Deshetty was placed on
specific notice of problems regarding combustible accumulations. at this mine by a particularly large number of recent
violations of the mandatory standard at issue herein (See
Government Exhibit Noo l)o
Indeedu
evidence shows that in the year preceding
the instant order 0 there were 45 violations of this standard
the mine. It is therefore clearu and should have been
clear to Deshetty as mine manageru that long before, and at
the time the order herein was issued, the Hamilton No. 2 Mine
had a serious problem with repeated violations for the accumulation of combustible materials. Deshetty admitted that he knew
of these prior violations and had personally reviewed all of
the corresponding citations with the MSHA inspectors. Inspector
Gamblin confirmed that he had previously discussed such citations
with, and had recently warned Deshetty that his mine had been
issued too many violations for the accumulatioQ of combustible
materials.

833

More particularly, Deshetty had reason to know of the
existence of coal dust accumulations along the cited beltline before the instant order was issued at 9:30 a.m. on
January 15, 1991, by the recent preceding reports of his
belt examiners citing the need to clean the No. 1 Unit
beltline (See Government Exhibit No. 3). Significantly,
there were insufficient corresponding entries in the reports
from which it could be determined that these conditions
had been corrected. Deshetty admittedly countersigned these
reports while conceding that he did not know whether the
conditions had been corrected and acknowledged there was no
way to ascertain from the belt examiner's reports whether
any cleaning or other corrective action had been taken. 2
More particularly, however, in determining whether
Deshetty knowingly committed the cited violation, I need
focus on only one of the specific accumulations charged,
i.e. a 36-inch accumulation of fine coal and coal dust outby
the takeup at the belt drive.. In$pector Gamblin observed
that this accumulation contained at least two layers of rock
dust. Based on this undisputed evidence Gamblin concluded
that this accumulation had existed for two or three weeks.
Foreman Stanley Bealmear also concluded from this evidence
that this accumulation had existed for an extended period of
time
at least two or three shifts.
In concluding that Deshetty, at 9:30a.m., on May 15,
1991, had reason to know of this long standing accumulation
one need only to refer to the repeated entries in preceding
belt examination reports expressing the need for cleaning
along the No. 1 Unit belt and stating that the belt was "dirty."
It is inconsequential for purposes of establishing notice that
these entries may not have specifically identified this same
36-inch deposito It is reasonable to infer from these repeated
entries, without corresponding notations of corrective action,
that Deshetty, who countersigned the reports, had reason to
know of this accumulation which had, according to the credible
evidence, existed for up to three weeks before it was cited by
Inspector Gamblino
Under the circumstances I find that the Secretary has
sustained her burden of proving that Deshetty had reason to
know of the violation charged in Order No. 3540913. Inspector
Gamblin's ability to observe and his motivation are unchallenged.
I therefore accord great weight to his testimo~y that several
belt rollers were actually in contact with some of the coal
2

The belt examiner's reports do reflect some
corrective action taken in response to some reported
hazardous conditions, but these entries are not relevant
to the accumulation at issue.

834

dust accumulations. Under the circumstances the violation
was of high gravity. Based on my findings herein that
Deshetty had reason to know of the violative condition I also
find that he was highly negligent. There is no evidence that
Deshetty has any prior violations under the Act. Under the
circumstances I find that the Secretary's proposed penalty
of $1,500 is appropriate.
ORDER
Prabhu Deshetty is directed to pay a
$1,500 within 30 days of the date of

I
I

~cyM

Adm1n1
I

'

•

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor,

u.s. Department of Labor, 4015 Wilson Blvd., Suite 400,

Arlington, VA 22203 (Certified Mail)

Timothy M. Biddle, Esq. and J. Michael Klise, Esq.,
Crowell and and Moring, 1001 Pennsylvania Avenue, N.W.,
Washingtonu DoCo 20004-2595 (Certified Mail)
/lh

835

PBDBRAL KIBE SAFETY MID BBALTH REVI:BW COl!DUSS:IOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 6 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
On Behalf of
DONALD BOWLING,
Complainant
and
DONALD BOWLING,
Intervenor

.
.
.
.
...
..
...
..
.

DISCRIMINATION PROCEEDINGS
Docket No. KENT 92-1052-D
Mine ID 15-13937 and
15-13937 AFW
MSHA No. BARB CD 92-28

.
:
:

v.
PERRY TRANSPORT, INC.,
A Corporation; STEVIE CALDWELL,
TRUCKING, INC., a Corporation:
and STEVIE CALDWELL,
an Individual,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
On Behalf of
DONALD R.. BOWLING u
Complainant

.
.
.
.
..

Docket No. KENT 93-287-D
BARB CD-92-28

0

0
0

0

Surface Mine

0
0

....
0

0

0
0

PERRY TRANSPORT 11 INC. (/
DEWEY CRIGSBY, an Individual;
STEVIE CALDWELL TRUCKING, INC. ,
a Corporation; STEVIE CALDWELL, :;
an Individual; and LOST MOUNTAIN :
.
MINING COMPANY, a division of
MCI MINING CORPORATION,
Respondents
0
0
0

0
0

¢

0

.

DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

On September 10, 1992, the Secretary filed an action (Docket
No. KENT 92-1052-D) on behalf of Donald R. Bowling alleging that

836

Respondents violated § 105(c) of the Federal Mine Safety and
Health Act of 1977 and requesting that Mr. Bowling be temporarily
reinstated to his former position pending a proceeding on his
claim of discrimination.
On January 27, 1993, the Secretary filed an action (Docket
No. KENT 93-287-D) on behalf of Donald R. Bowling alleging that
Respondents violated § 105(c) of the Federal Mine Safety and
Health Act of 1977 and requesting, an inter alia, that Mr.
Bowling be permanently reinstated to his former position.
The parties have moved for approval of a settlement designed
to resolve all matters related to Mr. Bowling's claims in both of
the above actions.
I have reviewed the documentation and representations
submitted and find that the settlement is consistent with the
purposes of § 105(c) of the Act.
Accordingly, the motion,for approval of settlement is
GRANTED, and these proceedings are DISMISSED.

tJ~~tt/~
William Fauver
Administrative Law Judge
Distribution:
Stephen D. Turow, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Suite 400, Arlington, VA 22203
(Certified Mail)
Sara Walter Combs 0 Esqe 0 Po Oe Box 828, Stanton, KY
(Certified Mail)

40380

Stanley R. Geary, Esq., R. Henry Moore, Esq., Buchanan Ingersoll,
600 Grant Street, 58th Floore Pittsburgh~ PA 15219-2887
~Certified Mail)
A. Noble, III, Esq., 3231 Combs Ferry Road, Lexington, KY
40509-9519 (Certified Mail)

C~

Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, 630 Maxwelton Court, Lexington, KY 40508 (Certified
Mail)
Robert I. CUsick, Esq., Wyatt, Tarrant & Combs, Citizens Plaza,
Louisville, KY 40202 (Certified Mail)
/fcca

837

FEDERAL MXNE SAFETY AND HEALTH REVXEW COMMXSSXON
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

MAY 7 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
PHELPS DODGE CHINO INC.,
Respondent

.
..
.
.
..
:
.

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-266-M
A.C. No. 29-00708-05546
Chino Mine

0

DECISXON
Be~ ore:

Ju4qe Lasher

After prehearing preparation and discovery, on March 5,
1993, Petitioner moved to vacate the Citation in this matter, No.
3556068, on the basis of insufficient evidence. 1
on April 2, 1993, Respondent filed its "Motion of Phelps
Dodge Chino Inc. To Dismiss With Prejudice Or In The Alternative
For Declaratory Relief."
On April 14 0 1993 0 Petitioner filed a letter stating:
We have received Respondent's Motion ••• to Dismiss
With Prejudice, etc. We have no objection to your
dismissing the citation with prejudice aa you did in
Bomestake Mining Co. , 13 FMSBRC 988. Such action
would moot Respondent's request for any declaratory
relief, which is requested •in the alternative• if you
do not vacate the citation with prejudice.

Respondent responded by letter, saying:
We wish to note an important consideration in response
to the government's current statement that it baa no
objection to dismissal with prejudice: such dismissal
must be in accordance with Rule 41, Federal Rules of
Civil Procedure. That is, dismissal will operate as
1

It is noted at the outset that at the time the motion to vacate was
filed, while Respondent had submitted a motion for summary judgment, such had not
been ruled on or determined, the factual prerequisites of this case had not been
established, no trial had been conducted and a record developed, nor had findings
of fact been scrutinized and determined.

838

an adjudication on the merits. Such a result is
consistent with the ultimate resolution in Homestake
Mining company v. Secretary of Labor, et al., United
States Court of Appeals for the District of Columbia
Circuit, Docket No. 91-1423.
In Homestake, the case
was dismissed with prejudice and the Secretary was
"not to issue a new citation for violation of the same
regulation" under analogous facts.

As counsel for Petitioner urges, in Homestake Mining Co., 13
FMSHRC 988 (June 21, 1991), I set forth my understanding what
dismissal with prejudice meant. In sum,
1.
abandonment of the instant prosecution by the
Petitioner;

2.
prohibition against seeking future action on the
citation being vacated.
Dismissal with prejudice does not mean enJo1ning the enforcement agency, MSHA, from future use of the safety standard
involved, or applying the standard to "the same mine area described in the subject Citation." As I noted therein, expanding
the concept of dismissal with prejudice to these latter concepts
would in effect be {a) granting the Contestant's declaratory relief request without benefit of due process, hearing, and normal
adjudication processes.
Respondent urges that the dismissal with prejudice of the
citation involved in this proceeding "operate as an adjudication
on the merits" and alleges that such is "consistent with the
ultimate resolution in Homestake Mining Company v. Secretary of
Labor. et al., U.S. Court of Appeals for the D.C. Circuit, Docket
Noo 91-1423. If adjudication on the merits is intended to mean
that Respondent's view of the law, arguments, and positions as to
factual happeningsu are adopted, such is rejected. The ultimate
resolution in the cited Homestake decision of the D.C. circuit
grew out of this question: What should be the Secretary's ability to issue a new citation for violation of the same regulation
on the identical facts? When the Secretary indicated that she
would not issue a new citation for violation of the same regulation on the identical facts on which she issued the citation
which she was vacating, the court held.~at such response rendered the case "moot and not suitable f9r declaratory relief."
The court considered that "any future enforcement action must be
based on a different set of facts."
I do not find the decision of the Court of Appeals inconsistent with the holdings of my decision in Homestake, which was not
reviewed by the Commission. The Order set forth below is intended to effectuate the principles set forth herein.

839

ORDER

1.
GRANTED.
2.

Petitioner's action to vacate Citation No. 3556068 is
Citation No. 3556068 is VACATED WITH PREJUDICE.

3.
Respondent's Motion in the alternative for Declaratory
Relief is DENIED.
4.
Petitioner shall not initiate any future enforcement
action under the same regulation against Respondent on the identical facts; any future enforcement action must be based on a
different set of facts.

~~~-e? /Z' ~-&-?zft
Michael A. Lasher, Jr.
Administrative Law Judge

Distribution~

Daniel TQ curran, Office of the Solicitor, u.s. Department of
Labor, 525 Griffin Street, suite 501, Dallas, TX 75202
(Certified Mail)
G. Lindsay Simmons, Esq., JACKSON & KELLY, 1701 Pennsylvania
Avenue, N.W., Suite 650, Washington, DC 20006 (Certified Mail)
ek

840

FEDERAl MINE SAFETY AND HEAlTH REVIEW COMMISSION
OFFICE OF ADMINISTRATNE lAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NAY 7 1993

.

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

CIVIL PENALTY PROCEEDING

:

Docket No. SE 92-27-M
A.C. No. 09-00113-05503 EYU

v.

Burns Brick Mine

YARBROUGH CONSTRUCTION
COMPANY,
Respondent
DECISION

Appearances:

Michael K. Hagan, Esq., Office of the Solicitor;
U.S. Department of Labor, Atlanta, Georgia,
for Petitioner;
Charles N. Yarbrough, Yarbrough Construction,
Incorporated, Lizella, Georgia,
for Respondent.

Before:

Judge Barbour
'l'BE PROCEEDING

This case
before me upon the petition of the Secretary of
Labor ~~'Secretary•e) for the assessment of civil penalties
pursuant to sections 105 and 110 of the Federal Mine Safety and
Health Act of 1977 ("Act" or "Mine Act")~ The petition alleges
that Yarbrough construction Company ("the Company") was
responsible for three violations of various mandatory safety
standards for surface metal and non-metal mines found in Part 56 0
Volume 30 0 Code of Federal Regulations. The Company answered, in
some instances denying its responsibility for the violations and
pointing to factors it believed warranted mitigation of the
penalties proposed by the Secretary.
A hearing on the merits was held in Macon, Georgia at which
Michael K. Hagan represented the Secretary and Charles N.
Yarbrough represented the Company~ The sole witness for the
Secretary was Federal Mine Safety and Health Administration
("MSHA") Inspector Donald Collier. The Company relied upon cross
examination of Collier and upon statements by Yarbrough.

841

At the commencement of the hearing Yarbrough raised an
additional objection to the imposition of civil penalties by
challenging MSHA's authority to cite the Company for violations
of the Mine Act. Yarbrough asserted that the activities of the
Company were not conducted at a "coal or other mine" in that the
Company simply moved material that had already been mined by
another company. Tr. 3-4.
At the hearing's close, the parties elected not to brief the
issues, standing upon the closing statements of counsel and
Yarbrough.
JURISDICTION
THE FACTS

Yarbrough described the Company as "a home-owned business,"
taking in an average of approximately $5,000 to $6,000 per month.
Tr. 81-82. The Company engages in two kinds of work: moving clay
and site preparation for things such as commercial sites, parking
lots and roads. Tr. 82. During the past two years the biggest
part of the business has been that involving clay. Tr. 82.
According to Yarbrough, the clay is extracted from a
riverside site. Tr. 39. Once clay has been extracted from the
earth, it is transported by truck to a stockpile. The stockpile
is approximately seven tenths of a mile from the place where the
clay is extracted. Tr. 39. The area containing the stockpile is
surrounded by a levy. Yarbrough explained that the clay is
enclosed by the levy so that "when [the nearby river] floods • •
the water doesn't come into the levy and saturate the
materialo 06 Tro 27 o The levy is large -- approximately 26 feet
high and 15 feet across at the top. Yarbrough guessed that the
levy encompasses approximately 25 - 50 acres. Trq 39.
Q

Once the clay has been stockpiled, a company employee
operating a scraper transports the clay from the stockpile to a
hopper.. Tro 28.. The employee drives the scraper to the top of
the hopperu opens the bottom of the scraper and the clay falls
into the hopper. The distance the clay is transported by the
scraper varies with the position of the stockpile. At a minimum
it is 600 feet and at a maximum 3 6 000 feet. ~
occasionally, in order to dry out the clay, the scraper
operator is also required to use a farm harrow and to pull the
harrow with a tractor over the stockpiled clay to loosen the
clay. Tr. 62, 68. Unless this is done the clay will stick in
the hopper. Tr. 68.
The clay is used for the manufacture of bricks by Burns
Brick, a brick making company. Yarbrough described what happens
after the clay reaches the hopper:

842

Burns Brick people are working
underneath the hopper, and when the
material falls in the hopper they
have a tram system that's similar
to a ski lift with buckets instead
of seats, and the tram system
brings the buckets underneath the
hopper and the material goes into
the hopper (and into the buckets]
and is carried three and a half
miles up the cable to the plant.
Tr. 28. At the end of the tram the clay is dumped into another
stockpile from whence it is removed by Burns Brick for
manufacture. Tr. 69.
Once the scraper operator has dumped the clay into the
hopper the operator drives theempty scraper back to the
stockpile via a circular route. Tr. 28, 31. (Yarbrough
described the Company's transportation of the clay "a continuous
circle, not a back-and-forth operation." Tr. 31.) The Company
usually keeps one scraper only at the job site because the work
done there is "a one-man operation." Tr. 30. The Company has
transported clay for Burns Brick for ttprobably 10 maybe 15
years." Tr. 33. During 1991 it moved approximately 80,000 to
90,000 tons of clay to the hopper. Tr. 83-84.
Yarbrough stated that Burns Brick owns the clay. In August
1991 (the date of the subject violations), the clay was extracted
by Tom Sealy 9 a person not connected with the Company.
Once the
clay was taken from the groundu Sealy had it trucked to the
stockpile. Tr. Jl. However 0 commencing in September 1991 and
continuing until November of that same year, the Company, under
an agreement with Burns Brick, extracted the clay and moved it by
truck to the stockpilee Tr. 32, 41. Yarbrough did not dispute
that durin? September and November 1991 the Company had engaged
in mining~
Yarbrough testified that when the Company is
excavating clay it employs more than one persono Tr. 32, 35.
However 9 Yarbrough adamantly contended that when the Company was
cited for the subject violations it was "only moving clay that
someone else had mined and put in a stockpile, and [the Company]
was moving it from the stockpile to the hopper." Tr. 33.
According to Yarbrough, this was not mining. In addition,
Yarbrough explained that when the Company was cited for the
subject violations it was only billing Burns Brick for moving
clay from the stockpile to the hopper. However, when the Company
was conducting mining operations, it had billed Burns Brick for
mining the clay and for moving it from the mine (i.e., the
Yarbrough testified that he hoped the company again would reach an
understanding with Burns Brick to extract clay in the future. Tr. 37.

843

extraction site) to the stockpile. Tr. 47. At the time when the
Company changed its activity from extracting the clay and
trucking it to the stockpile, to moving the clay from the
stockpile to the hopper only, it did not notify MSHA.
Nonetheless, Yarbrough maintained that an MSHA inspector could
tell whether or not the Company was mining (i.e., extracting the
clay and trucking it to the stockpile) or whether it was not
mining (i.e., taking clay from the stockpile to the hopper)
simply by observing. Tr. 48. Or, the inspector could ask.
Tr. 49. Yarbrough also stated that inspectors from the
Secretary's Occupational Health and Safety Administration
("OSHA") did not inspect the stockpile 9rea. Tr. 95-96.
Yarbrough was uncertain regarding ownership of the property
on which the Company was working. He did not know whether Burns
Brick owned it or leased it. Tr. 30. He also indicated that
another brick company, Cherokee, obtained its clay from a
adjacent property and that it was difficult to tell where Burns
Brick's clay ended and Cherokee's began. Tr.44. Yarbrough also
questioned whether "brick clay" was a mineral within the meaning
of the act. Tr. 34.
PARTIES' ARGUMENTS

Counsel for the Secretary asked that judicial notice be
taken of the fact that clay is a mineral extracted from the land.
Tr. 85-86. Counsel then asserted that the "mine" in this
instance includes the area where the clay was extracted and the
area where it was stockpiled and trucked to the hopper. These
areas are basically contiguous. Tr. 87. Further, counsel
pointed to the MSHA-OSHA Interagency Agreement, 44 FR 22827
~April 17 0 1979), 48 FR 7521 (February 22, 1983) ("Agreement"),
and noted that it specifically provides that at brick plants OSHA
authority "commences after arrival of the raw materials at the
plant stockpile." EXh. P-5 at 4, Tr. 88. Counsel argued that the
"plant stockpile" was the stockpile at the brick plant, three and
one half miles away from the hopper, i.e, the stockpile at the
other end of the tramway. Tr. 88-89.
Counsel cited the "most troubling aspect" of the case as
being the fact that if the company's argument were accepted, when
the Company was in a "non-mining" phase of operation, that is
when it was only removing clay from the stockpile and taking it
to the hopper, company workers would be in a regulatory
Never-Never Land, protected by neither MSHA nor OSHA. Tr. 89.
In sum, counsel argued that under the circumstances of this
case the Company was an independent contractor performing
services at a mine and thus was properly subject to the
jurisdiction of the Act and to resulting inspection by MSHA.

8~4

Yarbrough, argued that while the area from which the clay
was extracted was clearly a mine, the mine was divided by the
levy from the area where the stockpile was located and the
stockpile side of the levy was not a mine. Tr. 91-92. Thus,
MSHA was without jurisdiction to inspect the Company's operations
inside the levy. Nonetheless, the Company's workers are fully
protected. The Company was insured and the insurance company
sent inspectors to inspect company equipment. Indeed, according
to Yarbrough, the insurance inspectors came twice as often as the
MSHA inspectors. Tr. 92.
JURISDICTIONAL FINDINGS AND CONCLUSIONS

While, as the u.s. Court of Appeals for the Fourth Circuit
has noted, the Mine Act does not apply to every company whose
business brings it into contact with minerals, I have no doubt
that in this instance the Company comes within the parameters of
the Act. See Donovan v. Carolina Stalite Co., 734 F.2d 1547 (4th
cir. 1984).
Section 4 of the Mine Act states that "(e]ach coal or other
mine, the products of which enter commerce . . . and each
operator or such mine . • • shall be subject to the provisions
of this Act." 30 U.S.C. 803. Section 3(h) (1), 30 u.s.c.
§ 802(h) (1), defines "coal or other mine" in part as:
(A)an area of land from which
minerals are extracted in nonliquid
form • • • (B) private ways and
roads appurtenant to such area, and
(C) lands, excavations, underground
passageways, shafts, slopes,
tunnels and workings, structures,
facilities~ equipment, machines,
tools and other property • • • used
in or to be used in, or resulting
from the work of extracting such
minerals o c o or used in or to be
used in the milling of such
minerals 0 or the work of preparing
coal or other minerals.
Section 3(d) 30 u.s.c. § 802(d) defines "operator" as "any
owner, lessee, or other person who operates, controls, or
supervises a coal or other mine or any independent contractor
performing services or construction at such mine."
In order to determine whether the Company is working at a
"mine" and if so whether it is an "operator" of that mine the
first question is whether the material involved is a "mineral?"

845

The pertinent material is clay that has been extracted in
non-liquid form. I note the definition of "clay" and I find that
the material is a mineral within the meaning of the Act. 2
The next question is whether the mineral is being
"extracted," "milled" or "prepared?" If so then the land from
which it is extracted or the lands, structures, etc., used in or
to be used in its milling or preparation constitute a mine.
Here, the Company was moving the clay from the place it was
stockpiled to the conveyor that transported it to the place it
was to be used as a raw material for the manufacture of bricks.
This transportation was not associated with a milling or
preparation process -- processes which, generally speaking, are
associated with the treating of mined minerals for market. See
Carolina Stalite, 734 F2d at 1551. However, the record is not
totally silent regarding whether or not the clay was subject to
any such treatment once it had been extracted. Yarbrough stated
that the Company occasionally.hadto harrow the stockpiled clay
in order to dry it so it could be trammed to the brick plant.
Since this aeration of the clay was a treating process incident
to the shipment of the clay to its ultimate market, it was
mineral preparation within the meaning of the Act, and I so find.
In addition, I reject Yarbrough's, proposed distinction
between the extraction and (apparently) the initial stockpiling
of the clay and transportation of the clay to the point where the
mineral was conveyed to the userjmanufacturer. 3 I note, as I
must, that the legislative history of the Act makes clear that
Mine Act coverage is to be favored and that "what is considered
to be a mine and to be regulated • o • be given the broadest
possibl[e] interpretation." So Rep. No. 181, 95th Cong., 1st
Sess. 14 (1977)u reprinted in Senate Subcommittee on Labor,
Committee on Human Resources, 95th Cong., 2nd Sess. 6 Legislative
History of the Federal Mine Safety and Health Act or 1977, at 602

~Clayw

is defined as:

A fine-grained, natural, earthy material composed primarily
of hydrous aluminum silicates. It may be a mixture of clay minerals
and small amounts of nonclay materials or it may be predominantly one
clay mineral. The type of clay is determined by the predominant clay
mineral present.
·
u.s. Department of the Interior, (1968) A Dictionary of Mining,
Mineral and Related Terms 214.
3

I state "apparently" because during his testimony Yarbrough seemed
to imply that both extraction of the clay and its initial stockpiling inside
the levy constituted mining activity subject to the Act, whereas in his
closing statement he seemed to take a more restrictive view and to argue that
only extraction was covered. see Tr. 33, 91-92.

846

(1978}. While it is true that when cited for the violations here
at issue, the Company was primarily engaged in transporting the
clay that others extracted and stockpiled to the hopper from
whence it would be conveyed to the brick plant, I conclude that
the transportation to the hopper was so closely related to the
extraction process that it indeed was an essential ingredient of
that process. Without transportation to the hopper extraction
would have been a meaningless exercise in that the clay would
never have entered the stream of commerce. I therefore conclude
that the area of the stockpile and the route to the hopper is
indeed a "mine" within the meaning of the Act. See·Bulk
Transportation Services, Inc., 12 FMSHRC 772, 792-793 (April
1990} (ALJ Koutras), aff'd 13 FMSHRC 1354 (September 1991).
I am further persuaded that the t;ubject area was a "mine" .by
the very fact that the Secretary chose to exercise his
jurisdiction over the area pursu~nt to the Act. The Secretary
enforces both the Mine Act and the Occupational Safety and Health
Act of 1970, 29 u.s.c. § 651 "6t.seg. .. , and has discretion in
determining which of his two enforcement agencies, MSHA or OSHA,
should exercise jurisdiction over a given facility or activity.
The Secretary's choice is entitled to deference provided it is
exercised reasonably. Here, where the alleged violations were
cited in an area virtually continuous to the extraction site and
in an area well within that which the Secretary regards as
falling under the Mine Act -- as counsel for the Secretary noted,
under the Agreement the Secretary claims Mine Act jurisdiction up
until the arrival of the clay at the plant stockpile -- I
conclude that the Secretary's choice of MSHA as the appropriate
inspection authority was reasonable.
The question remains whether the Company was an "operator"
within the meaning of the Act? Yarbrough was uncertain who owned
the land upon which the Company was working, nor did the
Secretary introduce evidence regarding ownership of the mine
site. Also, the record is not entirely clear regarding the
extent of the Company's control or supervision at the site,
although there is certainly no suggestion that at the time the
subject violations were cited any entity other than the Company
was exercising control or supervision at the site. What is
apparent is that the Company occasionally aerates the clay and
transports the clay for Burns Brick and charges Burns Brick on a
per unit basis .of approximately $9 per loade Tr. 29. Thus,
regardless of whether the Company was an "operator" by virtue of
its control and supervision of the area involved, certainly it
was an independent contractor performing a service at the mine.
For these reasons, I conclude that the Company was properly
subject to Mine Act jurisdiction.

847

THE VIOLATIONS
section 104(a) citation No. 3605398, 8/8/91, 30 C.F.R. S 56.14132

The citation states:
The warning horn on the Dresser
412 B pan scraper was not
operative.
Exh. P-2. 4

Inspector Collier stated on August 8, 1991, he observed the
pan scraper in operation at the mine. He inspected the equipment
and during the course of the inspection he asked the scraper
operator, Riley Sanders, to sound the scraper's horn. The
operator tried to do so, but the horn would not sound.
Tr. 10-11. Because the scrap.er was a self propelled piece of
equipment, Collier believed that the lack of an operable horn
violated section 56.14132.
With regard to gravity, Collier stated that although at the
time of the inspection no one aside from the scraper operator was
in the vicinity of the scraper there were "other employees who
might work in the area during the course of the shift everyday."
Tr. 14, see also Tr. 15. However, because the scraper normally
would not be operated in the vicinity of other employees Collier
considered it "unlikely" that persons would be injured due to the
violation.
With regard to negligence, Collier noted that the scraper
was required to be inspected at the start of the shift, prior to
being placed in operationo Tro 13-14u 16c
Yarbrough did not dispute the fact that the horn did not
sound. He explained that for some reason -- he did not know
why -- someone -- he did not know who -- had cut the horn wire.
Yarbrough acknowledged this had happened before and that the
Company had been cited for it. Tr. 20.

4

30 C.F.R. S56.14132(a) states:
Manually-operated horns or other audible
warning devices provided on self-propelled
mobile equipment as a safety feature shall
be maintained in functional condition.

848

I conclude the violation existed as charged. The scraper is
"self-propelled mobile equipment," and as Yarbrough acknowledged,
its horn did not work. Further, I accept the inspector's
testimony that an injury resulting from the violation was
unlikely and I find the violation was not serious. Finally, the
Company was negligent in allowing the violation to exist. The
fact that the horn did not work should have been detected and
corrected prior to the start of the shift and the fact that the
Company previously had experienced a similar problem, further
emphasizes its lack of due care.
section 104(&) Citation No.3605399, 8/8/91, 30
s 56.14130(i)

c.F.R.

Citation No. 3605399 states:
The seat belts on the Int. 1566
Tractor are not maintained in
functional condition. The buckle
is defective and will not stay
latched. The tractor is not being
used at this time but is subject to
be used anytime.
Exh. P-3. 5
Collier testified that when he inspected the International

1566 tractor on August a, 1991, the tractor was in the stockpile

area. Tr. 55. 6 During the course of the inspection Collier
attempted to buckle the seatbelt but could not get the buckle to
latch. Collier speculated that mud may have gotten into the
latching mechanism. Tro 50-Sle At the time of the inspection
the tractor was not tagged-out or put in an area of restricted
use so it could not be operated. Tr. 52o Collier stated that
Riley sanders told him that the tractor had "broken down" but
Collier denied sanders told him the tractor lacked the batteries
necessary to make it operable. Tr. 54. Collier stated that

30 C.F.R. S 14130(i) states:
Seat belts shall be maintained in
functional condition, and replaced when
necessary to ensure proper performance.
6

30 C.F.R. S 14130(a) requires that seat belts shall be installed on

tractors.

849

Sanders said "they'd used [the tractor] the day before," and
Yarbrough observed, "He had not used it the day before, I had."
Tr. 55.
Collier stated that he believed the condition of the
seatbelt constituted a violation of section 56.14130. He
further stated the violation was a significant and substantial
contribution to a mine safety hazard in that it was reasonably
likely if the seatbelt were not fixed a person could be thrown
from the tractor and be crushed. Tr. 52-53. When asked why he
thought it reasonably likely this could happen, Collier
responded:
Based on a recent policy memorandum. In
a study of mining accidents with haulage
equipment [,] of the fatalities that
occurred over a ten-year period • • .
1979 to 1989, • • • the use of seat
belts might have prevented half of those
fatalities and • • • we're to consider
non-use, not providing seat belts, or
seat belts not in a functional condition
• • • to be as serious.
Tr. 57. When asked whether there was anything with respect to
the particular site that he considered when determining the
violation was S&S, Collier replied, "[N]ot at that time."
Tr. 57.
With regard to the Company's negligence, Collier was of the
opinion that the condition of the seatbelt should have been
detected and corrected because the tractor is required to be
inspected prior to being placed in use each shift. Tr. 53.
Yarbrough stated the tractor wasn't in use the day the
citation was issued, but he agreed with the inspector that it had
not been tagged-out. Tr. 58. According to Yarbrough, one of the
tractorijs batteries had fallen off the tractor and had broken 6
and had been that way for two weeks. Further, Yarbrough stated
he had jump started the tractor the day before the citation was
issued and had moved it to the spot where the inspector found it.
Tra 59o
X find the violation existed as charged. Section
56.14130(i) requires that seat belts shall be maintained in
functional condition. There is no question about the condition
of seatbelt -- it did not latch. Moreover, the presence of a
non-functioning seatbelt was a hazard to the tractor operator.
As both Collier and Yarbrough agreed, the tractor was not removed
from service or marked to prohibit its use. Further, even though
it lacked a battery, the tractor could be jump started and moved,
as Yarbrough demonstrated.

850

I cannot find this was a serious violation. I accept
Yarbrough 1 s testimony that the battery was missing and had been
missing for two weeks prior to the inspection. The apparent
effect was to render the tractor inoperative for commercial use.
Thus, it was unlikely anyone would be exposed to the danger of
the tractor while in operation unless a person had, like
Yarbrough, jump started it and moved it to an area for repair.
This being the case, I also cannot find there was a reasonable
likelihood that the hazard contributed to -- the hazard of the
tractor operator being thrown from the tractor and crushed -would result in an event culminating in an injury. 7 The tractor
simply could not be used enough to make.an accident reasonably
likely. This being the case, I find the violation was not S&S.
I also am constrained to observe that the wisdom of the
inspector basing a S&S finding solely upon a policy or
informational memorandum and giving no consideration to the
factual situation at hand is highly questionable, to say the
least. The commission has made clear that the question of
whether a violation is S&S must be based upon the particular
facts surrounding the violation. Texas Gulf. Inc., 10 FMSHRC
498, 501 (April 1988}. While I suppose it is conceivable that
the Secretary could prove facts existed warranting an S&S finding
despite the inspector's failure to take them into account, I
cannot imagine such proof would be easily established or come by.

Finally, I find that the condition of the seatbelt exhibits
a lack of due care on the Company's part. Because the tractor
had not been taken out of service, the Company was required to
make certain that it complied with all applicable standards. A
reasonably prudent operator would have made sure the seatbelt
workedo
~04fa~

citation NoG 56 3605400, 8/8/91, Section 56.12025

The citation states:
The metal frame of the fuel pump
motor at the fuel storage area was
not grounded to the system ground.

7

In Mathies Coal Co., 6 FMSHRC 1, (January 1984), the Commission
set forth the four elements of a "significant and substantial" violation,
including the one critical here, a reasonable likelihood that the hazard
contributed to will result in an injury." In u.s. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984), the Commission amplified the meaning of the third
element of the Mathies test, explaining it "requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result
in an event in which there is an injury."

851

Exh. P-4. 8
Collier stated that during his inspection on August 8, he
observed a metal framed fuel pump located "pretty close to the
hopper" but to one side of it. Tr. 75. The pump was electric.
It was used to pump fuel from a fuel storage tank. Collier was
told the pump and storage tank belonged to Burns Brick, but that
the Company used the tank to store its fuel and used the fuel for
its equipment. Tr. 73, 75.
Collier noticed that the frame of the pump was not grounded.
However, Collier did not believe that it was likely any person
would be shocked because of the failure to ground the frame.
He observed that because the pump structure was located on the
ground, its electrical components were subjected to very little
vibration. (Vibration could cause an electrical short-circuit by
bringing conductors into contact with the frame.} Moreover,
Collier observed that the pump was not used very often so that
even if an ungrounded shock hazard occurred, which was unlikely,
it also was unlikely persons would actually be subjected to the
hazard before it could be corrected. Tr. 73.
With regard to the Company's negligence, Collier stated that
grounds have to be tested once each year and that the missing
ground wire should have been known to the Company. Tr. 74.
Yarbrough testified that the Company had begun using the
pump and tank in its day-to-day operation after the Company paid
Burns Brick for the fuel already in the tank. Tr. 78-79. Before
the Company started to use the pump Yarbrough had not inspected
ito and he did not know whether or not it was grounded. He
stated u 0' I never checked." Tr,. 79,.
X find that the violation existed as charged. The metal
pump frame enclosed electrical circuits, and the pump was not
grounded. While the pump itself appears to be have been owned by
Burns Brick, the Company bad the full use of it and was using it,
as Yarbrough stated, "in the day-to-day operations of moving the
material from the stockpile to the hopper." Tr. 79. Thus, the
pump was part of the equipment necessary for the Company to

30 C.F.R. S 56.12025 states:
All metal enclosing or encasing electrical
circuits shall be grounded or provided
with equivalent protection. This
requirement does not apply to battery
operated equipment.

852

perform its duties as an independent contractor, and I imply from
this that the Company was responsible for the pump and properly
cited for the violation.
Collier, an electrical engineer with a degree from Virginia
Polytechnical University, testified the chance of an injury
resulting from the violation was unlikely. I accept his
testimony and find that this was a non-serious violation.
Moreover, because the company was using the pump and was
responsible for it, due care required the Company to make sure
the pump met all applicable safety standards. The company did
not and in failing to do so I find that the Company was
negligent.
OTHER CIVIL PENALTY CRITERIA
Yarbrough testified and I find that the Company is small in
size.
See Tr. 81-82, 84. TheCompany's history of previous
violations also is small. In the two years proceeding August 8,
1991, the Company was assessed for a total of four violation.
G. Exh. P-1, Tr. 84-85.
Finally, Yarbrough stated that the size of the penalties
proposed by the Secretary for the violations here alleged would
not affect the Company's ability to continue in business and I
will consider this when I assessed civil penalties for the
violations that I have found herein. Tr. 81.
CIVIL PENALTIES
Taking in to account all of the statutory civil penalty
criteriaq I conclude that assessment of the following civil
penalties is appropriate:

Citation Noo
3605398
3605399
3605400

pate
8/8/91
8/8/91
8/8/91

30 C.F.R.
Section
56.14132
56.14130
56.12025

civil Penalty Amount
$20

$20
$20

ORDER

The Company is ORDERED to pay the civil penalties assessed
within thirty (30) days of the date of ~his decision. Payment is
to be made to MSHA and upon receipt or payment this matter is
dismissed.

853

The Secretary is ORDERED to MODIFY Section 104(a) Citation
No. 3605399 by deleting the "S&S" finding, which is hereby
VACATED.

71 . .· /) f'/.?

/)

~ t~· 7--<D~.vt-ff~
David F. Barbour
Administrative Law Judge

Distribution:
Michael K. Hagan, Esq., Office of the Solicitor, u.s. Department
of Labor, 1371 Peachtree Street, N.E., Atlanta, GA 30367
(Certified Mail)
Charles N. Yarbrough, Yarbrough Construction, Inc., P.O. Box 307,
Lizella, GA 31052 (Certified Mail)
fepy

854

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.
CONSOLIDATION COAL COMPANY,
Respondent

MAY 7 1993

CIVIL PENALTY PROCEEDINGS

...
.
.

Docket No. WEVA 92-917
A.C. No. 46-01455-03887
Docket No. WEVA 92-918
A.C. No. 46-01455-03888
Docket No. WEVA 92-933
A.C. No. 46-01455-03889
Docket No. WEVA 92-988
A.C. No. 46-01455-03891
Osage No. 3 Mine

...
..
:

Docket No. WEVA 92-921
A.C. No. 46-01453-04007
Docket No. WEVA 92-932
A.C. No. 46-01453-04011
Docket No. WEVA 92-994
A.C. No. 46-01453-04016

.

Humphrey No. 7 Mine

DECISION
Appearances~

Caryl L. Casden, Esq.u Office of the Solicitoru

u.s. Department of Labor, Arlington, Virginia,
for Petitioner;
Daniel E. Rogers, Esq., Consol,Incorporated,
Pittsburgh, Pennsylvania for Respondent.

Before:

Judge Barbour
STATEMENT OF THE CASE

In these proceedings the Secretary of Labor ("Secretary"}
on behalf of the Mine Safety and Health Administration ("MSHA")
charges the Respondent, Consolidation Coal Company ("Consol"),
with violating safety regulations promulgated pursuant to the
Federal Mine Safety and Health of 1977, 30 u.s.c. § 801 et seq.,
(The "Mine Act" of "Act"). In addition, the Secretary alleges
that certain of the violations constituted significant and
substantial contributions to mine safety hazards ("S&S"
violations) and that certain were the result of Consol's
unwarrantable failure to comply with the cited standards.

sse:

A hearing on the merits was conducted in Morgantown, West
Virginia, and counsels have submitted helpful post-hearing
briefs. At the commencement of the hearing counsel for the
Secretary announced that several of the violations had been
settled.
(In some instances the settlements disposed of the
entire case at hand.) At my request, counsel stated on the
record the facts pertaining to the settlement agreements and I
explained that I would consider the settlements and if I found
them warranted under the Act, I would approve them in my
decision.
THE SETTLEMENT AGREEMENTS
DOCKET NO. WEVA 92-917
There are two violations alleged in this case, both of which
the parties have agreed to settle.
Citation/Order No.
3307656
3716059

Date
11/28/90
10/16/91

30 C.F.R.
Section
75.305
75.503

Assessment
$ 276
$1100

Settlement
$ 166
$ 660

Counsel for the Secretary explained that Citation
No. 3707656 was issued for the failure of Consol to properly
conduct a required weekly examination for hazardous conditions in
the cited area of the mine. Counsel further explained that
although the manner in which the company was conducting the
examination was not correct technically, it was an effective and
safe way to examine. Therefore, counsel proposed the citation be
modified to delete the S&S designation and that the penalty be
assessed as shown aboveo TrQ ?o
Counsel further explained that Section 104(d)(2) Order
No. 3716059 was issued for the company's failure to properly
secure an electrical junction box on a loading machine. Upon
inquiring into the facts surrounding the violation, counsel
discovered that although two of four bolts were missing and the
other two were damagedu the box cables were taut so that the box
could not readily move. Therefore, in MSHA's opinion, it was
unlikely that the box would be damaged due to the missing and
defective bolts. Counsel proposed the order be modified by
deleting the S&S designation and that a civil penalty assessed be
as shown. Tr. s.

856

DOCKET NO. WEVA 92-118
There is one violation alleged in this case which the
parties have agreed to settle.
Citation No.
3716332

Date
03/25/92

30 C.F.R.
Section
75.1105

Assessment
$431

Settlement
$ 50

Counsel stated that subsequent to being issued, the citation
was modified by MSHA to delete the S&S finding, but that the
assessment erroneously did not take into account the
modification. Had the citation been assessed as modified, the
civil penalty proposed would have been $50 and counsel suggested
a civil penalty be assessed in that amount. Tr. 9.
DOCKET NO. WEVA 92-933
There are four violations.. alleged in this case, two of which
the parties have agreed to settle.
Citation No.
3718138
3715916
3715920
3718210

Date
12/18/91
01/08/92
01/13/92
04/20/92

30 C.F.R.
Section
75.1725(a)
75.400
75.400
75.601-1

Assessment
$1000
$ 800
$1200
$ 362

settlement
$1000
$ 362

Counsel stated that Consol had agreed to pay in full the
penalties proposed for Order No. 3718138 and Citation
No. 3718210. Tr. 9-10.
DOCKET NO. WEVA 92-988
There are five violations alleged in this case, four of
which the parties have agreed to settle.
CitatignlOrder )lo ..
3715905
3715909
3718483
3718486
3718488

Date
12/30/91
01/06/92
01/22/92
01/22/92
12/03/92

30 C.F.R.
Section
75.807
75.1105
75.503
75.202(a)
75.202(a)

Assessment
$241
$178
$241
$227
$178

Settlement
$145
. $178
$145
$178

Citation No. 3715905 was issued for Consol's failure to
properly place and guard a high voltage transmission cable. In
addition to the alleged violation, the inspector found the
violation to be s&s. counsel stated the cable had numerous
protective features to interrupt the power in the event the cable
was damaged and that should such damage occur there would be

857

little likelihood of injury to miners. Accordingly, counsel
proposed the S&S finding be deleted and a civil penalty be
assessed as shown. Tr. 11-12.
Citation No. 3718483 was cited for Consol's failure to
maintain a roof bolting machine in permissible condition. In
addition, the inspector found the violation to be S&S. The
impermissible openings constituting the violations were of
minimal dimensions (one in excess of .006 of an inch and one in
excess of .007 of an inch). Counsel maintained that any hazard
resulting from the violation was unlikely to occur, and counsel
proposed the S&S finding be deleted and a civil penalty be
assessed as shown. Tr. 12.
Counsel also stated that Consol had agreed to pay in full
the civil penalties proposed for citation No. 3715909 and for
Citation No. 3718488. Tr. 12-3.
DOCKET'NO. WEVA 92-932

There are two violations alleged in this docket, both of
which the parties have agreed to settle.
Order No.
3108769
3108741

Date
01/30/92
02/04/92

30 C.F.R.
Assessment
section
$800
75.1003(a)
$800
75.1101-8(c)

settlement
$400
$400

Section 104(d)(2) Order No. 3108769 was issued for Consol's
failure to adequately guard a trolley wire that ran above the
supply tracko The inspector further found that the violation was
S&S and resulted from Consolijs unwarrantable failure to comply
with the cited standard. Counsel stated that upon investing the
facts surrounding the violation MSHA had concluded the evidence
would not support the inspector's unwarrantable failure
determination. Counsel proposed the unwarrantable finding be
deleted~ the order of withdrawal be modified to a Section 104(a)
citation and a civil penalty be assessed as showno
Section 104(d)(2) Order No. 3108741 was issued for Consol's
to maintain an adequate discharge rate on a belt drive
sprinkler system. However, counsel stated that further
investigation into the facts surrounding the violation revealed
the system had been inspected 3 hours previously by Consol and
had been found to be fully functional at that time. Therefore,
MSHA did not believe the inspector's unwarrantable determination
could be supported at trial. Counsel therefore proposed the
order be modified to a section 104(a) citation by deleting the
finding of unwarrantable failure and that a civil penalty be
assessed as shown. Tr. 13-14.
failu~e

858

DOCKET NO. WEVA 92-994

order No.
3116513

Date
06/17/91

30 C.F.R.
section
75.220

Assessment
$1200

settlement
$1200

Counsel stated that Consol had agreed to pay in full the
proposed penalty. Tr. 14-15.
In addition to the statements of counsel, the record
contains information relating to the six statutory penalty
criteria found in Section llO(i) of the Act, 30 u.s.c. § 820(i).
APPROVAL OF THE SETTLEMENTS
I have considered all of this information and I find that
approval of the penalties upon which the parties have agreed is
warranted and reasonable and in the public interest. I further
find that counsel for the Secretary has stated adequate grounds
for the modifications of the citations and orders that the
parties have made a part of the settlements.
Accordingly, the settlements are approved. I will order the
appropriate payments and modifications at the end of this
decision.
CONTESTED CASES
STIPULATIONS
At the commencement of the hearing regarding the contested
cases that parties stipulated as follows:
lo
Consol is the owner and operator of mines in which
the subject citations and orders of withdrawal were issued;

2.
The operations of Consol are subject to the
jurisdiction of the Mine Act;
J.,
The Federal Mine Safety and Health Review
commission and the Administrative Law Judge have
jurisdiction over these proceeding pursuant to Section 105
and 113 of the Mine Act, 30 u.s.c. §§ 815 and 823;

4.
The individuals who issued the contested citations
and orders were acting in their official capacity as
authorized representatives of the Secretary when the
citations and orders were issued;
5.
True copies of each of the citations and orders at
issue were served on Consol as required by the Act;

859

6.
The total proposed penalty for the violations
alleged in the citations and orders contested by Consol will
not effect Consol's ability to continue in business;
7.
The citations and orders that will be submitted as
exhibits are authentic copies of the citations and orders
that are at issue;
8.
The proposed assessment forms that will be
submitted as exhibits set forth accurately Consol's size,
production, hours worked per year and the total number of
assessed violations in the 24 months preceding the date of
the alleged violations.
See Tr. 17-18.
DOCKET NO. WEVA 92-933
ORDER NO. 3715916, 01/08/92, 30 C.F.R. S 75.400
MODIFICATION OF THE ORDER

MSHA Inspector Lynn Workley when issuing this order of
withdraw found the alleged violation of section 75.400 to be S&S.
subsequently, the order was the subject of a conference between
MSHA and Consol. As a result of the conference the order was
modified to delete the S&S finding. In a letter dated December
2, 1992, counsel for the Secretary stated to counsel for·consol
that this modification was an error. Further, she stated that
she had advised Consol's counsel of this error during a
December lu 1992 telephone conversation. Finally, she stated
that she intended to present evidence regarding the alleged S&S
nature of the violation at the December Bu 1992 hearing.
Prior to presenting her case, counsel for the Secretary
moved to amend the order to include an S&S finding. Tr. 18-19.
consol•s counsel objected, expressing his belief that Consol
should be able to rely on what was done at the conference.
Tro 20o Counsel for the Secretary responded that such an
amendment is permissible, provided the operator is not
prejudiced. Tr. 21.
I note that in order to grant the motion I must find not
only a lack of prejudice, but also that the moving party is not
guilty of bad faith, See Wyoming Fuels Corp., 14 FMSHRC 1282,
1289-90 (August 1992). Counsel for Consol candidly stated Consol
was not prejudiced. Tr. 21. Further, far from exhibiting bad
faith, counsel for the Secretary seasonably advised Consol's
counsel of how she intended to proceed. Accordingly, the motion
is granted and the inspector's S&S finding is restored to order
No. 3715916.

860

THE VIOLATION
THE EVIDENCE

The order states:
Combustible material had been
permitted to accumulate on the 2
left belt, in that a pile of fine
dry coal dust up to 6 inches deep
was under the belt at the first low
bottom roller and there was a layer
of dry float coal dust on the
transfer structure, water line, and
belt structure, from the transfer
inby for 30 feet on the 2 left
belt. The float coal dust was dry,
black and powdery and varied from
1/16 to 1/4 inch deep.
Exh. P-2 • 1

Inspector Workley stated that when he inspected the Osage
No. 3 Mine on January 13, 1992, he was accompanied by the
representative of miners and by Consol's safety escort, Norm
Hill. Tr. I 28. Workley was familiar with the mine in that he
had inspected it in its entirety on several prior occasions.
Tr. I 27. The inspection party approached the 2 Left section
belt transfer, the point at which the 2 Left belt dumps onto the
main belt, and Workley observed accumulations of coal dust on
the top of the transfer structure, on the bearing box for the
transfer roller, and on the water line above the 2 Left section
belt and the belt structure. The dust was black in color and
extended a total distance of approximately 30 feet. To gage the
depth of the dust Workley ran his finger through it and found
that it ranged for 1/16 to 1/4 inch deep. Tr. I 29.
Under the bottom belt of the 2 Left section belt Workley
also observed fine coal and coal dust. The material was in a
pile and Workley placed his hand in the pile and determined that
the coal and coal dust was dry. Also, he measured the pile with
a ruler and found it to be approximately six inches deep and
three feet square. Tr. I 29-30.
30 C.F.R. S 75.400 provides:
Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose
coal, and other combustible materials,
shall be cleaned up and not be permitted
to accumulate in active workings, or on
electric equipment therein.

861

Workley explained that due to the amount of coal dust
present he was of the opinion the accumulation had existed for
several days. Further, he explained that the area of the 2 Left
section belt transfer must be examined once each shift and that
miners are at times required to shovel the belt. Thus, it was
his opinion that the area of the 2 Left section belt transfer
constituted active workings. ("Active workings" is defined as
"any place in a coal mine where miners are normally required to
work or travel. 30 C.F.R. S 75.2(g) (4).) Because section 75.400
prohibits the accumulation of float coal dust and coal dust in
active workings, Workley believed that the condition constituted
a violation of the regulation.
Consol's chief safety inspector, Earl Kennedy, stated that
he was at the mine on January a, and that approximately one hour
before Workley cited the violation, he, Kennedy, had walked past
the 2 Left section belt transfer area looking for hazards on the
belt line. When asked what he had observed, Kennedy responded:
I seen an area that was well rock
dusted. I seen an area that was
properly ventilated. I seen an
area where there was no ignition
sources. I seen an area that had
fire suppression, heat sensors,
belt scrapers, no rubbing, nothing
hot, proper walkways, (and] dates
where the fire bosses had been
• • • recently. I seen an area
that I would have been proud of.
Tro I 81o When asked whether he had noticed accumulations of
coal dust Kennedy repliedu wi saw what I just describedo ie Id.
Kennedy stated that when he heard that an order had been written
on conditions in the area he "almost fell down. we l!L. However 6
Kennedy added that the 2 Left section belt transfer had two
levels -- an upper and a lower level -- and that he could not
have seen the area cited by Workley for accumulations of float
coal dust 6 an area visible from the upper level 0 because heQ
Kennedy 8 was on the lower level. Tr. I 82-84.

After passing the 2 Left section belt transferu Kennedy
traveled to other areas of the mine 6 but he returned to the area
of the 2 Left section belt transfer after hearing that the
subject order had been issued. He arrived while the alleged
accumulations were being cleaned up. Kennedy maintained that if
there was an accumulation of anything in the area it was a pile
of rust and dirt, reddish brown in color, under the belt. This
material had been scraped from the belt by the belt scrapers and
had fallen under the belt. Tr. I 85. Kennedy believed that the
heavier particles of rust and dirt fell to the floor,
particularly under the bottom roller scraper, and the finer

862

particles were put into airborne suspension and as dust ended up
on the belt structure. Although he admitted that "there was some
coal dust" on the belt structure, most of what was on the belt
structure, was of the fine, reddish brawn rust and dirt
particles. Tr. I 86-87.
William Kun also testified for Consol. Kun has been the
safety superintendent at the mine since May 1985. Kun stated
that 3 days before the order was issued he traveled to the area
of the 2 Left section belt transfer and noticed brownish/black
material -- "muck, water, whatever" -- under the belt. Kun was
certain that whatever the material was, .it was not float coal
dust or spilled coal. Tr. I 113.
EXISTENCE OF THE VIOLATION
Workley, an experienced mine inspector, was a cogent and
credible witness. He described in detail the float coal dust,
coal dust and loose coal that, he had observed. He determined its
depth. He estimated and measured its ·extent. He further
determined through a hands-on approach that the accumulation
under the belt was dry. Kennedy did none of this and I fully
credit Workley's testimony regarding what he observed under the
belt.
With regard to the float coal dust on the transfer
structure, the belt structure and the water line, I note
Kennedy's admission that he could not see the structure on the
upper level during his first visit to the area. Kennedy only
viewed the area after abatement had begun, and I credit Workley•s
testimony that when Kennedy arrived some float coal dust had not
yet been removed and still was present. Workley had remained in
the 2 Left section belt transfer area after issuing the order and
he was monitoring the abatement procedure. Therefore, I find the
weight of the evidence established that the accumulations existed
as described by Workley.
Loose coal and coal dust is combustible, and consol does
not contend that the area of the 2 Left section belt transfer was
an inactive workinge Accordingly, I conclude the violation of
section 75e400 has been proven as charged.
S&S AND GRAVXTY
Workley stated that he considered the violation to be of a
S&S nature because coal dust once ignited can go into suspension
and propagate a mine fire or an explosion. In his opinion, such
a result is reasonably likely to occur when accumulations are

863

adjacent to potential ignition sources. Tr. I 40-41.
put it:

As Workley

When you permit combustible material
to accumulate in the coal mine, all
that is necessary • • • is an ignition
source. Rollers on belt lines go bad
frequently. We have difficulties with
electrical cables, rocks fall on them
can split them open. There is
sparking potential. If an ignition
source occur(s] and the.float dust or
dry coal dust is present you have a fire.
In a coal mine a fire can be a disaster
in no time.

Turning from the general'to the specific, Workley described
several potential ignition sources that he believed made the
cited accumulations a fire or an explosion waiting to happen. He
noted that there were bearings on both sides of the transfer
roller and that all of the belt rollers had bearings. Workley
maintained that there were approximately 20 roller bearings for
every 10 feet of belt. Tr. I 41-42. He stated that when a
bearing "freezes" metal rubs on metal as the roller turns and the
roller shaft can become red hot from the friction in 11 just a
short period of time." Tr. I 42. Workley stated that he had been
told by mine management that as many as a dozen rollers
previously had gone bad on one belt in one shift. Tro I 44.

In addition 0 Workley explained the way a bearing could
freeze -- dust and dirt could enter the bearing and create
excessive friction and heat., 09 0nce the bearing starts
deteriorating
just melts., ij~ Id.
A

further potential ignition source was the bottom belt

which could shift while it was running and could cut into the

belt structure., The resulting heat from the friction could start
a fire or an explosion., Tro I 44-46.
Finally 9 Workley stated that a layer of float coal dust
than a ordinary sheet of paper would propagate an
explosiono When asked ifQ in his opinionu there was enough float
coal dust present in the left belt transfer area to propagate an
explosion, Workley replied, "Dozens of times. More than enough."
Tr .. I 46.
~hinner

If a fire were to occur Workley believed that one or more
miners would probably suffer burns or smoke inhalation attempting
to extinguish the fire. If an explosion were to occur, not only
would miners in the vicinity of the 2 Left section belt transfer

864

area be subject to concussive 1nJuries but miners in other
entries could be injured by flying concrete blocks blown out of
stoppings. Tr. I 49-50.
Workley admitted that the walkways, the roof and the ribs
surrounding the accumulations were well rock dusted and he agreed
that if there were an ignition and rock dust were blown into the
air by the ignition, the rock.dust could prevent propagation of
the explosion. Tr. I 59-60. He also agreed that fire prevention
devices such as a carbon dioxide monitoring system and a fire
suppression system were installed along the belt line,
Tr. I 66-67, and he acknowledged that at the time he issued the
subject order, no defective bearings were present in the 2 Left
section belt transfer area. Tr. I 68.
Kennedy, testifying on Consol 1 s behalf, he stated that the
bearings on the transfer rollers were self-greased and thus were
not as subject to failure from dust or dirt getting into their
mechanisms. Tr. I 95. On the· other hand, the bearings for the
belt rollers were not self-greased and he agreed that they
periodically "go bad." Tr. I 97. According to Kennedy, when
this happened the top rollers rarely got hot enough to cause a
fire.
Although Kennedy admitted, nr do know of situations where
belts cutting have caused belt fires," he maintained that the
subject belt structure was of a new design that prevented the
belt from ever cutting into the structure. Tr. I 97-98. Kennedy
also maintained that if the area of coal dust cited by Workley
had been present, it would have presented a "serious problem"
only if it had been ncompletely around the area •
[and had
been] dry float dust just like gunpowder 0 °1 which it was not.
o

o !

•

Jl01o

The Commission has held that a violation is "significant and
substantial" if, based on the particular facts surrounding the
violationu there exists a "a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious :nature .. vQ Cement Division.· National Gypsum
Co.v 3 FMSHRC 822, 825 (April 198l)o In Mathies Coal Co., 6
FMSHRC ~u J-4 (January 1984) 8 the Commission further explained:
In order to establish that a violation
of a mandatory safety standard is
significant and substantial under National
Gypsum, the Secretary of Labor must prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard
-- that is, a measure of danger to safety
contributed to by the violation; (3) a
reasonable likelihood that the
hazard contributed to will result

865

in an injury; and (4) a reasonable
likelihood that the 1n)ury in
question will be of a reasonably
serious nature.
I have concluded that the accumulations existed as described
by Workley and that they constituted a violation of section
75.400. Further, there certainly was a measure of danger
contributed to by the violation. Obviously, loose coal can burn.
In addition, float coal dust and coal dust can burn and, if put
into suspension, can propagate an explosion. Moreover, multiple
ignition sources were present. Even if I were to find that
Kennedy was right about the belt not being able to cut into the
belt structure and that the self-greasing roller bearings were
less likely to fail (and I have no reason to disbelieve his
statements in this regard) there remain the many non-selfgreasing roller bearings, which as both Workley and Kennedy
agreed, were subject to failure and overheating. The fact that
the bottom non-self greasing rollers were more likely to fail
does not mean that those for the top belt did not occasionally
fail as well and, in any event, the pile of coal dust and loose
coal under the bottom belt was adjacent to the bottom rollers.
Exh. P-1.
I believe the evidence establishes that if normal m1n1ng
operations had continued stuck roller bearings would have
resulted and an actual ignition source would have been present.
Thus, the hazard contributed to by the violation, a fire or
explosion in the active workings in question, was reasonably
likely to occur and posed a reasonable likelihood of injury to
miners working in the area of the 2 Left section belt transfer.
Obviouslyu any injuries resulting from such a fire or explosion
would be of a reasonably serious natureo
In sum 0 I agree with Workley that the violation was S&S. I
also conclude that it was a serious violation. In assessing the
gravity of the violation, both the potential hazard to the safety
of miners and the probability of the hazard occurring must be
analyzed. Here the potential hazard was grave$ Underground
fires andfor explosions present a very real threat of death or
serious injury. Moreover, as I have found, had normal mining
operations continued, a frozen roller bearing reasonably could
have been expected and an actual ignition source would have been
presento
UNWARRANTABLE FAILURE AND NEGLIGENCE
Workley testified that a certified person must examine the
area of the 2 Left section belt transfer at least one time each
shift. Tr. I so. Given the quantity of the accumulations, he
estimated that it had taken up to three days for them to reach
the state he had observed. Further, given the location of the

866

accumulations and the fact that they were "easily observable,"
Workley believed that Consol's failure to detect and correct the
condition was the result of unwarrantable failure. 2 Tr. I 50-51.
In Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December
1987), and Youghiogheny & Ohio Coal co., 9 FMSHRC 2007, 2010
(December 1087), the Commission held that "unwarrantable failure
means aggravated conduct, constituting more than ordinary
negligence, by an operator in relation to a violation of the
Act." The Commission stated that while negligence is conduct
that is "inadvertent," or "inattentive," conduct constituting an
unwarrantable failure is conduct that is "not justifiable" or
"inexcusable". Emery, supra
·
As previously stated, Workley was a cogent and credible
witness. His estimates of the length of time the accumulations
had existed and his opinion that the accumulations should have
been easily detected by the preshift examiners are worthy of
belief. For example, as noted·below, Workley stated that he
could see the float coal dust from 50 feet away, and I accept
this to be a statement of fact. Moreover, the pile of coal dust
and loose coal under the belt was visually obvious.
Thus, in view of the size and extent of the accumulations
and the fact that it took several shifts for the accumulations
to reach the point at which Workley found them, I hold that the
repeated failure of consol to detect the accumulations and to
remove or to neutralize them was the result of Consol's
unwarrantable failure to comply with section 75.400.
I further conclude that consol exhibited high negligence in
overlooking the prohibited accumulations for the several shifts
that they existedo
SECTION 104(4)(2) ORDER NO. 3715920, 1/13/92, 30 C.F.R. S 75.400

Order No. 3715920 states:
Combustible material in the form of
dry loose coal and coal dust had
accumulated between and beside the
rails of the old 11 North Spur from
roof and rib sloughage and from
spillage off of loads parked there.
The loose coal has been ground into
fine dry black powder where the
wheels of loaded coal cars travel,
and is laying against the rails
2

Workley testified that he could see the black float coal dust from
50 feet away. Tr. I 50-Sl.

867

which are the return conductors of
the 300 volt D.C. trolley system.
The combustible· [material has]
accumulated mostly in the last 400
feet of the spur. The most recent
date board was 11/25/91 on a crib
near the end of the spur.
Exh P-7.

The order alleges a S&S violation of section 75.400.

Workley testified that he inspected the 11 north spur, a
side track running off of the main track where empty andfor
unneeded mine cars regularly were parked. The mine cars were
backed into and pulled out of the spur by a locomotive that
derived its power from the track trolley wire. Tr. I
131-132. Workley described the spur as extending approximately
1,000 feet off of the main track. Tr. I 124-127. 3 The trolley
wire ran along the main track and extended about 30 feet into the
spur. Tr. I 146. At the end of the spur there was a crib on
which there was a date board. The most recent date on the board
was November 25, 1991. Tr. I 147.
Workley testified that on January 13, he commenced his
inspection of the spur at its mouth-- i.e., the point where the
spur joined the main track. Mine cars were parked in the spur
and Workley had to walk between the rib and the cars to inspect
the area. Tr. I 149. In the back 400 feet of the spur he
observed accumulations of dry, loose coal and coal dust along the
track and between the rails. Workley stated that the coal and
coal dust came from small chunks of coal that had fallen from the
mine roof and ribs. He also indicated that he believed there was
some spillage from the mine cars. Tr. I 125, 128. Adjacent to
the rail the coal had been finely ground. It was black in color
and Workley picked some up and described it as having the
consistency of "facial powder." Tr. I 128.
The coal and coal dust became more extensive as Workley
neared the end of the spur~ The entry was approximately 13 feet
wide. Toward the back of the entry the accumulations extended
from rib to rib. Tr. I 128. The coal and coal dust varied in
thickness from one inch to six or seven inches, and, according to
Workley 8 all of it was extremely dry. Tr. 128-129.

3
According to Workley, a full trip of mine cars contains about 35
cars. If such were parked in the spur, the cars would extend from the mouth of
the spur nearly to its end. Tr. I 147.

868

EXISTENCE OF THE VIOLATION

consol did not offer testimony to counter Workley•s
description of the condition of the spur. Kun, the only witness
to testify for Consol regarding the alleged violation, had
nothing to say concerning the existence of the coal and coal
dust. Accordingly, I find that the conditions described by
workley in fact existed.
In defining a prohibited "accumulation" for section 75.400
purposes, the Commission has noted that while "some spillage of
combustible materials may be inevitable in mining operations. • •
it is clear that those masses of combustible materials that could
cause or propagate a fire or explosion are what Congress intended
to proscribe." Old Ben Coal Co. 2 FMSHRC 2808 (October 1980). As
I will describe when discussing the issue of S&S, workley
credibly testified that given the extent and nature of the coal
and coal dust and its location next to potential ignition
sources, the accumulations notonly could cause a mine fire, it
was reasonably likely that they would. Tr. I 131-132. I
therefore conclude that the Secretary has proven that the cited
conditions constituted a violation of section 75.400.
8&8 AND GRAVITY

workley believed the accumulations constituted a S&S
contribution to a mine safety hazard. He noted the extremely
dry, finely ground coal dust and loose coal lay approximate to
the rails and adjacent to the wheels of the mine cars. Workley
e~lained that the locomotive pulling the cars drew up to 2,000
amps of direct current and that the current passed through the
cars to the wheels and then to the rails and then to a rectifier
to complete a circuit. Tr. I 131-132. If there was a gap
between the wheels and the rail or a gap between the track
joints, arcing could occur. Tr. I 134. workley stated that such
arcing was not unusual and that he had observed it almost every
time he has seen mine cars being moved by a locomotive. ("I've
seen sparks and small arcs come off the wheels of mine cars
almost every time that I'm alongside the haulage and the trip
qoes past with the motor applying power." Tr. I 135.)
Workley
noted that if a locomotive were moving a full trip of cars into
or out of the spur, the arcing and sparking could occur almost to
the end of the spur. He believed that the coal and fine dry coal
dust near the track could be "very easily ignited" and that given
the extent of the accumulated material a fire could "get out of
hand very quickly." Tr. I 137.
Workley also remarked upon the absence of heat sensors and
fire suppression devices in the spur and stated that while the
locomotive operator would be immediately subject to the dangers
of smoke inhalation and burn injuries, if smoke got into the main
line haulage entry, all miners working along the haulage or

869

traveling it would be endangered. Tr. I 138-139, 140. However,
workley also observed that the spur is ventilated by air that
passes from the main line haulage into the spur and travels to
the end of the spur before exiting into the return. Tr. 150.
Thus, should a fire occur in the spur, in the course of normal
mining operations the only person who would be inby the smoke
would be the examiner who must walk and examine the spur and the
returns. Tr. I 151.
consol offered no testimony refuting Workley's contentions
regarding the ignition source presented by the mine cars.
Although Kun testified that he never had observed sparks caused
by moving cars in the spur, he also stated that he had never been
in the spur when cars were being moved. Tr I 174. Moreover, he
agreed that he had seen sparks when he had seen cars being moved
in other areas of the mine. Tr. I 186.
I conclude that the Secretary has established the S&S nature
of the violation. The violation ~xisted as charged. The
accumulated coal and coal dust was located in an area that was
required to be preshift examined, as Workley and Kun agreed.
Tr. I 141, 171. Thus, miners were exposed to the hazard. The
mass of coal and coal dust that could have burned was large.
Therefore, a "measure of danger to safety" was presented by the
cited accumulation.
Kun stated that 95 to 98 percent of the time he had been in
the spur he found it to be full of coal cars. Tr. I 185. I
accept this and conclude that there was a great deal of coal car
movement into and out of the spur. Given the fact that arcing
and sparking would most likely occur in the immediate vicinity of
the loose coal and coal dust whenever cars were moved, I find
that had normal mining operations continued there was a
reasonable likelihood of fire.
Moreover, such a fire was reasonably likely to cause injury
to the locomotive operator or to any certified person from Consol
who was examining the spur or the return air courses that
ventilated by air that had passed through the spur. Finally, and
as Workley noted, such persons would be subject to burns and
smoke inhalation, injuries that would be of a reasonably serious
nature.
In assessing the gravity of the violation, I note that the
potential hazard was grave. Smoke inhalation and burns can
severely injure miners. Given the extent of the accumulations,
their close proximity to the tracks, the probably frequency of
arcing or sparking along the tracks and the regular presence of
miners proximate to the hazards, I conclude that this was a very
serious violation.

870

tmWARRANTABLE FAILURE AND NEGLIGENCE

Workley believed that the coal and coal dust "took days or
weeks or maybe even a month" to accumulate. Tr. I 141. He
further stated, as already noted, that a certified person is
required to examine the spur, and he added that any person who
walked to the end of the spur could have seen the accumulations.
Tr. I 141-142. To Workley, the presence of the accumulations
signaled the failure of the preshift examination process.
Tr. I 142.
Kun emphasized the difficulty of making the required
examination. He testified that the entry had been cut with a
borer. As a result, the ribs sloped from the roof. Since mine
cars usually were in the entry the examiner had to walk between
the sides of the cars and the ribs and there was very little
clearance. Tr. I 166-167c In addition, although the spur was
six feet high for its first 150 feet, it decreased to 4 feet
after that point. Tr. ·I 165. ,,Thus,. the preshift examiner not
only had to bend as he traveled·the entry, he also had to drop
one shoulder as he walked. Tr. I 165-166, 168. Further, because
the coal and coal dust was compacted, it was difficult for the
preshift examiner to see under the mine cars, there being about
one to one and a half inches of clearance between the top of the
compacted material and the bottom of the mine cars. Tr. 169-170,
182. However, Kun subsequently admitted that there was
approximately 24 inches of space between each mine car and that
it was possible to see the mine floor between the cars.
Tr. I 185.
I accept Kun's testimony concerning the inconveniences and
complications involved in examining the spur, nevertheless
whatever the difficulties the area is required to be examined so
that hazardous conditions are reported and corrected. There was
no testimony offered to refute Workley 8 s belief that the
accumulations had existed for some days at least, and I agree
with Workley that the extent of the accumulations and the length
of time they existed makes it clear that the preshift examination
was wholly inadequateo Moreoveru while it may well have been
virtually impossible to look beneath the cars, the accumulations
should have been readily apparent between the cars. Therefore, I
also agree with Workley that in allowing the violation to exist,
Consol 9 s preshift examiner or examiners exhibited conduct that
was not justifiable or inexcusable, and I conclude that the
violation was indeed due to Consol's unwarrantable failure to
comply with section 75.4000

871

I further conclude that consol exhibited high negligence in
overlooking the prohibited accumulations for the several shifts
that they existed.
WEVA 92-988
SECTXON l04(a) CXTATXON NO. 3718466, 12/3/92
30 C.F.R.

§

75.202(a)

citation No. 3718466 states:
There is an area of inadequately
supported roof in the 2 left return
aircourse. At 60 feet outby spad
818 there is a slip outby a roof
bolt and a 1/2 inch crack extends
into the rock at a 45 [degree)
angle. The j;:.op is sagging and
drummy outby the.slip and the bolt
is 48 inches away.
Exh P-1A. The citation alleges a S&S violation of section
75.202(a). 4
Workley testified that on December 3, 1992, he was
inspecting the 2 Left return aircourse near the mouth of the
section when he observed a crack in the mine roof 1/2 inch to 3/4
inch wide. The crack was approximately 5 feet long and ran
across the entry. The roof was approximately 6 1/2 to 7 feet
high. One side of the crack was "hanging" about an inch below
the other side. Tr. 190-191. Workley stated that he measured
the depth of the crack with a ruler and found it to be 18 inches.
The crack extended into the roof on an angle of approximately 45
degrees. Tr. I 191.
Workley believed that the crack indicated a vertical fault
in the roof strata. He explained that such faults are especially
dangerous because the roof can slip and fall without warning
along the fault line. Tr. 192-193. Because of this and because

4

30 C.F.R.

§

75.202(a) states:

The roof face and ribs of areas where
persons work or travel shall be supported
or otherwise controlled to protect persons
from hazards related to falls of the roof,
face or ribs and coal or rack bursts.

872

the crack was in the middle of an entry that was daily traveled
by miners, Workley believed that the condition violated section
75.202 (a) • 5
EXISTENCE OF THE VIOLATION

Consol did not challenge the fact that miners at the Osage
No. 3 Mine worked and traveled the entry directly beneath the
cited slip. Thus, the question is whether the roof was supported
or otherwise controlled on December 3 to protect those persons
from a roof fall?
Kun testified that approximately two weeks after the
violation was abated he traveled the entry. While he observed
posts that had been set to abate the condition, he was unaware
that a citation had been written for the condition and he was
curious as to why the posts had been set. Tr. I 206. 6 After he
found out that a citation had been issued, he went back to look
more closely at the condition. He also had looked at the
condition a week before the'hearing. According to Kun, when he
observed the roof the week before the hearing its condition was
unchanged from when he had seen it after learning about the
citation. Tr I 207-207. Kun stated that the posts did not
appear to be taking any weight and wedges at the top of the posts
were not squeezed-out, as they would have been if the roof were
sagging on the posts. Tr. I 210-211. In addition, the crack had
not widened. Tr. I 211.
Kun measured the spacing to the roof bolts and found them to
be approximately 48 inches apart in the area of the crack.
Tr. 212. (Workley did not measure the roof bolt spacing, but had
testified that the roof control plan required bolts to be
installed on five foot centers and that the crack developed in an
area between the bolts. Tr. I 192. Since Kun actually measured
the spacing -- and since the bolts were not repositioned between
the time Workley cited the violation and Kun measured -- I accept
Workley testified that miners would "drag" the entry and would do so
least daily. Tr. X 195.
(He described dragging as follows: "a piece of
brattice cloth is usually attaches to a board or a stick. The miners drag that
&long behind them down the aircourse. As it drags on the mine floor it turns
[the] coal dust down into the rock dust.w Id.) In his opinion other miners who
would be subject to the roof fall hazard were persons examining the return air
course, persons rock fall hazard were persons examining the return air course,
persons rock dusting it and any mine who might use the aircourse for "sanitary
purposes.~
Tr. I 199.
~t

6

Workley had testified that given the height of the entry and the fact
that one side of the crack overhung the other by about one inch, it would not
have been unusual for someone examining the entry to have missed seeing the
crack. "If he didn't look up at just the right location as he was passing under
it, he would miss the crack." Tr. I 203.

873

Kun's testimony that the roof bolts in the area of the crack were
approximately one foot closer together than required by the
plan.) In addition, Kun testified that a plank had been
installed at one end of the crack and that the back portion of
the crack was supported by the plank. Tr. I 210.
(Workley could
not recall if the plank had been in place on December 3, and I
accept Kun's testimony in this regard. Tr. I 210.)
Kun believed that when roof bolts had been installed in the
entry, the weakness in the roof had been detected by Consol, the
spacing of the roof bolts had been accordingly reduced and the
plank had been installed. Given the reduced spacing of the roof
bolts and the presence of the plank, he did not believe that roof
would have fallen. Tr. I 209-210, 212-213. However, he also
stated that "it's possible additional posts should have been set
• [i]t's a judgement thing that everybody has to make."
Tr. I 219.
I am persuaded that the Secretary has established the
existence of the violation. Workley's testimony regarding the
inherent danger of a verticle fracture in the plane of the roof
strata is compelling. As Work.Iey explained, a verticle fracture
in the Pittsburgh coal seam is particularly likely to produce
unpredicted falls between the roof bolts. Tr. I 197-198. ·
Moreover, while Kun testified that the posts set to abate the
violation did not appear to be taking any undue weight and while
I fully credit his testimony, I do not find it relevant to
whether or not on December 3 the roof was supported to protect
persons from roof falls. The posts had been set to abate the
violation and all that I can conclude from Kun's testimony is
that they were doing their job.
Moreover, Consol does not dispute Workley's testimony that
the 2 Left return aircourse is required to be traveled weekly by
a person examining the aircourse and that it at least
occasionally has to be rock dusted.
I therefore hold that on December 3, the area cited was an
area where persons were required to work and travel and the roof
was not supported to protect those persons from falls.
S&S AND GRAVITY

The evidence establishes a violation of the cited standard.
There was a measure of danger contributed to by the failure to
support the roof to protect those working and traveling under it
from the danger of a roof fall, in that the lack of adequate
support, a roof fall could occur at any moment and without
warning. Further, during the course of continued normal mining
operations, miners were required to travel and work under the
cited area, and given the propensity of the roof to fall along
the fault line, I conclude it was reasonably likely that had
normal mining operations continued the roof would have fallen and
struck a miner. Finally, as Workley stated, the fall of a rock

874

weighing at least one half of a ton and falling from six and one
half feet on an unsuspecting miner would seriously disable, if
not kill outright, the person struck. Tr. I 199. Thus, the S&S
designation was appropriate and is affirmed.
Also, I conclude that this was a serious violation. As I
have found, the potential hazard to miners was at least one of
disabling injury. Because the entry was not traveled or worked
in during every shift, there was a somewhat reduced likelihood of
a miner being injured. Thus, what might otherwise have been
found to constitute an extremely serious violation is found to be
serious instead.
NEGLIGENCE

At the time he cited the violation, Workley believed that it
was due to Consol's "low" negligence. See Exh. P-1A. This
assessment of negligence, made contemporaneously with the
citation of the violation, was confirmed by Workley's testimony.
Workley persuasively explained how the crack would have been easy
for the someone examining the. return aircourse to miss. The
examiner would have had to "look up at just the right location as
he passed under it." Tr. I 203. Even an experienced mine
examiner easily could have walked by the area and not have
detected the crack. Tr. I 201. Therefore, I agree with Workley
and find that the violation existed due to a low degree of
negligence on Consol's part.
WEVA 92-921
SECTION 104(4)(2) ORDER NO. 3315335, 7/29/91, 30 C.P.R. S 75.515

Order Noo 3315335 states~

on the 6 South West Longwall at the
power center a properly assembled
entrance was not provided for the
shearer circuit trailing cable
plugo Bolts were missing from the
back of the cable plug assembly
thereby not providing proper strain
relief. Mine management was told
on July 25u 1991 that this needed
to be repaired before starting load
coal with the longwall. Two passes
were mined. Bill Rice was the
responsible official.

875

Exh. P-3(B). The order alleges an S&S violation of
section 75.515 and that the violation was the result of Consol's
unwarrantable failure to comply with the cited standard. 7
Michael Kalich, an electrical inspector for MSHA, testified
on behalf of the Secretary. Kalich explained that on July 25,
1991, he conducted a compliance assistance inspection of the 6
southwest longwall of Consol's Humphrey No. 7 Mine. The longwall
was in the process of being set up and consequently was not yet
in operation. The inspection began at the longwall power center.
Tr. II 13. (The power center was located on intake air at the
track heading. At the power center incoming 7200 high voltage
power was transformed to the 995 voltage power that was utilized
on the longwall. Tr II 13-14.)
Kalich stated that the power center had four cables that
went from the center to the longwall master control boxes. The
cables were attached to the center by a cable coupler. The case
of the coupler was metal. He explained that the coupler
consisted of two parts: one part was bolted to the power center
itself, the other part was in essence a plug that .terminated the
cable and that plugged onto the part of the coupler attached to
the power center. Kalich drew an analogy, "[I]t's a large
version of a plug that you would use in your house. It just has
more connection points." Tr. II 16.
Upon inspecting the cables, Kalich found that one had a
coupler (also known as a strain clamp) that was missing a bolt.
Tr. II 14.
·Kalich identified a picture of a coupler similar to the one
that he had observed. Exh. P-1(B). Kalich testified that the
cable that terminated in the coupler was about two and one half
inches in diametero The coupler was approximately 18 inches long
and 10 to 12 inches wide. At the point where the cable entered
the couplerq a bolted cable clamp helped to hold the cable in
place. Tr. II 16-17, see also Exh P-l(B)(part "I" of bottom
diagram). The purpose of the clamp was to prevent strain on the
cable as it entered the coupler. Tr. II 17e
Kalich stated that during his inspection on July 25, he
found missing one of the bolts that secured the clamp to the
cable. When he returned on July 29 and conducted a regular
inspection of the longwall, the bolt was still missing and he
issued the subject order of withdrawal. Tr. II 17. Kalich
7

Section 75.515 states in pertinent part:
Cables shall enter metal frames of motors,
splice boxes, and electric compartments
only through proper fittings.

876

maintained that because the clamp was loose, the cable was loose
where it entered the coupler and that the cable could be moved.
Kalich stated that had the bolt been present the cable could not
have been moved. Tr. II 35-36.
Kalich further stated that by not having the clamp tightened
around the cable, when the cable was pulled it would place a
strain on the internal connections inside the coupler. If the
internal connections, which are not insulated, were pulled loose
the wires could move around inside the coupler housing, they
could contact other wires and create an electrical fault inside
the coupler. Tr. II 25. In turn, thi~ could burn a hole in the
metal case of the coupler and cause a fire. In addition, any
person then in contact with the coupler would be subject to a
shock and burn hazard. Tr. II 26-27.
Stanley Brozik, the safety supervisor at the mine, testified
on behalf of Consol. Brozik traveled with Kalich on July 29 and
the subject withdrawal order was issued to him. Brozik stated
that the cited clamp was sec~~ed ar,ound the cable with two bolts.
He agreed that on July 29, one of the bolts was present and one
was missing. He further agreed that Kalich was able to wiggle
the cable because the clamp was not tightened on one side. Tr.
II 71-72, 75.
EXISTENCE OF THE VIOLATION

The evidence establishes that the cable entered the metal
frame of the cable coupler through a fitting that was loose due
to the missing bolt on the strain clamp. A loose fitting is not
a proper fitting and I conclude that the violation of section
75.515 existed as charged.
S&S AND GRAVITY

There was a violation of the underlying safety standard. The
discrete safety hazard contributed to by the violation was
described by Kalich:
There would have to be some way
that sufficient strain or movement
would be applied to the cable to
cause the connections to become
loose or to be pulled out inside
the coupler.
[T]hen you would
have a bare wire flopping about
inside the coupler • • • [and if
phase to phase contact occurred]
you would have arcing, burning, and
the possibility of a fire.
o

o

877

Tr. II 53. As noted, Kalich also believed that in the event of
phase to phase contact, a shock hazard would exist for anyone
handing the coupler. Tr. II 27. Further, Kalich testified that
during the course of normal mining operations the cable would be
pulled when miners picked up and moved the cable and that over
time, the movement of the cable would loosen the connections.
Tr. II 48-50. This testimony was not disputed by Brozik. I
conclude therefore that the evidence established the loose clamp
contributed to the possibility of a fire endangering those in the
immediate area of the power center or working inby and of a shock
endangering anyone handing the coupler at the moment phase to
phase contact occurred and thus that the second element of the
Mathies test has been satisfied. Further, because any resulting
injury from burns, smoke inhalation or shock would be of a
reasonably serious nature, the fourth element likewise has been
satisfied.
As is frequently the case when the Secretary alleges that a
violation is S&S, the question is whether the Secretary has
established a reasonable likelihood that the hazard will result
in an injury. In other words, had normal mining operations
continued on the longwall, would there have been a reasonable
likelihood of "an event in which there [would have been] an
injury?" u.s. Steel Mining Co., 6 FMSHRC 1834,1836 (August
1984).
Here, I conclude the answer is "no." Kalich stated that in
order for there to be a fire or shock hazard, the connectors
inside the coupler would have had to contact one another. In
order to do this the cable and the coupler would have had to be
subject to repeated movement. The only way the cable and coupler
would be moved 9 according to Kalich, was manually or by using a
wincho Kalich believed that a person pulling once on the cable
would not be able to loosen the connections, that the movements
would have to take place over time 8 but he did not know how much
movement would be required. Tr. II 48. Nor was he able to
testify that he had ever seen internal coupler connectors that
made contact under circumstances similar to those that he cited.
Tro II 58. Further, he admitted that in order for the winch to
move the cable in such a way as to put any strain on the coupler 0
the winch would have to have been used incorrectly. Given these
factors, I cannot conclude that the Secretary has established
that had normal mining operations continued on the longwall it

878

was reasonably likely that the connectors inside the coupler
would have become detached and touched one another leading to a
fire or to a shock injury. 8
Even though I do no find that the violation of
section 75.515 was S&S, I still conclude that it was of a serious
nature. A potential hazard to miners from burns, smoke
inhalation and/or shock injuries existed as did the possibility
that the violation could cause such hazards to occur. In my view
the fact that the hazards were not reasonably likely to occur
reduces what would have been a very serious violation to one that
was serious.
UNWARRANTABLE FAILURE AND NEGLIGENCE

I also conclude that the Secretary has failed to establish
that the violation was due to Consol's unwarrantable failure to
comply with section 75.515. Kalich's unwarrantable failure
finding was based upon his coltlpli.ance assistance inspection of
July 25. As Kalich put it: "I hadpointed the [missing bolts]
out on July 25 • • • [and had] told mine management that they
needed [to be] fixed before the 29th and found that they hadn't
been corrected. [I]n my mind it left me no choice but to issue a
(section l04]{d){2) order with high negligence." Tr. II 36-37.
When asked whether he believed Consol had consciously disregarded
the requirements of the standard Kalich stated: "Seeing as how I
pointed it out, that's the conclusion that I c(a]me to."
Tr II 43, See also Tr. II 45.
Brozik testified that the bolt had not been purposefully
left off of the coupler clamp. Although, Brozik was not present
on the section on July 25, he explained that he got his
information about conditions on July 25 from talking with the
company safety escort and "everybody on the site." Tr. II 73,
74-75o Brozik believed that on July 25 the bolt was available
but that the nut to secure it was missing, and that on July 29,
the nut was on the section but the mechanic had not yet attached
the bolt and nut to the clamp. Tr. II 68, 70-71, 73. If the
bolt was there 0 Brozik did not know why it had not been secured
to the clamp. Tre II 83.
The fact that the missing bolt was pointed out to Consol
during the compliance assistance inspection does not, in and of
In concluding that the violation was not S&S, I have not considered
the fact that should the connectors contact one another, the circuit breaker
would have tripped because I accept Kalich's testimony that even if the circuit
breaker worked as it was supposed to there would still have been an electrical
arc before power was cut off. Tr. II 53. Rather, I am relying on what seems to
me to be a dearth of evidence that the cable and coupler would be subjected to
the repetitive movements necessary to cause an electrical malfunction.

879

itself, establish unwarrantable failure. It proves knowledge of
the violative condition, but such knowledge is not a sole
prerequisite for unwarrantable failure. There must be other
factors that allow a conclusion of inexcusable conduct on
Consol's part. Here, those factors are lacking.
It is helpful to recall that the compliance assistance
inspection came at a time when production had not yet begun on
the longwall and when Consol was attempting to make certain that
prior to production all was "kosher" on the section. Other
potential violations of regulations were pointed out to Consol.
In the scope of the impending startup pf the longwall, the fact
that one bolt was missing from a clamp for the cable coupler on
one of the cables at the power center might reasonably have been
viewed by Consol as a relatively minor problem, especially since,
as I have found, the condition did not pose a reasonable
likelihood of producing a fire or shock accident once mining
began. In this context, I conclude that it was not the kind of
condition whose failure to COJ:rect.would automatically rise to
the level of inexcusable conduct, and this is so regardless of
whether or not Brozik was right in believing that consol had
secured the missing nut but had inadvertently failed to install
it. 9
Rather than an unwarrantable failure, I conclude that the
fact that the missing bolt was not installed on July 29 was
likely due to inattention or inadvertence and thus that in
allowing the violation Consol was negligent.
OTHER CIVIL PENALTY CRITERIA

As revealed by the proposed assessment forms contained in
each docket and which the parties have stipulated accurately set
forth Consolus sizeu the company is largeo In addition, and as
also stipulated by the parties, the size of any penalties
assessed for the subject violations will not affect Consol's
ability to continue in business. Further, I find that in each
instance where a violation has been found or where the parties
have sought my approval of a settlement 8 Consol demonstrated good
faith in abating the violations. Finally, I find that Consol's
history of previous violations at the mines involved is not such
as should otherwise increase the penalties assessed or agreed to
by the parties.

9

The mischief of automatically finding unwarrantable failure based
solely upon conditions that have been pointed out during a compliance assistance
inspection was remarked upon by counsel for Consol. Tr. II 90. I agree with him
that such automatic unwarrantable findings can go far to lessen the effectiveness
of the compliance assistance program, a program that has proven of great value
in furthering the goals of the Act.

880

CIVIL PENALTY ASSESSMENTS FOR CONTESTED VIOLATIONS
DOCKET NO. WEVA 92-933
ORDER NO. 3715916, 1/8/92, 30 C.F.R. S 75.400

The Secretary has proposed a civil penalty of $800. Noting
especially that Consol is a large operator and that the violation
is serious and the result of a high degree of negligence on
Consol's part, I conclude that a civil penalty of $1,000 is
appropriate.
ORDER NO. 3715920, 1/13/92, 30 C.F.R. S 75.400

The Secretary has proposed a civil penalty of $1200. For
the same reasons as those set forth above, I conclude that a
civil penalty of $1,000 is appropriate.

CITATION NO. 3718486, 12/3/92 30 C.F.R. S 75.202(&)

The secretary has proposed a civil penalty of $227. The
violation is without question serious, the low degree of
negligence on consol's part is a significant factor mitigating
what would otherwise have been a much more substantial civil
penalty. I conclude that a civil penalty of $300 is appropriate.
DOCKET NO. WEVA 92-921
ORDER NO. 3315335, 7/29/91, 30 C.F.R.

S 75.515

The Secretary has proposed a civil penalty of $1,000.
Although this was a serious violation and although Consol is a
large operatoru I believe that given the fact that the violation
was due to Consolis inadvertence or inattention rather than to
its purposeful disregard of the requirements of the .standard or
to its inexcusable failure to comply, the proposal is excessive.
! conclude that a civil penalty of $400 is appropriate.
ORDER

Consol is ORDERED to pay civil penalties in the settlement
amounts shown above in satisfaction of the violations in
questions. Further, Consol is ORDERED to pay civil penalties in
the assessed amounts shown above in satisfaction of the contested
violations in question.
With respect to the settled cases, the Secretary is ORDERED
to modify Citation No. 3307656 and Order No. 3716059 by deleting
the S&S designations. The Secretary is ORDERED to modify
Citation No. 3715905 and Citation No. 3718483 by deleting the

881

S&S designations. The Secretary is ORDERED to modify Order
No. 3108769 and Order No. 3108741 to citations issued pursuant to
section 104(a) after having deleted the unwarrantable failure
designations.
With respect to the contested case, the Secretary is ORDERED
to modify Order No. 3315335 by deleting the S&S designation and
the unwarrantable designation. Further, the Secretary is ORDERED
to modify Order No. 3315335 to a citation issued pursuant to
section 104(a) of the Act. 30 u.s.c. 814(a).
Payment by Consol is to be made to the Secretary within
thirty (30) days of the date of this decision, and upon receipt
of payment, these matters are dismissed.

David F. Barbour
Administrative Law Judge
Distribution:
Caryl Casden, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Boulevard, Suite 516, Arlington, VA 22203
(Certified Mail)
Daniel E. Rogers, Consolidation Coal company, Legal Department,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)

Mro Robert Co Mooreu UMWA, Rt. 5 0 Box 207u Morgantown, WV
(Certified Mail)

882

26505

FEDERAL IIIHE SAFETY ARD HEAIWU: REVIEtf COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 101993

.. DISCRIMINATION PROCEEDING
v.
Docket No. KENT 93-203-D
.
MSHA Case No.
MARTIN COUNTY COAL CORPORATION, :
DOUGLAS E. DEROSSETT,
complainant

PIKE-CD-92-~4

0

Respondent

MTR Surface Mine No.

~

DECISION
Appearances:

Johann F. Kerlotz, Esq., Piper, Wellman and
Bowers, Lexington, Kentucky, for Complainant;
Diana M. Carlton, Esq., Stoll, Keenan and
Park, Lexington, Kentucky, for Respondent

Before:

Judge Melick

This case is before me upon the complaint by Douglas E.
DeRossett under section 105(c)(3) of the Federal Mine
Safety and Health Act of ~977, 30 u.s.c. 80~, et seg., the
"Act,n alleging violations of Section ~05(c)(~) of the Act,
by Martin county Coal Corporation (Martin County). 1 In a

Section l05(c)(l) of the Act provides as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or applicant
for employment in any coal or other mine subject to this Act
because such miner 0 representative of miners or applicant for
employment has filed or made a complaint under or related to
this Actu including a complaint notifying the operator or the
operator 0 s agentu 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 0 or because such miner 1
representative of miners or applicant for employment is the
subject of medical evaluations and potential transfer under
a standard published pursuant to section 10~ or because such
miner, representative of miners or applicant for employment
has instituted or caused to be instituted any proceeding under
or related to this Act or has testified or is about to testify
in any such proceeding, or because of the exercise by such
miner, representative of miners or applicant for employment
on behalf of himself or others of any statutory right afforded
by this Acto"
00

883

motion to dismiss Martin County argues (1) that the "amended"
complaint filed with this Cpmmission on December 22, 1992,
included issues not presented in the original complaint
filed by Mr. DeRossett on August 10, 1992, with the Secretary
of Labor's Mine Safety and Health Administration (MSHA} and,
(2) that the complaint was filed untimely.
The initial complaint filed August 10, 1992, with MSHA

states as tollows:

I was discharged by Martin County Coal Corp.,
MTR Surface Mine No. 1, in November 1989, for
complaining about safety hazards. I am requesting
reinstatement to my original job, receive backpay
plus interest, have all benefits reinstated and
to have all records pertaining to the discharge
removed from my personnel file.
The amended complaint fi-led with this Commission on
December 22, 1992, claims, as additional violations of
Section 105(c)(l), the following:

* * *
8. Complainant on numerous occasions
made complaints to supervisory personnel about
unsafe working conditions, which complaints
were a substantial factor in motivating
Defendant to move complainant to second shift
in April, 1988 during a reduction in force,
despite the retention on the first shift of a
position for which Complainant was qualified
and entitled to fillQ

* * reinstatement
*
10. Complainant sought
to
his former position on numerous occasions
following his discharge, but Defendant refused
to rehire him despite the recall of less senior
individuals following the December 4, 1989u
reduction in force. Complainant's safety
complaints were a substantial factor in
Defendant's decision not to rehire him.

* * *
Even assuming, arguendo, however, that DeRossett's
complaint to MSHA filed August 10, 1992, did indeed
incorporate the allegations of discrimination contained
in the amended complaint filed with this commission on
December 22, 1992, and even assuming that such allegations
were investigated by MSHA, I nevertheless find that the

884

complaint was filed untimely and that the untimely filing
cannot be excused. 2
In relevant part, Section 105(c)(1) of the Act prohibits
discrimination against, or the discharge of, a miner because
of his exercise of any statutory right afforded by the Act.
n. 1, supra. If a miner believes that he has been discharged
in violation of the Act and wishes to invoke his remedies under
the Act, he must file his initial discrimination complaint
with the Secretary of Labor within 60 days after the alleged
violation in accordance with Section 105(c)(2) of the Act. 3
The Commission has held that the purpose of the 60-day time
limit is to avoid stale claims, but that a miner's late filing
may be excused on the basis of "justifiable circumstances."
Hollis v. Consolidation Coal company, 6 FMSHRC 21 (1984);
Herman v. IMCO Services, 4 FMSHRC 2135 (1982). In those
decisions the Commission cited the Act's legislative history
relevant to the 60-day time limit: ·
While this time-limit is necessary to avoid
stale claims being brought, it should not
be construed strictly where the filing of
a complaint is delayed under justifiable circumstances. Circumstances which could warrant
the extension of the time-limit would include
a case where the miner within the 60-day period
brings the complaint to the attention of another
agency or to his employer, or the miner fails
to meet the time-limit because he is mislead as
to or misunderstands his rights under the Act.
(citation omitted).

2

It appears that Mr. DeRossett did in fact include
in a statement on August 14, 1992, detailing his complaint to
MSHA, his allegations of being transferred in April 1988 to
the evening shift and of several undated efforts subsequent
to his December 4 6 1989, layoff seeking reinstatement with
Martin County. Accordingly, it would appear that he has
complied with the administrative prerequisites. See Hatfield
Vo Colguest Energy Inc., 13 FMSHRC 544 (1991).
3

After investigation of the miner's complaint, the
Secretary is required to file a discrimination complaint
with this Commission on the miner's behalf if the Secretary
determines that the Act was violated. If the Secretary
determines that the Act was not violated, he shall so inform
the miner, and the miner then may file his own complaint with
the Commission under Section 105(c)(3) of the Act.

885

The Commission noted accordingly that timeliness questions
must be resolved on a case-by-case basis, taking into account
the unique circumstances of each situation.
At hearings Mr. DeRossett testified that he was
uncertain when he had requested reemployment with Martin
County and the only documented effort in that regard appears
in a letter dated April 24, 1990, written on Mr. DeRossett's
behalf by Attorney Wolodymyr Cybriwsky (Respondent's Motion
Exhibit No. 1). The only other date that can be established
without substantial speculation was related by Mr. DeRossett
to the June 1990 departure of an employee named Stapleton.
Thus more than 4 years, more than 2-1/2 years, and more than
2 years elapsed, respectively, from the April 1988 shift
transfer, the December 4, 1989 reduction-in-force, and the
June 1990 request for reinstatement until the instant complaint was filed with MSHA on August 10, 1992.
In the present case Mr. DeRossett claims ignorance of
the filing requirements. He maintains that he was first
hired by Martin County in 1978 and that at no time during
his 10 years employment with them was he informed of any of
his rights under the Act. He maintains that it was not until
he discovered a pamphlet in December 1992 entitled 11 Guide to
Miners Rights" in the office of another company did he discover
that his purported safety complaints were protected under the
Act and that he had a right to file a complaint with MSHA.
Mr. DeRossett also maintains that he always knew that
his safety complaints were a causative factor in its discharge
but never mentioned that fact to anyone before December 1992.
He claims that even when he first contacted the National Labor
Relations Board (NLRB) on December 7g 1989u claiming that he
was unlawfully discharged because of his participation in a
strike (see Respondentus Motion Exhibit Noo 2) he believed
that he had been discharged because of his safety complaints.
He maintains that in spite of this he did not tell the NLRB
attorney of this belief nor the attorney who wrote the letter
on his behalf in April 1990 (Respondent 6 s Motion Exhibit No. 1)
nor the attorney who later represented him in a workman°s
compensation case against the RespondentQ

At the motion hearings former Martin County Director of
Training 0 Troy Chafin, testified on behalf of the Respondent
that he had been principal officer in charge of health and
safety and had developed and conducted the mandatory and other
training programs for Martin County. More particularly, he
was in charge of training Martin County employees, including
DeRossett, from April 1973 through April 1990$ He subsequently
worked for the Kentucky Department of Mines and Minerals as
Assistant Director of Training and Education and is currently
president of his own company.

886

Chafin testified that he was well acquainted with
At
hearing, Chafin identified certificates of training for
DeRossett, including those Chafin signed personally
certifying that training had been completed for DeRossett
on the dates noted (Respondent's Motion Exhibit No. 5). It
is clear from the certificates that DeRossett attended at
least ~3 training sessions while at Martin County at which
the subject of "statutory rights of miners" was covered.

Mr. DeRossett while he worked for Martin County.

Chafin also testified that he personally taught
training classes for those sessions fqr which his signature
appears on the certificate but that in all of the training
sessions he presented opening comments to the miners,
including a review of their rights to make complaints to
management and to MSHA free of retaliation. More specifically,
he testified that miners' rights under Section 105(c) were
discussed at some of the sessions. I find Chafin's testimony
credible.
Mr. DeRossett is a high school graduate and, from his
appearance and testimony at hearing, it is readily apparent
that he is a man of ample intelligence. He has demonstrated
the ability to pursue sophisticated complaints regarding
his employment with other governmental agencies and has
conferred with at least three attorneys regarding employment
matters. Under all of the circumstances it may reasonably
be inferred that Mr. DeRossett received sufficient information during his period of employment with Martin County
from which he knew, or should have known, of his right to
file complaints with MSHA under Section 105(c) of the Act
for retaliation against him for making safety complaints.

Under the circumstances I conclude that DeRossett
knew or certainly should have known of his rights to file
a complaint with MSHA under ~ection 105(c) at the time of
his April 1988 shift transfer and also at the time of his
December 1989 layoff and his last established request for
reinstatement in June 1990 0 and that therefore his late
filed complaint herein cannot be excused for "justifiable
circumstances 9' Accordingly, the complaint herein must be
dismissedo
e

887

ORDER
Discrimination proceeding Docket No. KENT 92-203-D is
hereby dismissed.

G ry MeJi

Admini~ftrative
703-75 -6261

Judge

£/'
Johann F. Kerlotz, Esq., Piper, We1~man and Bowers, '
Distribution:

200 North Upper Street, Lexington,jKY 40507 {Certified Mail)

Charles E. Shivel, Jr., Esq., Diana M. Carlton, Esq.,
Stoll, Keenon and Park, 201 East Main street, Suite 1000,
Lexington, KY 40507-1380 (Certified Mail)
/lh

888

FEDBIU\L JUliE SAFETY ABD HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 121993
ELMER DARRELL BURGAN,
Complainant
v.
HARLAN CUMBERLAND COAL CO.,

Respondent

.
...

.
.
.

DISCRIMINATION PROCEEDINGS
Docket No. KENT 92-915-D
BARB-CD-92-31
Harlan Mine

~

ELMER DARRELL BURGAN,
Complainant

Docket No. KENT 93-101-D

v.

No. 1 Mine

DIXIE FUEL COMPANY,
Respondent

.
DECISION

Appearances:

Before:

Phyllis Robinson, Esq., Hyden, Kentucky,
for the Complainant
H. Kent Hendrickson, Esq., Harlan,
Kentucky, for the Respondents.

Judge Feldman

These cases are before me based upon discrimination
complaints filed pursuant to Section 105(c) (3) of the Federal
Mine Safety and Health Act of 1977 0 30 u.s.c. §815(c)(3) (the
Act) by complainant Elmer Darrell Burgan (Burgan) against
corporate respondents Harlan CUmberland Coal Company (Harlan) and
Dixie Fuel Company (Dixie). 1 Clyde Bennett is the general
manager of the respondents which are closed family corporations.
BennettGs children are the corporate officers of these
~ Burganws complaints which serve as the jurisdictional
basis for this matter were filed with the Secretary in accordance
with Section 105(c)(2) of the Act, 30 u.s.c. §815(c)(2).
Burganvs complaints were investigated by the Mine Safety and
Health Administration (MSHA) which concluded that there were no
Section 105(c) violations with respect to Burgan's employment at
Harlan CUmberland Coal Company or Dixie Fuel Company. Burgan
subsequently filed complaints with this Commission which are the
subject of this proceeding.

889

corporations. These cases were consolidated for hearing at the
complainant's request by order dated January 6, 1993. The cases
were heard in Richmond, Kentucky on March 9 and March 10, 1993.
For the reasons discussed herein, Burgan's discrimination
complaints against the corporate respondents are dismissed.
At trial, the parties stipulated that Harlan and Dixie are
coal companies engaged in interstate commerce. Therefore, the
parties agree that I have jurisdiction to hear these matters.
The parties also stipulated to Burgan's employment history. The
complainant's direct case consisted of his testimony as well as
the testimony of six other individuals, including the
complainant's brother, Robert Burgan, who was the Superintendent
at Harlan. In defense of the charges filed by Burgan, the
respondents provided the testimony of Clyde Bennett and two
employees of Harlan and one individual employed by Dixie. The
parties filed simultaneous proposed findings and conclusions
which were received in my office on April 26 and April 27, 1993.
~

.•.

Burqan•s Section 105(c) Complaints
The gravamen of Burgan's complaint against Harlan is that
his three day suspension and subsequent transfer from Harlan's H2
Mine to its D3 and C3 Mines following a January 14, 1992,
altercation with his brother Allen was, in fact, discriminatorily
motivated because of Burgan's safety related complaints.
Specifically, Burgan asserts that he complained about H2 Mine
Foreman Matthew Coots• intentional blocking of shuttle car
breakers which interfered with Burgan's short circuit protection
during his shuttle car operation. Burgan contends that Coots'
blocking of these breakers exposed him to electric shock and
potential electrocutiono Burgan alleges that his discriminatory
suspension and transfer ultimately resulted in his unemployment
when the C3 Mine was closed until Burgan was called back to work
to open Dixie 9 s No. 1 Mine9 With respect to Dixie, Burgan argues
that Clyde Bennett's June 11, 1992, denial of his request to
transfer from the Dixie No. 1 Mine back to the H2 Mine, because
the H2 mine was closer to Burgan's home, was also motivated by
discrimination because of his past safety complaintso 2
2

The complainantis theory of the case regarding Dixie is
not well focused. For example, Burgan initially argued that he
was afraid to return to the Dixie No. 1 Mine on June 10, 1992,
because he believed the mine was unsafe after a smoke incident
caused by a conveyor belt stoppage on June 4, 1992. (See Verified
Complaint, Kent 93-101-D, Para. 9; Tr. 27, 81, 86, 89, 911 96,
102-103). However, late in the first day of the trial counsel
conceded that the evidence reflected that this belt condition was
abated the next day and that Burgan did not experience any
reoccurrence of smoke related problems when he returned to work
at the Dixie No.1 Mine on June 8, 1992. (See Tr. 288-292).

890

Respondents• Defense
The respondent counters by denying that blocking of breakers
occurred and by denying that Burgan ever communicated any safety
related complaints. In addition, the respondent maintains that
Burgan's three day suspension and transfer were motivated solely
by its desire to separate Burgan from his brother Allen Burgan
after a serious altercation. The respondent states that Burgan's
subsequent temporary layoff from March 14 through June 3, 1992,
occurred because the 03 and C3 Mines were closed because they
were not profitable. In this regard, the respondent contends
that Burgan was laid off along with the rest of the crew that was
assigned to these mines. Finally, the respondent asserts that
Burgan quit his job at the Dixie No. 1 Mine in cawood, located
approximately 30 miles from Burgan's home, on June 11, 1992,
after Clyde Bennett told him that he did not have any work for
him at the H2 mine in Louellen, Kentucky.
PRELl:Ml:NARY.FiND!NGS OF FACT

The fundamental facts are not in dispute. Burgan resides in
Closplint which is located within a few miles of Louellan,
Kentucky. He has been employed by coal mines operated by Clyde
Bennett since 1979. From 1979 until March of 1982, he was
employed at the Dixie mine at Cawood, in Harlan County, Kentucky
which is, as noted above, located approximately 30 miles from his
home in Closplint. From March 1983 until January 14, 1992, he
was employed at several Harlan mines located in Louellan, in
close proximity to his home in Closplint. During this period,
the complainant and his brother Allen Burgan worked together at
Harlan's H2 Mine for approximately four years. Burgan's other
hrotheru Robert Burgan 0 was the Superintendent of the H2 Mine
since the latter part of 1987 until he terminated his employment
on January 1u 1992, because of a reported back condition. During
the period that the three Burgan brothers were employed by
Harlan, Matthew Coots was the Foreman at the H2 Mine. Coots
reported directly to Robert Burgan who in turn reported to Clyde
Bennette
fno 2 {continued)
Counsel thereupon modified the alleged discriminatory action
associated with Burgan's Dixie employment to Clyde Bennett•s
refusal to transfer Burgan to the H2 Mine closer to Burgan's
home. (Tro 275)e In support of this new approach, Counsel now
argues that Burgan needed to work close to home because of car
problems and because Burgan's driver's license had been revoked
for driving under the influence (DUI). (See Tr. 272-276). I am
not unmindful of the contradiction associated with Burgan's car
problems at a time when he had no driver's license.
Nevertheless, it is the theory advanced on behalf of the
complainant.

891

on January 14, 1992, the complainant had an altercation with
his brother Allen Burgan after Allen backed a continuous miner
into a bolting machine located behind a curtain where the
complainant and James Skidmore were eating. An argument ensued
during which there was cursing. During the argument the
complainant grabbed a piece of roof bolting steel and drew it
back and threatened to hit Allen. Allen walked away and no blows
were exchanged. (Tr.375-376). As a result of this incident, the
complainant was suspended without pay from Wednesday, January 15,
through Friday, January 17, 1992. On Monday, January 20, 1992,
the complainant was transferred to Harlan's D3 Mine in Louellan
until it was closed on January 24, 1992. Burgan was then
transferred to Harlan's C3 Mine at Louellan on January 25, 1992.
His employment continued until March 13, 1992, when the C3 Mine
was closed. Burgan was laid off and collecting unemployment
insurance from March 14, 1992 through June 2, 1992.
On June 3, 1992, Burgan was called back to work at the Dixie
Fuel Company No. 1 Mine in Cawood, Kentucky. Burgan worked at
the Dixie No. 1 Mine on Wednesday, June 3rd, and Thursday, June
4th. At the end of the June 4th shift, at approximately
4:00p.m., there was an incident wherein the belt slipped off the
head drive. The roller continued to turn against the stationary
belt scorching the belt causing smoke. Employee Elvis Saylor
shut the belt down immediately. Burgan and three other mine
personnel in the belt entry traveled through a door from the belt
entry into a fresh air course to escape the smoke. Shortly
thereafter, Foreman Ron Osborne received a call from the surface
informing him that Burgan's wife was enroute to the hospital to
deliver a baby. Osborne informed Burgan that he could take
Friday, June 5th off in view of his wife's childbirth.
Burgan returned to work at the Dixie No. 1 Mine on the
morning of Monday, June Sths He also worked the following day on
June 9tho On Wednesdayu June 10th, he telephoned Clyde Bennett
and stated that he could not come to work because his car broke
down. On Thursday, June 11th, he called Bennett and stated that
his car was still inoperable. Bennett inquired why it was taking
so long to fix his cars 3 Burgan asked Bennett for a transfer
back to the H2 Mine in Louellan which was nearer to his home.

3

Bennett testified that Burgan told him that his car needed
its tie rod ends replaced. Bennett called several local auto
supply stores and determined that the parts were readily
available. Bennett estimated that it would take approximately
30 minutes to repair the vehicle. (Tr. 352).

892

Bennett replied that he did not need him at the H2 Mine. The
respondent then told Bennett that he quit. He also told Bennett
that the Dixie No. 1 Mine was unsafe. 4
FURTHER FINDINGS AND CONCLUSIONS

Applicable case Law
In order to establish a prima facie case of discrimination
under Section 105(c) of the Act, a complaining miner bears the
burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity., Secretary on behalf of Pasula v.
Consolidation Coal co., 2 FMSHRC 2768 (1980), rev'd on other
grounds sub nom., Consolidation Coal Company v. Marshall, 663
F.2d 1211 (3rd eire 1981); Secretary on behalf of Robinette v.
United Castle Coal Company, 3 FMSHRC 803 (1981); Secretary on
behalf of Jenkins v. Hecla-Day Mines Corporation, 6 FMSHRC 1842
(1984); Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F. 2d 86 (D.C. Cir. 1983).
The operator may rebut the prima facie case by showing that
either no protected activity occurred, or, that the adverse
action was in no way motivated by the protected activity.
Robinette, 3 FMSHRC at 810 n.20.
If the operator fails to rebut the complaint, it may
nevertheless affirmatively defend against the prima facie case by
proving that it was also motivated by unprotected activity and
that it would have taken the adverse action in any event for the
unprotected activity alone9 See also Donovan v. Stafford

4 Bennettes

account of these telephone conversations is
consistent with Burgan 8 s testimony during his unemployment case
wherein he told the hearing officer, "Yeah, [I quit], I told
[Bennett], I said if you have anywhere else for me to work where
I can get to work close to home
[Bennett] could have put me
up there if he wanted to~"., " 60 {Joint Exa 1 5 ppo 26-27) o Burgan's
unemployment testimony is also consistent with his testimony in
this proceeding where he testified that Bennett never told him
that he was fired from the Dixie minee (Tro 146-147, 363)o
Burgan also opined that the Dixie mine was unsafe during a
telephone conversation on June 11th. Bennett states that this
statement was made during a subsequent telephone call on June
11th approximately one hour after Burgan told Bennett that he
quit. Burgan cannot recall whether he made a second telephone
call. (Tr. 146). However, resolution of whether a second
telephone call was made by Burgan is not dispositive,
particularly in view of the complainant's abandonment of the
unsafe theory. (See fn. 2 supra; Tr. 333-336).
OQO

893

Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission's Pasula-Robinette test).
The complaint Against Harlan Cumberland Coal company
The Complainant•s Direct case
As a threshold matter, in order to determine if Burgan
engaged in a protected activity, it is first necessary to
identify the alleged conduct which serves as the basis for the
complaint. In this case, Burgan maintains that Foreman Matthew
Coots who was under the direct supervision of Burgan's brother,
Superintendent Robert Burgan, engaged in a course of conduct,
i.e., blocking in breakers, presumably with the knowledge and
acquiescence of electrician Wendell Griffin. It is alleged that
this conduct negated the circuit breaker protection and exposed
shuttle car operators, such as Burgan, to electric shock and
possible electrocution. These are serious charges which, if
established, would subject the offending individuals to personal
liability for civil penalties under Section 110(c) of the Mine
Act, 30 u.s.c. §820(c). 5
In support of his complaint, Burgan relies on the testimony
of Gary Lee Couch who replaced Burgan as a shuttle car operator

at the H2 Mine when Burgan was transferred to the 03 Mine on
January 20, 1992. (Tr.172). Couch continued to work at the H2
Mine until April 8, 1992, when he reportedly sustained a job
related back injury. Bennett subsequently rehired Couch for
light duty work as a night watchman. Couch performed these
duties for approximately six weeks until he was fired for
::;:epeat.edly sleeping o:n the job. (Trol84-185 17 350), Couch is a.
itigant i:n his workman•s compensation case against the Harlan
Cumberland Coal Companyo (Trol86)o
Couch testified that Coots blocked breakers and instructed
Couch how to do itv Thereafter, Couch stated that he blocked
breakers at Coots" requesto (Trol74-175 0 178 6 188)~ Couch
testified that
subjected himself to electric shock as a result
of blocking breakerse (Tr.l75)o Couch described an awkward
maneuver by which he entered the shuttle car so as to avoid
electric shocl(o Couch described this shuttle car entry procedure
as follows~

5

Section llO(c) of the Mine Act provides that whenever a
corporate operator violates a mandatory safety standard, any
agent of such corporation who knowingly authorized, ordered or
carried out such violation, shall be subject to the same civil
and criminal penalties that can be imposed upon the operator
under the Act.

894

Well, after a while you kind of learned how to get in
and off the car without getting shocked. You jumped
with both feet at one time to get off or you jump on
all at one time. If you're touching the ground when
you lay your hand on the car you got shocked if it was
hot (Tr.l75).
Couch reportedly was so concerned about his personal safety
that he told a friend to tell his wife about the breakers if
"something stupid [happened] that got [him] killed." (Tr.l76178). Despite the fact that Couch testified that he feared for
his life, he never reported the breaker problem to Bennett or the
Mine Safety and Health Administration (MSHA). 6 (Tr.186, 192).
Burgan also called James Edward Skidmore who was a fellow
employee at the H2 Mine. Skidmore witnessed the January 14,
1992, altercation between Burgan and his brother Allen.
Skidmoreus recollection of the incident is consistent with Coots'
testimony that Burgan threat~ned to hit Allen with a piece of
roof bolting steel. (Tr.215-216, 376). Skidmore· testified that
neither Burgan nor Couch ever told him about blocked shuttle car
breakers. (Tr.211-212). He stated that he never observed anyone
routinely 91 jumping out of a shuttle car in a funny way so as to
avoid shock or injury" (Tr.217). Although he is a roof bolt
operator and does not use a shuttle car frequently, he stated
that he had no fear or reluctance to ride in the H2 shuttle cars.
(Tr.217),.
Finally, the complainant called his brother Robert Burgan
who was Superintendent at the H2 Mine and directly in charge of
Cootso Robert Burgan last worked for the respondent Harlan
CUmberland Coal Company on January 7u 1992Q because of a job
related back injuryc He
receiving workman~s compensation
which
still pending final litigation. (Tr.306 0 309)o Robert
Burgan testified that the complainant told him that Coots was
@ The respondent Harlan Cumberland Coal Company stipulated
that anonymous complaints about blocked breakers were apparently
communicated to MSHA in April 1992. (Tr. J72)o As a result of
these complaints 6 on April 24 0 1992 0 MSHA inspected the H2 Mine.
This inspection resulted in several citations. The record was
kept open for entry
copies
these citations into the record
after trialo (Resp.
3). The MSHA inspection did not
substantiate the complaints. (Tr. 369-372 0 422). The failure of
the Secretary to confirm the alleged misconduct accounts for the
Secretary 1 s disinclination to prosecute the subject complaints on
behalf of Burgan. Moreover, these unsubstantiated complaints to
MSHA lodged several months after Burgan•s January 1992 transfer
from the H2 Mine and contemporaneous with his April 30, 1992,
discrimination complaint are self-serving and do not establish
the protected activity alleged by Burgan. (See Comp. Ex 1).

895

blocking breakers and that he had a meeting with Coots and H2
electrician Wendell Griffin in November or December 1991 at which
time they denied that blocking of breakers occurred. (Tr.300302). In their testimony, Coots and Griffin deny that this
meeting ever occurred. (Tr.382, 414). Significantly, Robert
Burgan's testimony indicates that he could not confirm the
complaints about blocking breakers in that he never fired or
otherwise disciplined anyone for this activity. In fact,
Robert Burgan testified that, "I never had proof" that Coots or
anyone else was engaged in blocking breakers. (Tr.309). This
accounts for Robert Burgan's failure to report this matter to his
immediate boss, Clyde Bennett. (Tr.262).
With respect to the altercation, Robert Burgan testified
that suspension, termination, or separation of employees who
engage in fighting are appropriate sanctionso (Tr.311-312,315).
He also testified that personnel actions should be based upon
seniority. (Tr.315-316). Although Robert Burgan questioned the
transfer of the complainant, it was consistent with seniority
considerations in that Allen Burgan had 16 to 18 years experience
which gave him more seniority than the complainant. (Tr.316).
The Respondent•s Direct case
The respondent called Coots who unequivocally denied the
allegations of the complainant. In this regard, Coots stated
that he never had a meeting about blocked breakers with
Robert Burgan. He also testified that he did not know how to
block in a breaker. (Tr.395). Coots conceded that supervision of
the complainant was difficult because he (Coots) was supervised
by the complainant's brother. Coots stated that the complainant
would always run to Robert Burgan whenever he was told to do
something he didn 9 t like to do. (Tr.378-379)o Coots described
the altercation between the complainant and Allen Burgan.
{Tro384). After this incident Coots recommended to Bennett that
the complainant and Allen Burgan be separated. (Tr.389).
Electrician Wendell Griffin also denied any pertinent
meetings or discussions with Robert Burgan. (Tr.414~421).
Griffin testified that he never blocked in breakers. He also
testified that neither Coots nor Couch knew how to block in a
breaker. (Tr.423-424). Griffin denied receiving any pertinent
complaints from the complainant or Couch. (Tr.413).
Finally, Clyde Bennett testified that after talking to Coots
about the January 146 1992, fight between the Burgan brothers, he
decided to transfer Burgan to the DJ Mine. The transfer was
motivated solely by Burgan•s fight (Tr.278). Bennett explained
his decision as follows:

896

It was based on fighting in the mine. That's against
the law, you know, it's very dangerous and I just won't
have that in our mines and I made the decision to give
him three days off and transfer him to another mine.
If I'd made any other decision it would have been to
fire him right then. I thought I give him a break
(sic) • (Tr. 293) •
Bennett suspended Burgan for the three workdays following
the fight and transferred him to the D3 Mine on Monday,
January 20, 1992. The 03 Mine was closed on January 24, 1992,
when the entire crew, including Burgan, was transferred to the
C3 Mine. (Tr.279). The C3 Mine was closed on March 14, 1992,
because the sulphur content in the coal was too high to satisfy
the respondent's existing orders. (Tr.279). Two individuals at
the C3 Mine were reassigned and the eight remaining crewmen were
laid off. (Tr.314). At trial, and, in his unemployment hearing,
Burgan testified that Danny Cochran was given preferential
treatment because 0 unlike Burgan, Cochran continued to pump water
at C3 and was not laid off. (See Joint Ex. 1. pp. 26-27).
Bennett explained that Cochran has foreman's papers which allows
him to go into a mine alone and that Cochran was obviously better
qualified than Burgan. (Tr.347, 364). Most of the employees laid
off from the C3 Mine were called back to the Dixie No. 1 Mine in
May or June 1992.
The complaint Against Dixie Fuel company
The complainant's Direct case
Burgan was laid off from the CJ Mine in Louellen on
March 14 0 1992o He was subsequently called back to work on
June 3 0 1992 0 to open the Dixie Noo 1 Mine in Cawood, Harlan
Countyu Kentuckyo At trial 0 the complainant presented
considerable testimony concerning a June 4, 1992, conveyor belt
incident that caused smoke and evacuation. Burgan testified at
length regarding his alleged severe smoke inhalation suffered
during this event as well as the fact that he feared returning to
the Dixie mine although he conceded the belt problem was
immediately remediedo
fact 9 there is no evidence that Burgan
ever received treatment for smoke inhalation or that he ever
experienced any problems when he returned to work at Dixie on
June 8 and June 9 0 1992o (TrG88)o Burganijs witnesses Monus Peace
and Danny Cochran failed to support Burgan&s claim that the Dixie
mine was unsafe. In facto Cochran rebutted Burgan's testimony
that Cochran had requested a transfer from the Dixie mine because

897

he believed it to be unsafe. 7 At the hearing, Burgan's counsel
distanced herself from the safety issue as a basis for Burgan's
discrimination complaint. (Tr.l53-160, 272-278, 288-289, 337).
counsel now alleges that Bennett 9 s denial of Burgan's transfer
from Dixie to H2 was motivated by discrimination because of
Burganws earlier safety related complaints concerning Coots.
(Tr.275 8 277, 289).
The Respondent•s Direct case

The respondent called Ron Osborne, the Foreman at the Dixie
mine who testified that he was with Burgan when they escaped from
the smoke on June 4th by entering a fresh air course from the
belt entry and that they were only exposed to smoke for a short
period of time. Osborne also stated that Burgan never complained
of smoke related injuries on that day or when he returned to work
on June 8th. Bennett was called upon to testify regarding his
telephone conversations wherein Burgan called on June 10 and
stated he had car problems. In addition to his car problems,
Burgan testified that his driver's license was revoked for DUI.
(Tr.132-133). Bennett testified that he did not know that Burgan
had lost his license. (Tr.270-271). Bennett recalled that Burgan
telephoned on the following day and requested a transfer to the
H2 Mine because it was closer to his home. Bennett told him that
he did not need him there whereupon Burgan said he quit. Burgan
called back an hour later and stated that he quit because the
mine was unsafe rather than because of his car problems.
ULTIMATE FINDINGS AND CONCLUSIONS

As noted aboveu in order for Burgan to benefit from the
protection afforded by Congress under Section 105(c) of the Mine
Actu he must bear the burden of establishing that he was the
victim of discriminatory adverse action as a result of his
alleged protected activity~ Specifically, Burgan must show that
he complained about Cootsg conduct concerning the blocking of
breakers and that he had a good faith belief for such complaints.
As Burgan~s complaints are based on his alleged personal
1

At the hearing it was obvious that Danny Cochran suffers
from a significant hearing impairment. (TrQ 219-220)o Burgan
testified that Cochran told him that he requested Bennett to
transfer him from the Dixie mine back to a Harlan mine in
Louellen after the belt smoke incident " ••• because of (sic) he
wasn 8 t going to be scared like that.n (Tr0 99)o However, Cochran
denied this statement when he was called upon to testify on
behalf of the complainant. (Tr. 226, 231). In fact, Cochran
explained that he requested a transfer on the advice of his
physician who recommended that Cochran avoid the damp conditions
in the Dixie mine which could exacerbate his hearing disorder.
(Tr. 230-231).

898

knowledge of Coots' behavior, his good faith belief must be
demonstrated by proving that this unsafe activity actually
occurred. In addition, if Burgan can establish his protected
activity as alleged, he must also show that the adverse action
complained of, i.e., his transfer from the H2 Mine, was in part
influenced by his protected activity. Burgan's principal
witnesses supporting his allegations against Coots and Griffin
are former employee Gary Couch and Burgan's brother, former
Superintendent Robert Burgan. 8 Their testimony should be
evaluated in the context of whether it is credible and whether it
is effectively rebutted by other witnesses. In addition, in
determining the evidentiary value of their testimony,
consideration must be given as to whether they are disinterested
or biased.
Couch is currently litigating a workman•s compensation claim
filed against the Harlan Cumberland Coal Company. Moreover, it
is uncontroverted that Couch was fired by Bennett for repeatedly
sleeping on the job as a night watchman after he was placed on
light duty following his reported job related back injury. Thus,
Couch must be considered a biased witness.
Moreover, the credibility of Couch's testimony is suspect
notwithstanding his apparent bias. It is difficult to imagine
Couch's assertion that he knowingly and repeatedly exposed
himself to electric shock or electrocution by personally blocking
shuttle car breakers. It is equally incredible that he then
proceeded to awkwardly jump in and out of the shuttle cars so as
to avoid injury or electrocution. It is also difficult to
understand how he could continue to engage in such activity,
having testified that he feared for his life to such an extent
that he told a friend to tell his wife what he was doing in the
event he was killed because of nsomething stupid. Go Couch 0 s
testimony that he engaged in these activities because he was
afraid of losing his job is also unconvincingo Finally 0 Couch 1 s
allegations were rebutted by the testimony of fellow employee
James Skidmore, called as a witness by Burgan, as well as the
testimony of Coots and Griffin.

8

At trial complainant 0 s counsel also sought to call Allen

Burgan as a corroborating witness. Counsel stated that Allen
Burgan is no longer employed by Harlan Cumberland Coal Company
and that she thought that he also had a workman's compensation
case pending. (Tr. 324, 439). At the conclusion of the hearing
counsel moved to keep the record open to depose Allen Burgan.
The motion was denied as Allen Burgan was not served with a
subpoena and the information sought to be introduced through his
testimony was already adequately reflected in the record.
(Tr. 440-441).

899

Burgan's alleged protected activity was also not adequately
supported by the testimony of his brother, Robert Burgan, who
also has a back related workman's compensation case pending
against the respondent. In this regard, Robert Burgan testified
that he never took any disciplinary action against anyone; that
he could not prove that Coots was engaging in the activity
alleged by his brother; and that he never reported his brother's
complaints to Bennett. Simply put, if the complainant's brother,
the superintendent on the scene, could not confirm the validity
of Burgan's alleged complaints, I am similarly unconvinced. It
is noteworthy that Coots and Griffin both deny ever discussing
blocked breakers with Robert Burgan. Moreover, Robert Burgan's
failure to report these alleged meetings to Bennett further
supports the denials of Coots and Griffin.
Thus, I conclude that Burgan has failed to demonstrate by a
preponderance of the evidence that he engaged in the alleged
protected activity. However, even if I were to find that Burgan
did make generalized isolated safety related complaints that
qualify as protected activity.under Section lOS(c) of the Mine
Act, the evidence reflects that Burgan's three day suspension and
transfer was motivated by Bennett's desire to separate Burgan
from his brother Allen after their serious encounter. 9 In this
regard, Robert Burgan testified that suspension, transfer and
termination are all appropriate sanctions for fighting in an
underground mine. In addition, Robert Burgan stated that Allen
Burgan had more seniority than the complainant further justifying
the transfer of the complainant rather than Allen. The immediate
suspension and transfer after the subject altercation is further
evidence that the adverse action complained of was not influenced
by any other considerationso
Moreover, the record does not
reflect that Burgan received any disparate treatment in that he
was laid off from the C3 Mine and rehired
the Dixie mine with
other individualso (Tro245-246)o
Finally 8 turning to Burgan~s complaint against the Dixie
Fuel Company 0 it is clear that Burgan quit his job at Dixie on
June llu 1992 0 after Bennett refused to transfer Burgan to the H2
Mine which is closer to Burgan°s homeo
olSS)o The complainant
has not rebutted Bennettus testimony that Burgan was not needed
at the H2 Mine. While mining is inherently dangerous, smoke
9

Although Burgan 9 s alleged complaints concerning blocked
breakers served as the basis for the discrimination complaints
that are the subject of this proceeding, Burgan also testified
about a variety of other alleged complaints. These included
complaints about inoperable lights and poor brakes on shuttle
cars, and unfair treatment he endured at the hands of Coots.
(Tr9 38~45). Assuming that these complaints occurred, the
evidence fails to demonstrate that Burgan's suspension and
transfer were in any way motivated by such complaints.

900

caused by a belt slippage does not establish that a mine is
unsafe if the condition is corrected. In' this case, the belt
malfunction was immediately repaired and there is no evidence of
reoccurrence. ·Under these circumstances, Burgan's assertion that
he was afraid to go back to the Dixie No. 1 Mine because it was
unsafe and not suitable for work is without merit. Moreover,
this assertion is inconsistent with Burgan's own testimony and
the testimony of his own witnesses Monus Peace and Danny Cochran.
(Tr.154-158, 223, 226, 249-250). It is clear that Burgan's
decision not to return to the Dixie mine was motivated by the
commuting distance from his residence. Section 105(c) of the
Mine Act protects a broad array of activities so as to encourage
mine safety. However, car problems and the hardship associated
with a driver's license revocation for driving under the
influence (DUI) go beyond the scope of the protected activities
contemplated by the Act.
ORDER
ACCORDINGLY, Elmer Darrell Burgan's Complaints against the
Harlan Cumberland Coal Company in Docket No. KENT 92-915-D and
the Dixie Fuel Company in Docket No. KENT 93-101-D ARE DISMISSED.

~a:?~

-·::::-

Jerold Feldman
Administrative Law Judge
Distribution~

Kent Hendricksonu Esq. 0 Rice & Hendrickson, P.O. Drawer 980 0
127 Woodlawn Hills, Harlan, KY 40831 {Certified Mail)
Phyllis L. Robinson, Esq., P.O. Box 952, Hyden, KY 41749
«Certified Mail)

901

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 1 71993

.
..
.
...
...
...

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

WALLACE ENTERPRISES, INC.,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 92-342
A.C. No. 12-02090-03502
Docket No. LAKE 92-343
A.C. No. 12-02090-03503
Docket No. LAKE 92-344
A.C. No. 12-02090-03504

:

:

Middle Fork Mine

DECISION
Appearances:

Before:

Rafael Alvarez, Esq., U.S. Department of Labor,
Office of the Solicitor: u.s. Department of Labor,
Chicago, Illinois for Petitioner;
No Appearance for Respondent.

Judge Weisberger

Respondent did not appear at the hearing in these cases that
was scheduled for March 16, 1993, and Petitioner made a Motion
for Default Decision on March 20, 1993. An Order to Show Cause
was issued which inter alia provided as follows:
Thereforeu it is ORDERED that within 10 days of
this orderu Respondent shall, in writing, show cause
why a default decision shall not be entered in these
cases. If the Respondent does not respond to this
order, or fails to establish why a default decision
shall not be issued~ a decision will be issued ordering
Respondent to pay $1,540 the full penalties proposed by
Petitioner in these cases.
Respondent has not responded to the order to show cause.
Accordinqly 0 the Motion for Default Decision is GRANTED.
It is ORDERED that the judgment be issued in these cases in
favor of Petitioner. It is further ORDERED that Respondent pay
$1,540 the full penalties proposed by Petitioner in these cases.

A~-e-r-~

Administrative Law Judge

902

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department
of Labor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Larry Wallace, President, P.O. Box 141, Rockport, IN
(Certified Mail) (Regular Mail)

nb

903

47635

I'BDBRAL liiHB SAFETY AND HEALTH RBVI.BW COHIUSSIOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 171993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
CONSOLIDATION COAL COMPANY,
Respondent

..

CIVIL PENALTY PROCEEDING

...

Docket No. WEVA 92-798
A.C. No. 46-01968-03980

..
.

Blacksville No. 2

SUMMARY DECISION

Appearances:

Before:

Caryl L. Casderi, Esq., u.s. Department of Labor
Office of the Solicitor, Arlington, Virginia
for Petitioner;
Daniel Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Judge Feldman

A hearing in this proceeding was held on November 17, 1992,
in Morgantown, West Virginia. At trial the parties moved to
settle one of the two citations in issue. The parties also
sought to stay this matter with respect to remaining Citation
No. J72075le~ This citation was issued on December 19, 1991,
for violation of 30 CeFeR. § 70.201(d) as a result of the
respondentvs alleged failure to correct a respirable dust
concentration condition that exceeded the permissible respirable
dust levels specified in the mandatory health and safety standard
contained in 30 C.F.R. § 70.100(a). The underlying violation of
~Citation No. 3720751 was initially issued as a 104(d)(2)
order. It was modified to a 104(a) citation as a result of a
MSHA health and safety conference conducted on February 12, 1992.
At that time it was decided that the respondent's degree of
negligence associated with this citation should be reduced from
high to moderate. The Secretary now seeks to ignore MSHA's
conference findings and urges me to reinstate the unwarrantable
failure order. However, the record fails to support any reckless
or conscious disregard on the part of the respondent. I also
believe that, absent new and material information, it is
inappropriate to ignore MSHA's conference findings to the
detriment of the respondent. Therefore, as noted herein,
Citation No. 3720751 is affirmed as modified with the significant

904

the Section 70.100(a) dust concentration standard was cited in
Citation No. 3720747 which is not a subject of this proceeding. 2
In the case at bar, the violation of Section 70.201(d) cited
in Citation No. 3720751 allegedly occurred because the respondent
failed to take remed'ial action by December 18, 1991, to
ameliorate the underlying excessive dust condition that was
identified on December 11, 1991, during the course of the
secretarr's spot inspection program. 3 Pursuant to this
program, the alleged excessive dust level was determined by a
single respirable dust sample taken during one shift rather than
the customary avera~ing of five dust samples collected on
consecutive shifts.
See Secretary's Motion for Summary
Judgment, p.4.
At the hearing the respondent acknowledged its
responsibility to· timely correct the alleged excessive dust
concentration.
However, the parties noted that the significant
and substantial issue and the.appropriate civil penalty
2

Citation No. 3720747 is before Judge Weisberger. This
citation involves the identical issues in Keystone Coal Mining
Corp., 14 FMSHRC 2017 (December 1992), appeal pending. Further
action on Citation No. 3720747 was stayed by Judge Weisberger on
July 6, 1992, pending the outcome of the Keystone case.
3 Section

70.201(d) requires the operator to take corrective
action to lower the respirable dust concentration to permissible
levels within the abatement period set forth in a citation for
violation of Section 70.100(a). In the instant case, Citation
Noo 3720747 set December 16, 1991, as the termination of the
abatement period. This period was subsequently extended through
December 18u 1991q because additional time was required for MSHA
to weigh and evaluate the five dust samples required by Section
70.201(d) in order to establish whether corrective action had
been taken.
~

The Secretaryas spot inspection program is based upon the
proposition that a single shift sample measuring 2.5 milligrams
per cubic meter of air (mgjm3) or higher provides the equivalent
degree of confidence as five samples averaging over 2.0 mgjm3
that the 2.0 mgjm3 respirable dust concentration standard in
Section 70.100(a) is violated.
Citation No. 3720747 was issued on December 11, 1991, fo~
alleged exposure to excessive respirable dust concentration by
the non-designated occupation, 041 (Longwall Jack Setter). The
citation was based upon the results of single samples taken the
previous days on the December 9 afternoon shift and the December
10 midnight shift. The results revealed dust concentrations of
2.5 and 3.1 mgjm3, respectively. Thus, the December 9, 1991,
sample barely satisfied the Secretary's 2.5 mgjm3 spot inspection
5

905

assessment were dependent upon the validity of the Secretary's
single shift spot inspection procedure which was pending
consideration by Judge Weisberger in Keystone Coal Mining Corp.,
supra. Consequently, the parties' motion to stay further
consideration of Citation No. 3720751 pending the outcome of
Keystone was granted on the record and formalized in my
December 4, 1992, Partial Decision Approving Settlement and Stay
Order, 14 FMSHRC 2133.
On December 7, 1992, Judge Weisberger invalidated the
Secretary's single shift spot inspection procedure. 6 See
Keystone Coal Mining Corp., 14 FMSHRC at 2029. Thereafter, I
lifted the stay and set this case for hearing. In so doing, I
noted that the contested citation involves the respondent's
efforts to correct an excessive respirable dust condition
determined by a single shift sample rather than the condition
itself. I also noted that Judge Weisberger's disposition in
Keystone is of substantive value with regard to the issue of
mitigating circumstances. See Order Lifting Stay and Notice of
consolidated Hearing Proceedings, February 16, 1993.
The February 16, 1993, notice scheduling this matter for
hearing was followed by another request for stay by the
Secretary. During the course of a telephone conference with the
parties, I expressed my disinclination to grant another stay.
However, the parties convinced me that this matter could be
disposed of by summary decision as there are no outstanding
unresolved issues of material fact. Therefore, the parties were
ordered to file pertinent motions specifying the number of dust
samples necessary to establish that a violative dust condition
has been corrected, and whether the respondent's failure to
correct the alleged condition from December 18 0 1991, (the
extended termination due date in Citation No. 3720747) until
December 19 0 199lv (when Citation No. 3720751 was issued)
contributed to a hazard that was reasonably likely to result in
injury or illness of a serious nature consistent with the
Commission's Mathies testo 7
As the respondent has stipulated to the fact of the
occurrence of the violation, the only remaining issues are
whether the violation was properly designated as significant and
substantial and the appropriate penalty to be assessed. As a
threshold matter~ the propriety of the significant and
~ Judge Weisberger ruled that the single shift sample
procedure was invalid because it was not implemented pursuant to
a rulemaking proceeding.

7 This

test is set forth in Mathies Coal Co., 6 FMSHRC 1, 3-

4 (January 1984). See also Cement Division. National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981).

906

substantial designation for Citation No. 3720751 must be viewed
in the context of the Keystone decision and in the context of the
provisions of Section 70.201(d), the cited mandatory safety and
health standard in this case. While it would be inappropriate to
relitigate the issues in Keystone which are now on appeal before
the Commission, it is clear that the·procedural and substantive
merits of the Secretary's single shift sample procedure are in
doubt.
While Judge Weisberger addressed the procedural problems
associated with the lack of a rulemaking proceeding implementing
the Secretary's single shift sample policy, the substantive value
of this procedure is suspect in that Section 70.201(d) does not
recognize a single shift sample as a valid method for
establishing that corrective action has been taken. 8 Thus,
Section 70.201(d) of the regulations, promulgated by the
Secretary, undermines the reliability of the single sample
method. Consequently, I conclude that the uncertainties
associated with the underlying r.espirable dust standard
violation cited in Citation No. 3720747 create mitigating
circumstances warranting the deletion of the significant and
substantial characterization in Citation No. 3720751. 9
Notwithstanding the above sample method issues, the
traditional Mathies test provides an independent basis for
concluding that Citation No. 3720751 does not establish a
significant and substantial violation. As previously noted, this
citation was issued on December 19, 1991, for ·the respondent's
failure to take corrective action by December 18, 1991. The
Secretary's motion for summary decision, citing Secretary of
Labor v. Halfway, Inc., 8 FMSHRC 8, 12 (1986), and, U.S. Steel
Mining, 6 FMSHRC 1573u 1574 (July 1984)u asserts that the
potential for serious illness or injury must be viewed in the
context of continued mining operations. In effect, thereforeu
the Secretary contends that there is a presumption that the
8

Section 70.201{d) providesu in pertinent part:
ooothe operator shall take corrective action to lower the
concentration of respirable dust to within the permissible
concentration and then sample each production shift until five
valid respirable dust samples are taken (emphasis added)."
00

9 The

Secretary points out that the average of five samples
taken from December 12 through December 16, 1991, was 2.9 mgjm3
which confirms the single shift results. Secretary's Motion for
Summary Judgment, p. 14. However, this after the fact
confirmation process is not dispositive of whether there was a
basis for the issuance of Citation No. 3720747 on December 11,
1991. Moreover, this approach of relying on multi-sample results
is inconsistent with the Secretary's confidence in the single
sample procedure.

907

failure to timely correct a significant and substantial violation
is itself significant and substantial. I reject this approach.
Rather, each violation should be evaluated independently within
the context of the statutory provisions and the Congressional
intent of the Mine Act. In this regard, the underlying excessive
respirable dust concentration provides the vehicle for the
imposition of a civil penalty for a significant and substantial
violation. Moreover, the inspector has the oftion of issuing a
104{b) order in order to achieve compliance. 1 Therefore, a
non-significant and substantial finding with respect to a
citation issued for the failure to timely correct a violation,
particularly in this case where the failure to take remedial
action was cited shortly after the abatement period expired, does
not undermine the Mine Act's fundamental goal of encouraging mine
safety. Accordingly, I conclude that the respondent's failure to
timely correct the alleged underlying violation one day after the
time established for abatement does not constitute a significant
and substantial violation.
Turning to the question of the appropriate civil penalty in
this matter, I note that the Secretary, in his motion for summary
decision, has amended the proposed penalty from $1,155 to
$350. 11 Significantly, a plan to correct the underlying dust
condition was submitted to the MSHA District Manager on
December 23, 1991. The plan was approved on the following day
and implemented by the respondent on December 26, 1991, when
Citation No. 3720751 was terminated. In view of the respondent's
abatement efforts, belated as they may be, and the other
pertinent statutory criteria in Section 110(i) 6f the Mine Act, I
am assessing a civil penalty of $100 for the cited violation of
Section 70.20l(d)o
ORDER
Consistent with this decision, summary decision in favor of
the respondent IS GRANTED.
Accordingly u the significant and
substantial designation SHALL BE DELETED from Citation No. 3720751.

10

In factu 104(b} Withdrawal Order No. 3720750 was issued
in this case on December 19, 1991. Secretary's Motion for
Summary Judgment, Ex. F. This order is also not a subject of
this proceeding.
11

I note, parenthetically, that this reduction in the
proposed assessment is inconsistent with the Secretary's attempt
to resurrect the unwarrantable failure charge in this matter.
See fn. 1, supra.

908

J:T J:S ORDERED that the respondent pay a civil penalty of $100
within 30 days of the date of this decision.
Upon receipt of
payment, this matter J:S DISMISSED.

~;(>=::::.
Jerold Feldman
Administrative Law Judge
Distribution:
Caryl Casden, Esq., Office of the Solicitor, u.s. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Daniel E. Rogers, Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)

vmy

909

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203LEESBURG ~KE
FALLS CHURCH, VIRGINIA 22041

MAY 191993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

.

CIVIL PENALTY PROCEEDINGS

...:

Docket No. KENT 92-611
A.C. No. 15-12209-03538

0

No. 2 Surface Mine

v.
KEM COAL INCORPORATED,
Respondent

..
SETTLEMENT

Before:

Judge Barbour
statement of the Proceeding

This proceeding concerns proposals for assessment of civil
penalties filed by the Petitioner against the Respondent pursuant
to Section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
four alleged violations of certain mandatory safety standards
found in Part 77, Title 30, Code of Federal Regulations. The
Respondent filed a timely answer denying the alleged violations,
and the case was docketed for hearing on the merits.
The parties now have decided to settle the matteru
and they have filed a motion pursuant to Commission Rule 30,
29 C.F.R. S 2700.30, seeking approval of the proposed settlement.
The citations, initial assessments, and the proposed settlement
amounts are as follows:
30 C.JF .. R.

Citation IS!·
3216278
3216179
3216041
3216042

Date
01/28/92
03/10/92
03/11/92
03/11/92

section
Assessment
77.1000
$1300
77.1001
$ 595
77.1605(u)
$ 595
77.410(a)
$ 595

settlement
$655
$595
$595
$-0-

In support of the proposed settlement disposition of this
case, the parties have submitted information pertaining to the
six statutory civil penalty criteria found in Section 110(i) of
the Act, included information regarding Respondent's size,
ability to continue in business and history of previous
violations.

910

In particular, with regard to citation No. 3216278, the
parties note that the violation was caused by "differing, but
equally valid interpretations of the ground control plan" and
that had the violation been regularly assessed the proposed
penalty would have been $655. Joint Motion To Approve
Settlement 3. With regard to Citations No. 3216179 and 3216041,
the parties note that Respondent has agreed to pay in full the
proposed civil penalty. Finally, with regard to Citation
No. 3216042, the parties agree that the vehicle cited for an
inaudible backup alarm was not the type of truck required to have
such an alarm and that the citation should be vacated.
CONCLUSION
After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
settlement of this case, !'find that approval of the suggested
reduction in the penalties assessed for the subject violations is
warranted and that the proposed.settlement disposition is
reasonable and in the public interest. Pursuant to 29 C.F.R.
§ 2700.30, the motion IS GRANTED, and the settlement is APPROVED.
ORDER
Respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above in satisfaction of the violations
in question. Further, the Secretary IS ORDERED to vacate
Citation No. 3216042. Payment is to be made to MSHA within
thirty (30) days of the date of this proceeding and upon receipt
of payment, this proceeding is DISM7SSED.

~~/.~~
David F. Barbour
Administrative Law Judge
(703)756-5232

Distribution:
Anne To Knauff, Esq., Office of the Solicitor, u.s. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Edward H. Adair, Esq., Reece, Lang & Breeding, PSC, 400 South
Main Street, P.O. Drawer 5087, London, KY 40745-5087 (Certified
Mail)
/epy

911

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

MAY 1 91993

CIVIL PENALTY PROCEEDING

.
:

Docket No. KENT 93-59
A.C. No. 15-10180-03532
No. 1 surface Mine

v.
KEM COAL INCORPORATED,
Respondent

....

DECISION APPROVING SETTLEMENT
Before:

Judge Barbour
statement of the Proceeding·

This proceeding concerns proposals for assessment of civil
penalties filed by the Petitioner against the Respondent pursuant
to Section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
seven alleged violations of certain mandatory safety standards
found in Parts 71 and 77, Title 30, Code of Federal Regulations.
The Respondent filed a timely answer denying the alleged
violations, and the case was docketed for hearing on the merits.
The parties now have decided to settle the matter,
and they have filed a motion pursuant to Commission Rule 30,
CeFoRo $ 2700.30, seeking approval of the proposed settlement.
The citations, initial assessments, and the proposed settlement
amounts are as follows:
Citation No ..
3399676
3399677
3399678
3399679
3399680
3399441
3399442

Date
09/09/92
09/09/92
09/09/92
09/09/92
09/09/92
09/11/92
09/11/92

30 C.F.R.
section
Assessment
71.400
$ 50
77.1605(d)
$362
77o410(c)
$362
77.1605(d)
$362
77.1605(d)
$362
$362
77.1605(d)
77.410(a)
$362

settlement
$ 50
$100
$ 50
$100
$-0$100
$100

In support of the proposed settlement disposition of this
case, the parties have sqbmitted information pertaining to the
six statutory civil penalty criteria found in Section 110(i) of
the Act, included information regarding Respondent's size,
ability to continue in business and history of previous
violations.

912

In particular, with regard to Citation No. 3399676, the
parties noted that Respondent has agreed to pay in full the
proposed civil penalty.
With regard to Citation No. 3399677, the parties note that
although the audible backup warning device and tail and brake
lights did not work on the cited rock truck, the gravity of the
violation was greatly mitigated by the fact that the backup
lights worked, there was no pedestrian traffic and minimal
vehicular traffic where the truck worked and the truck rarely
operated at a speed in excess of 20 mph. Moreover, the parties
agree that no injury was reasonably likely to occur because of
the violation and that the violation was not a significant and
substantial contribution to a mine safety hazard ("S&S"
violation).
With regard to Citation No. 3399678, the parties agree the
inoperative backup alarm on the cited rock truck failed during
the shift on which the violation was cited and that the alarm was
scheduled to be repaired at the close of that same shift.
Moreover, as with the previous violation, the parties agree that
no injury was reasonably likely to occur due to the violation and
that the violation was not S&S.
With regard to Citation No. 3399679, the parties agree that
although the tail and brake lights on the cited rock truck were
not operating, the gravity of the violation was greatly mitigated
for the reasons set forth with respect to Citation No. 3399677
and by the additional fact that the truck was operated only 1
shift per day during a day light shift. Moreover, the parties
agree that no injury is reasonably likely to occur because of the
violation and the violation not S&S.
With regard to Citation No. 3399680, the parties note the
violations is similar to that alleged in Citation No. 3399679 and
that for the same reasons expressed concerning that violation the
gravity is greatly mitigated and the violation is not S&S.
With respect to Citation No. 3399441, the parties note that
although the horn on the welding truck was inoperative as alleged
the truck was not licensed for highway use and was rarely used in
the vicinity of pedestrians. The parties therefore agree the
gravity of the violations is greatly mitigated. Because no
injury was reasonably likely to occur due to the violation the
parties also agree that it was not S&S.
Finally, with regard to citation No. 3399442, the parties
note that although the cited truck lacked an operable backup
alarm the gravity of the violation was greatly mitigated by the
fact that outside rear view mirrors on both sides of the truck
provided the driver with almost complete vision of what was

913

behind the truck. They also agree that no injury was reasonably
likely to occur because of the violation and that the violation
was not S&S.
CONCLUSION

After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the suggested
reduction in the penalties assessed for the subject violation is
warranted and that the proposed settlement disposition is
reasonable and in the public interest. Pursuant to 29 C.F.R.
§ 2700.30, the motion IS GRANTED, and the settlement is APPROVED.
ORDER

Respondent IS ORDERED to pay civil penalties in the
settlement amounts shown above in satisfaction of the violations
in question. In addition, the Petitioner IS ORDERED to modify
citations No. 3399677, 3399678, 3399679, 3399680, 3399441 and
3399442 by deleting their S&S designations. Payment is to be
made to MSHA within thirty (30) days of the date of this
proceeding and upon receipt of payment, this proceeding is
DISMISSED.

$~,':-g~
David F. Barbour
Administrative Law Judge
(703)756-5232

Distribution:
Anne To Knauffo Esq. 0 Office of the Solicitor, U.S. Department of
Laboru 2002 Richard Jones Road, Suite B-201u Nashville 6 TN 37215
(Certified Mail)
Edward H. Adair, Esq., Reece, Lang & Breeding, PSC, 400 South
Main Street, P.O. Drawer 5087(/ London, KY 40745-5087 (Certified
Mail)
jepy

914

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.

MAY 1 9 1993

CIVIL PENALTY PROCEEDING

.
..

Docket No. VA 92-188
A.C. No. 44-04517-03693
Mine: VP-6

GARDEN CREEK POCAHONTAS
COMPANY,
Respondent
DEgiSION APPROVING SETTLEMENT

Before:

Judge Barbour
Statement of the Proceeding

This proceeding concerns proposals for assessment of a civil
penalty filed by the Petitioner against the Respondent pursuant
to Section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 820(a), seeking a civil penalty assessment for
one alleged violation of a certain mandatory safety standard
found in Part 75, Title 30, Code of Federal Regulations. The
Respondent filed a timely answer denying the alleged violation.
The parties now have decided to settle the matter, and they
have filed a motion pursuant to Commission Rule 30, C.F.R.
~ 2700.30u seeking approval of the proposed settlement.
The
citationu initial assessment 0 and the proposed settlement amount
is as follows::
Citation No.
4002121

Date

08/05/92

30 C.F.R.
Section
75.1102

Assessment
$189

settlement
$136

In support of the proposed settlement disposition of this
case, the Petitioner has submitted information pertaining to the
six statutory civil penalty criteria found in Section llO(i) of
the Act~ included information regarding Respondent's size and
ability to continue in business and history of previous
violations ..
In particular, with regard to Citation No. 4002121,
Petitioner notes that the violation concerned the malfunctioning
of Respondent's belt conveyor which was periodically starting
erroneously when being idled on the sequence mode. Petitioner
asserts that unbeknownst to the inspector, Respondent was fully
aware of the problem and was making good faith attempts to
correct it. Thus, Respondent's negligence was less than supposed

915

CONCLUSION

After review and consideration of the pleadings, arguments,
and submissions in support of the motion to approve the proposed
settlement of this case, I find that approval of the suggested
reduction in the penalty assessed for the subject violation is
warranted and the proposed settlement disposition is reasonable
and in the public interest. Pursuant to 29 C.F.R. S 2700.30, the
motion IS GRANTED, and the settlement is APPROVED.
ORDER

Respondent IS ORDERED to pay a civil penalty in the
settlement amount shown above in satisfaction of the violation in
question. Payment is to be made to MSHA within thirty {30) days
of the date of this proceeding and upon receipt of payment, this
proceeding is DISMISSED.

g)dfac!d--.
Administrative Law Judge
{703)756-5232

Distribution:
James v. Blair, Esq., Office of the Solicitor,
u.s. Department of Labor, 4015 Wilson Boulevard, suite 516,
Arlington, VA 22203 (Certified Mail)
Marshall So Peaceu Esq. 0 201 Wo Vine StreetQ Lexington 0 KY
~Certified Mail)
\epy

916

40507

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAY 2 5 1993

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 92-531
A.C. No. 36-07813-03553

v.

No. 2 Vein Slope Mine

C&B MINING COMPANY,
Respondent
DECISION

Anita Eve-Wright, Esq., Office of the Solicitor
U.s. Department of . Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Gary Lorenz, Representative of Operator, Shamokin,
Pennsylvania, for the Respondent.

Appearances:

Before:

Judge Barbour
STATEMENT OF THE CASE

In this civil penalty proceeding initiated by the Secretary
of Labor ("Secretary"), on behalf of the Mine Safety and Health
Administration ("MSHA"), pursuant to Sections 105(a) and 110(i)
of the Federal Mine Safety and Health Act of 1977 ("Mine Act" or
00 Acti')
30 U.S C. §§ 815 (a) v 820 ( i)
the Secretary seeks the
assessment of a civil penalty against C&B Mining Company ("C&B")
for C&Bis
leged violation of Section l03(a) of the Act, 30
u.s.c. § 813(a). 1
11

o

11

The Secretary asserts that on January 28, 1992, MSHA
inspector Dennis Myers was denied entry to C&B's No. 2 Vein Slope
Mine by Glenn Parksu the mine 1 s hoisting engineer. According to
the Secretary, Parks was acting on the orders of Gary Lorenz, an
owner of C&B. The Secretary asserts that because Myers was at
the mine to conduct an inspection pursuant to Section 103{i),
30 u.s.c. § 813(i) 11 of the Act, C&B violated section l03(a) when

Section 103(a) authorizes MSHA inspectors to conduct frequent
investigations and inspections of the nation's mines, to determine, among
other things, whether an imminent danger exists and whether there is
compliance with applicable mandatory health and safety standards promulgated
pursuant to the Act. To accomplish these purposes MSHA is authorized "to make
inspections of each mine in its entirety at least four times a year."

917

it denied him entry. 2 The Secretary proposes a civil penalty of
one-thousand dollars ($1,000) be assessed for the alleged
violation.
Lorenz, on behalf of C&B, contests the proposed penalty.
A hearing was conducted in Williamsport, Pennsylvania, at which
Anita Eve-Wright represented the Secretary and Myers and James
Schoffstall, Myers' supervisor, testified for the Secretary.
Lorenz represented C&B and testified for the company. At the
close of the hearing the parties orally summarized their
positions.
THE SECRETARY'S WITNESSES
Myers stated that he first inspected the No. 2 Vein Slope
Mine -- a small anthracite mine -- in october 1991. Tr.12. The
inspection in October was the beginning of the regular quarterly
inspection required by Section 103(a) of the Act. According to
Myers, in January 1992, coal was being extracted at the mine in
the vicinity of uncharted, abandoned workings. In order to make
certain that C&B personnel were drilling ahead and into the coal
they intended to mine, so as to give themselves warning if they
were approaching the old workings, MSHA put the mine on a section
103(i) "spot inspection" basis. Under the spot inspection
program Myers was required to conduct unscheduled weekly
inspections at the mine. Tr. 12-13. Myers explained that the
inspections were needed because in the anthracite coal fields
water or contaminated air frequently collects in old workings and
if there is an unintended breakthrough into the old workings a
rapid and potentially deadly inundation of water or release of
contaminated air can occur into the active workings of the mine.
On January 24q 1992q Myers went to the mine to conduct one
the required weekly inspections. Myers stated that he arrived
at approximately 8:45 a.m. He met Parker and told Parker he was
there "for a weekly hazard inspection." Tr. 13. Myers testified
that while he was changing his clothing to go underground, Parker
told Myers that Lorenz had said "to run [Myers] off if [he]
showed up. 8' Id. In the meantime u the miners had come out of the
mine to eat 0 and Lorenz, who was there, spoke with Myers about
why the mine had been placed on a spot inspection schedule.
Lorenz then left the mine, telling Myers that he had a personal
problem at home. Id.

2
Section 103(i) provides that if MSHA finds that there exists in a
coal mine some "especially hazardous condition" that is not gas related, it
shall provide a minimum of one spot inspection of all parts of the mine every
five working days at irregular intervals. Section 103(a) provides the right
of entry that allows MSHA's inspectors to accomplish this purpose.

918

Myers testified that after Lorenz left, Parker took a truck
of coal to the stockpile. When he failed to return, another C&B
employee went to find out what was wrong. Myers was told that
the truck had developed a mechanical problem and that the mine
would have to close at the end of the day. Myers and the miners
left the mine. Tr. 13-14.
After leaving, Myers stated that he went to the MSHA field
office in Shamokin, Pennsylvania, and told his supervisor,Schoffstall, what had happened. Tr. 14. Schoffstall instructed
Myers to return to the mine the next working day (Monday,
January 27, 1992) and to again try to conduct an inspection.
Tr. 14-15.
Myers returned as directed. Upon arriving at the mine he
met Lorenz and Lorenz's brother, Cal Lorenz. Tr. 15. (Myers
stated that Cal Lorenz is the foreman at the mine.) Lorenz told
Myers that Schoffstall had told him "to think it over about
letting [Myers] inspect," that he had done so and that he had
decided Myers could not inspect the mine. Id. Lorenz stated that
"[t]he Federal could inspect but [Myers] couldn't inspect." Id.
Myers understood Lorenz to mean that any MSHA inspector other
than himself could conduct an inspection but that he could not.
Also, Lorenz indicated to Myers that he did not like Myers'
attitude. Myers asked Lorenz what was wrong with his attitude
but Lorenz did not reply. Id. 3 Myers advised the brothers that
he would leave so they could "think it over" but if they
continued to refuse to let him inspect the mine he would have to
issue to C&B a citation for "denial of entry." Tr. 16. Myers
then telephoned Schoffstall and recounted the situation. He told
Schoffstall that he would return the following day and would try
to conduct the inspection. Tro l7o
Myers came back the next morningo He met Parker at the
hoist building and Parker reiterated that Lorenz had instructed
him not to let Myers into the mine. Tro 18. In that case, Myers
respondedv he would issue to C&B a citation for denying him
entryu and that the violation was a significant and substantial
01
(
S&saa) contribution to a mine safety or health hazard.
He also
stated he would ask that the violation be specially assessed. 4
In addition, Myers stated that Cal Lorenz told him C&B had begun
retreat mining and therefore spot inspections were not longer necessary.
Tr. 16. Myers agreed that if, in fact, C&B was retreat mining, inspections
conducted pursuant to section 103(i) no longer would have been required.
Tr. 18.
4

The Secretary's regulations for the determination of penalty by
special assessment are set forth at 30 C.F.R., Part 100. Section lOO.S(d)
provides that when a violation has been issued for a failure to permit an
(continued ••• )

919

Myers issued the citation and returned to the MSHA office
where he discussed the situation with Schoffstall. Schoffstall
sent Myers back to the mine and instructed MSHA inspector Paul
Sargent to accompany him. Once back, Myers asked Parker if he
could conduct the inspection? Parker said "no," and Myers issued
to C&B an order of withdrawal pursuant to Section 104(b) of the
Act, 30 U.S.C. § 814(b), for failing to abate the violation of
section 103(a).s Myers and Sargent then met Cal Lorenz who told
Myers that Sargent could inspect but that Myers could not.
Tr. 19-20.
Myers and Sargent returned to the MSHA office. Later in the
day Lorenz came to the office and, according to Myers, confronted
him. Myers described what happened:
Lorenz came stalking into the office in a
very aggressive manner, walked over to me,
started pointing his finger and telling me I
would not dictate tQ him • . . anymore. That
was his property, that was his.mine, he would
say who would go in and who wouldn't • • . He
was putting no trespassing signs up and I was
to be nowhere around.
Tr. 20-21. Schoffstall intervened and called Lorenz into his
office. After a "behind closed doors" conference, Schoffstall
asked Myers to join them. Myers testified that he asked Lorenz
what he had done to cause Lorenz to object to his presence at the
mine. Myers maintained that Lorenz would not respond except to
ask Schoffstall why C&B could not be assigned another inspector?'
When Schoffstall explained why he could not appoint another
inspector for the mine~ Lorenz left the office. Tro 21.

4
( ••• continued)
inspector to perform an inspection or investigation, MSHA will review the
violation to determine whether a special assessment is appropriate.

Section 104(b) states in relevant part that if an inspector finds
that the violation described in a citation has not been abated and that the
operator should not be given further time to abate, the inspector shall
promptly issue an order requiring the withdrawal of miners and prohibiting
their reentry until the inspector determines the violation has been abated.
During cross-examination Lorenz asked Myers if he recalled coming
to a garage owned by Lorenz on January 26 and confronting Lorenz about an
alleged failure of C&B to comply with a mandatory standard? Lorenz asked if
Myers remembered pointing a finger at him and telling him in a loud voice that
if C&B did not comply, Myers would shut down the mine? Myers responded he
recalled coming to the garage shortly after Christmas but did not recall
pointing a finger at Lorenz or "carrying on" and he denied that he had told
Lorenz to fix the condition or he would "write it." Tr. 30-31.

920

Myers testified that the following day (January 29) Lorenz
called Schoffstall and told him that Myers could inspect. Myers
went to the mine and conducted the inspection. When he came out
of the mine he discussed with Cal Lorenz and C&B's miners "the
type of pillaring method they could use, the ventilation they
needed and • • • safe mining practices in pillaring." Tr. 22.
As a result of the inspection Myers determined that C&B had begun
retreat mining and that section lOJ(i) spot inspections were no
longer needed. Therefore, the mine was taken off a spot
inspection schedule. Id.
Myers testified that he found the violation to be S&S
because without inspecting the mine MSHA could not determine if
C&B was drilling ahead as it advanced toward the old workings.
Without drilling there was no way to know for certain if C&B's
mining process would cut into the old workings and whether those
old workings contained water or contaminated air. If they did,
he believed there was a very real danger to C&B's underground
miners of at least permanent;.~y disabling injuries.
Tr. 22-23, 24.
Myers also stated he believed the denial of entry to have
been caused by C&B's reckless disregard of the law. He noted
that he had explained to Lorenz why he was there to inspect and
that Lorenz, who was fully aware of the consequences of refusing
to let him into the mine, nonetheless persisted in his refusal.
Tr. 24.
Schoffstall was the next witness to testify. He confirmed
that he had first assigned Myers to inspect the mine as part of
the regular quarterly inspection during October 1991. Tr. 41.
In December 8 when the mine map showed the mine to be within 200
feet of old, abandoned workings, MSHA placed the mine on a
section l03(i) inspection program. Id.
Schoffstall explained in detail the dangers posed by old,
abandoned workings -- the dangers of a sudden and unexpected
inundating or contamination. He recalled the Porter Tunnel
disaster of 1979 when 9 miners were killed by a sudden mine flood
and he indicated that another life had been lost similarly in the
early 1980's. He termed the need for advance drilling "one of
[MSHA's] top priorities" in the anthracite region. Tr 42.
According to Schoffstall, C&B was placed on an section 103(i)
inspection schedule "to see that the drilling program was carried
out." Tr. 43.
In addition, Schoffstall gave his version of the events of
January. He confirmed that on January 24, 1992, Myers told him
about being barred from inspecting the mine and Schoffstall told
Myers.to go back on the 27th. Schoffstall added that on
January 24, 1992, Lorenz had called and stated that he would
permit another inspector to enter the mine but that he would not

921

allow Myers in. Tr. 44. Schoffstall testified he told Lorenz
that he should reconsider, that a denial of entry was a very
serious matter and that no mine operator had ever won a denial of
entry case. ~
Schoffstall also stated that this was not his only
conversation with Lorenz on the subject, that on January 27,
1992, and after Myers had returned to the office, Lorenz again
called Schoffstall and requested another inspector be assigned to
the mine. Lorenz told Schoffstall that he had a verbal
disagreement with Myers at Lorenz's garage. Schoffstall
responded that he did not feel a change was warranted and he
warned Lorenz again about the serious nature of a denial of
entry. Tr. 45.
In addition, Schoffstall testified that following the
issuance of the order of withdrawal Lorenz came to the MSHA
office and confronted Myers. Schoffstall described Lorenz as
"worked up" and Schoffstall stated that after Lorenz calmed down
he told Lorenz to go home and'·reconsider, that the quickest way
to solve the problem was to let Myers in. Tr. 46-47. The
following morning, Lorenz called Schoffstall and told him Myers
could conduct the inspection. Tr. 47.
Schoffstall testified that he went to the mine with Myers
and accompanied him during the inspection. When Lorenz was able
to show that the mine was not being advanced any longer,
Schoffstall recommended to the MSHA district manager that the
mine be taken off the section 103(i) spot inspection schedule,
which was done. Tr. 47.
Schoffstall stated that he had reviewed Myers' findings
after Myers issued the citation and order and that he agreed the
violation was S&S. He echoed Myersv concerns regarding possible
inundation of water or contaminated air should C&B's miners have
cut into old workings. Id., Tr. 57. He also agreed with Myers
that the violation was due to C&B's reckless disregard of the
requirements of the Act. Tr. 48-49a
Under questioning by Lorenz, Schoffstall related that during
October 1991 and January 1992, Lorenz frequently called him and
asked that a different inspector be assigned to the mine.
Tr. so. Schoffstall stated that he recalled Lorenz asserting
that he "didnwt like [Myers'] attitude[,]" that he "didn't like
the way he inspected[,]" and that Lorenz had asked for a
different inspector "right from the first day." Id. Schoffstall
agreed C&B had no problems with any other of MSHA's inspectors
and he described C&B as a "very cooperative" and safe operator.
Tr. 50-Sl.

922

With regard to his refusal to change inspectors, Schoffstall
was of the opinion that MSHA could not allow an operator to
dictate who would or would not inspect and that while there might
be instances where he and the MSHA district manager would find
cause to change an inspector, he did not believe there had been
any reason to change in this instance. Tr. 53-54.
C&B 1 S WITNESSES

Lorenz explained that he is one of two partners who own C&B,
the other being cynthia Lorenz, his sister-in-law. Tr. 7-8.
Regarding his relationship with Myers, Lorenz stated that he had
a conflict with Myers from the first time Myers was at the mine,
but he denied that C&B was trying to dictate to MSHA who would be
allowed to inspect the mine. Rather, he was trying to impress
upon MSHA the fact that a change of inspectors was truly needed.
Tr. 59-60.
With respect to the danger to miners presented by the
alleged violation, he indicated that when the citation and order
were issued mining was no longer advancing. The coal had
narrowed to a 17 inch seam and the company had only 100 feet to
go before it reached the limit of its coal lease. For these
reasons, the company had started retreat mining. Therefore,
there was no hazard. Tr. 60.
DISCUSSION AND FINDINGS
THE VIOLATION

The right of entry is clearly set forth in the Mine Act.
Section 103(a) of the Act provides that "for the purpose of
making any inspection or investigation under this [Act] " MSHA
inspectorws "shall have a right of entry to, upon or through any
coal o o o mine." As the Commission has noted, the right is
broad, and while the Commission has also stated that the right is
not without limits~ the record does not suggest, nor does C&B
argue 0 that Myers was acting outside the bounds of statutory
authority on January 28~ 1992 0 when he sought to inspect the
mineo Tracy & Partners. et al., 11 FMSHRC 1457~ 1461 (August
1989}o
In Tracy & Partners a majority of the Commission concluded
that while all inspections of mines under section 103 are
conducted pursuant to the basic authority of section lOJ(a), when
MSHA attempts to conduct a spot inspection pursuant to section
103(i), the spot inspection must be valid in the first instance

923

under section 103{i) itself. 11 FMSHRC at 1464. 7 Section 103(i)
provides for spot inspections whenever the Secretary "finds . . .
that . . . (a] hazardous condition exists" other than excessive
liberation of methane or other explosive gases or an explosion or
ignition of methane or other gases within the previous five
years. Here, Myers and Schoffstall testified without
contradiction of the hazards associated with cutting into old,
abandoned workings. Without entering the mine and inspecting,
MSHA did not know and could not tell whether C&B's miners were
being protected from those hazards by drilling ahead. Nor, as
Lorenz agreed, was there any way for MSHA to know, aside from
taking Lorenz's word, that the mine was no longer being advanced
and that retreat mining had started. Tr.61.
Obviously, MSHA cannot be expected to carry out its
enforcement responsibilities by relying solely on the
representations of those subject to the Act's mandates, if it
could there would be no need for inspections. I therefore find
that on January 28, 1992, MSHA properly concluded that "a
hazardous condition exist ( edTi··· at the mine and that the spot
inspection it sought to conduct was valid in the first instance
under section 103{i).
This being the case, when Myers requested entry on
January 28, 1992, C&B was legally bound to admit him and I
conclude that in refusing him admission C&B violated section
103{a) as charged.
Nor can C&B's willingness to permit entry to any inspector
other than Myers in any sense lessen its liability. The Act
provides that authorized representatives of the Secretary shall
make frequent inspections and leaves enforcement in the
Secretaryijs handso It does not provide for inspections by
authorized representatives of the Secretary as approved by the
operator 0 and clearly the power to designate inspectors must be
MSHA's if the Act is to be effectively enforced.

7

I, of course, am bound by the reasoning of the majority, but for
another view on the statutory basis for a valid spot inspection see the
dissent of Commissioners Backley and Lastowka. 11 FMSHRC at 1466-70.
8

This is not to say that situations warranting the removal of an
inspector upon the complaint of an operator may never arise. On the contrary,
Schoffstall indicated such circumstances can exist. Tr. 53-54. Rather, it is
simply to recognize that the final decision is first, last and always MSHA's,
not the operator's.

924

858 VIOLATION

Following the hearing I requested a written statement of
position from the parties regarding the following question:
can a violation of Section 103(a) of
the Mine Act be a S&S violation?
In requesting the statement I took note of the fact that the
wording of Section 104(d) of the Act, 30 u.s.c. 814(d), appears
to restrict an inspector's S&S finding to "a violation of any
mandatory health or safety standard" (emphasis added). C&B's
representative did not respond. However, counsel for the
Secretary stated in part:
[P]lease be advised that the Secretary • • •
submits that a finding that a violation of
Section 103(a) • • • need not be based on the
additional finding that the violation was a
[S&S] contribution to a mine safety hazard.
Whereas the gravity associated with the
violation of a mandatory safety or health
standard is determined to be [S&S], it must
be determined whether the gravity involved in
a violations of Section 103(a) of the Act is
serious.
Letter from Anita Eve-Wright (February 1, 1993}.
I conclude from this that the Secretary is dropping his
allegations regarding the S&S nature of the violation at issue,
and I will therefore order the Secretary to vacate the
inspectoris S&S finding.
CIVIL PIRALTY CRITERIA

In assessing a civil penalty for the violation of section
I must consider the statutory civil penalty criteria
contained in Section llO(i) of the Act.
103(a)u

GRAVITY

This was a very serious violation. The right of an
inspector selected by MSHA to enter a mine to conduct an
inspection or investigation is a keystone for the Act's structure
of enforcement. As I have already observed, if an operator can
selectively bar entry to an inspector, effective enforcement will
be severely compromised.

925

It matters not for purposes of assessing the gravity of the
violation that at the time Myers was denied permission to enter
there was no need to drill ahead because mining was retreating.
The violation for which C&B is charged is a denial of entry not a
failure to practice a particular mining technique.
NEGLI:GENCE

Myers• and Schoffstall's testimony that Lorenz was advised
that a refusal to admit Myers would be a violation of the Act,
was not refuted. While Lorenz may have believed that in offering
to accept any inspector other then Myers he was within his rights
as an operator, he was mistaken and in ordering Myers' barred
from the mine, Lorenz acted at his company's peril. I conclude
that C&B was highly negligent in allowing the violation to exist.
HISTORY OF PREVIOUS VIOLATIONS

The company's history of previous violations is negligible
and counsel for the Secretary stated that there is no record of
any prior violation of section 103(a). Tr. 9.

Myers stated that C&B employs 4 miners as well as hoist
engineer Parks and foreman Cal Lorenz. Although he did not know
the tonnage of anthracite coal produced annually by the company,
he was of the opinion that C&B is a small operator, and I so
find. Tr. 36-37.
ABILI:TY TO CONTINUE IN BUSINESS

The record does not contain any information regarding C&B's
financial conditionu and Lorenz did not contend that the amount
of any penalty assessed would adversely affect C&B's ability to
continue in business. Therefore, I find that it will not.
o:r:v:r:L PPALTY

While I have found that the violation of section 103(a) was
very serious and that C&B was highly negligent, I nonetheless
conclude that this violation is an aberration in an otherwise
enviable record of compliance. I particularly note Schoffstall's
testimony that aside from the problems involving Myers, he found
C&B to be very cooperative and I also note Schoffstall's
affirmative response when Lorenz asked if he considered the mine
to be very safe. Tr. 51-52. This overall positive attitude
toward compliance is also witnessed by C&B's negligible history
of previous violations.

926

considering these factor's, and in light of the other civil
penalty criteria, I conclude that the one-thousand dollar
($1,000) civil penalty proposed by the Secretary is excessive.
Instead, I assess a civil penalty of five-hundred dollars ($500.)
It should go without saying that any repeat violations of section
103(a) that come before me may be subject to substantially higher
penalties.
In assessing a civil penalty lower than that proposed by the
Secretary I am in no way implying criticism of Myers. From what
appears in this record it is apparent that he is a conscientious
inspector who with diligence and great patience attempted to
carry out the duties required of him.
ORDER
citation No. 3080842 is affirmed. Within thirty (30) days
of the date of this decision C&B IS ORDERED to pay a civil
penalty of five-hundred dollars ($500) for the violation of
section 103(a) found herein. In addition, the Secretary IS
ORDERED to modify Citation No. 3080841 and Order No. 3080842 by
deleting the s&s designations.

~~
David F. Barbour
Administrative Law Judge
(703) 756-5232
Distributiong
Anita D. Eve-Wright, Esq., Office of the Solicitor,
u.s. Department of Labor, 3535 Market Street, 14480-Gateway
Building 8 Philadelphia, PA 19104 (Certified Mail)
Mro Gary Lo Lorenzv RD #2 0 Box 861, Shamokin, PA
(Certified Mail)

\epy

927

17872

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of Paul H. Brooks,
Complainant
v.
R.B.S., INCORPORATED,
Contestant

MAV1 2 51993
1

DISCRIMINATION PROCEEDING
Docket No. WEVA 93-89-DM

.

NE MD 92-03
Greystone Quarry and Plant

.

ORDER APPROVING SETTLEMENT
Before:

Judge Barbour

The Secretary, on behalf of Paul H. Brooks, Complainant, has
moved to approve settlement of this discrimination proceeding.
The Secretary's motion fully sets forth the terms on conditions
of the settlement, including the fact that the Secretary requests
no civil penalty be assessed against R.B.S., Incorporated,
Contestant, because the evidence at trial may not establish that
the complainant adequately communicated his legitimate safety
concerns to the contestant and thus a violation of section 105(c}
of the Act may not have occurred.
Obviously, the Complainant, who has signed the motion,
believed the proposed settlement is in his best interest, and I
conclude that it is in the public interest as well. It resolves
allegation of discrimination as set forth in the Secretary's
complaint and, that being the case there is no further reason for
the parties to contest this case.
ACCORDINGLY, the settlement is APPROVED.
DISMISSEDo

This matter is

Jvu/dfffJ~

David. Barbour
Administrative Law Judge
(703) 756-5232
Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
{Certified Mail}
David J. Hardy, Esq., Jackson and Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)
\epy
928

J'BDBDL J1D1B SAI'Bft UD BBAL"l'B RBVJ:BW CODTSS:IOJI
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

HAY 2 6 1993
RALEIGH R. HUNT,
Complainant

..

DISCRIMINATION PROCEEDING

:

Docket No. KENT 92-367-D
PIKE CD 91-20

v.
:

CANADA COAL COMPANY,
Respondent

.

No. 1 Prep Plant

ORDER OF DISMISSAL
This case involves a discrimination complaint under § 105(c)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §
801 et seg.
The parties have moved to dismiss the case based upon a
settlement.
The motion is GRANTED, and this case is DISMISSED.

~~~ 7-~t/~

William Fauver
Administrative Law Judge
Distribution~

James D. Allen, Esq., Stoll, Keenon & Park, 201 East Main Street,
suite 1000, Lexington, KY 40507-1380 (Certified Mail)
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc. 0 630 Maxwelton court, Lexington, KY 40508
(Certified Mail)

Mr. Dean Shofner, Agent for Service of Process, canada Coal
Company, Inc., Highway 632, Kimper, KY

/fcca

929

41539 (Certified Mail)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

MAY 7 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
T & D CONSTRUCTION,
Respondent

.
:
....•

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-88-M
A.C. No. 39-01378-05506
T & D Construction

ORDER OF DEFAULT

Before:

Judqe Morris

Respondent failed to respond to prehearing orders issued
November 5, 12992, and December 8, 1992.
Further, Respondent failed to respond to an Order to Show
Cause issued March 17, 1992.
Consequently 0 a judgment of DEFAULT
the Secretaryo

entered in favor of

Accordinglyu I enter the following:
ORDER
1.
The two Citations herein and the proposed penalties are
AFFIRMED.
2.
Respondent is ORDERED TO PAY to the Secretary of Labor
the sum of $120.00 IMMEDIATELY.

Law Judge

930

ADMINISTRATIVE LAW JUDGE ORDERS

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

20005

FEB 0 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDINGS
:

Docket No. PENN 92-849
A. C. No. 36-02713-03572
Docket No. PENN 92-850
A. C. No. 36-02713-03573

POWER OPERATING COMPANY,
INCORPORATED,
Respondent

Frenchtown Mine

ORDER DENYING MOTION TO DISMISS
ORDER DIRECTING SERVICE
ORDER DIRECTING OPERATOR TO ANSWER

On October 29, 1992, the Solicitor filed the penalty petitions in the above-captioned cases. On November 25, 1992, the
operator filed identical motions to dismiss for these cases
because the penalty petitions were not file within the prescribed
time limits and were not properly served. On January 4, 1993,
the Solicitor filed a motion in opposition to the operator's
motions to dismiss.
Commission Rule 27 requires that the Secretary file the
penalty proposal within 45 days of the date he receives an
operatorgs notice of contest for the proposed penalty. 29 C.F.R.
§ 2700.27o
An operator ordinarily contests the proposed penalty
by mailing in the so called "blue card" which has been provided
to
for this purpose. And such contest is effective upon
mailing. J.P. Burroughs, 3 FMSHRC 854 (April 1981). In these
cases the operator's counsel filed documents entitled notice of
contest of citation and assessment and MSHA created corresponding
blue cards copies of which were sent to the Commission. The blue
cards show that the Secretary received the operator's notices of
contest on August 19 0 1992. The petitions filed at the Commission on October 29 were, therefore, 24 days late.
The Commission has not viewed the 45 day requirement as
jurisdictional or as a statute of limitation. Rather, the
Commission has permitted late filing of the penalty proposal .upon
a showing of adequate cause by the Secretary where there has been
no showing of prejudice by the operator. Salt Lake County Road
Department, 3 FMSHRC 1714, 1716 (July 1981).
The Solicitor's motion in opposition represents that the
delay occurred because the cases were not received in her office
until October 23, 1992. The Solicitor attaches a memorandum from
c. Bryon Don, Chief, Civil Penalty Compliance Office, Office for
Assessments for MSHA which states that the delay in sending the
931

cases was due to the increase number of cases received in that
off
In Salt Lake County Road Department, supra, decided
early in the administration of the Act, the Commission held that
the extraordinarily high caseload and lack of personnel confronting the Secretary at that time constituted adequate cause for
late filing.
At the present juncture, I take note of the prec
rise in the volume of contested cases over the last few
years, as indicated by the Commission's own records. 1 I find
these circumstances constitute adequate cause for the short delay
in the filing of the·penalty petitions. Finally, the record does
not indicate any prejudice to the operator from the 24 day delay.
The operator's assertion that these penalty petitions be
dismissed because of defective service is without merit. The
Solicitor served copies of the petitions upon the operator's
safety director who was identified as the individual to receive
such service in the legal identity report filed by the operator
with MSHA and therefore noted as such on MSHA's computer. The
Secretary was unaware the operator had retained counsel, but the
Solicitor represents that MSHA's computer has now been changed to
reflect counsel as the proper recipient of service.
courts have broad discretion on whether to dismiss an action
because of inadequate service or require the service be made
properly. Montalbano v. Easco Hand Tools Inc., 766 F.2d 737 (2d
Cir. 1985); SA C. Wright & A. Miller, Wright & Miller, Federal
Practice & Procedure, § 1354 (1990); 2A J. Moore & J. Lucas,
Moore's Federal Practice,, 12.07[2.-4] (2d ed. 1992). As a
general matter the action will be preserved in those cases in
which there is a reasonable prospect that the service can be
accomplished properly. Novak v. World Bank, 703 F.2d 1305 (D.C.
Cir .. 1983); Wright & Miller, Federal Practice & Procedure, supra;
Moore's Federal Practice, supra.. In this case i t is clear that
service can be made upon operator's counsel in accordance with
MSHA's updated computero
In light of the foregoing, the operator~s motions to dismiss
the penalty petitions are DENIED.
:It is ORDERED that the within 10 days of the date of this
order the Solicitor serve operator's counsel with copies of the
penalty petitions for these cases.
:Lt is further ORDERED that within 40 days of the date of
this order the operator
le its answers to the penalty petitions.

------

p~

Chief Administrative

1

-

The number of new cases received for FY 90 was 2,029, for
FY 91 was 2,267 and for FY 92 was 6,032.
932

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

20006

MAY 3 -- 1993
CIVIL PENALTY PROCEEDINGS

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

v.

..
.
.
.

TRIANGLE SAND ~ GRAVEL
COMPANY, INCORPORATED,

.:
.

Docket No. WEST 92-613-M
A. C. No. 45-01288-05509-R

.

Docket No. WEST 92-614-M
A. C. No. 45-01288-05510-R

:

Portable Plant

ORDER DISAPPROVING SETTLEMENTS
ORDER TO SUBMIT INFORMATION

Before:

Judge Merlin

These cases are before me upon petitions for assessment of
the civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977. The parties have filed joint
motions to approve settlements of the twenty-two violations
involved in these cases. The parties seek approval of reductions
in the following penalty amounts:
WEST 92-613
WEST 92-614

$3,242
$868

to
to

$1,520
$480

No reasons were given to support the approximately 50%
reductions proposed in the original assessments for each of the
twenty-two violations. A review of the files shows that eleven
of the twenty two violations were designated significant and
substantial and one of these had an unwarrantable failure finding. The parties offer absolutely no reasons to support the very
large reductions they seek~ Rather they have filed brief form
motions which merely list the citations and give nothing more
than bare statistics regarding the six criteria of section 110(i)
of the Act. 30 u.s.c. § 820(i)~ The recommended settlements are
not justified by relating the citations to any of the six criteria. I cannot approve what appears to.be nothing more than
across the board percentage reductions for all the violations.
The parties are reminded that the Commission and its judges
bear a heavy responsibility in settlement cases pursuant to
section llO(k) of the Act. 30 u.s.c. § 820(k); see, s. Rep. No.
95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 632-633 (1978). It is the Commission's responsibility to determine the appropriate amount of penalty, in

933

accordance with the six criter~~ set forth in section 110(i) of
the Act. Sellersburg Stone Company v. Federal Mine Safety and
Health Review Commission, 736 F.2d 1147 (7th Cir. 1984).
Based upon the parties' motion, I cannot conclude that the
recommended penalty reductions are warranted. The parties must
provide explicit reasons for the action they recommend.
In light of the foregoing, i t is ORDERED that the motions
for approval of settlement be DENIED.
It is further ORDERED that within 30 days of the date
of this order the parties submit additional information to
support their motions for settlement. Otherwise these cases
will be assigned and set for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Robert Friel, Esq., Office of the Solicitor, U. s. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212
(Certified Mail)

Mso Marvelle Leitaq President, Triangle Sand & Gravel Co., Inc.,
P~ 0~ Box 36 17 Yakimau WA
98907
(Certified Mail)
jgl

934