NOVE~IBER

1986

COMMISSION DECISIONS
11-05-86
11-07-86
11-10-86
11-13-86
11-18-86

Cathedral Bluffs Shale Oil Co.
Kenneth W. Hall v. Clinchfield Coal Co.
Asarco, Incorporated
Columbia Portland Cement Company
Mohave Concrete & Materials Inc.

WEST 81-186-M
VA
85-8-D
WEST 84-48-M
LAKE 86-38-M
WEST 86-14-M

Pg. 1621
Pg. 1624
Pg. 1632
Pg. 1644
Pg. 1646

CENT 86-151-DM

Pg. 1649

LAKE 85-17
LAKE 85-24
LAKE 85-27
VA
86-42
PENN 83-141-D

Pg.
Pg.
Pg.
Pg.

CENT 85-144-M
CENT 86-40
CENT 86-100-M
WEVA 86-217-R
WEVA 86-287
CENT 85-61-M
PENN 86-123
YORK 86-11
PENN 86-83-D

Pg. 1670
Pg. 1671
Pg. 1733
Pg. 1735
Pg. 1748
Pg. 1764
Pg. 1766
Pg. 1768
Pg. 1772

PENN 86-203
WEST 85-142-M
WEST 85-173-M
SE
86-84-M

Pg. 1839
1840
Pg. 1852
Pg. 1854

ADMINISTRATIVE LAW JUDGE DECISIONS
11-06-86
11-06-86
11-06-86
11-06-86
11-06-86
11-07-86
11-10-86
11-10-86
11-12-86
11-12-86
11-12-86
11-13-86
11-14-86
11-18-86
11-21-86
11-24-86
11-25-86
11-25-86
11-26-86

Sec.Labor for Yale Hennessee v. Alamo Cement
Company, (Order of Temporary Reinstatement)
Quarto Mining Company
Quarto Mining Company
Quarto Mining Company
B D & J Coal Company
Sec. Labor for M. Hogan & R. Ventura v.
Emerald Mines Corporation
Domtar Industries, Inc.
Austin Power, Incorporated
Bandas Industries, Inc.
Consolidation Coal Company
Thompson Coal & Construction, Inc.
Homestake Mining Company
U.S. Steel Mining Co., Inc.
Mettiki Coal Corporation
s·ec. Labor for Joseph Delisio, Jr., v.
Mathies Coal Company
U.S. Steel Mining Company, Inc.
Iron Mountain Ore Company
N.L. Baroid-Div./N.L. Industries
Drilling and Blasting Systems, Inc.

1661
1662
1663
1664
Pg. 1665

NOVEMBER

Review was granted in the following cases during the month of November:
Secretary of Labor, MSHA v. Columbia Portland Cement Co., Docket No.
LAKE 86-38-M. (Judge Merlin, Default Order vacated, October 3, 1986).
Secretary of Labor, MSHA v. Mohave Concrete & Materials, Inc., Docket
No. WEST 86-14-M. (Judge Merlin, Default Order vacated, October 9, 1986).
Dillard Smith v. Reco, Inc., Docket No. VA 86-9-D.
October 17, 1986)

(Judge Broderick,

Secretary of Labor for John Bushnell v. Cannelton Industries, Docket
No. WEVA 85-273-D. (Judge Fauver, October 21, 1986).
Review was denied in the

the month of November:

Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No.
SE 86-11-M. (Judge Merlin, Default Decision, October 3, 1986).

COM.MISSION DECISIONS

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

November 5, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 81-186-M

v.
CATHEDRAL BLUFFS SHALE OIL
COMPANY

BEFORE: Backley, Doyle, Lastowka and Nelson, Commissioners
ORDER
BY THE COMMISSION:
This civil penalty case is before us on remand from the U.S. Court
of Appeals.for the District of Columbia Circuit. Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533 (D.C. Cir. 1986). At issue is the
liability of a production-operator for a violation of a mandatory safety
standard committed by its independent contractor.
Cathedral Bluffs Shale Oil Company is a partnership between
Occidental Shale Oil Co. ("Occidental") and Tenneco Shale Oil Co.
Occidental contracted with the Gilbert Corporation ("Gilbert") to
perform certain construction work at a mine at which Occidental is the
operating partner. During an inspection of the mine, an inspector from
the Department of Labor's Mine Safety and H~alth Administration cited
Occidental for a violation of a mandatory safety standard committed by
Gilbert. Occidental contested the citation and the civil penalty
proposed by the Secretary. (Gilbert also was issued a citation for the
same violation, but chose to pay the penalty instead of contesting.)
Following a hearing on the merits, Commission Administrative Law Judge
John J. Morris held the Commission's decision in Phillips Uranium Corp.,
4 FMSHRC 549 (April 1982), to be "dispositive", and, "on the authority
of Phillips", he vacated the citation. 4 FMSHRC 902 (May 1982) (ALJ).
On review, the Commission agreed with the judge's result. However,
the Commission concluded that the judge had read Phillips too broadly
and had misapplied it as directly controlling the disposition of the
case. 6 FMSHRC 1871 (August 1984). The Commission noted that prior to

1621

citing Occidental for the independent contractor's violation, the Secretary
published enforcement guidelines articulating his policy for issuing
citations and orders when violations of the Act and mandatory safety and
health standards are committed by independent contractors. The Commission
concluded that "[T]he appropriate inquiry is whether the record reflects
proper application of the Secretary's ••• independent contractor enforcement
policy." 6 FMSHRC at 1873. Holding that the record did not support a
conclusion that the Secretary acted within his enforcement guidelines
when he cited Occidental, the Commission affirmed the dismissal of the
citation. 6 FMSHRC at 1876-77.
The Secretary appealed, and the court concluded that the Commission
improperly viewed the Secretary's enforcement guidelines as a "'legislative
(i.e., substantive) rule ••• which restricts his enforcement discretion.'"
Cathedral Bluffs Shale Oil Co., supra, 796 F.2d at 537. The court
stated:
Because the Commission improperly regarded
the Secretary's general statement of his enforcement policy as a binding regulation which the
Secretary was required strictly to observe, its
decision dismissing the citation of Occidental
must be reversed and remanded for further action
consistent with this opinion.
796 F.2d at 539.
Accordingly, the matter is remanded to the administrative law judge
to determine the liability of Occidental for the violation of its independent
contractor in light of the court's opinion. J:./
~

'

/~
Commissioner~

Richard V. Backley,

James A.

Lasto~,

Commissioner

~(l~ -xe_Q,~
:clair Nelson, Commissioner

1/
Chairman Ford did not participate in the consideration or disposition
of this matter.

1622

Distribution
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
James M. Day, Esq.
G. Lindsay Simmons, Esq.
Cotten, Day & Doyle
1899 L Street, N.W.
Suite 1200
Washington, D.C. 20036
Administrative Law Judge John Morris
Federal Mine Safety and Health Review Connnission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

1623

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

20006

November 7, 1986
KENNETH W. HALL
v.

Docket No. VA 85-8-D

CLINCHFIELD COAL COMPANY

BEFORE:

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

BY THE COMMISSION:
This proceeding involves a discrimination complaint brought by .
Kenneth W. Hall against Clinchfield Coal Company ("Clinchfield") pursuant
to the Federal Mine Safety and Health Act of 1977, 30 U.s.c. § 801 et
seq. (1982). Mr. Hall's complaint principally alleges that Clinchfield
violated section 105(c)(l) of the Mine Act, 30 U.S.C. § 815(c)(l), by
denying his request for a transfer from an underground mining position
to a surface mining position and by subsequently discharging him.
Following a hearing on the merits, Commission Administrative Law Judge
James A. Broderick concluded that Clinchfield had not discriminated
against Hall and dismissed his discrimination complaint. 7 FMSHRC 1477
(September 1985)(ALJ). We granted Hall's petition for discretionary
review, which he prepared without the assistance of counsel. For the
reasons that follow, we conclude that the judge's findings are supported
by substantial evidence and we affirm his decision.
In September 1981 Hall was hired by Clinchfield to work at its
McClure No. 1 underground coal mine as a section foreman in charge of a
production crew. Among other duties, Hall's crew was responsible for
ventilating the face areas and for bolting the roof of the sections
mined by the crew.
The ventilation plan and roof bolting procedures followed at the
McClure mine are relevant to Hall's discrimination complaint. In 1982,
because of a reduction in the height of the coal seam being mined,
Clinchfield began to use line curtains as the primary method of ventilating the mine. Thereafter, as found by the judge, certain procedures
were followed routinely while the roof in a section was being bolted.
After the coal was cut, the roof bolters installed near the face area a

1624

roof bolt approximately three feet from the rib. During the installation
of this roof bolt (referred to as a "rib" bolt), the line curtain was
removed to the last row of permanent roof supports. Without such removal,
the canopy of the roof bolter would have otherwise forced the line
curtain into the rib and would have cut off ventilation to the face.
Therefore, when cuts exceeded ten feet, the line curtain was not maintained to within ten feet of the face during the installation of the rib
bolt as required by the approved ventilation plan that was in effect at
the mine until March 5, 1984. 1/ Once the rib bolt was installed,
however, the line curtain was advanced to the rib bolt and the center
bolts were then installed. See 7 FMSHRC at 1478-79.
During Hall's first year as a section foreman he questioned then
General Mine Foreman Ron Sluss about the practice of removing the line
curtain before completion of the roof bolting. Sluss told him that
Clinchfield had received permission to use the procedure. Hall's crew
continued to follow the procedure outlined above, and Hall did not raise
additional questions concerning that procedure until early 1984.
On June 23, 1983, Hall's brother was killed in an explosion at the
McClure mine. After this tragedy, Hall took two weeks vacation and
subsequently was given another two weeks off with pay. During this
time, Hall received treatment at a mental health clinic to help him cope
with the death of his brother.
In February 1984, several miners on Hall's crew complained to him
about Clinchfield's roof bolting practice. They contended that not
enough air was reaching the face and, consequently, air in the affected
section was not circulating properly. These complaints led Hall to
question Clinchfield's general foreman, Johnny Kiser, about the bolting
practice. Mr. Kiser repeated what Sluss had told Hall previously,
namely, that Clinchfield had permission to remove the line curtain while
rib bolts were being installed. Hall posed the same questions to two
inspectors of the Department of Labor's Mine Safety and Health Administration (''MSHA"). According to Hall one inspector believed that the
bolting procedure was permissible but the other inspector disagreed.
In late February 1984, a few days after Hall had spoken to Kiser,
Clinchfield's
director, Wayne Fields, met with a number of shift
foremen including Hall. The judge found that during this meeting,
s ventilation plan reflected the provisions of 30
75.302-1, a mandatory ventilation standard that addresses the
use of line brattice (curtain). Section 75.302-1 provides in part:
Line brattice or any other approved device used to provide
ventilation to the working face from which coal is being cut, mined
or loaded .•• shall be installed at a distance no greater than 10
feet from the area of deepest penetration to which any portion of
the face has been advanced unless a greater distance is approved by
the [Department of Labor's Mine Safety and Health Administration]
Coal Mine Safety District Manager of the area in which the mine is
located.

1625

Fields instructed the foremen not to ask questions about bolting procedures in the presence of MSHA inspectors or union personnel. 7 FMSHRC
at 1480. The foremen also were instructed to continue bolting in the
usual manner until a formal revision of the mine's ventilation plan
could be obtained. The record reflects th9t in late February 1984 there
were contacts between MSHA and Clinchfield officials regarding a revision
of Clinchfield's ventilation plan. Tr. 358-59. ]:_/
Because Hall thought that the bolting process was unsafe and illegal,
his crew shortened its cuts to ten feet instead of the usual 15 feet, to
avoid the need for the temporary repositioning of the line curtain.
Hall's production reports, however, continued to show that his crew was
making 15-foot cuts.
Hall's last working day at the mine was March 2, 1984. On that
date, he left the mine because of anxiety, hyperventilation, and other
emotional problems. 7 FMSHRC at 1480. Hall went to see Richard Light,
the mine superintendent, and explained that due to his psychological
problems, he could not function as a mine foreman. Hall stated that he
intended to see a psychiatrist. Hall also expressed concern about the
safety of the roof bolting procedure. The judge found that, "Complainant
was concerned about the procedure being followed which he felt was
violative of the Mine Safety law •.• and claimed [to Mr. Light] that he
could not work in part because of that situation." Id. Light instructed
Hall to contact him after he had seen a doctor and tO-inform the company
whether he would be returning to work or whether he would be quitting.
Hall did not contact Light until after he had filed his discrimination
complaint with MSHA in late 1984.
Meanwhile, on March 5, 1984, Clinchfield submitted to MSHA a written
request for revision of its ventilation plan so as to permit the temporary
repositioning of the line curtain more than ten feet from the face
during the installation of rib bolts. This revision was approved by
MSHA one day later, on March 6, 1984.
Hall obtained further psychiatric counseling and treatment. Hall
was advised by a psychiatric social worker not to return to work at the
mine unless he could control his emotional problems. He was also advised
to transfer to a surface position. Hall testified that, on that advice,
2/
The roof bolting procedures required to be followed in a mine are
those set forth in the mine 1 s approved roof control plan. The record
indicates that Clinchfield, with MSHA's knowledge, changed its procedure
regarding placement of line curtains without first obtaining a written
revision to its approved plan. Although the revision eventually was
formally sought and granted, both Clinchfield and MSHA are well aware of
the proper recourse when changed mining conditions necessitate a change
in mining procedures and of the consequences that can ensue when such
procedures are not followed.

1626

at some point in March 1984, he contacted Joseph Pendergast, Clinchfield's
Manager of Industrial Relations, and requested a transfer to an aboveground
position. Hall further testified that he was informed that there were
no surface positions available to which he could be transferred. Pendergast
denied that any such discussion occurred. 7 FMSHRC at 1483.
From the day that Hall left the mine on March 2, 1984, until April 22,
1984, he continued to be paid his salary by Clinchfield. From April 23
through sometime in June 1984 Hall received benefits under Clinchfield's
disability insurance program. From June forward, Hall was listed by
Clinchfield as an employee on leave without pay. When Hall's disability
benefits stopped, he applied to the Commonwealth of Virginia for workers'
compensation. On August 29, 1984, his application was denied.
At some point in August 1984, Hall learned that two miners had been
transferred by Clinchfield to surface positions. Hall testified that he
again contacted Mr. Pendergast who, according to Hall, informed him that
he was not qualified for either position. Pendergast denied that such a
conversation occurred. 7 FMSHRC at 1483. Because Hall could not find
other employ~ent in the area, he and his family moved to Broken Arrow,
Oklahoma, where he was employed as a school custodian. Hall remained in
Oklahoma until September 30, 1984. He then returned to Virginia, and
again contacted Clinchfield concerning a possible tranfer. He received
a letter from Pendergast, dated November 7, 1984, informing him that he
had been terminated because he had "secured work with another employer."
Subsequently, Hall filed a discrimination complaint with MSHA.
MSHA determined that a violation of the Mine Act had not occurred and
declined to prosecute a complaint on Hall's behalf. Hall then instituted
this proceeding before this independent Commission pursuant to section
105(c)(3) of the Act. 30 U.S.C. § 815(c)(3) •. Hall's complaint alleged
that Clinchfield unlawfully discriminated against him by: (1) causing
his psychological problems as a result of ordering him to violate federal
law; (2) failing to transfer him to a surface position; (3) terminating
him because of his safety complaints; and (4) denying him certain fringe
benefits.
After an evidentiary hearing, Administrative Law Judge Broderick
concluded that Hall had failed to establish a prima facie case of discrimination. The judge found that while Hall's complaints and inquiries
regarding Clinchfield's roof bolting procedures were protected by the
Mine Act, his emotional problems stemming from his brother's death "were
not th~ result of his being 'order[ed] to willfully violate federpl
law. "' 7 FMSHRC at 14 82. The judge further found that Clinch field's
refusal to transfer Hall to a surface position, its final decision to
discharge him, and the denial of insurance benefits and vacation pay
were all adverse actions but were not motivated in any part by Hall's
protected activity. 7 FMSHRC at 1482-84. Therefore, the judge dismissed
Hall's discrimination complaint.

1627

On appeal, Hall essentially challenges the judge's factual findings
and credibility resolutions. The Commission's role in reviewing a
judge's decision is to determine whether the judge's findings are supported
by substantial evidence and whether the judge correctly applied the law.
30 U.S.C. § 823(d)(2)(A)(ii). After carefully examining the entire
record, we conclude that the judge's decision is supported by substantial
evidence and is consistent with applicable rulings of the Commission in
prior discrimination cases.
In order to establish a prima facie case of discrimination under
section 105(c) of the Mine Act, a complaining miner bears the burden of
production and proof in establishing that (1) he engaged in protected
activity and (2) the adverse action complained of was motivated in any
part by that activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds
sub. nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April 1981). The operator may rebut the prima
facie case by showing either that no protected activity occurred or that
the adverse action was in no part motivated by protected activity. If
an operator cannot rebut the prima facie case in this manner, it nevertheiess may defend affirmatively by proving that it also was motivated
by the miner's unprotected activity and would have taken the adverse
action in any event for the unprotected activity alone. Pasula, supra;
Robinette, supra. See also Donovan v. Stafford Construction Co., 732
F.2d 954, 958-59 (D.C. Cir. 1984); Baich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983)(specifically approving the Commission's Pasula-Robinette
test).
As to the first element of a prima facie case, Clinchfield does not
dispute the judge's findings that Hall's questions and complaints about
Clinchfield's roof bolting procedures and his actions in shortening his
mining cuts for safety reasons enjoyed the protection of the Mine Act.
See 7 FMSHRC at 1482. As to the second elememt of a prima facie case
judge determined that the following adverse actions were taken
against Hall: (1) the refusal to transfer him to a surface position;
(2) his discharge; and (3) the denial of certain fringe benefits. The
judge found, however, that these actions were in no part motivated by
Hall's protected activity. 7 FMSHRC at 1483. We agree.
Concerning Clinchfield 1 s failure to grant Hall's request for a
transfer to a surface position, the record·reveals that during August
1984 Clinchfield transferred three miners to certain surface positions.
Hall asserts that he should have been transferred to at least one of
these positions because he had requested a transfer in March 1984 and
was qualified for all three positions. He contends further that because
of his safety complaints he was not transferred.

1628

As noted, Pendergast (Manager of Industrial Relations) denied
discussing a possible transfer with Hall in either March or August 1984.
The judge found that, regardless of whether such conversations occurred,
Pendergast had no personal knowledge of Hall's safety concerns and did
not refuse to transfer Hall because of those concerns. 7 FMSHRC at
1483. The evidence supports these findings. Further, Pendergast
testified that three miners -- Terry Robinson, Doug Ring, Jr., and Bob
Harding -- were surface workers who were transferred to different surface
positions in August 1984. He further testified that all were more
qualified than Hall for these positions. Mr. Robinson, who worked as a
billing clerk, was transferred to Clinchfield's Moss 3 Preparation Plant
to prepare him to take over as manager of the shipping department. Mr.
Ring, also a billing clerk, moved into Robinson's vacated position.
This move was a lateral one for Ring, not a promotion. Finally, Mr.
Harding, an employee with 30 years of service with Clinchfield, was
moved into Ring's position because the position that he had held at the
central warehouse was about to be terminated. Harding's move also was
considered to be lateral. The proffered reasons for these transfers
were not overcome during cross-examination, and we find no reason in the
record to regard them as anything other than legitimate, good faith
business decisions.
Pendergast testified that Hall had not been excluded from any of
these positions as a result of his having engaged in protected activities.
Pendergast denied that Hall had discussed his safety concerns with him
and denied +eceiving, prior to Hall's termination, letters prepared by
Hall's psychiatric social worker referring to Hall's safety concerns.
The judge credited Pendergast's testimony in this regard. As the
Commission often has stated, a judge's credibility resolutions cannot be
·overturned lightly (e.g., Robinette, supra, 3 FMSHRC at 813), and we
discern nothing in the present record that would justify our taking this
extraordinary step in this matter. We find that the judge's findings on
the transfer issue are supported by substantial evidence and are grounded
in credibility resolutions that he was in the best position to make.
With respect to Hall's discharge, the judge found that Pendergast
had no knowledge of Hall's protected activity at the time he prepared
the notice of discharge and that he had not consulted with any other
mine officials prior to terminating Hall. 7 FMSHRC at 1483. Again, the
record supports these findings. Pendergast testified that he made the
decision to discharge Hall after he received a notice, dated November 5,
1984, from Clinchfield's insurance department stating that Hall could
not prove his state disability claim and that he was working elsewhere.
Pendergast also stated that he made the termination decision without
conferring with any other management officials or anyone who knew of
Hall's safety concerns. Pendergast further asserted that Clinchfield
"routinely terminate[d]" anyone who obtained another job. Tr. 513. As
discussed above in connection with the transfer issue, the judge specifically found that Pendergast had no knowledge of Hall's protected activity.
This finding is a credibility determination and we find no grounds for ·
overturning the judge's resolution of this question •

1629

We also are persuaded by the fact that when Hall voluntarily left
the mine in March 1984, Clinchfield's reaction was supportive, not
disciplinary. The record reflects that Clinchfield extended Hall leave
with pay and then provided insurance benefits. Moreover, the termination
occurred in November 1984 -- nine.months after Hall's departure. There
is no evidence in this record of hostility towards Hall or of retaliation
for his safety concerns. In sum, the judge concluded that Hall left
work voluntarily in March and was discharged for legitimate reasons in
November. We find no persuasive reasons in this record to disturb the
credibility resolutions and findings on which the judge's conclusions
are based.
Finally, with regard to Hall's claim that he was denied disability
insurance, vacation pay, and benefits, the judge found that Hall's
disability insurance payments were discontinued by Clinchfield's insurance
carrier on the grounds that Hall could not establish that he was disabled
and because he was working irt Oklahoma. 7 FMSHRC at 1483. The insurance
carrier arranged for Hall to be examined by a physician, who determined
that Hall was capable of working and was not disabled. There is no
evidence in the record to indicate that Clinchfield requested that its
insurance carrier deny Hall benefits because of his prior protected
activity. As to the denial of vacation benefits, the judge found that
this denial was not motivated by Hall's protected activity. This matter
was not litigated in detail, and there is nothing in the record inconsistent with the judge's finding. We affirm the judge's findings on
these issues.
In sum, we agree with the judge that Hall failed to carry his
evidentiary burden of proving that any of the adverse actions discussed
above were motivated by his protected activity.
For the foregoing reasons, the judge's decision dismissing Hall's
discrimination complaint is affirmed.

1630

Distribution
Kenneth W. Hall
1215 West Birmingham Place
Broken Arrow, Oklahoma 74011
Louis Dene, Esq.
206 East Main Street
P.O. Box 1135
Abingdon, Virginia 24210
Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1631

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

November 10, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 84-48~M

v.

ASARCO; INCORPORATED-NORTHWESTERN
MINING DEPARTMENT

BEFORE:

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

BY:

Backley, Doyle, Lastowk.a and Nelson, Commissioners

This· civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine Act").
The issue is whether a miner's violation-Of 30 C.F.R. § 57.3-22 (1983),
a metal-nonmetal underground safety standard regulating ground control,
was properly attributed to the mine operator, Asarco, Inc. ("Asarco"). 1/
The administrative law judge found that Asarco violated the standard
and assessed a civil penalty of S25. 7 FMSHRC 1714 (October 1985)(ALJ).
For the reasons that follow, we affirm.

1/

30 C.F.R. § 57.3-22 (1983) provides:
Mandatory. Miners shall examine and test the back, face, and
rib of their working places at the beginning of each shift and
frequently thereafter. Supervisors shall examine the ground conditions during daily visits to insure that proper testing and
ground control practices are being followed. Loose ground shall be
taken down or adequately supported before any other work is done.
Ground conditions along haulageways and travelways shall be examined
periodically and scaled or supported as necessary.

Following the Secretary of Labor's revision of the metal-nonmetal
standards in January 1985, this standard is now found unchanged at
30 C.F.R. § 57.3022 (1985).

1632

Asarco's Leadville Unit Mine, an underground metal mine located in
Lake County, Colorado, produces lead and zinc concentrates. On September 28,
1983, an inspector of the Department of Labor's Mine Safety and Health
Administration (''MSHA") began a two-day inspection of the mine. The
inspector, who was accompanied by Asarco's safety engineer, observed
miners Alan Lysne and George Naranjo working in stope 15-25-300. (Stopes
are excavated areas from which ore is mined in a series of steps.) The
inspector determined that the ribs and back of the stope were loose and
dangerous. The inspector suggested to the safety engineer that the
stope be made safe by barring down 2/ the loose rock and by matting 3/
the area, prior to any further work-at the face. The safety engineer
instructed the miners to bar down the loose rock and to make the area
safe. Neither the inspector nor the safety engineer specifically mentioned
barring down loose rock at the face of the stope because at that time
the face was covered by muck (i.e., stone and dirt) and consequently was
not visible.
After Lysne and Naranjo received their instructions they proceeded
to institute ground control measures. They barred down some loose rock
and installed mats in areas of the stope away from the face.
Continuing his inspection on the following day,·the inspector saw
Lysne being carried from the mine on a stretcher. Lysne had been drilling
in stope 15-25-300 when rock at the face fell, breaking his foot. The
inspector, along with the safety director and the shift foreman, went
immediately to the accident scene.
Upon arriving at the stope, the inspector found that although the
back of the stope had been secured properly, the face area was unsafe
because of the amount of loose rock present. In order to secure the
area, the shift foreman proceeded to bar down the stope. The barringdown procedure took approximately thirty minutes and yielded over one
ton of loose rock,
The inspector concluded that vibrations from Lysne's drill caused
the loose rock to fall from the face. The inspector believed that the
accident would not have occurred if the loose rock in the stope had been
barred down as ordered the previous day. Consequently, the inspector
issued a citation to Asarco alleging a violation of 30 C.F.R. § 57.3-22.
Following an evidentiary hearing the judge concluded that the
standard was violated and that Asarco was liable for the violation. The
judge held that the face where Lysne was working was plainly unstable,

2/ "Barring down" is defined as: "removing, with a bar, loose rock
from the sides and roof of mine workings ..• prying off loose rock after
blasting, to prevent danger of fall." Bureau of Mines, U.S. Department
of Interior, A Dictionary of Mining, Mineral, and Related Terms 83
(1968).
]./
A "mat" is a piece of sheet steel that is used to hold loose ground
or to keep ground from getting loose.

1633

that Lysne did not "examine and test" the face "frequently" as required
by the standard, and that Lysne ignored the standard's command that
"loose rock shall be taken down or adequately supported before any other
work is done. 11 7 FMSHRC at 1716. Stating that "an operator is liable
without fault for violations committed by its employees," the judge
concluded that Lysne's "omissions must be imputed to Asarco under the
strict liability doctrine inherent in the [Mine] Act." 7 FMSHRC at
1716, 1717 (footnote omitted).
In assessing a civil penalty for the violation, the judge made
findings regarding all of the statutory penalty criteria in section
llO(i) of the Mine Act, 30 U.S.C. § 820(i), but focused his attention
primarily upon the criterion of negligence. In his brief to the judge,
the Secretary of Labor ("Secretary") stated that "the effectiveness of
Asarco's supervision and training is not in issue" and the judge agreed.
7 FMSHRC at 1719. The judge found that barring down loose ground was
"an ordinary and almost inevitable phase of the mining cycle" at the
mine, and that in this regard Asarco's training and supervision of its
miners, particularly of Lysne, were "adequate under all the circumstances." 7 FMSHRC at 1717. The judge noted that Lysne's supervisors
had been at the stope on the day prior to the accident and had instructed
Lysne specifically to "give his first attention to ground control the
next day." 7 FMSHRC at 1718. The judge found Lysne's decision to begin
drilling the unstable face "unforeseeable and idiosyncratic." The judge
found no evidence of "supervisory dereliction" on Asarco's part and
concluded that Asarco was not negligent. 7 FMSHRC at 1718. The judge
stated that the other penalty assessment criteria were "overshadowed.by
the negligence factor" and he assessed a civil penalty of only $25.
On review there is no dispute that Lysne's conduct violated the
standard. Asarco contends, however, that under the Mine Act it cannot
be held liable for a violation of a mandatory standard when the standard
places responsibility for compliance upon the miner. Asarco also contends
that it cannot be held liable for a violation because it has taken all
practicable measures to prevent the miner from violating the standard.
In effect, Asarco is asking the Commission to re-examine the principle
that under the Mine Act an operator is liable, without regard to fault,
for violations of the Act committed by its employees. See Southern
Ohio Coal Co., 4 FMSHRC 1459, 1462 (August 1982).

We have examined the principle of liability without fault in the
light of Asarco's arguments, the language and legislative history of the
Mine Act, and relevant Commission ~nd court precedent. For the reasons
set forth below, we reaffirm that under the Mine Act an operator may be
held liable for a violation without regard to fault and, accordingly, we
conclude that the judge did not err in holding Asarco liable for the
violation of 30 C.F.R. § 57.3-22.
The general principle that .an operator is liable for the violations
of the Act committed by its employees has been stated frequently.
Sewell Coal Co. v. FMSHRC, 686 F.2d 1066, 1071 (4th Cir. 1982); Allied

1634

Products Co. v. FMSHRC, 666 F.2d 890, 893 (5th Cir. 1982); Southern
Ohio Coal Co., 4 FMSHRC 1459, 1462 (August 1982); American Materials Corp.,
4 FMSHRC 415, 419 n. 8 (March 1982); Kerr-McGee Corp., 3 FMSHRC 2496,
2799 (November 1981); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 38-39
(January 1981). Cf. Ace Drilling Coal Co., Inc., 2 FMSHRC 790-91 (April
1980), aff'd withO'Ut opinion, 642 F.2d 440 (3rd Cir. 198l)(construing
1969 Coal Act).
Asarco argues, however, that each of these cases can be distinguished
because of the peculiar facts in this case and the fact that the mandatory
standard at issue here expressly requires compliance by the miner himself.
Citing section 104(a) of the Mine Act, 30 U.S.C. § 814(a), Asarco asserts
that an operator can be cited for a violation only when an MSHA inspector
believes that "an operator has violated [the] Act or any mandatory
health or safety standard." (Emphasis added). Asarco notes that section
104(a) is patterned after section 104(b) of the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)(the
"Coal Act"), and that section 104(b) readas follows: "[I]f, upon any
inspection of a coal mine, an authorized representative of the Secretary
finds there has been a violation of any mandatory health or safety
standard ... he shall issue a notice of violation to the operator." 30
U.S.C. § 814(b) (1976). Asarco contends that by changing section 104 to
require the inspector to issue a citation upon belief that the operator
has violated the Act or a mandatory health or safety standard, Congress
intended that operators and miners each be responsible for compliance
and that an operator be cited only for its own violations. We do not
find this argument persuasive.
Section 104(a) sets forth the duties of mine inspectors in enforcing
the Act. It does not define the scope of the operator's liability. The
liability of an operator is governed by section llO(a), 30 U.S.C. § 820(a),
which states: "The operator of a ••• mine in which a violation occurs
of a mandatory health or safety standard ••. shall be assessed a civil
penalty .••• " (Emphasis added), The occurrence of the violation is the
predicate for the operator's liability.
Further, section llO(a) of the Mine Act is comparable to section
109(a) (1) of the Coal Act, 30 U.S.C. § 119(a) (1) (1976).
("The operator
of a coal mine in which a violation occurs of a mandatory health or
safety standard or who violates any other provision of this Act .••
shall be assessed a civil penalty •.•• 11 ) The legislative history of the
Coal Act indicates that section 109(a)(l) imposed on the operator liability
without fault for violations of the standards or the statute. In relevant
pan:, the legislative history states:
The Senate bill provided that, in determining
the amount of the civil penalty only, the Secretry
should consider, among other things, whether the
operator was at fault. The House amendment did

1635

not contain this provision. Since the conference
agreement provides liability for violation of the
standards against the operator without regard to
fault, the conference substitute also provides
that the Secretary shall apply the more appropriate
negligence test, in determining the amount of the
penalty, recognizing that the operator has a high
degree of care to insure the health and safety of
persons in the mine.
Conf. Rep. No. 761, 9lst Cong., 1st Sess. 81 (1969), reprinted in Senate
Subcommittee on Labor, Committee on Labor and Public Welfare, 94th
Cong., 1st Sess., Legislative History of the Federal Coal Mine Health
and Safety Act of 1969, Part I at 1515 (1975). See also Sewell Coal Co.,
686 F.2d 1066, 1071 (4th Cir. 1982); Ace DrillingGoalCo., Inc., 2 FMSHRC
at 791; United States Steel Corp • .; 1 FMSHRC 1306, 1307 (September 1979);
Peabody Coal Co., 1FMSHRC1494, 1495 (October 1979); Valley Camp Coal Co.,
1IBMA196, 200-01 (1972). Neither the Mine Act nor its legislative
history reveals any indication that Congress sought to disturb the
scheme of operator liability without fault as it existed under the Coal
Act. S. Rep. 181, 95th Cong. 1st Sess. at 18 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 606 (1978). This Commission and several courts of
appeal have interpreted the Mine Act as being consistent with the Coal
Act on this issue of operator liability without fault. See Sewell
Coal Co., 686 F.2d at 1071; Allied Products Co., 666 F.2d at 893;
A.H. Smith Stone Co., 5 FMSHRC 13, 15 (January 1977); Southern Ohio
Coal Co., 4 FMSHRC at 1462; American Materials Corp., 4 FMSHRC at 419 n.
8; Kerr-McGee Corp., 3 FMSHRC at 2499; El Paso Rock Quarries, Inc.,
3 FMSHRC at 38-39. We find no basis for distinguishing the present
case. As the court in Allied Products stated: "If the Act or its
regulations are violated, it is irrelevant whose act precipated the
violation ••• ; the operator is liable." 666.F.2d at 894.
As the judge recognized, the operator's fault or lack thereof,
rather than being a determinant of liability, is a factor to be considered in assessing a civil penalty. Sewell Coal Co., 686 F.2d at
1071; Southern Ohio Coal Co., 4 FMSHRC at 1464; Kerr-McGee Corp.,
3 FMSHRC at 2499; El Paso Rock Quarries, 3 FMSHRC at 38-39. Here, when
fixing the penalty the judge gave appropriate weight to Asarco 1 s lack of
fault in considering the negligence criterion. !!_/
4/
Asarco also argues that imputing the negligence of Lysne to it for
purposes of liability violates the equal protection clause of the Fifth
Amendment to the United States Constitution, Asarco raises this argument
for the first time in its brief on review. Commission Procedural Rule
70(f) states: "If a petition is granted, review shall be limited to the
questions raised by the ,petition." 29 C.F.R. § 2700.70(f), See also
section 113(d)(2)(A)(iii) of the Act, 30 U.S.C. § 823(d)(2)(A)(ii~
Because the constitutional question was raised improperly, we decline to
address it.

1636

Accordingly, the decision of the administrative law judge is
affirmed.

~-~CA:~~~·
v.

t:ichard

Backley, Commissioner ·

Lastowka~i:s~~ner

~'--"~'-/. f (JL'tf-t:7-r\./

L. Clair Nelson, Commissioner

Chairman Ford dissenting:

1637

·

Since the primary purpose of the Mine Act is to prevent fatalities,
disabling injuries, and other injuries and illnesses among the Nation's
miners, 1/ it is appropriate to weigh the disposition of every contested
citation-in light of this fundamental public policy.
From its inception the Commission has properly focused upon this
statutory policy. Here, this policy is better served by a broader
consideration of operator safety practices which effectuate this policy
than by tr 0 ~ajority's reliance on the statutory language of section
llO(a) of ._t1e 1977 Mine Act and a single legislative reference to the
1969 Coal Act as precluding such consideration. Therefore, I would
respectfully suggest that perhaps the Act and case law may not be as
constrained as found by the majority with regard to Asarco's defense of
"unforeseeable and idiosyncratic employee misconduct."
The defense raised by Asarco has been uniformly recognized as
legitimate by OSHRC 2/ and by OSHA appeals bodies under state plans 3/
and has been variously described as "unforeseen employee misconduct,"

l:_/

Section 2(c) entitled "Findings and Purpose" provides:
There is an urgent need to provide more effective means and
measures for improving the working conditions and practices in the
Nation's coal or other mines in order to prevent death and serious
physical harm, and in order to prevent occupational diseases originating in such mines;

2/
Standard Glass Co., 1OSHC1045 (1972); Jensen Constr. Co., 7 OSHC
l477 (1979). The OSHA Act of 1970, 29 U,S.C. section 651 et seq., does
not expressly authorize the unforeseeable employee misconduct defense.
The federal circuit courts have, however, uniformly adopted the defense
on sound policy and legal grounds. As the Ninth Circuit observed in
Brennan v. OSHRC, 511 F.2d 1139, 1145 (1975):
Fundamental fairness would require that one charged with and
penalized for violation be shown to have caused, or at least to
have knowingly acquiesced in, that violation. Under our legal
system, to date at least, no man is held accountable, or subject to
fine, for the totally independent act of another.
Accord: Penn Power & Light Co. v. OSHRC, 737 F.2d 350 (3d Cir. 1984);
Daniel Int'l Corp. v. OSHRC, 683 F.2d 361 (11th Cir. 1982); National
Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). Cf.
United States v. Park, 421 U.S. 658 (197 5) (analogous defense to criminal
indictment implied under Federal Food, Drug and Cosmetic Act).
3/
E.g., Davey Tree Surgery Co. v. Occupat. S&H App. Bd., 167 Cal.
App. ~1232, 213 Cal. Rptr. 806 (1985).

1638

"employee independent act," "employee negligence,n and the like.!:_/ In
finding for or against the employer when such defense is raised, the
administrative law judges and appeals bodies have held the employer's
evidence to a strict test. This test concentrates on the adequacy of
the employer's general safety training program, the adequacy of the
subject employee's specific job assignment safety training, the adequacy
of the level of supervisory control, the employer's system of discipline
and sanctions imposed on employees who contravene the employer's safety
rules, the consistency in applying those sanctions, and the employee's
knowledge that he or she has deliberately and knowingly contravened the
employer's safety requirements. 5/ Where the employee has been
~/

The Fifth Circuit's conclusionary rejection of this operator defense
in Allied Products v. FMSHRC, 666 F.2d 890 (1982) fails to adequately
consider the identity of enforcement and policy similarities between
OSHA and the Mine Act. Both statutes require literal employer compliance
with mandatory safety and health standards. Both statutes place primary
emphasis upon pre-inspection compliance rather than upon post-accident
sanctions a~ the means of achieving hazard free working conditions.
Significantly, both statutes impose compliance responsibilities upon
employees. Compare section 5(b) of OSHA with section 2(e) of the Mine
Act. In light of these parallelisms, no persuasive legal or policy
reason exists for denying mine operators the same defense uniformly
recognized under OSHA which regulates excavation and flammable liquid
processing work sites as hazardous as some mining activities, particularly, where adoption serves to promote the Mine Act's identical
emphasis upon safe work practices by miners as the touchstone for
reducing the risk of mine accidents. See S. Rep. No. 181 95th Cong. 1st
Sess. at 18 (1977) ("It is the intention of the Committee that [the
miner's duty to comply with the Act] will fo~ter the necessary cooperation between miner and operators ••• if the nation's mines are to be
made truly safe").

5/
Here, Asarco has more than met any burden of showing the adequacy
of its safety program. The majority agrees that Asarco's written safety
rules, safety procedures with specific emphasis upon ground control, and
the training and supervision of its miners were "adequate under all the
circumstances." 7 FMSHRC at 1726. The administrative law judge specifically rejected the Secretary's "suggestion that the accident resulted
from a supervisory failure." 7 FMSHRC at 1726. Indeed, the administrative
law judge found that supervisory dereliction on this record would require
a mine operator to provide one to one supervision of all miners at all
times. "Nowhere does the Act or the standard in question suggest such a
draconean requirement." 7 FMSHRC at 1726. Asarco comprehensively
distributed its safety rules to all miners, including Lysne, who signed
them acknowledging receipt, and these rules were reviewed in monthly
safety meetings attended by all miners and supervisors including Lysne
who began working for Asarco in 1972. Moreover, the administrative law
judge also found and the majority agrees that Asarco "was not negligent"
and that "Lysne's decision to begin drilling on an obviously unstable
face must be regarded as unforeseeable and idiosyncratic."· 7 FMSHRC at
1726. Neither acts of omission or commission by Asarco contributed in
any way to Lysne's accident.

1639

incapacitated by the alleged misconduct, the cases have also turned on
other evidence to satisfy this element.
Since the advent of the "unforeseeable employee misconduct defense",
there has been a salutary impact on the degree of excellence of employer's
safety training programs within the jurisdiction of OSHA. As a result,
safety and health compliance in the workplace has benefitted directly by
entertaining this defense. An additional benefit has occurred - that
is, the credibility factor throughout the employer community with concomitant heightened respect for the law which directly fosters voluntary
pre-inspection compliance focused upon the detection and elimination of
preventable hazards. 6
This is because the employer knows that due
consideration will be given to his defense under. circumstances where he
has done everything reasonably possible to insure a safe workplace, yet
the act of an employee subjected him to a citation and that act could
not be anticipated.
To conclude, as does the majority, that the 1977 Mine Act and
emerging case law preclude the raising of Asarco's defense would seem to
detract from the fundamental purpose of the Act as noted above. Such.
preclusion miscasts the Act in a punitive rather than in its intended
preventive role. Certainly, it is incumbent upon all operators to
comply fully with the training requirements of the Act and MSHA training
regulations. But when the operator knows that its training and safety
program will come under the strict microscope of administrative and
judicial forums if an "employee negligence" defense to an alleged violation·
is to be entertained, pure logic and history under OSHA, dictates that.
the operator's safety training program and its worksite application will
be vigorously honed to pass muster, thereby directly benefitting the
overall safety and health of all miners. It would indeed be a surprise
if, notwithstanding these benefits, Congress still intended to find the
conscientious operator guilty of any infraction on the mine property
entirely outside that operator's control. ]_/
6/
Anderson, Buchholz, and Allan, "Regulation of Worker Safety Through
Standard- Setting: Effectiveness, Insights, and Alternatives, 11 37 Lab.
L.J. 731 (1986) (creation of self-enforcement incentives better advance
work place safety than detailed safety standards).

7/

No provision of the 1977 Act expressly precludes application of the

~nforeseeable employee conduct defen5e which had been adopted by the

federal courts under OSHA prior to passage of the Mine Act. Here, the
plain language of the Mine Act does not bar adoption of the defense. To
be sure Congress in section llO(a) eliminated administrative discretion
in assessing civil penalties for operator violations. But this is not
equivalent to legislating that unforeseeable employee conduct can never
be a factor in the violation determination.
The Commission decisions cited by the majority purporting to foreclose the unforeseeable employee misconduct defense on the·basis of per
~operator liability all involved degrees of operator negligence or-(footnote 7 continued)

1640

With this observation in mind, buttressed by the 1977 legislative
changes to the 1969 Coal Act in sections 2(e) and (g) emphasizing the
"primary", in place of the "sole", responsibility of the operator to
prevent unsafe and unhealthy conditions "with the assistance of the
miners ••• ", coupled with the change in section 104(a) mandating a
citation upon the inspector's "belief" rather than a "finding" that the
operator has violated the Act or regulations adopted pursuant to the
Act, I respectfully feel the statutory latitude exists to entertain and
sustain the "unforseeable employee misconduct" defense advancedby
Asarco in this case. On the record here, which exhibits not a trace of
negligence by Asarco, as found by the majority, I would find no violation
of 30 C.F.R. § 57.3-22, and absent a violation within the scope of
section 104(a), section llO(a) imposing mandatory civil penalties cannot
be reached and therefore no civil penalty can be assessed.
This analysis is consistent with the statutory framework of the
1977 Mine Act. Under sections 104(a) and 105(a), no citation is issued
or civil penalty proposed unless the Secretary "believes" a violation
has occurred. In making this determination the "belief" standard of
section 104(a) contains well within its parameters latitude for reasonable
belief and thus for consideration of the "unforeseeable employee misconduct
defense." As in any contested case, the Secretary's belief of a violation
is not always upheld. And in such cases, the mandatory penalty provision
of section llO(a) is inapplicable because no violation has been found.
Thus, it follows that the procedural priority accorded sections 104(a)
and 105(a) over section llO(a) precludes reliance upon section llO(a) as
per se foreclosing a defense raised in response to the Secretary's
initial belief that a violation exists, particulary where, as here, such
defense is not ruled out by specific statutory language.
In the mining industry there are varying degrees of excellence in
mine safety and health training. There are operators who have successfully
avoided any disabling miner injuries over literally millions of man
hours worked. Yet, when an operator showing far less attention to
health and safety matters suffers a tragic accident, the whole industry
suffers. Similarly, the United Mine Workers of America, the Steelworkers,
and other labor organizations, including independent company unions and
employee groups who have earned respect for their excellent safety and
health training and miner compliance programs, all strive to ensure that
their co-workers do not, through any aberrant act, reflect adversely on
these continuing efforts to maintain a safe and healthy workplace.
Footnote
acts of omission within the operators control either creating or perpetuating the hazard subject to the citation •. In each of these cases
that defense, even if entertained, could not be sustained because the
operator failed to meet the strict requirement of an adequate safety
program. Compare H.B. Zachry Co. v. OSHRC, 638 F.2d 812 (5th Cir •
. 198l)(defense fails because employee skipped scheduled safety meetings
and was given ~nadequate work supervision).

1641

Permitting the defense of "unforeseeable employee misconduct,"
measured against the stringent standards required herein, will advance
significantly the cause of healt.h and safety in the Nation's mines, and
will complement and encourage the legitimate extra efforts of the majority
of operators and employee organizations to work towards a hazard free
mine environment to the greatest extent possible. In contrast, the lack
of recognition of these cooperative efforts integral to the defense put
forward here will act to preclude the realization of the additional
benefits to mine health and safety noted herein. I would allow and
sustain Asarco's defense and, therefore, dismiss the citation. §_/

8/
Accordingly, I find it unnecessary to reach Asarco's claim of
denial of constitutional equal protection.

1642

Distribution
Earl K. Madsen, Esq.
Bradley, Campbell & Carney
1717 Washington Avenue
Golden, Colorado 80401
Jerald S. Feingold,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

1643

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

November 13, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. LAKE 86-38-M

v.
COLUMBIA PORTLAND
CEMENT COMPANY
BEFORE:

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

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. section 801 ~
~ (1982).
On October 3, 1986, Chief Administrative Law
Judge Paul Merlin issued an Order of Default finding respondent
Columbia Portland Cement Company ("Columbia") in default,
affirming the citation in issue, and assessing a civil
penalty of $2000. Thereafter, Columbia filed a timely petition
for discretionary review with the Commission, requesting
that the Order of Default and the penalty assessed against
Columbia be reversed.
On November 4, Columhia filed a
supplementary Memorandum in Support of Petition for Discretionary
Review specifically addressing its failure to respond to the
July 7, 1986 Order to Show Cause which resulted in the
October 3, 1986 Order of Default,
Default is a harsh remedy, and if a defaulting party
can make a showing of adequate or good cause for a failure
to respond to an order, the failure may be excused and
proceedings on the merits permitted.
M.M. Sundt Constr.
Co., 8 FMSHRC 1269 (Sept. 1986).
Columbia asserts that its
ailure to respond to the July 7, 1986 Order to Show Cause
is attributable to the mistake or neglect of a former employee.
In the interests of justice we conclude that Columbia should
have the opportunity to present its position to the judge.

1644

Accordingly, we vacate the Order of Dismissal and remand the
case for further proceedings consistent with this Order.
Fife Ro~k Products Co., 8 FMSHRC
(October 1986).

·X.~irman
/I

.

.

Distribution
John C. Ross, Esq.
Ross & Robertson
Suite 200, Renaissance Centre
4580. Stephen Circle, N.W.
Canton, Ohio 44718
Marcella L. Thompson, Esq.
Office of the Solicitor
U.S. Department of Labor
881 Federal Building
1240 East Ninth Street
Cleveland, Ohio 44199
Ann Rosenthal, Esq.
Office of the .Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K St., N.W., Suite 600
Washington, D.C. 20006

1645

.

,,,C<,_£,f-t.t:- ..~~

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

November 18, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 86-14-M

v.

MOHAVE CONCRETE AND MATERIALS
INCORPORATED

BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding arises under tbe Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). On October 9,
1986, Chief Administrative Law Judge Paul"""Merlin issued an Order of
Default finding respondent, lv""'°have Concrete and }{.aterials, Inc. ("Mohave")
in default, for its failure to respond to the judge's August 20, 1986
Show Cause Order, and assessing civil penalties totalling $1,231.
Thereafter, on October 22, 1986 Mohave sent a letter to the judge requesting the judge to vacate the Order of Default and to reopen the ·
case. We consider Mohave's letter to the judge to be a timely Petition
for Discretionary Review. 29 C.F.R. § 2700.S(b) and 2700.?0(a).
Default is a harsh remedy, and if a defaulting party can make a
showing of adequate or good cam'!e for a failure to respond to an order,
the failure may be excused and proceedings on the merits permitted.
M.M. Sundt Constr. Co., 8 FMSHRC 1269 (September 1986). Mohave asserts
that its failure to respond to the August 20, 1986 Order to Show Cause
is attributable to the mistake or neglect of a former bookkeeper.

1646

Accordingly, we vacate the Order of Defaui~ and remand to the judge
for such further proceedings as he deems appropriate as to either the
sufficiency of the cause asserted or the underlying merits of the
case. '};./

<royce A. Doyle, Commiss /. ner

]j
Commissioner L. Clair Nelson believes that Mohave has not shown
good cause for failing to comply with the Chief Administrative Law
Judge's Show Cause Order of August 20, 1986, and in the absence of any
argument concerning due.process·in this proceeding he would affinn the
judge's order of default.

1647

Distribution
Mr. Quinto Polidori, President
Mohave Concrete & Materials, Inc.
450 Highway 85 North
Lake Havasu City, Arizona 86403
Marshall P. Salzman, Esq.
Office of the Solicitor
U.S. Department of Labor
P .o .. Box 36017
San Francisco, California

94102

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

1648

ADMINISTRATIVE LAW JUDGE DECISIONS

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

NOV 6 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
YALE E. HENNESSEE,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 86-151-DM
MSHA Case No. MD 86-35
1604 Quarry and Plant

v.
ALAMO CEMENT COMPANY,
Respondent
ORDER OF TEMPORARY REINSTATEMENT
Appearances:

Frederick w. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Complainant;
David M. Thomas and Roberts. Bambace, Esqs.,
Fulbright & Jaworski, Houston, Texas, for
Respondent.

Before:

Judge Koutras
of the

This proceeding concerns an Application for Temporary
Reinstatement filed by MSHA on September 10, 1986, pursuant
to section 105(c)(2) of the Federal Mine Safety and Health
Act of 1977, and Commission Rule 29 C.F.R. § 2700.44(a), seeking the temporary reinstatement of the complainant Yale E.
Hennessee to his position as an electrician at the respondent 1 s 1604 Quarry and Plant. MSHA has concluded that the
complaint of discrimination filed by Mr. Hennessee is not
frivolous.
In support of this conclusion, MSHA has filed an
affidavit executed by Wilbert B. Forbes, Chief of Special
Investigations, Metal and Non-Metal Division, MSHA, Arlington,
Virginia, a summary of the alleged discriminatory action, and
a hand-written statement by Mr. Hennessee in support of his
complaint.

1649

The respondent filed a request for a hearing pursuant to
29 C.F.R. § 2700.44(b). By agreement of the parties, a hearing was scheduled for October 15, 1986, but it was cancelled
because of certain budgetary constraints. It was subsequently
rescheduled and held in San Antonio, Texas, on October 23,
1986, and the parties appeared and participated fully therein.
Issue
The issue presented in this proceeding is whether or not
MSHA 1 s complaint on behalf of Mr. Hennessee is frivolous.
MSHA's Testimony and Evidence
Yale E. Hennessee, confirmed that until his discharge on
April 17, 1986, he was employed by the respondent as a instrumentation technician or electrician. In his opinion, he was
discharged because "I refused to be bullied" into doing something which he believed was unsafe, namely, the removal of a
motor from the bottom of clinker dome 2 which was littered
with clinker and which presented a slip and fall hazard.
Mr. Hennessee stated that on the afternoon of April 17,
1986, production foreman Frank Garcia requested Damon Smith
to repair a burned out motor on a feeder located at the No. 2
clinker dome. Mr. Smith asked him to assist in the repairs,
and they took a replacement motor to the area with a hand
truck. The motor was taken down a sloping concrete walkway
or ramp tunnel which was sloped at approximately 30 degrees.
The ramp had handrails on both sides~ and Mr. Smith had one
hand on the rail and one hand on the truckv as did
Mro Hennesseeo The motor weighed approximately 100 to
110 poundsv and the ramp was littered with 8 to 10 inches of
clinker ranging from "small marble" size to "golf ball" size.
Mro Hennessee stated that while taking the motor down
the rampv he and Mro Smith lost their balance several times

because of the clinkeru and had some difficulty in transporting the motor down the ramp because of the slippery footing.
He stated that the belt had been buried the evening before
with spillage, and that the normal practice is to clean up
and remove the clinker from the belt.
Mr. Hennessee stated that after the burned out motor was
changed out, he and Mr. Smith decided to leave the old motor
in the dome and they placed it out of the way. They decided
not to take it out because of the trouble they had in bringing it in, and they did not believe that they could have
removed it safely. They also considered the fact that there
were two other motors in the warehouse, and they did not

1650

believe it was necessary to immediately remove the burned out
motor from the area. Mr. Hennessee stated that had the old
motor been needed, he would have removed it.
Mr. Hennessee stated that after replacing the burned out
motor, he left the dome area to remove his lock-out device
from the motor breaker and that the slippery footing condition
of the ramp still existed as he exited the area. Mr. Smith
remained behind to replace the motor guard and to check out
the motor rotation. Mr. Hennessee then called the control
room and informed Foreman Homer Zapata that the motor had been
repaired and that he should check the feeder belt flow.
He
did not inform Mr. Zapata that the burned out motor had not
been removed.
Mr. Hennessee stated that at approximately 3:45 p.m., he
and Mr. Smith were in the shop cleaning up. Their work shift
ended at 4:30 p.m. Mr. Garcia came to the shop and informed
them that the motor which they had installed was not operating
properly, and that they had not replaced the guard or removed
the old motor. Mr. Hennessee stated that Mr. Garcia was belligerent and accused them of not doing the job right. He also
indicated that Mr. Garcia told them if they could not do the
job right he no longer needed them and that they could "punch
out." Mr. Hennessee stated that he attempted to explain the
situation to Mr. Garcia but that he would not listen.
Mr. Hennessee stated that after the confrontation with
Mr. Garcia, he and Mr. Smith went to see their supervisor Bob
Pratt. Mr. Garcia and plant manager Ed Pierce were there,
and Mr. Hennessee informed Mr. Pierce that he did not have to
put up with Mr. Garcia's abuse and harrassment. He also
informed Mr. Pierce that unless the dome walkway ramp was
cleaned up, he would not remove the old motor. He also
informed Mr. Pierce that the walkway ramp was unsafe.
Mr. Pierce asked him to "cool off" and advised him that he
would go to the dome ramp area to check it out.
Mr. Hennessee stated that Mr. Pierce and Mr. Garcia then
left to check out the ramp. Upon their return, Mr. Pierce
advised him that he and another employee had removed the
burned out motor by carrying it out of the dome by means of a
rag placed through the motor eyelet. Mr. Pierce also informed
him that the ramp walkway was "totally cleaned" and safe.
Mr. Hennessee stated that Mr. Pratt then told him to go
home and "cool off." Mr. Hennessee left the mine and took
his tools with him. He did so because he believed his dismissal was "imminent." Mr. Hennessee stated that he advised

1651

Mr. Pratt that he did not remove the old motor because he
believed it could not be removed safely.
Mr. Hennessee stated that he later spoke with Mr. Pratt,
and he was asked to write a letter stating his position and
to meet with Mr. Pratt on April 18, 1986, to discuss the
matter further. Mr. Hennessee was then summoned to a meeting
on April 22, 1986, and present were Mr. Pratt, Mr. Pierce,
and personnel manager Galindo.
Mr. Hennessee stated that when he went to the April 22,
meeting he assumed he would be reprimanded.
In fact, he was
terminated for insubordination because of his refusal to
remove the burned out motor.
Mr. Hennessee confirmed that since his termination he
has not had regular employment, but has done contract labor
and sub-contracting work. He also confirmed that he felt
some loyalty to the respondent because they took care of him
when he was previously injured on the job. He also indicated
that the respondent sent him for training at a G.E. school in
Virginia, in January, 1986, and that he was always available
and willing to work overtime, and responded to requests to
work evenings to solve problems as required by the respondent.
On cross-examination, Mr. Hennessee conceded that in his
April 20, 1986, statement to the respondent he did not mention
his prior injury or that this was a consideration in his
refusal to remove the motor from the dome area. He confirmed
that he filed his discrimination complaint with MSHA on
April 23r the day following his termination. He confirmed
that he was angry on April 17 1 and that he was "carried away"
and "let his mouth get away from him" over the incident with
Mr. Garcia. He also confirmed that after his termination, he
made up his mind to do what he could to save his job.
Mr. Hennessee reiterated that the dome walkway ramp area
was unsafe when he went down with Mr. Smith with the motor,
and that it was unsafe when he left the area after changing
out the motor. He stated that he did not clean up the ramp
area before taking the motor down because he had never been
expected to do so in the past.
Mr. Hennessee confirmed that the plant is non-union, and
that the respondent has rules requiring persons who perform
work to clean up their work areas when the work is completed.
He also confirmed that he did not request anyone to clean up
the ramp area before he and Mr. Smith took in the replacement
motor.

1652

Mr. Hennessee reiterated that Mr. Garcia was belligerent
and accused him of failing to repair the motor, failing to
replace the motor guard, and failing to remove the old motor.
He confirmed that he advised Mr. Pratt that he would not work
if he had to take abuse, and would instead quit.
He confirmed
that Mr. Pierce heard his comments in this regard.
Mr. Hennessee confirmed that he never returned to the
ramp area on April 17, after he was told to go home, and
could not have known that the area was unsafe. He also confirmed that his prior statement made no reference to running
the hand-truck with the motor into the ramp wall, and that he
had not notified anyone that he had left the burned out motor
in the dome.
MSHA Inspector Paul Belanger confirmed that he conducted
the investigation of Mr. Hennessee's complaint. He confirmed
that.he found no basis for concluding that Mr. Hennessee violated any company rules, and no one related to him that there
were other times when equipment was left at work sites after
the work was completed.
Mr. Belanger stated that when he inspected the walkway
ramp area in question it was in good condition and safe. He
confirmed that management personnel seemed to be aware of the
fact that the ramp area had spillage problems. He stated
that when he walked the ramp he made certain to hold onto the
handrail. Although he observed some clinkers on the ramp and
lost his footing, the ramp condition did not warrant the
issuance of a citation.
Mr. Belanger confirmed that no one from mine management
denied the existence of clinker spillage on the walkway ramp
in question, nor did they deny Mr. Hennessee's assertions
that he believed the condition of the ramp was unsafe.
Mr. Belanger also confirmed that his irtvestigation revealed
that Mr. Hennessee was an exemplary employee and that he had
never refused any work in the past, and had no prior personnel
actions taken against him.
Mr. Belanger confirmed that the respondent was cooperative during his investigation and provided access to its
employees.

1653

Respondent's Testimony and Evidence
Frank Garcia, production superintendent, confirmed that
on April 17, 1986, he assigned Damon Smith the task of changing out a burned out motor on the feeder in the Number 2
.clinker dome. Mr. Smith said nothing to him about the condition of the ramp walkway. After completion of the work, Homer
Zapata advised him that the walkway ramp had been swept and
cleaned and that a "path" had been cleared of clinkers.
Mr. Zapata also informed him that the motor guard had been.
left off, that the old motor had not been removed from the
area, and that the feeder motor was still not working properly. Mr. Garcia then confronted Mr. Smith and Mr. Hennessee
a.nd told them "if they couldn't do the job right to punch
out."
Mr. Garcia stated that he believed that the walkway ramp
was safe on April 17, and that the old motor could be safely
removed. He confirmed that he did not participate in the
decision to terminate Mr. Hennessee from his employment with
the respondent.
On cross-examination, Mr. Garcia stated that when he
confronted Mr. Smith and Mr. Hennessee they said nothing to
him about any safety concerns. He reiterated that the ramp
had been cleaned and that there was a clear 3-foot wide
"pathway" extending the length of the 4-foot wide ramp.
Mr. Garcia confirmed that when Mr. Pierce brought out
the motor, he had to.hold onto the walkway railing, and that
he did so because he may have considered it unsafe. He
expressed agreement with Mr. Pierce's statement of April 17,
1986, including the statement by Mr. Hennessee that he would
still not remove the motor the day after it was removed by
Mr. Pierce. Mr. Garcia stated that it was his opinion that
the walkway ramp was not unsafe on April 17, and that not no
slip hazard existed.
Ed Pierce, respondent's works manager, confirmed that he
is in charge of all plant production. He stated that
Mr. Hennessee was a good employee and that he spoke with him
on April 17, at approximately 3:30 p.m. He stated that he
encountered Mr •. Gare ia, Mr. Hennessee, and Mr. Smith at that
time and that they were talking at the same time with regard
to .the motor repairs in question. Mr. Hennessee stated that
"you can get someone to punch in for me in the morning," and
Mr. Pierce asked him to quiet down. Mr. Garcia was complaining that Mr. Smith and Mr. Hennessee had not done their job
of changing out the motor, and Mr. Smith insisted that they

1654

had. Mr. Hennessee stated that he and Mr. Smith did not
remove the old motor because they believed it would have been
unsafe to do so.
Mr. Pierce stated that he and -Mr. Garcia proceeded to
the ramp area, and Mr. Pierce observed that a "path" had been
cleared on the ramp walkway, and he believed that it was safe.
He and another employee brought out the old motor with no
problems. Mr. Pierce confirmed that clinker was present
under the hand rail on the left side of the ramp, and under
the conveyor belt on the right side of the ramp.
Mr. Pierce stated that the motor guard was off, and that
the new motor appeared to have been installed properly.but
was vibrating excessively. After removing the old motor from
the area, he returned to the second floor break room, and
continued his discussion with Mr. Hennessee. He informed
Mr. Hennessee that he considered the ramp to be safe, and
Mr. Hennessee informed him that even so, he would not go to
the dome area the next day to remove the motor.
Mr. Pierce stated that the decision to terminate
Mr. Hennessee was a "group decision" reached on April 21,
1986, by himself, Vice President Jim Gordon, President Hopper,
and Mr. Galindo. Mr. Hennessee was informed of the decision
on April 22, 1986, when he was issued the "warning" and termination notice (exhibit C-1). Mr. Pierce stated that
Mr. Hennessee was terminated for insubordination because of
his statement that he would not on the next day remove the
motor from the clinker dome area in question. Mr. Pierce
confirmed that Mro Smith was not insubordinate, and no action
was taken against himv and he is still employed with the
respondent.
Gregory Fuentesv yard supervisor, stated that he was
responsible for plant housekeeping. He confirmed that he was
aware of the dispute of April 17v between Mr. Garcia,
Mr. Hennessee, and Mr. Smith with regard to the replacement
of the motor in the clinker dome. Mr. Fuentes stated that at
l2 noon on that day he assigned contract employees Davis and
Hickey to clean up and sweep the ramp walkway area in question. He stated that they finished this work at 3:00 p.m.,
and that he went to the area and confirmed that it had been
cleaned up. Mr. Fuentes estimated that it took 2 hours to
clean up the area. He stated that Mr. Davis and Mr. Hickey
cleared a path down the ramp by sweeping the clinker under
the belt, and that when the belt was rendered operational
again the clinker would have been loaded on the belt and
taken out of the area.

1655

By agreement and stipulation, of the parties, respondent's counsel preferred the testimony of electrical supervisor Robert Pratt, Foreman Homer Zapata, and supervisor Rene
Chevera.
The parties stipulated that if called to testify,
Mr. Pratt would confirm his discussions with Mr. Hennessee
concerning the circumstances which prompted his encounter
with Mr. Garcia, and Mr. Hennessee's reluctance to remove the
burned out motor in question from the clinker dome, including
Mr. Hennessee's statement that he would not remove the motor
the day following the incident in question on April 17, 1986.
The parties stipulated that if called to testify,
Mr. Chevera would confirm that he and Mr. Pierce removed the
burned out motor in question after Mr. Hennessee's refusal to
do so, and that the dome walkway ramp area was cleaned up and
safe to travel.
·
The parties stipulated that if called to testify,
Mr. Zapata would confirm that after being informed by
Mr. Hennessee that he and Mr. Smith had completed the job of
changing out the burned out motor, Mr. Zapata found that the
old motor had not been removed from the work area, that the
motor guard was not in place, and that the replacement motor
was not operating properly.
Documentary Evidence
The following documents were tendered by the complainant,
and received in evidence in this proceeding:
1. The Employee warning Record and Termination Notice
issued to Mr. Hennessee by the respondent terminating his
employment on April 22, 1986, for "Insubordination."
(Exhibit C-1).
2. A copy of a work order dated April 15, 1986).
(Exhibit C-2).
3. Eight copies of Respondent's No. 1 Finish Mill
Inspection/Checklists dated April 15, 16, 17, 1986. (Exhibit
C-3).

4. Four copies of Respondent's Safety and Health
Inspection Checklists dated April 15, 17, 18, 1986.
(Exhibit
C-4).

1656

5. April 17, 1986, statement by respondent's Works
Manager Ed Pierce.
(Exhibit C-5).
6. Statement incorporated in exhibit C-1, under
"Company Remarks."
(Exhibit C-6).
7.

Copy of respondent's "Work Rules."

(Exhibit C-7).

8.

Copy of respondent's safety policy (exhibit R-1).
Findings and Conclusions

As stated earlier, the issue in this limited proceeding
at this time is whether or not MSHA had made a reasonable and
credible showing that the discrimination complaint filed on
behalf of Mr. Hennessee is not frivolous.
Webster's New Collegiate Dictionary defines the term
"frivolous" as "of little weight or importance." Black's Law
Dic~ionary, Revised Fourth Edition, 1968, defines the term as
follows:
- - - "lacking in legal sufficiency"
- - - "clearly insufficient on its face"
- A "frivolous appeal is one presenting
no justiciable question and so readily
recognizable as devoid of any merit on
face of record that there is little
prospect that it can ever succeed"
Mr. Hennessee's testimony regarding the existence of
clinker spillage material on the walkway ramp at dome No. 2
on April 17, 1986, is corroborated by the respondent's inspection checklist reports (exhibits C-3 and C-4).
In addition,
in his statement of April 17, 1986, Mr. Pierce admitted that
"there was some clinker in the walkway going to the bottom of
the dome" (exhibit C-5). Although Mr. Pierce states that the
walkway could be travelled safely, he qualified his statement
by indicating that it could be safely trav.elled "if you used
the handrails." The statement.also reflects that when
Mr. Pierce and Mr. Garcia retu"rned to the dome to retrieve
the old motor left by Mr. Smith and Mr. Hennessee, Mr. Pierce
had to hold on to the handrail so that he would not slip on
the clinker. Mr. Pierce's statement contains no assertion
that the walkway had been cleaned or swept so as to leave any
"pathway" clear of clinker.
Mr. Pierce testified that when he and Mr. Garcia returned
to the dome area, he observed that a npath". had been cleared

1657

of clinker. However, he conceded that clinker material still
existed under the handrails and the belt.
Although Mr. Garcia testified that the walkway ramp was
clear of clinker, he indicated that a "pathway" 3-feet wide
had been cleared, but he did not indicate that the entire
width of the ramp had been swept or cleared of the clinker.
He also indicated that Mr. Zapata informed him that the ramp
had been swept clean, but that this information was given to
him after the completion of the work by Mr. Smith and
Mr. Hennessee.
Mr. Fuentes testified he assigned employees Davis and
Hickey to clean the walkway at 12 noon, and that it took them
2 hours to do the work. He stated that the work was completed
at 3:00 p.m., when Mr. Fuentes went to the area to confirm
that the cleanup had been done.
However, Mr. Fuentes confirmed that all of the clinker had not been removed from the
ramp, and that only a "pathway" had been provided, and that
the clinker had simply been swept under the belt and that it
would be completely loaded out when the belt was again
operational.
The respondent's safety inspection checklist for
April 17, 1986, reflects that upon an inspection of the plant
conducted between the hours of 2:00 p.m. and 10:00 p.m., a
hazard existed on "ramp to dome No. 2 clinker spillage." The
checklist report for April 18, 1986, reflects that an inspection conducted at 3:00 a.m., reflected tripping hazards under
Dorne No. 2 by the belt feeder, and that scattered clinker may
have been present at that same location (exhibit C-4).
Another report for the first shift on April 17, 1986, reflects
spillage at the L-27 belt, and another report for the 10:00
p.rn. shift reflects spills at the L-27 belt, and spillage at
Dome No. 2 along the L-27 belt and catwalk (exhibit C-3).
Mr. Hennessee's testimony and his prior statements
reflect a consistent belief on his part that his reluctance
to remove the burned out motor after the completion of his
repair work on April 17, 1986, was based on his belief that
the existence of clinker material on the ramp walkway rendered the ramp unsafe to traverse with the motor. Further,
Mr. Pierce's statement of April 17, 1986 (exhibit C-5), and
his testimony, support Mr. Hennessee's contention that he.
communicated his safety concerns to Mr. Pierce as the reason
why he was reluctant to initially remove the burned out motor
from the dome after the completion of ·the job.

1658

Mr. Garcia's testimony that Mr. Smith said nothing to
him about the condition of the ramp walkway is contradicted
by Mr. Hennessee's statement to Inspector Belanger during an
interview on May 1, 19.86. A copy of· the interview was
reviewed by me in camera, and it contains a statement by
Mr. Hennessee that Mr. Smith informed him that he told
Mr. Garcia that the walkway was littered with clinker spillage, and that Mr. Smith wanted Mr. Garcia to be aware of this
fact in the event that Mr. Hennessee and Smith were held
responsible if they were to fall on the ramp.

Mr. Garcia's assertion that he was not made aware of any
clinker on the ramp is also contradicted by the narrative
"Company Remarks" portion of the warning and termination
decision of April 22, 1986 (exhibit C-1). That statement
reflects that Mr. Hennessee informed Mr. Garcia that he would
not return to take the motor out of the dome because it was
unsafe with spilled clinker on the ramp and that he had
nearly fallen when he and Mr. Smith went down the ramp to
install the new motor earlier.
After careful review of the testimony, evidence, and
pleadings filed in this matter, I conclude and find that it
raises a viable issue as to whether or not the incident which
prompted Mr. Hennessee.'s termination, that is, his statement
to Mr. Pierce that he would not go to the dome and remove the
motor, justified his termination, or whether his refusal or
reluctance was in any way prompted by his asserted belief
that to retrieve the motor in the circumstances then presented, was the result of a reasonable belief on his part
that to do so would expose him to an injury, hazard, or
danger.
In view of the foregoing, I conclude and find that the
complaint filed in this matter has merit and is not frivolous.
Accordingly, I further conclude that pursuant to Commission
Rule 44, 29 C.F.R. § 2700.44(d), MSHA's application for the
temporary reinstatement of Mr. Hennessee pending a final
determination of his complaint on the merits should be
granted.
ORDER
Respondent IS ORDERED to immediately reinstate
Mr. Hennessee to his electrician's position at the prevailing
wage rate for that position and with the same or equivalent
duties as assigned to him immediately prior to his discharge.

1659

During the course of the hearing, MSHA's counsel stated
that MSHA will soon file its discrimination complaint. The
respondent will have a full opportunity to respond, and the
parties will be afforded an opportunity to be heard on the
merits of the complaint. They will be notified further as to
the time and place of the hearing.

:;.v.:_
_>:;!~/\~ ~ A>~~
/l,/

.. .

!;e'~<fje

Kou tr a
Adminis rative Law Judge

Distribution:
Frederick w. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
David M. Thomas, Robert S. Bambace, Esqs., Fulbright &
Jaworski, 1301 McKinney Street, Houston, TX 77010 (Certified
Mail)
/f b

1660

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

NOV 6 1986
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 85-17
A.C. No. 33-01157-03673

v.

Powhatan No. 4

QUARTO MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On October 30, 1986, the Secretary filed a motion for
approval of a settlement reached by the parties in this case.
The violations were originally assessed at $2700 and the parties
propose to settle for $800.
Two violations are charged in this Docket, both charging
violations of 30 C.F.R. § 70.lOO(a) because based on dust
samples collected, the average concentration of respirable
dust in the working environment of two designated occupations
exceeded 2 milligrams per cubic meter of air (the first
violation charged that the average concentration was 4.9 mg/m3;
the second that it was 2.3 mg/m3).
The motion states that the penalty reduction is based
on the fact that Respondent was in the process of revising
its dust control plan at the time the citations were issued
(June 14, 1984). A new plan was submitted in July 1984, and
it has been successful in reducing respirable dust violations.
Respondent has a favorable history of prior violations at
the subject mine.
I.have considered the motion in the light
of the criteria in section llO(i) of the Act, and conclude
that it should be approved.
Accordingly, the settlement is APPROVED and Respondent
is ORDERED TO PAY the sum of $800 within 30 days of the date
of this order.

11?~ fa3nJ~d

J Administrative
James A. Broderick
Law Judge

1661

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

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

NOV 6 198c§:VIL PENALTY PROCEEDING

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

Docket No. LAKE 85-24
A.C. No. 33-01157~03680

v.

Powhatan No. 4 Mine

QUARTO MINING COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On October 30, 1986, the Secretary of Labor filed a
motion for· approval of a settlement reached by the parties
in this case. The violations were originally assessed at
$2850 and the parties propose to settle for $1324.
This docket contains two alleged violations, one of
30 C.F.R. § 70•.lOO(a) because the average concentration of respirable
dust in the environment of a designated occupation exceeded
2.0 mg/m# (it was 3.3 mg/m3) ;;the other alleged violation was
of 30 C.F.R. § 75.400 because of an accumulation of loose
coal along a belt conveyor the firs.t named violation was
assessed at $1000; the second at $1850. The settlement
agreement reduces them to $424 and $900.
The motion states that the operator was in the process
of revising its dust control plan at the time the citation
was issued. A revised plan was submitted in July 1984 and
it has been successful in reducing respirable dust violations.
With respect to the accumulations violation, the motion states
that it resulted from intermittent spillage due to a
misalighed belt and would be cleaned up in accordance with
its clean up plan.
Respondent has a favorable history of
prior violations.
I have considered the motion in the light of the criteria
in section llO(i) of the Act and conclude that it should be
approved.
Accordingly, the settlement is APPROVED and Respondent
is ORDERED TO PAY the sum of $1324 within 30 days of the date
of this order.

1vv-t~S /f f!J hJd&/f/; /!/._
,j James
A. Broderick
,

i I

v

Administrative Law Judge

.1662

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

22041

NOV 6 1986

CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'l'RATION (MSHA) I
Pe ti

Docket No. LAKE 85-27
A.C. No. 33-01157-03682
Powhatan No. 4 Mine

v.
QUARTO MINING COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On .October 30, 1986, the Secretary of Labor filed a
motion for approval of a settlement reached by the
this case. The violations were originally assessed at
$1000 and the parties propose to s
for $450.
One violation
charged, of 30 C.F.R. § 70.101, because
the average respirable dust concentration in the working
environment of a designated occupation exceeded. The limit
of 1.6 mg/m3 (the dust contained more than 5% quartz). The
samples showed an average concentration
3.4 mg/m3.
The motion states that the operator was in the
ss
of revising
dust control plan at the time the citation
was issued. A
sed plan was submitted in July 1984 and
it has been successful in reducing respirable dust violations.
I have cons
in section llO(i)
approved.

the motion in the light of the criteria
the Act, and conclude that
should be

Accordinglyr the settlement is APPROVED and Respondent
is ORDERED TO PAY the sum of $450 within 30 days of the date
of this order.

ll~ /f·C/JVZ/dt_,1/r--~

v

f

I

James A. Broderick
Administrative Law Judge

1663

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

22041

NOV 6 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 86-42
A.C. No. 44-06211-03508

v.

No. 1 Mine

B D & J COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On November 4, 1986, the Secretary filed a Response to
my orcier of October 20, 1986, denying a motion to approve
a settlement agreement in this case. With the response,
the Secretary renewed its motion to approve settlement.
The five violations involved here were originally assessed
at $1955. The parties propose to settle for $1755.
With respect to three of the violations, the settlement
amount is the amount originally assessed. Each of the other
two was originally assessed at $800, and the parties propose
to settle for $700 each. The Secretarv's response states
that after the citations were issued, Respondent's president
visited the MSHA Subdistrict Office and discussed the roof
control and pillar recovery methods at the subject mine.
The section foreman responsible for the section where the
violations occurred and two roof bolters were terminated
for failure to properly install roof bolts in the section.
MSHA's Subdistrict Office has stated that better supervision
and the hiring of more competent personnel should result
in greater compliance with safety regulations at the mine.
I have considered the motion in the light of the criteria
in section llO(i) of the Act, and conclude that it should
be approved.
Accordingly, the settlement is APPROVED and Respondent
is ORDER~D TO PAY the sum of $1755 within 30 days of the
date of this order.

jcv{;WZ-~ Af3vo~
(J James A. Broderick
Administrative Law Judge

1664

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

22041

NOV 7 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ex. rel. MICHAEL HOGAN
and ROBERT VENTURA,
Complainants
v.

DISCRIMINATION PROCEEDING
Docket No. PENN 83-141-D
MSHA Case No. PITT CD 83-3
Emerald No. 1 Mine

EMERALD MINES CORPORATION,
Respondent
SUPPLEMENTAL DECISION AND ORDER
Before:

Judge Koutras
Statement of the Case

On July 31, 1986, the Commission issued its decision in
this matter and reversed my decision of December 20, 1983,
dismissing the complaint. Secretary of Labor, et al., v.
Emerald Mines Corporation, 8 FMSHRC 1066 (July 1986). At
8 FMSHRC 1075, the Commission noted that "There is no dispute
that the five-day suspension of Hogan and Ventura was motivated
by the complainants' protected activity," and it remanded the
matter to me for determination of appropriate remedies.
In response to my orders issued subsequent to the remand,
the parties have filed a stipulation and agreement as to the
issues of back pay and other remedies, and they are in pertinent
part as follows:
1.
The parties agree and stipulate herein as
to the appropriate amounts of back pay, hearing and
litigation expenses and civil penalties.
The parties
also agree that this stipulation contains any and all
remedies which might be considered appropriate, that
no further hearings are necessary in this matter and
that an order pertaining to Complainants' remedies
may be entered.

1665

2. By entering into this stipulation Emerald
does not admit any violation of the Act, that it is
liable for any penalties or remedies contained
herein, or that Messrs. Hogan and Ventura are
entitled to any relief as set forth herein. Emerald
fully intends to seek review of the Commission's
decision finding it liable for such penalties and
remedies and enters into this stipulation principally
to expedite that process.
3. Michael Hogan would have earned the following amounts of pay for the days he was suspended from
work and for days he sought excusal from work pertaining to the litigation of this matter:
Date

Straight
'rime

Lunch
Overtime

Total

December 28, 1982
December 29, 1982
December 30, 1982
December 31, 1982
January 3, 1983
January 4, 1983
January 11, 1983
August 2, 1983
August 23, 1983
August 24, 1983

38.83
95.58
95.58
95.58
93.18
93.18
93 .18
68.78
101. 98
101. 98

9.96
8.96
8.96
8.96
8.74
8.74
8.74
9.26
9.56
9.56

47.79
104.54
104.54
104.54
101. 92
101. 92
101.92
78.04
111.54
111.54

4.
The total amount of back pay for Mr. Hogan
is $968.29.
Total interest on the back pay through
October 31, 1986 is $386.63.
5.
In addition, Mr. Hogan incurred expenses of
$42.12 for telephone calls.
6. Mileage expenses for Mr. Hogan would be
92 miles for two trips to Washington, Pennsylvania
for the hearing and 26 miles for one trip to
Waynesburg, Pennsylvania to meet with the MSHA
special investigator. The applicable rate of
reimbursement at the time was 20.5 cents a mile
a total mileage expense of $24.19.
7.
Robert Ventura would have earned the following amounts of back pay for the days he was suspended
from work and for days he sought excusal from work
pertaining to the litigation of this matter:

1666

Date

Straight
Time

Lunch
Overtime

Total

December 28, 1982
December 29, 1982
December 30, 1982
December 31, 1982
January 3, 1983
January 4, 1983
January 11, 1983
August 2, 1983
August 23, 1983
August 24, 1983

38.83
95.58
95.58
95.58
93.18
93.18
93.18
80.52
107.32
107.32

8.96
8.96
8.96
8.96
8.74
8.74
8.74
10.37
10.07
10. 07

47.79
104.54
104.54
104.54
101.92
101.92
101.92
90.89
117.39
117.39

The total amount of back pay for Mr. Ventura is
$992.84.
Total interest on the back pay is $394.93.
8. Mileage expenses for Mr. Ventura would be
60 miles for two trips to Washington, Pennsylvania
for the hearing and 50 miles for one trip to
Waynesburg to meet with the MSHA special investigator.
The applicable rate of reimbursement at the time was
20.5 cents per mile for a total mileage expense of
$22.55.
9.
The parties would agree upon civil penalties
in the amount of $100.00.
10. Emerald stipulates that the disc
ine
Mr. Hogan and Mr. Ventura received arising out of this
incident will be considered by it to have no future
effect and null and void (unless the Commission's
decision is reversed by the Circuit Court of Appeals).
Emerald will, however, maintain such records of this
matter as would be appropriate to any litigation.
Any such records will not, however, be contained in
the personnel files of Mr. Hogan and Mr. Ventura.
The
attendance records of each individual will be modified
to remove any reference to their suspensions.
Emerald
also agrees that it
11 not communicate any information pertaining to the suspensions which Mr. Hogan and
Mr. Ventura received and which are.the subject of this
litigation or any other information pertaining to this
tigation to any person who makes inquiry of Emerald
concerning employment of Mr. Hogan or Mr. Ventura.

1667

In view of the fact that the stipulations by the
parties included interest computations through
October 31, 1986, the parties agreed by letter dated
October 30, 1986, that interest accrues on the back
pay for Michael Hogan at the rate of $0.24 a day and
the back pay for Robert Ventura at the rate of $0.25
a day until their awards are paid.
ORDER
In view of the aforesaid stipulations and agreements, IT
IS ORDERED THAT:
1. Respondent pay to complainant Michael Hogan
back pay in the amount of $968.29, plus interest in
the amount of $386.63, through October 31, 1986, and
interest in the amount of $0.24 a day thereafter
until paid.
2.
Respondent pay to complainant Michael Hogan
hearing and litigati.on expenses in the amount of
$42.12 for telephone calls, and $24.19 for mileage
expenses.
3. Respondent pay to complainant Robert Ventura
back pay in the amount of $992.84, plus interest in
the amount of $394.93, through October 31, 1986, and
interest in the amount of $0.25 a day thereafter until
paid.
4.
Respondent pay to complainant Robert Ventura
mileage expenses in the amount of $22.55.
5.
Respondent pay a civil penalty assessment in
the amount of $100 for a violation of section 105(c) (1)
of the Act.
6. Respondent will forthwith comply with the
requirements of Stipulation No. 10 with respect to the
personnel records and other matters stated therein
concerning the employment status of Mr. Hogan and
Mr. Ventura.
IT IS FURTHER ORDERED that all payments of back pay,
interest, and miscellaneous expenses noted above be paid to

1668

Mr. Ventura and Mr. Hogan within thirty (30) days of the date
of this Supplemental Decision and Order, and that respondent
remit to MSHA within this same period the sum of $100 as a
civil penalty assessment for the violation in question.

Distribution:
Catherine Oliver Murphy, Esq., Off
of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certi
Mail)
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley,
900 Oliver
lding, Pittsburgh, PA 15222-5369 (Certif

/fb

1669

Mail)

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

NOV 101986

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 85-144-M
A. C. No. 16-00358-05538

v.

Cote Blanche Mine

DOMTAR INDUSTRIES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Maurer

The above civil penalty case, involving two§ 104(a)
citations issued subsequent to a fatal accident at the subject mine, is before me upon a petition for assessment of
civil penalties under section lOS(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, et seq.
Petitioner has filed a motion to approve a settlement
agreement and to dismiss the case.
I have considered the
representations and documentation submitted, and I conclude
that the proffered settlement is consistent with the criteria in section llO(i) of the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval
of settlement is GRANTED and respondent shall pay the approved penalties in the amount of $2,000 within 3o days of
this decision.
Upon payment, this proceeding is DISMISSED.

urer
ative Law Judge
Distribution:
Allen R. Tilson, Esq., Office of the Solicitor, u. S. Department of Labor, 525 Griffin St., Suite 501, Dallas, TX 75202
Michael G. Durand, Esq., Onebane, Donohoe, Bernard, Torian,
Diaz, McNamara & Abel, P. o. Drawer 3507, Lafayette, LA
70502 (Certified Mail)

yh
1670

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

22041

NOV 101986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 86-40
A.C. No. 41-01192-03503

v.
Big Brown Strip
AUSTIN POWER, INCORPORATED,
Respondent
AUSTIN POWER, INCORPORATED,
Contestant

CONTEST PROCEEDINGS

v.

Docket No. CENT 86-59-R
Citation No. 2339411; 8/20/85

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

Docket No. CENT 86-60~R
Citation No. 2339412; 8/20/85
Docket No. CENT 86-61-R
Citation No. 2339413; 8/20/85
Big Brown Strip
DECISIONS

Appearances:

Robert Fitz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner/Respondent~
Steven Ro McCown 1 Esq. 1 Jenkins & Gilchrist,
Dallas, Texas, for the Contestant/Respondent.

Before~

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of
civil penalties filed by MSHA against Austin Power, Inc.,
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 total,ling $10,000, for three alleged violations
of mandatory safety standards 77.1607Cg), 77.1710(g), and
77.404(a) or 77.205(e).
Docket No. CENT 86-40 is the civil

1671

penalty proceeding, and Docket Nos. CENT 86-59-R,
CENT 86-60-R, and CENT 86-61-R, are the contests filed by
Austin Power challenging the legality of each of the section
104(a) "significant and substantial~ (S&S) citations.
Austin Power filed timely answers and contests, and the
cases were consolidated for a hearing which was held in
Dallas, Texas. The parties filed posthearing proposed findings and conclusions, and the arguments presented therein
have been considered by me in the course of these decisions.
Issues
The issues presented in these proceedings are (1) whether
the cited mandatory safety standards are applicable to the
alleged fact of violations; (2) whether the alleged violations
were "significant and substantial;" and (3) the appropriate
civil penalties which should be imposed for the violations in
question. Additional issues raised by the parties are identified and disposed of in the course of these decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

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

3.

Commission Rules, 20 C.F.R. § 2700.1 et seq.

Stipulations
The parties stipulated to the following (Tr. 8-10):
1. Austin Power, Inc. was incorporated
under the laws of the State of Texas on
June 10, 1976.
2. Among other things, Austin Power,
Inc. has been an independent contractor,
engaged in construction at the Big Brown
Strip, a surface coal mine owned and operated
by Texas Utilities Company in Freestone
County, Texas.

1672

3. The Big Brown Strip is a "mine,"
within the meaning and definition of Section
3 (h) of the Federal Mine Saf'ety and Heal th Act
of 1977, hereinafter referred to as the Act.
4. Austin Power, Inc. is an "operator"
within the meaning and definition of Section
3(d) of the Act.
5. on Monday, August 19, 1985, Jeff
Arent, Kevin Saulsburg, and Steve Smith were
employed by Austin Power, Inc. at the Big
Brown Strip and were "miners" within the meaning and definition of Section 3(g) of the Act.
6. The products of the Big Brown Strip
enter or affect interstate commerce.
7. Citation Nos. 2339411, 2339412, and
2339413 and the modifications thereof, were
served upon Sydney Woodson, respondent's superintendent, by authorized representatives of
petitioner on the dates and at the times and
places stated therein, and may be admitted
into evidence for the purpose of establishing
that they were so issued, but not for the purpose of establishing the violations alleged
therein.
8. The miners employed by respondent
worked a total of 41,012 hours in all mining
activity in 1985.
9. Respondent demonstrated good faith in
attempting to achieve rapid compliance after
being notified of the alleged violations.
During the course of the hearing, Austin Power's counsel
stipulated that the proposed civil panalties assessed by MSHA
for the violations in question will not adversely affect
Austin Power's ability to continue in business (Tr. 188).
Discussion
This case concerns a fatal accident which occurred at
the Big Brown Strip Mine construction site on August 19, 1985.
The mine is a surf ace coal mine owned and 6perated by the
Texas Utilities Company. ·Austin Power is an independent contractor subject to the Act who at the time of the accident

1673

was in the process of constructing and erecting a cross-pit
spreader at the site for Texas Utilities. The spreader was
manufactured by DeMag Company, a German concern, and Austin
Power was under contract with that firm for the construction
and erection of the spreader at the mine site.
At the time of the accident, three employees of Austin
Power were engaged in certain work on a 20-meter boom, an
integral part of the spreader. The employees were engaged in
work connected with the placement of certain counter weights
on the boom and the installation of a wire rope choker on the
boom for the purpose of facilitating the movement of the boom
in a lateral direction by means of a 518 link belt crane and
cherry picker. While performing their work from a walkway or
catwalk located on one side of the boom, the boom was subjected to a sudden and unexpected "whiplash" action caused by
the failure of an eyelet located at the back end of the boom.
The boom raised up and propelled the three employees off the
walkway where they were standing in an upward direction into
the air, and one employee, Steven Smith, fell to the ground
below and suffered fatal injuries. The other two employees
managed to come down on the walkway structure which they
grabbed as they came down, and they subsequently walked off
the boom to safety and were not injured.
MSHA Inspector Donald R. Summers conducted an accident
investigation on August 20, 1985, and prepared a report
(exhibit P-5). Based on the information received by Inspector Summers during the course of his investigation, he issued
a section 107(a) imminent danger ordeiv and three section
104(a), S&S citations. The imminent danger order is not in
issue in these proceedings, but the citations are. The narrative description of the cited conditions or practices as
stated in the citations issued by Inspector Summers are as
follows:
Citation No. 2339411, August 20v 1985, 30 C.F.R.
77.1607(g).
"The Link Belt 518 operator was not notified
by signal or other means that all persons were not in the
clear before starting or moving equipment in that 3 employees
were on the 20-meter cross p
spreader boom which was being
moved by the link belt."
§

Inspector Summers subsequently modified the citation on
October 8, 1985, to include the following condition or
practice:
"The linkbelt 518 operator was not certain that
all persons were in the clear before he put his machine into
operation. Three (3) employees were on the 20 meter cross

1674

pit spreader boom which was being moved by the linkbelt
operator. 11
§

Citation No. 2339412, August 20, 1985, 30 C.F.R.
77.1710(g).
Three (3) employees were on the 20 meter
cross pit spreader boom was (sic) wearing
safety belts but the lines was---f sic) not tied
off.
Due to equipment failure the boom flip
(sic) upward.
The three (3) employees were
thrown from the platform, one fell to his
death. The two remaining employees managed to
grab hand rails and climb (sic) to safety.
Citation No. 2339413, August 20, 1985, 30 C.F.R.

§ 77.205(e} or 77.404(a).

The elevated walkway along the left side
of the 20 meter boom on the cross pit spreader
was not maintained in good condition in that
the hold downs for the floor plate had been
removed. The boom flip (sic) upward due to
equipment failure, the floor plates came loose
and fell to the ground. One Cl) of the three
employees on the walkway fell to his death.
MSHA's Testimony and Evidence
MSHA Inspector Donald R. Summers, testified as to his
background and experience, and he confirmed that he conducted
an investigation of the circumstances surrounding the fatal
accident. He identified copies of the citations he issued as
a result of the investigation, and also identified a copy of
the investigation report and certain photographs which he
took during the investigation (Tr. 15-38). He confirmed that
he began the investigation on the morning of August 20 (Tr.
17).
With regard to photographic exhibit P-16, of the cited
walkway and the clamps which Mr. Summers claimed were not
secured, he conceded that he did not know the condition of
the walkway prior to the accident, nor did he know whether
the walkway was secured prior to that incident (Tr. 33).
Mr. Summers stated that company representative Woodson
accompanied him on a "quick walk through look" of the accident area and explained that the 518 linkbelt crane was
connected to the end of the 20 meter boom in order to move

1675

the boom from a westerly direction to an easterly direction
to facilitate the loading of certain counter-weights on the
machine, and that the machine could not move under its own
power (Tr. 40, 44). Mr. Summers confirmed that Mr. Woodson
identified the three employees who were on the boom, but he
could not state whether Mr. Woodson explained what the three
were doing on the boom. Someone else advised him that one of
the employees was on the boom securing a choker on the end of
the boom, and he pointed out the choker in question in photographic exhibit P-7, in the center, hooked on the right-hand
lower corner of the beam on the end of the boom. He was told
that the accident victim had secured this choker at the location shown in the photograph (Tr. 41-43).
Mr. Summers was of the opinion that none of the employees
should have been on the boom while it was being moved, but he
saw no reason why they cou;J.d not be there prior to its being
moved (Tr. 49). He saw no reason why the choker in question
could not have been installed while the boom was stationary
and not being moved (Tr. 50).
·
Mr. Summers stated that his investigation revealed that
the accident victim was in the process of placing the choker
over a brace on the end of the 20-meter boom in order for a
cherry picker to receive the boom when it passed under
another 70-meter boom. The linkbelt crane could not pass
under the 70-meter boom, and another piece of equipment was
to be used to connect onto the boom in order to pull it in a
westerly direction. Mr. Summers stated further that it was
his understanding that the victim was standing on the lefthand walkway at the end of the boom as shown in photographic
exhibit P-7, and while he was inside the walkway hand rail,
he was leaning over the hand rail connecting the choker.
Mr. Summers stated that if the victim was leaning over the
hand rail, he should have been tied off by a safety lanyard
(Tr. 51-52). Although the investigation revealed that the
victim was wearing a safety belt, it was not secured (Tr.
5 2)

n

Mr. Summers stated that his investigation revealed that
while the. boom walkway was secured within the hand rails,
sometime during the construction phase af the cross-pit
spreader, the left-hand walkway had been removed in order to
allow access to the electrical cable located in a tray under
the walkway and for painting purposes. The walkway had been
removed and not secured back in place (Tr. 52). All of the
walkway had clamps removed or either not secured back in
place (Tr. 52).

1676

on cross-examination, Mr. Summers confirmed that he has
inspected the mine site at least once a month, and that aside
from the citations issued in the instant proceedings, he has
issued only two prior citations at the site in the past
3 years. He agreed that the company makes a good faith effort
to comply with the law. He also confirmed that he had previously inspected the cross-pit spreader and linkbelt crane
and never issued any citations for any violations on that
equipment. He also observed the crane operators operating the
equipment, and had no problem with the manner in which they
did their work (Tr. 56-57).
Mr. Summers stated that he issued the citations to Austin
Power because it was in charge of the erection site for the
cross-pit spreader. He confirmed that the DeMag Company
designed the manufactured the spreader and the 20-meter boom,
and he could not state whether that company had supervisors on
the site to insure that Austin Power was erecting the spreader
in compliance with their specifications (Tr. 59).
Mr. Summers stated that the failure of an eyelet used to
connect a hydraulic device used to lower and raise the
20-meter boom to the boom's structure was a contributing
factor to the accident (Tr. 61). The failure of the eyelet
caused the boom counter weight to take over and resulted in
the sudden and unexpected raising of the end of the boom.
Mr. Summers confirmed that he had previously observed the
eyelet before the accident, and saw nothing which caused him
any concern. He also confirmed that from his prior inspections of the equipment, including the eyelet, no one could
have foreseen that the eyelet would fail (Tr. 63).
The 20-meter boom is one part of the entire cross-pit
spreader machine. The boom was described as a conveyor which
received dirt that was removed or stripped from the ground.
The 70-meter boom also digs dirt from the ground, but from
another area of the open pit mine. The excavated materials
from both booms are received by the spreader and discharged
in other locations. Mr. Summers described the booms as
movable conveyor systems which receive the materials which
are dug by the bucket wheel escalator part of the spreader.
Although the digging apparatus and booms are separate pieces
of equipment, they are connected together electrically (Tr.
66). The two cranes in question were simply used to reposition one portion of the 20-meter boom while the counterweights were being loaded (Tr. 65).
Mr. Summers stated that the 20-meter boom has walkways
or catwalks on both sides of the boom conveyor. The walkways

1677

are equipped with a standard guard rail consisting of a top
rail approximately 42 inches off the walkway surface, and a
midrail.
It also has a toeboard constructed of angle iron.
Although the boom is designed to move up and down and left
and right, .Mr. Summers was of the opinion that employees
should not be on the walkway while the boom is in operation.
He believed that a chain should be across the access to the
walkway, with a sign indicating that no one should be on the
boom while it is in operation (Tr. 69). Mr. summers confirmed
that no one from Austin Power, DeMag, or Texas Utilities ever
informed him that employees were not to be on the boom while
it was in operation, and that this is simply his opinion (Tr.
71).
Mr. Summers confirmed that the cross-pit spreader moves
on tracks, and that when it moves, the 20-meter boom also
moves because it is attached to the spreader. He did not
know how many employees would be on the spreader while it was
in operation, and he assumed that one employee would have to
operate the spreader, and two others would have to operate
the bucket wheels at the end of the 20 and 70 meter booms
(Tr. 72). He described the cross-pit spreader as a .structure
approximately a half a mile long and 500 to 600 feet high,
and the super structure looks "much like a large ship out in
the middle of the mine," with catwalks and walkways all over
it (Tr. 74).
Mr. Summers stated that on the day of the accident, five
counter weights, approximately 24,000 pounds each, were being
loaded onto the boom, and the boom did not have any independent power while this was being done because the power had
not been connected <Tr. 76-78).
Mr. Summers confirmed that the crane in question was
used to lift the boom in order to remove some cribbing from
under it, as well as moving it from left to right, or from
east to west. The only lifting action of the crane would be
for the purpose of removing the cribbing, and onca this was
done the linkbelt crane was to be used to rotate the 20-meter
boom back under the 70-meter boom. Since the linkbelt crane
could not move the 20-meter boom completely under the 70-meter
boom, a cherry picker was to be used for this task, and he saw
nothing wrong with this entire procedure {Tr. 81).
Mr. Summers stated that Austin Power has a safety
program, and he confirmed that it has a mandatory policy
requiring employees to be tied off if they are in danger of
falling.
He stated that during the time he has inspected the
facility he has never previously cited Austin Power for a

1678

violation of section 77.1710(g).
He confirmed that he had
been on the same cited 20-meter boom walkway in the past
while inspecting the spreader and did not wear a safety belt
(Tr. 103). With regard to his application of section
77.1710(g), Mr. Summers stated as follows (Tr. 104-106):
Q.
Thank you.
Now, let's take a hypothetical,
that you were inspecting the 20-meter boom and
you were walking out to the end of the boom,
but you weren't performing construction work.
Is that right?
A.

That is right, sir.

Q.
And you didn't have to be tied off in that
situation, did you?
A.
If I was walking out there, you couldn't
tie off and walk down the boom.

Q.

Okay, let's say you were walking out there
and you were inspecting it and the eyelet
failed.

A.

Okay.

Q.

And you weren't tied off.
And the same
thing might have happened to you that has
happened to Mr. Smith, wouldn't it?

Ao

If the floor plate and all that hadn't
been secured, more than likely would have.

Q.

And would you have been, then, in
non-compliance with 1710(g)?

A.

No, sir.

JUDGE KOUTRASi

Why not?

THE WITNESS:
I was travelling from one area
to the other.
I wasn't performing any work
that would be requiring me to be outside the
hand-rail.
JUDGE KOUTRAS:
So that pre-supposes that this
particular individual at the time of the accident was outside the hand-rail?

1679

THE WITNESS:

Yes, sir.

MR. MCCOWN: So the point of your issuance of
a citation, which I assume that since these
other gentlemen, Mr. Cameron and other people
-- your supervisors -- aren't here, the whole
point on the citation is that a man was outside the hand-rail, and therefore, that was
the danger. Right?
THE WITNESS: And performing work at a
elevated area.
MR. MCCOWN:

So

THE WITNESS:

He should have been tied off.

MR. MCCOWN: So the other two employees that
were pp there, if they were just standing
around, they didn't need to be tied off?
THE WITNESS:
off, sir.

They wouldn't have to be tied

MR. MCCOWN: But for the fact that they were
able to grab hold of the side of the catwalk,
they would have been killed just as much as
Mr. Smith had, wouldn't they?
THE WITNESS:

Rather fortunate.

In response to further questions, Mr. Summers stated
that had it not been for the sudden jerking of the boom
caused by the eyelet failing the other two employees on the
boom were not in danger of falling. He conceded that he
issued the citation because of his concern that the three
employees were on a piece of moving equipment and his belief
that they should not have been there in the first place.
Mr. Summers knew of no mandatory standard that specifically
prohibits work on a moving piece of equipment. Assuming he
saw three employees on a catwalk 36 feet above ground on a
moving piece of equipment, he would issue a section 107(a)
imminent danger order because of the danger of falling even
though they may be protected by a hand rail, because the walkway would be unstable (Tr. 108-109).
Mr. Summers stated that no employees would be required
to be on the end of 20-meter boom while the counter weights
are being loaded, and that they would be positioned at the

1680

rear of the boom giving hand signals to the crane operator.
He conceded that he has never observed counter weights loaded,
and assumed that since they cannot be observed from the
ground, someone had to be there (Tr. 111). He suggested that
no one should be on the end of the boom while it is being
moved, and that there would be less of a danger if they were
at the rear of the boom because the movement would be slower
(Tr. 112). He conceded that at some point in time someone had
to go the end of the boom to disconnect the linkbelt crane and
hook the cherry picker to the boom in order to move it under
the 70-meter boom, and that the eyelet could have failed at
that point in time before the boom was moved (Tr. 113).
With regard to the walkway grating citation, Mr. Summers
stated that while it was his opinion that section 77.205(e)
applies to the condition that he cited, section 77.404(a) and
77.1606 were equally applicable (Tr. 114). He confirmed that
he did not issue the amended citation, and still believes
that section 77.205(e), is the better standard (Tr. 114).
Mr. Summers confirmed that he had nothing to do with the civil
penalty assessments in this case, and that he had no communication with anyone in MSHA's office of assessments (T:r:. 120).
Mr. Summers believed that the conditions he cited as violations were contributing factors to the fatality which occurred
in this case (Tr. 123).
With regard to the walkway grating fasteners, Mr. Summers
stated that if they were properly connected to the grating,
they would have prevented the grate from moving in either
lateral or vertical directions. He stated that in photographic exhibits P-15 and P-16, the clamps are not extended
all the way under the walkway or under the piece of angle
iron, but only halfway. He pointed out that the right-hand
walkway was properly secured with the clamps and none of the
grating was thrown off or disrupted when the accident
occurred. He assumed that the reason that all of the grating
on the left side of the boom was not thrown off was the fact
that the raising of the boom was less violent at that location (Tr. 124). He confirmed that the 20-meter boom was
still under construction at the time of the accident, and
that a few adjustments were still to be made before it was
placed into operation (Tr. 124).
Mr. Summers confirmed that the location where the eyelet
failed was the same side as the walkway on which the accident
victim was standing. His investigation revealed that the
grate clips or fasteners were not broken off by the force of
the eyelet breaking, but were simply loose and unsecured. He
had no way of knowing whether the force of the boom moving

1681

because of the failure of the eyelet caused the fasteners to
come loose, and that he was informed by Mr. Woodson and
Mr. Arent that the floor grating had been removed and not
secured back down (Tr. 126). Mr. Summers stated that there
was a difference of opinion as to whether the accident victim
fell through the openings that were left when the walkway
grating flipped up, or whether he went over the top of the
hand railing (Tr. 127). Had the walkways been fastened down,
the victim could possibly have come down on the walkway when
he was catapulted into the air rather than down between the
opening (Tr. 127}.
Mr. Summers stated that the information he received during his investigation through the interviews with the survivors indicated that the three employees on the 20-meter
boom at the time of the accident were instructed to go out on
the boom to tie the choker on in order to facilitate the moving of the boom under the 70-meter boom. The breaking of the
eyelet had a "whiplash effect," and when the end of the boom
flew up and settled back down, six or eight of the walkway
plates came out of the channel and fell to the ground (Tr.
129)0
Russell Crowell, testified that he is presently employed
by Erection and Rigging Inc., White Oak, Texas, and that at

the time of the accident in question he was employed by
Austin Power at the Big Brown Strip as an iron worker-rigger
and crane operator.
He stated that he has 9 years of experience as a crane operator, and confirmed that he was operating
l
nkbelt crane on August
, 1985. He described what
was doing as follows (Tr. 132-134}~
About 10~00 I was instructed to bring the
rig up to the 20-meter receiving boom, to tie
onto it, and
ter I tied onto it, .we picked
it up five, six inches, enough to get the shor~ng out from underneath it; tracked backwards
th the rig; which swung the 20-meter boom
from the westerly to the easterly position;
s
in a dogged off position for around
five and a half hours, while they loaded
counter weights with another crane from the
other side"
What time, or can you give us a·n approximate time that you finished, or that the shoring was removed from the 20-meter boom so you
were able to swing it around?

Q.

1682

A. That wasn't maybe 45 minutes.
very long.

*

*

*

*

*

It wasn't

*

*

A. After the fifth counter weight was loaded
and into position, I was instructed to slack
off, which I slacked the rig off. It was suspended by itself; they checked for movement on
the boom; there wasn't any.
I was instructed
to pick back up enough just to get my chokers
taut.
The rigging was taut and I walked the
rib back into position, just a reverse procedure to what we had done that morning.
And just prior to getting, oh, 30-foot or
so from coming up to transferring the rigging
from the 518 to cherry picker, the pin failed
and the load went up and Steve came down.

Q. Who was giving you the instructions on
what to do that day?
A. There were several people involved, among
one Alvin, the German; Woody and Pat Patterson.
At one time, Jim White may have even relayed
signals.

Q. Now, Woody is Sydney Woodson, the job
superintendent.
Is that right?
A.

Yes.

Q.

And who is Jim White?

A. At that time was general foreman on the
project.

Q. Now, I understand that you were attempting
to swing the 20-rneter boom under the 70-rneter
boom so it could be tied onto with a cherry
picker.
Is that correct?
A.

Yes.

Q. Was anybody on the 20-meter boom when you
were attempting to swing it around so it could
be tied onto the cherry picker?

1683

A.

Yes.

Q.

Who was on it?

A. Jeff Arent, Kevin Saulsburg and Steven
Smith.
Q.

Do you know why they were on it?

A. They had work to do out there; they had to
be out there to transfer the rigging.
Mr. Crowell stated that he did not actually see the accident, but saw the accident victim Steven Smith in the air.
He explained that his view was obstructed by the boom and
that Mr. Smith was on the back side of the boom. He confirmed
that he was not present when the three employees were told to
go up on the boom (Tr. 136).
On cross-examination, Mr. Crowell stated that in addition to instructions by an employee of DeMag Company, he also
received instructions from Mr. Woodson with respect.to the
lifting of the 20-meter boom with the crane for the purpose
of removing the cribbing. The boom lifted just enough to
remove the cribbing, and he denied that his operation of the
crane had anything to do with the failure of the eyelet, or
that the crane put any undue stress on the boom (Tr. 140).
He experienced no difficulty in moving the 20-meter boom
laterally and indicated that it was "free-swinging" (Tr. 141).
With regard to the movement which was experienced, he stated
as follows (Tr. 141-142)~
Q.
Now you testified that there was a movement between the loading of the third and the
fourth counter weight. At that time, when
that happened, did you feel like there was any
problem with any part of the construction
process that was going on?

A. No, I didn't. I couldn't see what was
going on the back side, and at the time of
these counter weights being loaded, when they
would lower them into the framework, they
would bump
counter weight framework that
they set in, and I was getting bumps and
shocks all day long. But that was when there
was counter weights being loaded. And at this
time I could tell from the position of the
other rig that he wasn't coming in with a

1684

counter weight.
way.

He was swung out the other

Q. So, this particular movement that you felt
was unrelated to a loading of a counter weight.
Is that correct?
A.

Yes , it was •

Q. And that is the one that you also feel, in
your opinion, Mr. Smith noticed, too?
A. Yes, he asked me if I had done anything,
was I still dogged off. And I said yes, I am
dogged off, I didn't -- haven't touched
anything.

Q. Did you report this movement that you felt
between the third and fourth counter weight to
anyone?
A.
No, not until the 20th, in retrospect.
got to thinking about it.

We

Q. Do you know if Mr. Smith reported it to
anyone?
A. No, he did not.
He turned around and went
right back to loading the counter weights.
Mr. Crowell confirmed that he considered Mr. Smith to be
a good and safe worker 1 and that they worked together as
riggers. Mr. Crowell confirmed that when he began to swing
the 20-meter boom back into position just before the accident
he knew that the three employees in question were still on
the walkways, but did not consider them to be in any danger
because the boom or load was not freely-suspended, but was
pinned to the main frame with the eyelet which failed, as
well as by big pins at the fulcrum (Tr. 144).
In his view,
no part of his crane posed a danger to the three employees
who were on the boom.
He believed that all three individuals
were clear and free from any danger from the boom or the
crane he was operating (Tr. 144).
Mr. Crowell stated that when the eyelet failed, and the
load went up, he had eye contact with Mr. Smith as he fell to
the ground below, and that he noticed Mr. Saulsburg's legs
dangling out from "underneath the off side" of the boom (Tr.
14 5).

1685

In response to further questions, Mr. Crowell confirmed
that he had in the past worked on the walkway at the end of
the boom in question adjusting chokers or tension on the
belt, or doing a number of other things. He confirmed that
Mr. Smith was rigging a choker at the end of the boom, and
while he could not see the side of the boom where Mr. Smith
was working, he assumed he was rigging one of two chokers
shown in photographic exhibits P-10 and P-11, but was not
certain as to which one he was working on at the time of the
accident (Tr. 147). He believed that the choker located at
the end of the boom was installed earlier in the day while
the boom was still in its original position on the cribbing.
Assuming that Mr. Smith installed that particular choker,
Mr. Crowell believed that he could have done it while on his
hands and knees by reaching through the walkway mid-rail. He
believed the other choker could have been installed by pulling up a piece of the grating and wrapping it. He confirmed
that he had installed chokers in this fashion in the past,
but that he used a safety belt and was tied off. He confirmed
that he always tied off "when you stand a chance of falling."
He explained that if a piece of grating were removed, there is
a chance of falling because "that leaves an open hole, and you
are bent over into it" (Tr. 150). When asked why Mr. Smith
was not tied off at the time of the accident, Mr. Crowell
responded 11 He felt there was no danger, I am sure. The grating was - must have been in place, or something. I know Steve
just wouldn't jump right out there and take a chance" (Tr.
150).

Mr. Crowell believed that the failure of the eyelet was
a "freak design," and that he had never experienced this
before. He confirmed that he saw some of the grating fly off
the walkway and that it hit the ground just prior to
Mr. Smith. He stated that "it all happened at once, * * * it
was raining grating and one body" (Tr. 150). With regard to
the grating in question, Mr. Crowell stated as follows (Tr.
151-152):

WITNESS: It is secured grating. It is in
there. The only way that it could have come
out would be the way that it -- to have had a
pin failure and that thing have such a whiplash attitude. The grating -- for it to come
out of those channels -- had to come straight
up, turn on edge and then go through the hole,
because the catwalk framework is made out of
angle iron that is turned in toward each
other.
THE

1686

The only movement of these -- and especially these here are fitted pieces of grating; they are mitered in.
So you don't have
any clearance left or right in this angle iron
frame, and as long as all pieces of grating
were in, you have no forward and back movement.
The only movement that you could have would be
straight up. And when the pin failed, it
catapulted everything.
It threw the grating
straight up.
JUDGE KOUTRAS: Would you have any -- as a
rigger, would you have any problem with walking on some grating that wasn't pinned or
secured the way it was supposed to be?
THE WITNESS:

*

*

No, not in that type of design.

*

*

*

*

*

JUDGE KOUTRAS: Let me ask you this. As a
rigger, let's assume -- this is a hypothetical.
Let's assume that a couple of pieces of walkway are removed, and you had to go up and walk
on the supporting steel structure to do some
work, without any walkways under it. Would
that cause you any problem.
THE WITNESS:
JUDGE

KOUTRAS~

No"
Why wouldn 1 t

it?

THE WITNESS:
It is an acceptable risk. Whenever you hire in in this business and putting
a rigging belt onv it is high risk. You
better know what you are doing.
JUDGE KOUTRAS:

Would you be tied off?

THE WITNESS:
wouldn 1 t.

Not while I was moving, I

JUDGE KOUTRAS: While you were walking along
that structure, you wouldn't be tied off?
THE WITNESS:

Not while I was moving.

1687

JUDGE KOUTRAS:
off?

When would you tie yourself

THE WITNESS: When I stopped and got to my
work station.
Mr. Crowell stated that he was not familiar with the
safety standards cited as violations in this case. When
asked to explain his understanding of section 77.1607(g)
requiring equipment operators to be certain, by signal or
other means, that all persons are clear before starting or
moving equipment, he replied as follows (Tr. 154-157):
THE WITNESS:

Yes, it is your responsibility
not to jump into a rig, crank it up and run
over the mechanic that is changing your oil.
JUDGE KOUTRAS: Very well put. Very well put.
What kind of instruction do you get with
regard to.that safety standard?
THE WITNESS:

I

was flagged to propel the rig.

JUDGE KOUTRAS:
Did it ever dawn on you on
this day that, with these three people being
on that 20-meter boom, that you may have been
violating some safety standard by moving that
rig while these three fellows were on there?
THE WITNESS: No, it was not a freely-suspended
load.
Had it been a freely-suspended load, I
may have had some thoughts on the matter, but
it is not like riding a connector up on a ball,
which happens frequently in the construction
business.
It wasn't that type.
It was a main
structural component. You know, in retrospect,
sure they shouldn't have been there, but then
again
JUDGE KOUTRAS: Why do you say they shouldn't
have been there?
THE WITNESS: Well, you know, the accident
happened is why.
But they could have just as
easily have been there, had that pin not
failed.
It was an acceptable risk to the
rigger.

1688

JUDGE KOUTRAS: What do you mean by a
freely-suspended load?
THE WITNESS: One where the crane is in total
control of it, that I am not pinned off, as I
was with that. One end was pinned off.
I
wasn't applying any lift. I was applying
lateral movement, left and right, just
swinging.
JUDGE KOUTRAS: Now, what are your instructions
as a crane operator to look out for that
mechanic that you just mentioned when you
defined the standard for me here? If you are
lifting a free-load, so to speak, do you stop,
look, see if anybody is on it or clear of it
before you attempt to move it, or just what
procedure there do you do?
THE WITNESS: Yes, you use your years of
experience and common sense and judgment call
on all lifts.
I have shut lifts down in the
middle of a lift because I knew it was going
to be unsafe. And I am not afraid to. That
is part of my responsibility. Had I had any
-- had I known my rig would have been in any
bind or anything like that, somebody would
have definitely known about it.
JUDGE KOUTRAS: How about blind lifts? Have
you ever had occasion to lift lifts that were
totally out of sight?
THE WITNESS:

Yes.

JUDGE KOUTRAS~ Well, what procedure did you
use there to ascertain whether or not there
was anyone -THE WITNESS: Well, you can either use
walkie-talkies, you can use headset with
radio/telephone, or you can telegraph signals
by hand signals.
JUDGE KOUTRAS: But in this case, you knew
three men were up there, right?
THE WITNESS:

Yes.

1689

JUDGE KOUTRAS:
Because one had signalled to
you, Mr. Smith himself?
THE WITNESS: That -- prior to the accident.
That was two hours before.
JUDGE KOUTRAS:

Oh, I see.

THE WITNESS:
It wasn't just before it
happened, no. This was two hours earlier,
when we were loading between three and four.
And we put in four and five.
JUDGE KOUTRAS: Were they up there when you
were doing the slight lifting to get the shoring out?
THE WITNESS:

No.

JUDGE KOUTRAS:
You indicated in response to
questions by Mr. Fitz that when you were maneuvering that 20-meter boom, that these three
men were out there, and one of your responses
was, well, they had to be there because they
had some work to do.
THE WITNESS:

Uh-huh.

JUDGE KOUTRAS:
So you were aware that they
were out there doing something?
THE WITNESS~

Yeso

JUDGE KOUTRAS: And they were kind of out of
your line of sight?
THE WITNESS:

side, yes.

I

They were in the blind on my
knew they were up there.

JUDGE KOUTRAS: And you say it is not unusual
for there to be this lateral movement with
people on it doing work?
THE WITNESS:

No, not unusual.

Mr. Crowell stated that he did not know how close he
would bring the 20-meter boom to the cherry picker so as to
transfer the boom from the 518 crane to the cherry picker and
that this would have been a "supervisor's call shot." He

1690

indicated that he would have manuevered his c.rane as close as
possible, and that the choker would have been passed and
installed by hand from the boom to the cherry picker. He
believed that this could have been dpne by someone on the
walkway while inside the hand rail (Tr. 158).
Jeffrey D. Arent, testified that he no longer works for
Austin Power, but was so employed as a helper for approximately 6 months, including August 19, 1985, the day of the
accident. He confirmed that he, Mr. Smith, and Mr. Saulsburg
had been working on the boom all day installing counter
weights. Mr. Smith summoned him to go to the end of the boom
to see if it was stable, and they determined that it was and
that it had no movement. Mr. Arent confirmed that Mr. Smith
placed a choker on the end of the 20-meter boom. He identified photographic exhibits P-7 and P-8 as the boom walkway
location where they were located at the time of the accident,
and he stated that Mr. Smith was at the end of the boom and
that he (Arent) was at the other end where there is a bend in
the walkway as shown in exhibit P-8. Mr. Arent stated that
he observed Mr. Smith tie the choker onto the end of the boom
by bending over the hand rail "not very far out," and he
observed that Mr. Smith "wrapped the choker around the beam
and put the eye through the other eye." He stated that
Mr. Smith "just had his head just barely out and his hands
were out there" (Tr. 163).
Mr. Arent stated that he could not recall whether the
boom was stationary or was being moved in a lateral direction
while Mr. Smith was installing the choker. When the eyelet
failed, Mr. Arent stated "all I remember is that I went up
and hit my head" and that he came down in that same spot
where there was an extra beam. Mr. Arent stated that he hit
his head on the overhead walkway roofing, and when asked
whether he was aware that the walkway grating was not fastened
down before he went there with Mr. Smith, he responded "we
didn't pay no attention to it" (Tr. 164). He stated that
Mr. Saulsburg was between him and Mr. Smith on the walkway.
When the eyelet failed, Mr. Saulsburg also went up in the air
and hit his head, but came down and caught himself. He confirmed that he and Mr. Saulsburg were able to come off the
boom by walking down the sides. When the eyelet failed, he
did not see what happened to Mr. Smith and Mr. Saulsburg
because "I was worried about myself" (Tr. 166).
On cross-examination, Mr. Arent examined photograph
exhibit P-7, and stated that the choker at the end of the
boom which is circled in blue in the photograph was not the
one that Mr. Smith was installing at the time of the accident.

1691

He stated that Mr. Smith had installed that choker prior to
the accident, and that the one he was installing at the time
of· the accident was the choker which is shown around the walkway structure outby the end of the boom. Mr. Arent marked an
"X" where he believed Mr. Smith was located installing the
choker just before the accident. He then stated that the "X"
mark is where he observed Mr. Smith putting on the choker
that he testified to on direct examination, but then stated
that he did not know whether that was the choker "that we are
talking about" (Tr. 169). He stated further that he did not
observe Mr. Smith install the choker which is circled in
exhibit P-7, and explained as follows at (Tr. 167-168):
A. Well, I don't know. I think he put it up
there earlier. He was doing that before he
did the other one that was over at -- it
should have been out here where he was putting
it, though, because that is where he was at,
unless he dropped that choker when he -- that
he was working on.
Q. So the choker that is circled on P-7 -did you see him put that choker on?

A.

No.

Q. You did not? So the testimony that you
gave before about him standing and leaning
over the rail or doing anything, that doesn't
apply to this particular choker that is
circled?

A.

No.

Q.
is

If anything, it applies to the one that

A.

He was out over here.

Q.

At the end of the catwalk?

A.

Yes, he was out in this area.

Mr. Arent identified a smaller second choker, as shown
in photographic exhibit P-8, and confirmed that it appeared
to be wrapped around the angle iron on the catwalk. When
asked whether this was the choker that Mr. Smith was working
on, Mr. Arent replied "Could have been" (Tr. 170). He further
explained as follows (Tr. 170-171):

1692

Q.
Could it have -- if he was applying it at
the end of the -- where you have him marked as
an x at P-7, would the fact that it goes
around the back side, where you have marked on
P-8 -- would that prevent it from being pulled
all the way to the end of the -A.

Yes.

Q.

It would? So does that mean -- would you
agree then, that probably is not the choker
tha.t he was putting on?

A.

I don't -- it don't seem like that would
be the one, because he was out on the end.

Mr. Smith kneeling down?

Q.

And was

A.

Yes.

Q.

was he on all fours?

A.

On his knees, not his hands.

Q.

Okay.
And when you saw him where you have
marked on P-7 with an X, was he reaching
through the mid-rail, between the mid-rail and
the grating, or between the mid-rail -- just
and the top-rail?

A.

Between the middle and the bottom.

Q.

He was reaching between the mid-rail and
the bottom, where the grating would be, where
the toeboard is?

A.

Yes.

JUDGE KOUTRAS:
Mr. Arent, I thought you said
on direct that he was reaching over the top,
slightly not too far over it.
And now it is
the middle and the bottom?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Yes.
What was it?
The bottom.

1693

JUDGE KOUTRAS: What moved you to say the top,
when asked on direct?
THE WITNESS: I don't know.
question was asked.

Just the way the

Mr. Arent stated that if Mr. Smith was standing on the
grating and reaching over the hand rail there would be a
danger of falling because he could lose his balance and go
over the top of the railing.
If he was reaching over, he
should have been tied off, but if he was kneeling, he would
be more balanced and did not need to be tied off (Tr. 174).
Mr. Arent stated further that when he observed Mr. Smith on
his knees reaching through the hand rail, he believed his
head was outside the mid-rail, but his shoulder was not (Tr.
173).
Mr. Arent confirmed that he was wearing a safety belt at
the time of the accident, but that he was not tied off because
he moved around so much and was not tied off all of the time.
He would tie off if he had a wrench in his hand and was using
it. He also confirmed that he had his lanyard line with him
and that it is part of his regular safety equipment, and that
Mr. Smith also had his line with him (Tr. 175).
Mr. Arent stated that when he and Mr. Smith were on the
boom, Mr. Smith was his supervisor and he would do what
Mr. Smith told him. Mr. Arent did not know who Mr. Smith's
supervisor was, but he confirmed that general foreman Jim
White told him (Arent) where he was to work that morning (Tr.
177). Mr. Arent stated that he was not familiar with the
safety standards which are in issue in this case, but confirmed that he knew he was supposed to wear a safety belt and
tie off and that he learned this at weekly safety meetings
conducted by Mr. White (Tr. 177).
Austin Power's Testimony and Evidence
Inspector Summers was recalled, identified several photographs of the eyelet which failed, and the scene of the accident, and described some of the damage to the eyelet (Tr.
183-184). He also testified as to certain statements and
conclusions which appear in MSHA's "narrative assessment"
concerning the supervising of the work being done on the boom
at the time of the accident, and he confirmed that the statements were not obtained from him (Tr. 185-187).

1694

James c. "Pat" Patterson, testified that he is employed
by Austin Power, and was the rigging foreman at the time of
the accident. He stated that at the time of the accident he
was not aware of any movement of the 20-meter boom between
the third and fourth counter weight loading process, but
learned about it the following day.
Immediately prior to the
accident, he was on the ground and approximately 35 to 40 feet
from the end of the boom. Mr •. smith was kneeling on the catwalk putting a choker around the framework under the grating.
The choker was to be used to lead the boom around with the
cherry picker, and his feet were at the place marked with an
"X" on exhibit P-7. Mr. Smith was reaching underneath the
mid-rail, but Mr. Patterson did not see how much of his body
was through the rail. Based on his experience as a rigging
foreman, and 30 years of construction experience,
Mr. Patterson did not believe that Mr. Smith was in danger of
falling (Tr. 197).
Mr. Patterson stated that company policy required
Mr. Smith to have his safety belt on at all times he is off
the ground, and if he is outside the handrails, he is required
to be tied off. The safety belt also serves as a tool belt,
and it has a lanyard attached to it. Mr. Patterson did not
believe that Mr. Smith was required to be tied off at the location that he was in at the time of the accident (Tr. 197).
Mr. Patterson stated that after Mr. Smith fell to the
ground, he saw that he had a head injury, and when he later
examined the boom, it was his opinion that Mr. Smith struck
his head on a "load cell" located above where his feet had
been on the catwalk. Mr. Patterson described the "load cell"
as the round white object shown by an arrow on exhibit P-7,
and he stated that he observed that the object was bent.
That led him to believe that Mr. Smith's head struck it as
the boom raised up (Tr. 199).
On cross-examination, Mr. Patterson stated that he did
not see Mr. Smith pick up the grating to maneuver the choker
under it, and that he could swing the choker under the grating and reach and catch it with his hand on the other side.
The choker consists of a wire rope, and he likened it to
swinging a piece of rope under the walkway grating. The
choker was not in place at the time, and Mr. Smith was preparing to get it in place to attach it to the cherry picker (Tr.
20 0).
Mr. Patterson stated that he was not aware that the walkway grating was not bolted or clamped down at the time of the
accident, but that "I know that it had been at one time." He

1695

was not made aware of the fact that the grating had ever been
removed after it was initially installed until discussions
which took place after the accident occurred. He stated that
the grating could have been removed for numerous reasons, and
that a painter, an electrician, or some other craftsman could
have done it. Although he could not specifically identify
who may have taken up the grating, he stated that it was not
unusual to do so (Tr. 201-202). He confirmed that normal
procedures, specifications, or verbal directions required
that the grating be clamped at each corner and fastened down
(Tr. 202).
In response to a question as to whether he believe the
walkway grating was in good condition, regardless of whether
it was clipped down or not, Mr. Patterson responded that he
considered it to be safe to walk on (Tr. 203). Mr. Patterson
explained that while he was on the ground before the accident
occurred, he was primarily flagging the crane operator and
also supervising Mr. Smith's work on the end of the boom. He
identified the choking device as the one depicted in photographic exhibits P-10, P-11, and P-14, and confirmed that it
appeared to be tied off around the steel member of the catwalk structure in all three photographs. He stated that
Mr. Smith had tied the choker on and intended to loop it
under the catwalk to the other side and then catch it. He
would have then placed the two eyes of the choker onto the
crane lifting hook in order to maneuver the boom around. No
lifting was required, and the crane would simply lead the
boom with a lateral movement.
Mr. Patterson stated that he did not specifically
instruct Mr. Smith or the other two men as to what they were
to do, and that Mr. Smith knew that the cherry picker would
be used to guide the boom around, and knew that a choker was
required for this task.
The other two men simply followed
Mr. Smith out to the end of the boom because "they were
naturally eager also." Mr. Patterson stated that Mr. Smith
was a journeyman and a good worker, and that he (Patterson)
felt "felt completely comfortable as far as any safety
aspect" (Tr. 205).
Mr. Patterson was of the opinion that the fact that the
grating was not tied down and Mr. Smith was not tied off
would not have prevented the fatal accident in question.
He
stated that by striking his head on the overhead cell,
Mr. Smith was not able to grasp the hand rail as he came down
after the boom raised, and he pointed out that Mr. Arent
caught himself, and Mr. Saulsburg caught himself after falling through the area where the grating was gone and pulled

1696

himself back up. He conceded that had the grating been
secured, it probably would not have popped out with the jerking of the boom.
Although he believed that it was conjecture that the
walkway on the other side of the boom which did not pop out
was subjected to an equal amount of movement when the eyelet
failed and the boom raised up, he conceded that it was probably true {Tr. 207). Mr. Patterson could not explain why the
other walkway did not pop out when subjected to the "whiplash"
movement of the boom when the eyelet failed, and when asked
whether anyone speculated that it did not pop out because it
was secured, he responded "probably, Yes sir" (Tr. 208).
In response to further questions regarding company
policy and the use of safety lines, Mr. Patterson stated as
follows (Tr. 208-209):
JUDGE KOUTRAS: You say that the company
policy is that when any employee is required
to be off ground-level that he is to have a
belt on?
THE WITNESS: At this jobsite, sir, that is
project policy by my boss.
JUDGE KOUTRAS: And then if his work has
occasion to take him outside of the area of a
guard-rail, he is required to be tied off?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: Is this policy written, or how
is it communicated to the employees?
WITNESS: Through regular gang box, tool
box safety meetings.

THE

JUDGE KOUTRAS: But do you know whether or not
it is a written policy of any kind? Do you
all have written work rules there?
THE WITNESS:
JUDGE KOUTRAS:
rules?

Yes, sir.
Is it part of the written work

1697

THE WITNESS:
Yes, sir. We have written
safety books and I don't think it is worded as
such in our safety rule book.
JUDGE KOUTRAS:

Why isn't it?

THE WITNESS: I don't know.
It could be.
I
couldn't swear that it is or isn't.
But at
any time you are in an unsafe area, we know
that we are supposed to tie off. That is in
the book.
But as far as wearing a belt when
you are off the ground on a catwalk with
hand-rails and toeplate, I don't know.
Sidney S. "Woody" Woodson confirmed that he is employed
by Austin Power as a project general superintendent, and was
so employed at the time of the accident. He was the superintendent of the Big Brown Strip Mine, and approximately 30
employees were employed at this job site. The mine is owned
by Texas Utilities and the cross-pit spreader was designed
and manufactured by the DeMag Company from Germany.
DeMag
had a representative on site for the purpose of overseeing
Austin Power's erection of the spreader, and Austin Power had
a contract with DeMag for this purpose, and not with Texas
Utilities. As general.superintendent, Mr. Woodson was
responsible for compliance with all safety regulations at the
site, and he is certified for the safety training courses
given by MSHA (Tr. 210-213).
Mr. Woodson identified a copy of the company safety rule
book given to all new employees at the job site, and copies
of the minutes of 12 "tool box" safety meetings held with
employees, including Mr. Smith, during the period June 3,
1985 to August 19, 1985. Mr. Woodson stated that the meetings included a discussion of the use of safety belts and
lines, and that the meetings are conducted by company supervisor Jim White. Mr. Woodson stated further that he selects
the topics for discussion at the meetings, and that he
usually discusses them with Mr. White (Tr. 213-221).

Mr. Woodson reviewed several photographic exhibits, and
described the location of certain electrical conduit and
boxes located outside the boom walkway. He also identified a
recent photograph he took depicting a chain and a sign across
the boom walkways installed after the accident.
The sign
states "Authorized Personnel Only." Mr. Woodson confirmed
that he inst~lled the chain, and Texas Utilities installed
the sign, but he could not explain who ordered them installed
(Tr. 228-231).

1698

Mr. Woodson identified photographic exhibit R-8, as a
photograph of the catwalk on which Mr. Smith was working at
the time of the accident. He confirmed that he took the
pictures several days prior to the hearing, and when asked
whether it depicts the condition of the catwalk as it
appeared at the time of the accident, he responded as follows
(Tr. 232-235):

Q.
Is this the catwalk that Mr. Smith was
working on at the time of the accident?
A.

Yes, it is.

Q. And was the -- was there any difference in
your understanding as to the condition of the
catwalk as you found it in your picture last
Friday and how it was during the time that the
accident happened?
A.
The grating is laying inside that framework, identically like it was.

Q.

So does it --

A. At the time of the accident, with the
exception of maybe a few of these grating
clips not being clipped down.
I can't
honestly tell you how many of them was and how
many wasn't.

Q. So R-8 fairly and accurately depicts the
way that the grating was laying into the catwalk structure at the time of the accident?
A.

*

Yes, it does.

*

*

*

*

*

*

Q.
Now, let me direct your attention to
Respondent's Exhibit number 8, the photograph.
Would you explain to the ,Judge what Respondent's Exhibit 8 depicts to you, insofar as
the four sections of grating that are shown in
that catwalk, and how they are installed and
. secured.

A.
Well, of course, being four or however
many pieces it is down through there, from

1699

this elevation right here, this catwalk goes
off, drops down 90-degrees, bends 90 and takes
off again.
There is an angle iron frame which
is approximately, now, four-inch angle by
four-inch angle iron.
It is millimeter type,
but it approximately that, which makes the
framework down this side and across the front·
and up the other side, which this grating is
laying down in there.

Q. So all of the four pieces which are
depicted in Respondent's Exhibit 8 at the
coming from the photograph and looking into
the distance, the last four pieces are inside
what is in effect a box of angle iron?
A. Well, you could
frame angle iron.

you could say a box

Q.

Was the angle iron higher than the grating
itself?

A.

It is some higher, yes.

Q.

Was there any way that that grating, if it
was all in place, could move, either left or
right or in any way laterally?

A.
Not under normal conditions.
Just as long
as i t is laying out there flat, no, it can't
come out of there.
Something has got to
disturb it.

Q. Would you consider, in your opinion and
years of experience that you have had in construction industry, for that walkway to be in
good condition?
A.
Well, in my years of construction, we had
let lots of grating like this go unclipped
down, because we felt like that it was safe
grating.
It couldn't come out of that type of
framework, because you had to go back there
and do work later.
Now, we had clipped this
grating down at one time because we had extra
people that didn't have nothing to do, and we
put them and got all the grating clipped down.
It is a good policy to get it all clipped
down.

1700

Q.
Did you consider it unsafe to work on that
grating in that particular condition, the day
of the accident?

A.

No, sir, I didn't.

And, at (Tr. 238):
Q. Mr. Woodson, with regard to the grating,
in your opinion was it necessary to have the
clips in place for the walkway, the grating,
to be in good condition?
A. Not all 100-percent, I wouldn't say. As
long as your grating was laying in the box
frame and laying all down in there properly
and fit down and not any of it pulled up or
anything, where it accumulated a tripping
hazard or some way you could kick some of it
up in the air and cause it to fall.
No, not
if it was all 100-percent uniform laying in
that grating.

Mr. Woodson stated that he was not aware of any movement
of the boom between the loading of the third and fourth
counter weights until after the accident occurred (Tr. 234).
On cross-examination, Mr. Woodson, testified as follows
with regard to the walkway clips (Tr. 238-239):

Q. Mr. Woodson, was it Austin Power's policy
to have the grating clipped down on the
cross-pit spreader at the Big Brown Strip?
A.
To my knowledge, there is not anything in
writing that tells you that it is -- needs to
be clipped down.
It just says grating needs
to be proper secured by means of, and it goes
-- I think there is some stuff somewhere that
tells you, you know, that it needs to be tied
down by means of number 9 wire or grating
clips. There is some place we tie it down
with number 9 wire, sometimes we put it down
with grating clips and sometimes we weld it
down.
Q.
Did you know prior
did you know on
August 19, 1985, prior to the accident that

1701

afternoon, that the grating on what has been
ref erred to as the left side of the 20-foot
boom was not clamped down?
A. No, sir.
I can't honestly say 100-percent
I didn't know that.
Q.
Do you know of any reason why the grating
would not have been clipped down on the left
side of the 20-foot boom, on August 19, 1985?
A. Well, it could have been the painters took
the clips up, it could have been anybody that
took the clips up.
I had been in that area a
couple of three days before that and some of
this grating was clipped down I know, because
I don't recall seeing any of the clips off in
that area when I went in there. Of course, I
don't think I went plumb to the end of the
boom that -- two or three days prior to that.
Mr. Woodson confirmed that the walkway areas are required
to be inspected at least daily during the work shift, and he
stated that he tries to walk the area at least once a day
unless he is busy doing something else (Tr. 241). He confirmed that the walkway grating was required to be secured in
order to abate the citation, and in response to additional
questions, he stated as follows (Tr. 242-243):
JUDGE KOUTRAS:
* * * What I am trying to
understand is -- these plates, these walkway
plates are put in there with items that secure
it down.
Isn't that true? There is a reason
for having it.
THE WITNESS: Yes, sir, that is true; but the
reason for having these on these particular
points is because they are moving booms up and
down and sideways, and clods and stuff is falling on it during operation that could knock
the grating out of there -- that 99-percent of
-- or 99 chances out of 1, that there ain't
nothing going to fall on it and knock the grating out in that condition as you are erecting.
JUDGE KOUTRAS: Once you get it erected and
completely constructed and built and ready to
go, are you telling me that you are still not
required to have the tie down plates on?

1702

THE WITNESS:
No, I am not saying that.
I am
saying that during erection -- during erection.
JUDGE KOUTRAS:
So my question is that once
erected and constructed, if inspector Summers
walks in there and find one of them not tied
down, you are likely to get a citation, aren't
you?
THE WITNESS:

Yes, sir, that is true.

JUDGE KOUTRAS:
You are not maintaining it in
good condition, or in safe condition, or
whatever.
THE WITNESS:

Yes, sir, that is true.

Mr. Woodson agreed with MSHA's assertion that had the
walkways been secured, Mr. Smith may not have suffered fatal
injuries because when he was thrown in the air he may have
been able to land on them and not have continued his fall
(Tr. 247-248).
With regard to the citation for moving equipment without
insuring that employees are in the clear, Mr. Woodson
believed the cited regulation applied to the 518 crane and
not the boom of the cross pit spreader, and that the regulation prohibited anyone from being on a load that is being
picked up off the ground by the crane and lifted into the air
(Tro 249f 252)0
Mr. Woodson stated that after the counter weights were
installed he instructed the crane operator to slack off his
chokers, and since he had only one foot of clearance between
the boom, he had the three employees in question walk out on
the boom to see if the boom would "set down anyway." When it
didn 1 t he instructed the employees to go to the other end of
the boom, and he described what happened next as follows (Tr.
250-253):

* * * Well, we started walking the thing
around and we got the thing nearly around
there in place, these three people that was
out there on the boom, fixing to hook this
choker bn ~hat cherry picker come down the
other side to go out there.
They was back
here at the back at one time.
But they seen
that the boom was getting around here close,

1703

that some point you had to go out there and
hook it on. Some point you had to go out
there.
There was no choice.
So they went up this side, which is the
right-hand side, went around the back, come
down the left-hand side to put this other
choker on, to hook on the cherry picker.
So
they had been out there once before the load
started moving and they was instructed to go
back. And they went back.
JUDGE KOUTRAS:
ing again?

And then the load started mov-

THE WITNESS: Then the load started to moving,
which he moved the load probably 80-percent of
the distance that he was going with it. And
Mr. Smith had already been told to put a
choker on there, prior to us even start moving
the boom back into position. He was told to
put the choker on the front of the boom, here,
but it ended up around the catwalk there.
JUDGE KOUTRAS: Now, the gentlemen in the back
there that operated this particular crane that
day saw nothing wrong with people being out
there when it was moved. They had some work
to do out there.
THE WITNESS: Well, I can't either, because
there is conditions you get in where you have
no choice.
You have to be on it. Now, you
don't want to put a man out there where you
can see a hazard, but I could not see a hazard
at the time that they went out there, because
I didn't know that something was going to go
wrong.
If I had of, I sure wouldn't have sent
them boys up on there.

*

*

*

*

*

*

*

JUDGE KOUTRAS: And in this particular case,
that 20-meter boom, in your eyes, wasn't being
moved?
THE WITNESS:
Yes, sir, only on one end.
It
was rigid on -- I mean, it was fixed on the
other end.

1704

JUDGE KOUTRAS:
moved on?

And which end was it being

THE WITNESS:
of it.

It was moved out on the live end

JUDGE KOUTRAS:
Is that true?

Where the three men were at.

THE WITNESS:
Part of the time, yes, sir.
They was out there part of the time.
But at
the biggest move of the period, they was not
out there.
They was out there nearly right at
the end of the move.
JUDGE KOUTRAS: Mr~ Patterson is sitting there
watching these fellows going back and forth?
THE WITNESS:
Well, Mr. Patterson seen them
walk down this catwalk on one side, yes, sir.
MSHA Arguments
Citation No. 2339411
MSHA argues that as the danger increases, the equipment
operator's duty to assure clearance of persons also increases,
and the operator must be certain that no one will be endangered by star ng or moving equipment. Texas Industries,
Inc., v. FMSHRC, 694 F.2d 770 {5th Cir. 1982), 2 MSHC 1915
(1982). MSHA submits that section 77.1607(g) requ
that
the equipment operator must be certain that all persons both
are clear of the equipment and are not on the load before
starting the equipment and moving the load. MSHA notes that
section 77.1607(k) prohibits persons from working or passing
under the buckets or booms of loaders in operation.
In the
instant case, MSHA concludes that the crane operator knew that
three employees were on the far side of the 20-meter boom when
he began to swing it under the 70-rneter boom.
Citation No. 2399412
MSHA asserts that the facts in this particular case are
similar to the facts in BCNR Mining Corporation, 3 MSHC 2015
(1985), where a violation of section 77.1710(g) occurred when
a worker, without wearing a safety belt and line, placed his
body between the top rail and middle rail on the fourth
floor, lost his balance, and fell through the railings to his

1705

death.
MSHA submits that a reasonable employer should know
there is a danger of falling when an employee is assigned a
task which requires him to lean over or between the guard
rails on an elevated walkway, Great Western Electric Company,
2 MSHC 2121 (1983); Southwestern Illinois Coal Corporation,
3 MSHC 1066 (1983).
Citation No. 2339413
MSHA submits that the cited elevated walkway was not
maintained in good condition since its expanded metal floor
plates were not fastened to its frame to prevent them from
becoming dislodged if the elevated walkway moved or jumped
because of some unexpected external force.
Austin Power's Arguments
Citation No. 2339411
Austin Power contends that mandatory safety standard
30 C.F.R. § 77.1607(9), does not apply to the circumstances
which existed at the time of the accident.
In support of
this argument, Austin Power states that the accident was
caused by an unexpected failure of an eyelet on the cross pit
spreader which resulted in a quick, unforeseeable movement of
the 20-meter boom, and that at the time of the accident, the
crane operator was pulling the 20-meter boom because the
electricity was not connected to allow the boom to move on
its own power. The crane operator was well aware of the fact
that the three employees were working on the boom as he was
swinging it around. When in operation, the boom is designed
to slowly move vertically and horizontally, and it is
designed to allow employees to work on the walkways.
Austin
Power maintains that the inspector's contention that the
three employees should not have been on the boom during its
operation goes against the design and purpose of the machine.
Austin Power maintains that the crane operator was in
fact receiving signals throughout the day, and that the situation presented is not one in which the crane operator backed
over an individual because he failed to receive signals that
all individuals were in the clear. Austin Power points out
that the crane itself posed no danger to the three employees
on the 20-meter boom because the crane did not and could not
come into contact with the employees. Austin Power argues
that MSHA's position that the 20-meter boom was the load of
the crane and as such was an extension of the crane is refuted
by the evidence and any logical interpretation of section

1706

77.1607(g). The 20-meter boom was a separate piece of equipment which was being "walked around" by the crane, and the
crane operator was putting no stress on the boom and his
actions had nothing to do with the eyelet failure.
Austin
Power concludes that the three employees were not "riding the
load" at the time of the accident and were clear of the crane,
and even if they were, the inspector admitted that there is no
prohibition against working on moving equipment or on the boom
of machinery.
In response to MSHA's contention that the three employees
should not have been working on the boom while it was moving,
Austin Power asserts that the equipment was designed to allow
employee access at all times, and that the inspector admitted
that the failure of the equipment was just as likely to have
occurred while the boom was stationary. Austin Power concludes that the fact that the crane operator was moving the
boom at the time of the accident is totally irrelevant.
Austin Power argues that the only relevant factor is
whether the crane operator failed to receive notification
that all persons were in the clear before moving the crane.
Austin Power maintains that the evidence specifically shows
that the operator knew where the employees were standing and
that they were in the clear, the operator was given operating
signals from various individuals, and the operator did not
put the employees in any danger through the operation and
movement of the Link-Belt crane. Therefore, Austin Power
concludes that MSHA has failed to establish a violation of
30 C.F.R. § 77.1607(g).
Citation No. 2339412
Citing Southwestern Illinois Coal Corporation, 3 MSHC
1066 (1983), Austin Power states that the phrase "shall be
required to wear" found in 30 C.F.R. § 77.1710(g), has been
interpreted to require miners to wear safety belts under
appropriate conditions, but does not make operators guarantors that safety belts and lines will be worn by its miners.
Austin Power also cites Peabody Coal Co., 1 MSHC 2076 (1979),
in support of the proposition that mine operators have a duty
to establish a clear and understandable safety system designed
to assure that employees wear safety belts and lines on appropriate occasions and to enforce the established system with
due diligence.
Austin Power argues that the fact that the three
employees in question did not secure their lanyards when they
were working on the 20-meter boom did not create a hazardous

situation. Austin Power points out that while the citation
stated that all three employees were in violation of section
77.1710(g), MSHA acknowledged at the hearing that the two
employees who were not applying the choker when the accident
occurred did not need to be tied off, and that the inspector
in his deposition stated that he based his citation upon his
beli
that the employees were riding on moving equipment
(20-meter boom) and therefore needed to be tied off.
However,
the inspector acknowledged that there is no standard which
prohibits employees from working on a piece of moving
equipment.
Austin Power states that MSHA based its case upon the
belief that the deceased employee was leaning over a handrail
on the walkway of the 20-meter boom while connecting a choker.
Austin Power maintains that the evidence clearly established
that the deceased employee was not leaning over the rail and
was in no danger of falling due to his actions.
In support
of this conclusion, Austin Power asserts that MSHA's own
witness, employee Jeffrey Arent, testified that Mr. Smith was
not leaning over the top rail but was kneeling on his knees
reaching between the middle and bottom rails while applying
the choker, and that he was in no danger of falling.
Austin Power states that the three employees were standing on the 20-meter boom at the time of the accident~
boom was equipped with a standard guard rail which included a
top rail, a mid-rail and a toeboard made of angle iron~ and
the boom was covered by a metal housing. Austin Power points
out that in the Southwestern Illinois Coal Corporation case,
a violation of section 77.1710(g), was found because no guard
rails or protective devices surrounded the employees work
area and a danger of falling existed.
However, in the instant
case, the employees in question were in a protected area and
were in no danger of falling.
Under the circumstances, Austin
Power concludes that section 77.1710(g) is inapplicable to the
facts in this case.
Citing Great Western Electric Co., 2 MSHC 2121 (1983),
Austin Power points out that in reviewing an analogous
standard (30 C.F.R. § 57.15005), the trial judge supplied a
test to in
the phrase "danger of falling."
In that
case, the Commission applied a "reasonably prudent person"
test previously applied in Alabama By-Products Corp., 2 MSHC
1918 (1982), which is as follows:
[W)e conclude that the alleged violation is
appropriately measured against the standard of
whether a reasonably prudent person familiar

1708

with the factual circumstances surrounding the
allegedly hazardous condition, including any
facts peculiar to the mining industry, would
recognize a hazard warranting corrective
action within the purview of the applicable
regulation.
Id. at 2122.
Applying this test to the safety belt standard, the
Commission defined the test in terms of whether an informed,
reasonably prudent person would recognize a danger of falling
warranting the wearing of safety belts and lines.
Austin
Power suggests that an informed, reasonably prudent person
would not have recognized a danger of falling on the protected
walkway of the 20-meter boom. Austin Power quotes the crane
operator's description of the situation: "They were in a catwalk grating area that was covered with a shed.
It would be
like sitting in this chair tied off." Austin Power also
points to the admission by the inspector that he does not wear
a safety belt while inspecting the 20-meter boom, and the fact
that these inspections took place in the same area where the
same inspector now contends that safety belts are required.
Austin Power argues that the evidence in this case
clearly establishes that Mr. Smith was not leaning over the
rail while applying the choker, but was crouched on his knees
within the handrail. However, Austin Power asserts that at
most, Mr. Smith's head was outside the rail, but not his
shoulder, and that he was as protected and balanced as the
other two employees which MSHA acknowledged did not need to
be tied off. Aus n Power concludes that since all three
employees were in situations in which there was no danger of
falling, they did not need to be tied off, and the fact that
a "freak accident" occurred does not change the fact that the
employees were in a protected area.
In further support of
its conclusion, Austin Power cites the belief by rigging
foreman Patterson that Mr. Smith's injury was caused by a
blow to the head from a load cell gauge, and that being the
case, a tied-off safety belt would have provided no additional
protection from the unexpected equipment failure.
Austin Power argues that in the Southwestern Illinois
Coal Coro. case, a danger of falling existed, and the mine
operator was found to have violated section 77.1710(g), when
it left the decision to wear safety belts largely to the disc
on of the miners and failed to offer or cite any specific
guidelines and supervision on the presence of actual fall dangers. Austin Power suggests that if no danger of falling is
present, then the issue of safety instructions and enforcement
is irrelevant. On the facts presented in the instant case,

1709

Austin Power argues that it has proved that it has a clear
safety system which insures that its employees are aware of
the necessity of safety belts under appropriate circumstances
and that it enforces the established system with due diligence.
Au~tin Power concludes that its testimony established that it
has a stated and enforced policy that employees are to wear
safety belts if they are off the ground and are to tie off
with their lanyard if they are outside of the guardrails or in
danger of falling.
Austin Power maintains that the determination as to when
to wear a safety belt and tie off is not left to the
employee's discretion but is specifically set out in its
written safety manual and in tool box safety meetings.
In
this case, Austin Power points out that the minutes of the
tool box safety meetings in which safety belts and lines were
discussed show that they were signed by Mr. Smith, and that
his coworker Crowell, who worked with him on a regular basis,
testified that Mr. Smith was an extremely safe and good
worker who wore a safety belt and tied off when the situation
called for it.
Austin Power asserts that Mr. Smith was killed due to a
highy unexpected equipment failure, and that a tied-off
lanyard may or may not have protected him under these circumstances. Austin Power concludes that at the time of the accident, there was absolutely no foreseeable danger of falling
and that this is the standard by which its actions and ·
policies should be judged.
Citation No. 2339413
Citing Sunbeam Coal Corp., 1 MSHC 2314 (1980), and
Peabody Coal Co., 1 MSHC 2422 (1980), Austin Power argues
that in order to establish a violation of 30 C.F.R.
§ 77.205(e) or 77.404(a), MSHA must prove that elevated walkways and stairways are unsafe. A lack of reliable and substantial evidence that an actual equipment defect affecting
safety and resulting in an accident justified dismissal of a
section 77.404(a) citation, B.S.K. Mining Co., 1 MSHC 2447
(1980).
Austin Power asserts that MSHA failed to establish by a
preponderance of the evidence that clips were actually missing from the walkway grates.· Assuming the clips were in fact
missing, Austin Power maintains that MSHA has not established
that the walkway was in an unsafe condition.
In support of
its arguments, Austin Power states that the evidence merely
proved that grating clips were lying on the ground following

1710

the accident, and that the witnesses, including the inspector,
admitted that they did not know whether the walkway on the
20-meter boom was clamped prior to the accident. Although
rigger foreman Patterson testified that he knew the grating
had been clamped at one time, MSHA based its case on an assumption that the walkway was unsecured, and that this belief is
based upon speculation rather than fact because no one acknowledged
ng the grating unsecured at any time.
Austin Power asserts that the testimony established that
the side of the eyelet which broke was on the left side of
the 20-meter boom, the side on which the employers were standing, and that the inspector admitted that he did not know the
amount of force involved in the eyelet failure, nor did he
know whether the force was evenly distributed on the left and
right sides. Further, MSHA offered no evidence to discount
the possibility that the failure of the eyelet distributed
greater force to the left side of the boom, causing the clips
on the left to be knocked loose. It is entirely possible
given the facts and circumstances that the force of the accident went down the left side of the boom. The clips are not
substantial pieces of equipment and are not designed to withstand the type of force which they were subjected to in this
accident.
Alternatively, Austin Power maintains that MSHA has
failed to prove that a walkway without clips is unsafe. A
finding that the walkway was unsafe is requireu in order to
establish a violation of section 77.205(e) or section 404(a),
Sunbeam Coal Corporation and Peabody Coal Co., supra.
Austin Power argues that the standard.s in issue do not
state, and no case has held, that walkways must be clipped;
they merely refer to maintaining walkways and machinery in a
good, safe condition.
In the case at hand, Austin Power
points out that there appears to be a dispute between MSHA
and the inspector as to the proper standard to apply.
Although MSHA amended the citation to allege a violation of
section 77.404(a), the inspector believed that section
77.205(e) is the more accurate standard. Austin Power suggests that this confusion and disagreement underscores the
inapplicability of the citation to the conduct at hand.
As
an example, Austin Power states that most cases referring to
section 77.404(a) relate to bulldozers and heavy equipment,
Peabody Goal Co., 3 MSHC 1404 (1984).
Austin Power asserts that the design of the walkway
secured the grating from lateral movement due to the angle
iron device which was cut to hold the grates in a tightly

1711

secured position, and that the walkway was of a substantial
steel construction, as opposed to cases such as The Hoke Co.,
1 MSHC 2455 (1980), in which the walkway was found to violate
section 77.205(a} because the guardrail was merely a rope.
Further, Austin Power maintains that the testimony established
that the only way for the gratings to come out of the channels
was from the unforeseeable whiplash effect which occurred
om
the eyelet failure, and that its employees testified to their
belief that the walkway was maintained in a good condition and
that no safety concerns existed with walking on unclipped grating given the design characteristics. Additionally, the
20-meter boom was still under construction at the time of the
accident, and a highly unlikely effect from a "freak" accident
should not be the measure of whether a wa.lkway is maintained
in a good condition. Austin Power concludes that the walkway
on the 20-meter boom, with or without clips, was maintained in
a good, safe condition, thereby meeting the requirements of
sections 77.205(e} and 77.404(a).
Austin Power maintains that even if the grates had been
clipped down, the evidence suggests that the fatality may
still have occurred. First, if clips were affixed to the
grates, the clips quite possibly would have come loose upon
such a severe impact.
Second, MSHA admits that no one knows
whether Mr. Smith was flipped over the guardrail or fell
through an area where the floor grates were missing.
In
response to MSHA's assertion that "it is :i:."easonble to assume
that he was flipped up and came back down, as did the other
two employees," Austin Power points out that no one saw
Mr. Smith fall through the handrail. The inspector stated
that one witness told him that Mr. Smith went over the top
rail. Additionally, Mr. Smith was closer to the end of the
boom than the other employees and could easily have been
catapulted over the edge. Third, foreman Patterson testified
to his belief that Mr. Smith suffered his injury when his
head hit the load cell gauge on the 20-meter boom; the gauge
was bent upon review after the accident. Under this scenario,
Austin Power concludes that secured grating may not have prevented the fatality, and that MSHA has failed to prove that a
hazard existed due to the condition of the walkway.
Proposed Civil Penalty Assessments
With regard to MSHA's proposed civil penalty assessments
for the alleged violations in question, Austin Power argues
that the accident which resulted in the death of Mr. Smith
was an unforeseeable failure of an eyelet on the cross pit
spreader, and that this totally unexpected failure was so
unusual that it goes beyond what is anticipated even by

1712

MSHA's system of liability without fault.
Austin Power maintains that it and its employees did not and could not recognize a hazard when trained individuals were working on a
well-maintained, guarded walkway outside of the zone of danger
from the 518 Link-Belt crane, and that the standards cited are
not applicable to the facts and circumstances which existed at
the time of the accident. Austin Power concludes that the
accident was due to a situation beyond Austin Power's control,
and that the facts presented should not have led to the three
citations and the accompanying penalties.
Austin Power states that whether it knew or should have
known of any unsafe conditions is relevant in determining the
appropriate penalty. Peabody Coal Co., 1 MSHC 2215 (1979).
It believes that it is apparent that Austin Power had absolutely no notice that the equipment was defective, and that
the alleged violations did not contribute to the accident,
nor would further actions by Austin Power employees have prevented the accident. Austin Power believes that its lack of
negligence is relevant criteria in the assessment of penalties.
Peabody Coal Co., 1 MSHC 2422 (1980).
Austin Power takes issue with MSHA's Narrative Findings
for a Special Assessment which led to the proposed civil penalty assessments for each of the alleged violations. Austin
Power points to the inspector's acknowledgement that he had
nothing to do with the narrative findings made by MSHA's
Office of Assessments, and that he was not given an opportunity to review those findings prior to the proposed penalty
assessments.
Austin Power maintains that the narrative findings do
not correlate with the evidence presented at trial in terms
of the citations and proposed penalties. Although the narrative findings state that the three citations contributed to
the severity of the fatal accident, Austin Power maintains
that the evidence has shown to the contrary.
In addition,
the narrative findings state that the violations resulted
from "operator negligence," which has not been established.
The findings state that management knew that employees were
not in the clear while the 20-meter boom was being moved.
Austin Power asserts that the evidence shows that the
employees were actually in the clear and the crane operator
and supervisors were aware of this fact.
In addition, the findings state that the operator was
negligent in allowing the employees to work on the boom without tying off. Austin Power asserts that the evidence shows
no negligence on its part, as the employees were working in

1713

an area with standard guardrails which presented no danger of
falling. The findings further state that the operator was
negligent because it knew or should have known that the walkway floor plates were not secure. Austin Power points out
that there was no definitive testimony that the walkway was
unclipped. In addition, the evidence established that the
walkway with or without clips was of substantial construction
and maintained in a good, safe condition. Austin Power concludes that the sole cause of the accident was the defective
machinery; any theory to the contrary is unsupported by the
evidence.
Finally, Austin Power states that the record is replete
with evidence of its extensive safety program and commendable
safety history. Additionally, MSHA stipulated to Austin
Power's good faith effort toward compliance in relation to
the accident and imminent danger order, and the inspector
testified to the cooperation he received from Austin Power
and the good working relationship he maintains with them.
Austin Power points to the fact that it has received only two
prior citations at the Big Brown strip mine, neither of which
related to a violation of a standard in issue in this case.
Austin Power also cites its safety training for employees on
a regular basis, including weekly toolbox safety meetings,
and concludes that its safety history, good faith effort
toward compliance, and cooperation are relevant to the assessment of penalties. It concludes that the proposed penalties
are grossly excessive and not supported by the totality of
the evidence.
Findings and Conclusions
Fact of Violation - Citation No. 2339411
Austin Power is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1607(g), because the crane
operator was not signalled, notified, or certain that the
three employees on the 20-meter boom were in the clear before
using the crane to move the 20-meter boom in a lateral direction. Section 77.1607(g) provides as follows:
"Equipment
operators shall be certain, by signal or other means, that
all persons are clear before starting or moving equipment."
Although Inspector Summers stated that there was no regulatory standard specifically prohibiting employees working on
moving equipm~nt, he also stated that if he ever observed
employees on a walkway 36 feet above the ground while a piece
of equipment was moving, he would issue a section 107(a) imminent danger order, even though the employees were protected

1714

by a handrail, because there would be a danger of falling
from the unstable walkway while the equipµient was moving.
Further, the fact that the boom design was such as to permit
free access to employees while performing work on or from the
walkway cannot serve as a def ens~ for failure by the employees
to adhere to any applicable mandatory safety standards while
at their work stations. By analogy, simply because a conveyor
belt drive mechanism is d~signed to permit free access to an
employee while servicing the belt does not absolve an operator
from insuring that the drive mechanism is guarded pursuant to
the applicable guarding standards.
Superintendent Woodson believed that section 77.1607(g)
applied to the crane but not to the boom, and his interpretation of the standard is that it prohibited anyone from being
on a load that is lifted off the ground by a crane and into
the air. The crane operator was of the same opinion, and
stated that at the time of the accident, the boom was being
moved laterally left and right, and he was attempting to position it close to the cherry picker.
The crane operator testified that the boom was lifted by
the crane some 5 to 6 inches to facilitate the removal of
shoring, and that after "tracking it" in a westerly direction,
the boom remained "dogged off" for approximately 5 hours while
the counter-weights were being lowered in place by another
crane. After the loading of the fifth counter-weight, he
slacked the crane off and then picked it up again to get his
chokers taut.
In referring to the boom, foreman·Patterson stated that
"I try to keep people off of anything like that, you know, as
much as possible" (Tr. 249). Mr. Patterson also indicated
that when the boom was lowered after the counter-weights were
installed, he instructed the three employees to walk down the
walkway on the opposite side of the boom where the accident
occurred to check the clearance, and then ordered them back
to the end of the boom. The boom was then "walked around"
with the crane, and while it was moving, the three men proceeded down the walkway where the accident occurred following
their previous instructions to hook the choker to the cherry
picker. Mr. Patterson indicated that the three employees
"had no choice" but to be there to install the choker.
Austin Power suggests that the crane operator was constantly monitoring the movement of the employees while on the
moving 20-meter boom and that he was receiving signals
throughout the day. While it is true that the crane operator
was receiving instructions, and some hand signals were given

1715

during the course of the day, the crane operator testified
that the last signal he received from Mr. Smith was some
2-hours before the accident occurred (Tr. 156). Further,
although the crane operator confirmed that he knew the three
employees were on the moving boom while he was attempting to
swing it around to the cherry picker, he confirmed that his
view was obstructed by the boom, and that the employees were
on the back side of the boom and out of his line of sight
while he was moving the boom with the crane. The crane operator also admitted that he was unfamiliar with any of the
safety standards cited in these proceedings, and while conceding in retrospect that the three employees should not have
been on the moving boom, he believed that their presence there
was an "acceptable risk."
Austin Power's arguments that section 77.1607(g), does
not apply to the facts of this case are rejected. I conclude
that the standard must be construed to insure the safety of
the men while on the moving boom which was being lifted and
maneuvered about during the course of the work shift in question. Based on the evidence presented in this case, it seems
clear to me that the operator of the crane had the boom under
load and under his control whi
it was being lifted, lowered,
and maneuvered about laterally during the performance of the
work. Under the circumstances, I conclude and find that the
crane operator had a duty under the standard to be certain
that the men were clear of the boom which was attached to the
crane before he moved it, particularly in this case where the
men were out of his line of sight. I also 6onclude and find
that foreman Patterson had a duty to instruct the men to leave
the end of the boom before the crane operator proceeded to
move it. Mr. Patterson admitted that the men "had been out
there once before the load started moving and they were
instructed to go back (Tr. 250). Under the circumstances, I
believe that Mr. Patterson recognized the hazard presented
while the men were on the moving boom, and while it is true
that someone had to be there to install the choker, I believe
that Mr. Patterson should have instructed the men to remain
clear of the boom until it stopped its movement, and then
allowed them to walk out to install the choker.
In view of the foregoing, I conclude that MSHA has established a violation by a preponderance of the credible evidence
adduced in support of its case, and the citation IS AFFIRMED.
Fact of Violation - Citation No. 2339412
Austin Power is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1710(g), because three

1716

employees who were working on the elevated 20-meter boom walkway some 36 feet off the ground were not tied off with safety
lines. Although the evidence establishes that the three
employees had safety belts and lines with them, none of them
were tied off or secured.
Section 77.1710(g), provides as
follows:
§ 77.1710

Protective clothing; requirements.

Each employee working in a surf ace coal
mine or in the surf ace work areas of an underground coal mine shall be required to wear
protective clothing and devices as indicated
below:

*

*

*

*

*

*

*

(g) Safety belts and lines where there
is danger of falling; a second person shall
tend the lifeline when bins, tanks, or other
dangerous areas are entered.
During the course of the hearing, the inspector and
MSHA's counsel conceded that the two employees who were not
engaged in instaliing the choker at the time of the accident
were not required to be tied off pursuant to sections
77.1710(g). Accordingly, I will confine my findings and conclusions to the circumstances surrounding the positioning of
the accident victim on the walkway and whether or not he was
in any danger of falling requiring him to be tied off.
Two precedential cases involving the interpretation and
application of an identical safety belt standard as that presented in this case (30 C.F.R. § 57.15-5), are relevant in
these proceedings.
In Kerr-McGee Corp., 3 FMSHRC 2496, 2497
(November 1981), the Commission held that the purpose of the
standard is the prevention of dangerous falls.
In Secretary
of Labor v. Great Western Electric Company, 5 FMSHRC 840
(May 1983), the Commission followed a previously enunciated
"reasonably prudent person" test applied in A.labama
By-Products Corp., 4 FMSHRC 2128 (December 1982), and U.S.
Steel Corporation, 5 FMSHRC 3 (January 1983).
In the Great
Western Electric Company case, at 5 FMSHRC 841-842, citing
Alabama By-Products Corp., at 4 FMSHRC 2129, the Commission
stated as follows:
[W]e conclude that the alleged violation is
appropriately measured against the standard of
whether a reasonably prudent person familiar

1717

with the factual circumstances surrounding the
allegedly hazardous condition, including any
facts peculiar to the mining industry, would
recognize a hazard warranting corrective
action within the purview of the applicable
regulation.
The Commission also stated as follows in the Great
Western Electric Company ~ase, at 5 FMSHRC 842 and 843:
Great Western argues that the skill of a
miner is a relevant factor in determining
whether there is a danger of falling because
the miner's skill defines the scope of the
hazard presented. We find that such a subjective approach ignores the inherent vagaries of
human behavior. Even a skilled employee may
suffer a lapse of attentiveness, either from
fatigue or environmental distractions, which
could result in a fall.
The specific purpose
of 30 C.F.R. § 57.15~5 is the prevention of
dangerous falls.
Kerr-McGee Corp., 3 FMSHRC
2496, 2497 (November 1981). By adopting an
objective interpretation of the standard and
requiring a positive means of protection whenever a danger of falling exists, even a
skilled miner. is protected from injury. We
believe that this approach reflects·the proper
interpretation and application of this safety
standard.

*

*

*

*

*

*

*

We conclude that, under the reasonable
person test appropriately applied to the standard, substantial evidence supports the judge's
finding of a danger of falling and a violation.
The miner was standing on a ladder, his physical center of gravity was shifted to one side
and both of his hands were preoccupied with
installing a large light fixture. A slight
shift in balance or lapse of attention might
have resulted in a fall.
In that event, the
miner would not have been protected. His position twelve feet above the ground presented a
substantial height from which to fall.
Although crane operator Crowell believed that the choker
located at the end of the boom was installed by Mr. Smith

1718

earlier in the day while the boom was resting on the cribbing,
he was not sure which one Mr. Smith was installing when the ·
accident occurred. Assuming Mr. Smith installed the choker at
the end, Mr. Crowell believed he could have done it while on
his knees reaching through the walkway mid-railing. Assuming
Mr. Smith installed the other choker, Mr. Crowell indicated
that it could be installed by lifting out the walkway grating
and wrapping the choker around the walkway framing.
However,
if it were done in this fashion, Mr. Crowell believed that
there was a chance of falling through the walkway opening left
by the removal of the grating, and the person would be bent
over into the opening. He confirmed that he had installed
chokers in this manner in the past, but used a safety belt
which was tied off.
Austin Power cited Mr. Crowell's testimony indicating
that the employees on the walkway were protected by a 11 shed,"
and that they "would be like sitting in this chair tied off."
While it is true tht the walkway had an overhead roof, the
fact remains that the employes were not in a "shed" as that
term is familiar to me, but were on a walkway 36 feet off the
ground protected by a hand-rail which had openings between
the railings. With regard to Mr. Crowell's characterization
of the positioning of the employees as somewhat akin to
sitting in a chair, he also indicated that they would be tied
off. He suggested that if one were tied to the hypothetical
chair and the leg broke, the fall would not be great because
"I would still be tied to it." In the case at hand, the
evidence establishes that while the employees were wearing
safety belts, none of them were tied off to prevent them from
falling off the walkway. As a matter of fact, Mr. Crowell
conceded that while he would not tie himself off while simply
walking along the boom walkway in question, he would do so
once he stopped and reached his work station.
With regard to Austin Power's comments regarding the
inspector's admission that he never wore a safety belt while
inspecting the boom, the inspector believed that such a belt
was only required while one was in danger of falling while
performing a particular job task placing himself outside the
protective handrails and not while merely walking down the
walkway. Under the circumstances, the inspector's admission
is not particularly relevant. The issue here is whether the
accident victim Smith placed himself in a precarious position, and whether he was in danger of falling while performing work without being tied off or secured with a safety line.
Since MSHA has conceded that the other two employees on the
walkway were not required to be tied off, my findings and

1719

conclusions here will be limited to the facts and circumstances regarding Mr. Smith.
Foreman Patterson testified that immediately prior to
the accident he observed Mr. Smith kneeling on the walkway
installing a choker around the walkway framing and under the
grating. Mr. Patterson stated that he did not observe
Mr. Smith actually.lift the walkway grating, but saw him
reaching under the mid-railing.
He could not state how much
of his body was actually through the railing, and he confirmed
that company policy requires an employee to be tied off if he
is outside the handrails.
In these circumstances, and based
on his 30 years of experience, Mr. Patterson did not believe
that Mr. Smith was in any danger of falling, nor did he
believe that he was required to be tied off.
Mr. Arent, one of the employees on the boom with
Mr. Smith at the time of the accident, testified for MSHA on
direct-examination that he observed Mr. Smith bending over
the top of the handrail, with his hands beyond the railing
and his head "just barely out," as he was installing the
choker on to the end of the boom.
On cross-examination, he
changed his testimony and indicated that Mr. Smith was on his
knees reaching between the middle and bottom handrail while
tying another choker around the framing of the walkway inby
the end of the boom. Mr. Arent believed that Mr. Smith's
head was outside the handrail, but that his head and shoulders
were not (Tr. 173). Mr. Arent was of the opinion that
Mr. Smith would have been in danger of falling and needed to
be tied off if he were leaning over the rail, but if he were
on his knees reaching between the handrails he would be better
balanced and would not need to be tied off because he would
not be in any danger of falling .
.!'.\. review of Mr. Arent' s testimony reflects a degree of
uncertainty as to precisely where Mr. Smith was positioned
immediately prior to the accident, and his direct testimony
that Mr. Smith was at the end of the boom leaning over the
railing while installing a choker, is contradicted by his
statement on cross-examination by Austin Power that Mr. Smith
was at another location on his knees while installing a
second choker.
Austin Power's counsel attributed Mr. Arent's
contradictory testimony to the fact that he was a.subpoenaed
MSHA witness, that he had never testified in cases of this
kind, and that he was nervious. When asked to explain his
contradictions, Mr. Arent responded "I don't know.
Just the
way the question was asked" (Tr. 171).
I have reviewed the
trial transcript and find that Mr. Arent's initial response

1720

was in answer to a straightforward question asking him to
describe what he observed (Tr. 163).
Mr. Arent is a young man who impressed me as a creqible
witness, and I find nothing in ~is demeanor to suggest that
he lied as to where Mr. Smith was positioned at the time of
the accident.
Since he no longer works for Austin Power, and
only worked there for 6 months, he had nothing to gain by
lying. Mr. Arent was extremely nervous during his testimony,
and considering the fact that the accident occurred a year or
so earlier, I find his uncertainty and confusion understandable. Further, Mr. Patterson's testimony that he observed
Mr. Smith on his knees near the choker which was tied to the
walkway frame outby the end of the boom corroborates and lends
credence to Mr. Arent's belief that Mr. Smith was not at the
end of the boom, but at the location further inby where the
second choker was tied to the walkway framing.
Under the circumstances, I conclude and find that the evidence adduced in
this case establishes that at the time of the accident,
Mr. Smith was not at the end of the boom leaning over the railing, but was on his knees inby the end of the boom at the location where the choker had been tied to the wal~way frame as
described by Mr. Arent and Mr. Patterson.
Mr. Patterson testified that Mr. Smith was on his knees
installing the choker around the walkway framing and under
the grating, but he did not see Mr. Smith actually pick up
the grating. Mr. Patterson also observed Mr. Smith reaching
under the mid-railing, but could not state whether his body
was actually through the railing. Mr. Arent testified that
he observed Mr. Smith on his knees and believed that his head
was through the railing, but that his shoulders were not.
He
also confirmed that Mr. Smith had his safety line with him
but was not tied off.
Crane oparator Crowell testified that
he often installed chokers in the manner attributed to
Mr. Smith, and he indicated that one method of installing the
choker would be to lift out the walkway grating.
However, if
this were done, Mr. Crowell confirmed there would be a danger
of falling through the walkway opening and he would be tied
off.
In describing the method for installing the kind of
choker that Mr. Smith was inst'al ng while not tied off on
the walkway, Mr. Patterson likened it to the swinging of a
piece of rope under the walkway.
He stated that Mr. Smith
had tied the choker on and intended to loop it under the walkway to the other side and then catch it. He admitted that he
was supervising Mr. Smith's work on the boom from ground
level, and while he did not give Mr. Smith step-by-step

1721

instructions as to how to go about the task of rigging the
choker to the cherry picker, he conceded that Mr. Smith knew
that the choker was required to facilitate the movement of
the boom.
After careful examination of the photographic exhibits
and the testimony in this case, I conclude that Mr. Smith's
position on the walkway while in the process of installing
the choker in question placed him in danger of falling. While
on his knees, Mr. Smith's hands were obviously occupied in
attempting to swing or loop the choker cable under the walkway
to the other side. Mr. Patterson indicated that Mr. Smith
intended to catch the cable on the other side. Mr. Smith
would have had to act swiftly to swing the cable over the edge
of the walkway and then move quickly to the other side to
catch it. The testimony establishes that Mr. Smith was reaching under the middle railing of the walkway and that his head
was beyond the railing. Mr. Smith was some 36 feet off the
ground while performing the choker task, and I believe one can
reasonably conclude that in the course of the work being performed as testified to by Mr. Arent and Mr. Patterson,
Mr. Smith's body was partially outside of the railing.
Since
Mr. Smith was on his knees reaching under the middle railing,
I find that the railing afforded him little protection and
that he could have lost his balance while attempting to swing
the choker under the walkway and fallen to the ground.
Under the circumstances here presented, I believe it
should have been clear to a reasonably prudent person that a
danger of falling existed and that Mr. Smith should have been
tied off. This is particularly true here, where the evidence
establishes that Mr. Smith was under the direct observation
and supervision of rigging foreman Patterson.
I conclude
that a reasonable and prudent person in Mr. Patterson's position would have instructed Mr. Smith to tie off while performing the work of installing the choker in question.
Employees Arent and Crowell expressed ignorance of the
MSHA safety standards cited in these proceedings. Mr. Arent
stated that he knew he had to wear a safety belt and tie off
and he learned this from weekly safety meetings conducted by
Mr. White. Although Mr. Crowell indicated that he would tie
off while at his work station, he further indicted that if he
were up on a steel structure walking around without any walkway under him he would not tie off while moving about on the
structure (Tr~ 152). When asked why, he responded that "it
is an acceptable risk." When asked his opinion as to why
Mr .. Smith was not tied off, Mr. Crowell responded that he was

1722

sure that Mr. Smith did not believe he was in any danger CTr.
150).
Foreman Patterson testified that company policy dictates
that all employees who are required to perform work off ground
level must have their safety belts on. However, he was not
certain as to whether the policy requires the wearing of such
belts while on a catwalk with handrails and toeboards. With
regard to any policy requiring an employee to be tied off when
his work takes him outside the guardrail, Mr. Patterson stated
that this policy is communicated to employees through regular
tool box safety meetings. However, he did not know whether
this tie-off policy is in writing as part of the company
safety rules, but that the policy requires anyone in an
"unsafe area" to be tied off.
Superintendent Woodson confirmed that he is responsible
for safety compliance at Austin Power's job site, and he
identified copies of the tool box safety meetings conducted
by company supervisor Jim White, and a copy of Austin Power's
safety rules. However, Mr. Woodson confirmed that he does
not personally conduct the meetings, and Mr. White did not
testify.
Although Mr. Woodson generally alluded to the fact
that the use of safety belts and lines are discussed at the
safety meetings, he offered nothing specific as to what
detailed discussions ~ay have taken place, particularly with
respect to the circumstances under which e~ployees are
instructed to be tied off when working off the ground. A
review of the records of the safety tool box meetings conducted by Mr. White simply reflects that safety lines, lanyards, and lifelines were included as topics of discussion.
With regard to the company safety rules (exhibit R-6),
references to the use of safety belts and lines are found at
the following places indicated:
III A. 3 (pg. 2) - PERSONAL SAFETY EQUIPMENT Wear safety belt and tie
off in elevated areas not
protectad by guard rails.
VII B. 1 (pg. 14) - SAFETY BELTS are required
to be worn and tied off
when working on:
(g)
Generally any elevated
work area that is without
protection to prevent you
from falling.

1723

VII D. 2 (pg. 16) - SCAFFOLDING - Personnel
must wear safety belts,
properly tied off, on any
scaffold platform not
equipped with standard
handrails or not
completely decked.
X E. 1 (pg. 28) - STABILITY CONTROL-PERSONNEL,
MATERIALS, and EQUIPMENT.
You must insure that your
person, your material and
your equipment are safe from
unexpected movement -falling, slipping, rolling,
tipping, blowing or any
other uncontrolled motion.
1. Use Safety belts as
required.
I find nothing in the company written safety rules that
speci cally requires employees to be tied off when ·they are
working outside of handrails on an elevated walkway. As a
matter of fact, the rules which require the wearing of safety
belts and lines are only applicable l.n cases where an employee
is working in an area not protected by handrails, and while
Rule X E. 1 requires ai1°employee to insure that he is safe
from falling, it only requires that he use a safety belt as
required.
No mention is made of being tied off or secured by
a lanyard"
Further, while Rule E 7 requires the securing of
toolsv equipment and wrenches against falling when working at
heights, the securing of the individual person against falling
is not included. When viewed as a whole, I conclude and find
that an employee working on an elevated walkway protected by
handrails 36 feet off the ground can reasonably conclude that
under the company safety rules as published he is not required
to be tied off while performing work on the walkway.
Since
the rules provide no specific requirements that he tie off
when his work requires him to lean over the railing or reach
through the railing, the decision to tie off in those situations appears to be left to the discretion of the employee.
In view of the foregoing, and on the facts of this case,
I find an absence of any specific guidelines or supervision
on the part of Austin Power with respect to the subject of
actual fall dangers confronting an employee while performing
work outside of the confines of the protective railing of the
walkway in question. Under the circumstances, I conclude
that Austin Power may not avail itself of the defenses noted

1724

in North American Coal Corp., 3 IBMA 93, 107, 1 MSHC 1130,
1134 (1974), and Southwestern Illinois Coal Corporation,
5 FMSHRC 1672 (1983), and its defense in this regard IS
REJECTED.
In view of the foregoing findings and conclusions, I
conclude and find that section 77.1710(g) is applicable in
this case and that MSHA has established a violation. The
citation IS AFFIRMED.
Fact of Violation - Citation No. 2339413
In this instance, Austin Power is charged with a violation of mandatory standards 30 C.F.R. § 77.205(e) or
77.404(a), for allegedly removing the 20-meter boom walkway
floor plates or grating clips or "hold-downs," thus rendering
the walkways in less than good condition. The cited standards
provides as follows:
·
77.404(a) Mobile and stationary machinery
and equipment shall be maintained in safe opera ting condition and machinery or equipment in
unsafe condition shall be removed from service
immediately.
{Emphasis added.)
77.205(e) Crossovers, elevated walkways,
elevated ramps, and stairways shall be of substantial constructionl provided with handrails,
and maintained in good condition. Where necessary toeboards shall be provided.
(Emphasis
added.)
Superintendent Woodson suggested that during the construction of the spreader in question, the boom walkway
grates need not be fastened or secured, but that once construction is completed, they do.
In my view, the evidence
here has established that the grating clips are necessary to
preclude the walkway from popping up or moving out of its
track. Mr. Woodson indicated that the grates are normally
clipped, wired down, or welded in place to insure against any
movement.
Under the circumstances, I conclude that any failure to clip or secure the walkway grating may indicate that
the walkway is not being maintained in good condition as
required by section 77.205(e), notwithstanding the fact .that
the grates are positioned in a track and held in place laterally by angle iron. By the same tbken, failure to maintain
the walkway grates in a clipped or tied down position could
also result in the walkway being maintained in less than a
safe operating condition as required by section 77.404(a.).

1725

Austin Power's suggestion that the walkway is not "a piece of
equipment" within the meaning of section 77.404(a), is not
well taken.
The 20-meter boom·is an integral part of the
spreader, and both the spreader and boom fall within the category of "mobile and stationary machinery and equipment." The
boom walkways are an integral part of the boom, and they also
fall within this broad category as encompassed by the
standard.
Austin Power maintains that the. walkway grates were
inherently saf.e simply by resting in place within the steel
walkway framing protected from movement by angle irons which
are an integral part of the framework, and that the lack of
hold-down clips did not render the walkways unsafe or in less
than good condition.
In support of this conclusion, Austin
Power cites the collective testimony of all of its witnesses
who were of the opinion that even if the walkway grates were
not clipped or secured in place, they were nonetheless safe.
Austin Power maintains that MSHA has advanced no credible evidence to support the charge that the clips had been
removed, and argues that it was just as likely that.the clips
were dislodged along with the grates after being subjected to
the violent whiplash force of the boom when it suddenly
raised up and propelled the men into the air after the eyelet
cable failed.
Before reaching any conclusions as to whether or not the
lack of grating clips rendered the walkways unsafe or in less
than good condition, a determination must first be made as to
whether or not MSHA has advanc.ed any probative or credible
evidence to support the charge that Austin Power removed the
grating clips, and that they were in fact removed and not in
place at the time of the accident.
In support of its allegation that the clips were removed
by Austin Power, MSHA relies on the testimony of Inspector
Summers and the investigation report which he authored.
However, the report is not evidence. The inspector's testimony
regarding the alleged removal of the walkways and clips, and
the alleged failure to resecure them, is based on his recitation of the results of his investigation as found under the
"Discussion and Evaluation" portion of his report.
Mr. Summers confirmed that he took no written statements from
any of the individuals he interviewed during his accident
investigation, and simply took notes (Tr. 137-138).
In his deposition of April 25, 1986, Inspector Summers
stated that prior to the accident, it was his understanding

1726

that "the walkway grating and the rest of the material that
forms the catwalk, angle iron and everthing, were in place"
{Dep. Tr. 68). He also confirmed that during histinvestigation after the accident he found walkway clips on the ground.
When asked how he knew that the grates which fell were not
clipped prior to the accident, he responded "from looking at
the other grating along the left-hand walkway" ( Dep. Tr. 75) ..
Referring to deposition exhibit S-7, he then explained that
the "other grating" which was not clipped down was the grating located from "the end of the picture back to the pivot
point of the machine." He stated that this grating was not
totally secured by clips, and while it did not fall to the
ground when the accident occurred "some kind of moved out of
place" (Dep. Tr. 76).
Referring to his notes, deposition exhibit S-2,
Mr. Summers identified the 14 sections of walkway grating
after the accident and away from the scene of the accident
which either had clips, no clips, or clips which were not
secured (Dep. Tr. 105-107). Since the walkway grating on the
right side of the boom was clipped and not thrown to the
ground, Inspector Summers simply concluded that the•walkway
grates on the left side of the boom which fell to the ground
were not secured by clips CDep. Tr. 77).
Mr. Summers testified that during his investigation,
Mr. Woodson, Mr. Arent, and the third person on the boom,
Kevin Saulsburg, told him that the walkway grates at the location where the accident occurred had been removed and not
resecured (Tr. 126-127). I have reviewed Mr. Summer's deposition and find no mention of any of these individuls.
I have
also reviewed the notes incorporated as part of the deposition, and find no mention of any of these individuals.
Nor
do I find any references as to who may have told Mr. Summers
that the walkways and clips had been removed and not
resecured, or that they were removed for painting. The only
specific reference in the deposition on this question is a
statement by Mr. Summers that he was told that the electrical
people had removed the walkway or the clips in order to have
access to certain electrial equipment under the walkway (Dep.
Tr. 76).

Mr. Summers apparently made no effort to identify or
contact the individuals who may have done any electrical work
or painting, and MSHA's counsel apparently made no effort to
call any of these individuals to testify.
I find it rather
amazing that the best evidence available during the investigation or hearing with respect to the removal of the walkway

1727

grating and the failure to resecure it was not even pursued
or developed.
Inspector Summers confirmed that representatives of the
designer and manufacturer of the cross pit spreader were
available at the site during his investigation, but that he
did not interview or discuss the matter with them (Dep. Tr.
47). I assume that these representatives were available for
depositions or subpoenas, and their testimony would be relevant to the issues concerning the effectiveness of the grating clips, whether they in fact secured the walkway to the
steel framework of the boom or simply tied one piece of walkway grating to the other, and whether or not the force of the
accident would have propelled the grating out of its channel,
regardless of any clipping. However, none of these representatives were contacted by Mr. Summers during his investigation, and none were called to testify at the hearing.
Neither Mr. Arent or Mr. Woodson testified that they
told Inspector Summers that the walkway grates were taken up
by electricians or painters and not resecured. Mr. Arent
testified that while on the walkway, he paid no attention to
the grates and he could not state whether they were tied down
or not (Tr. 164, 178). Mr. Patterson alluded to past
instances in which the walkway grates may have taken up by
electricians or painters, but in the case at hand, he stated
that he was not aware that any electricians had any work to
do in the accident area, and was not aware that the grates
had been taken up (Tr. 201-202). Although he conceded that
the grates "probably" would not have popped out if they were
secured, and that someone "speculated" that the plates on the
other walkway did not pop up because they were secured, he
described the breaking of the eyelet cable as a "gigantic
whiplash effect, or like a fishing pole" (Tr. 207-208).
Mr. Woodson admitted that during the course of construction, the grates are not always clipped down because ready
access is required to complete the construction and the
grates are inherently safe while snuggled into the iron framework channels.
He also stated that all of the grating in
question was clipped down "at one time" by put ting extra
people on this work and he indicated that "it is good policy
to get it all clipped down" (Tr. 235). Mr. Woodson also
stated that he was on the walkway 2 or 3 days before the accident and could not recall seeing any of the clips removed.
However, he did not walk to the end of the boom at that time
(Tr. 239). He indicated that when the grating is lying
within its framework "it is just like one of those manholes
in the street that you drive across every day" (Tr. 248).

1728

Austin Power's counsel maintained that the grating clips
are not designed to withstand major forces such as occurred
in this case when the eyelet cable broke.
He stated that the
clips are not substantial pieces of equipment, and that they
"are just to keep the things from moving one way or the
other~ (Tr. 246-247).
He also indicated that no one knows
what was clipped and what was not.
Inspector Summers characterized the sudden raising of
the boom after the eyelet failed as a "sling shot" which
tossed the three men and the walkway plates into the air
(Dep. notes, exhibit S-2). He confirmed that he had no idea
as to whether the £orce exerted by the boom was evenly distributed on both sides, and no such determination was apparently
·made during the investigation of the accident (Tr. 125).
When asked why the remaining grating on the left walkway
further back from the accident location did not fall to the
ground (even though some were clipped down and others were
not), he stated that this back area was subjected to a less
violent action of the boom when the eyelet failed, and that
is why they did not fall out (Tr. 124). This lends.credence
to Austin Power's argument that the violent action of the
boom at the end of the walkway where the accident occurred
may have caused the clips to be knocked loose.
After careful review and consideration of all of. the
testimony and evidence with respect to this citation, I conclude and find that MSHA has failed to produce any credible
probative evidence to support the charge that Austin Power
removed the walkway clips in question or that the walkways
where the accident occurred were not secured by clips immediately
ore that accident. Under the circumstances the cita~
tion IS VACATED.
History of Prior Violations
Exhibit P-4, is a computer print-out listing Austin
Power's civil penalty assessment record for the period
August 19, 1983 through August 18, 1985. That record reflects
that Austin Power paid civil penalty assessments in the amount
of $450 for two citations, none of which are for violations of
any of the standards cited in these proceedings.
I conclude
that Austin Power has a good safety compliance record, and I
have taken this into account in assessing the civil penalties
for the citations which have been affirmed.

1729

Size of Business and Effect of Civil Penalty on Austin
PQwer's Ability to Continue in Business
Superintendent Woodson stated that 30 employees were
employed at the mine site in question (Tr. 210), and the
parties stipulated that 41,012 man-hours were devoted to
Austin Power's mining activities in 1985. Although Austin
Power's counsel indicated that 700 employees work for the
company, he explained that Austin Power's principal business
is the construction of power plants, which is not normally
considered "mining activities" under the Act (Tr. 13).
Under
the circumstances, for purposes of these proceedings, I conclude that Austin Power is a small mine operator, and this is
reflected in the civil penalties assessed for the violation
in question.
Austin Power stipulated that the penalties proposed by MSHA will not adversely affect its ability to continue in business (Tr. 188).
I conclude that the penalties
assessed by me for the citations which have been affirmed
will likewise not adversely affect Austin Power's ability to
continue in business.
Good Faith Compliance
The parties stipulated that Austin Power demonstrated
good faith in achieving rapid compliance after notification
of the violations in question.
I adopt this as my finding
and conclusion on this issue, and it is reflected in the
civil penalty assessments which I have ma.de.
Negligence
I conclude that the violations which have been affirmed
resulted from Austin Power's failure to take reasonable care
to insure compliance with mandatory safety standard section
77.1607(g) and 77.1710(g), and that this failure on its part
constitutes ordinary negligence. With regard to the safety
line violation, since Mr. Patterson was supervising
Mr. Smith's work on the boom and had him in view while in a
position which placed him in danger of falling, Mr. Patterson
had a duty to either order Mr. Smith away from his work location or instruct him to tie off.
With regard to the crane operator's failure to insure
that the employees were clear of the boom, since the crane
operator did not have the employees in view but knew they
were on a moving boom performing work, he had a duty to
insure that they were clear of the area before attempting to
maneuver the boom with his crane.
Had Mr. Smith been ordered
away from the end of the boom or instructed to tie off his

1730

safety line, he may not have fallen 36 feet and been killed
when the eyelet failed.
I am not unmindful of the fact that the accident victim
Smith had a safety lanyard with him, but failed to tie off.
I am also cognizant of the fact that the accident which
resulted in the death of Mr. Smith resulted from an unpredicted and unexpected failure of the eyelet.
I have considered all of these factors in mitigating the civil penalties
that I have assessed for the violations which have been
affirmed.
Gravity
I conclude and find that the failure by Austin Power to
insure that Mr. Smith and the other employees were clear of
the boom while it was being moved, and to insure that
Mr. Smith was tied off before proceeding with his work tasks
constitute serious violations of the cited safety standards.
Significant and Substantial Violations
Inspector Summers found that the violations of sections
77.1607(g) and 77.1710(g) were significant and substantial
violations.
I agree with these findings, and conclude that
the violations were significant and substantial.
I believe
the violations were contributing factors to the fatal injuries
suffered by Mr. Smith.
Even if the unexpected accident had
not occurred, I would still find that the failure to insure
that the employees were clear of the boom while it was being
moved and the failure of Mr. Smith to tie off whi
in danger
of falling presented a hazard and a reasonable likelihood of
serious injuries.
Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i)
the Act, I conclude that the following civil penalty assessments are appropriate and reasonable in these proceedings:
Citation No.

Date

30 C.F.R. Section

Assessment

2339411
2339412

8/20/85
8/20/85

77.1607(g)
77.1710(g)

$ 2,000
$ 2,500

1731

ORDER
Austin Power IS ORDERED to pay civil penalties in the
amounts shown above, and payment is to be made to MSHA within
thirty (30) days of the date of this decision.
Upon receipt
of payment, the civil penalty proceeding is dismissed.
Citation No. 2339413, August 20, 1985, for an alleged
violation of 30 C.F.R. § 77.205(e) or 77.404Ca), IS VACATED,
and MSHA's proposed civil penalty assessment IS DISMISSED.
Austin Power's Contest of this citation, Docket No.
CENT 86-61-R, IS GRANTED.
Austin Power's Contests of Citation Nos. 2339411 and
2339412, Docket Nos. CENT 86-59-R and CENT 86-60-R, ARE
DENIED and DISMISSED.

Distribution:
Robert Fitz, Esq., Office of the Solicitor, U.S. Department
of Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Steven R. Mccown, Esq., Jenkens & Gilchrist, 2200 Interfirst
One, Dallas, TX 75202 (Certified Mail)
/f b

1732

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

.20006

November 12, 198G
CIVIL PENALTY PROCEEDING

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

Docket No.CENT 86-100-M
A.C. No. 41-01786-05514

v.
Nolanville Quarry and Plant

BANDAS INDUSTRIES, INC.,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The parties have filed a motion to approve settlements
of five violations involved in this case. The total of the
originally assessed penalties was $713. The parties now
recommend
in the sum of $535.
The motion discusses each violation in light of the six
criteria set forth in section llO(i) of the Federal Mine
Safety and Health Act of 1977.
Citation No. 2662416 was
issued for violation of 30 C.F.R. § 56.14011 because of
inadequate guarding on the primary plant impact crusher. A
reduction in the proposed penalty from $105 to $79 is now
recommended because of reduced negligence.
The operator
believed in good faith that the hazard had been abated. An
inspector from the Occupational Safety and Health Administration
(OSHA) had ob
the same condition and had prescribed a
method of abatement. The operator had followed the instructions
of the OSHA
tor but these did not meet MSHA's
Citation No. 2662418 was issued for violation of 30
C.F.R. § 56.9003 because of inadequate brakes on a dump
truck. A
the proposed penalty from $168 to
$126 is now recommended because of reduced gravity. The
conditions
which the brakes •1ere tested were extreme.
The truck was
greater than it would be in actual
practice and it was operated on a steeper grade than it ever
was whi
in service.
Citation No. 2662425 was issued for violation of 30
C.F.R. § 56.14006 because of failure to guard the pinch
points of a
motor on a screen.
A reduction in the
proposed penalty from $136 to $102 is now recommended
of reduced
ty. Exposure of miners to the hazard was
extremely 1

1733

Citation No. 2662426 was issued for violation of 30
C.F.R. § 56.14001 because of failure to guard the fan blades
of a portable generator. .A reduction in the proposed penalty
from $136 to $102 is now reconunended because of reduced
gravity.
Exposure of miners to the hazard was limited.
Citation No. 2662427 was issued for violation of 30
C.F.R. § 56.15002 because of the failure of some miners to
wear hard hats in areas where material may fall.
A reduction
in the proposed penalty from $168 to $126 is now recommended
because of reduced gravity and negligence. The operator had
issued hard hats to its employees and had instructed the
employees to wear them.
The employees who were not wearing
hard hats usually did not work in areas where there was a
hazard of falling objects, and were seldom exposed to this
hazard. I approve the recommendation but the operator should
make sure in the future that all affected employees wear
hard hats.
The representations and recommendations of the parties
are accepted, especially in light of the operator 1 s small
size.
Accordingly, the motion to approve settlements is
GRANTED and the operator is ORDERED TO PAY $535 within 30
days of the date of this decision.

Distribution:
Jack F. Ostrander,
Esq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
Texas
75202 (Certified Mail)
Mr. R.F. Bandas, Bandas Industries, Incorporated, P.O. Box
3595, Temple, Texas 76501
(Certified Mail)
/sc

1734·

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

22041

NOV 121986
CONTEST PROCEEDINGS

CONSOLIDATION COAL COMPANY,
Contestant

Docket No. WEVA 86-217-R
Order No. 2713945; 2/2 86

v.

Docket No. WEVA 86-218-R
Order No. 2713946; 2/25/86

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

Docket No. WEVA 86-219-R
Order No. 2713952; 2/25/86
Docket No. WEVA 86-220-R
Order No. 2713953; 2/26/86

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 86-277
A. C. No. 46-01867-03678

v.

Blacksville No. 1 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
arances:

Before:

W. Henry Lawrence, Esq., Steptoe & Johnson,
Clarksburg, West Virginia, for Contestant/
Respondent;
William T. Salzer, Esq., Of ce of the Solicitor,
U. S. Department of Labor, for Respondent/
Petitioner.
Judge Maurer
STATEMENT OF THE CASE

Contestant Consolidat
Coal Company (Consol) has filed
notices of contest challenging the issuance of four separate
orders during February 1986 at its Blacksville No. 1 Mine.
The Secretary of Labor (Secretary) has filed petit
s seeking c
1 penalties for the violations charged in the contested orders.
The proceedings were consolidated for purposes
0f hearing and decision.

1735

Pursuant to notice, the cases were hear3 in Morgantown,
West Virginia, on July 22 and 23, 1986.
The general issues before me concerning each of the
individual orders and its accompanying civil penalty petition are whether there was a violation of the cited standard,
and, if so, whether that violation was "significant and substantial11 and caused by the "unwarrantable failure" of the
mine operator to comply with that standard as well as the
appropriate
1 penalty to be assessed for the violation,
should any be found.
Both parties have filed post-hearing proposed findings
of fact and conclusions of law, which I have considered along
with the entire record herein.
I make the following decis
STIPULATIONS
The parties have agreed to the following stipulations,
which I accept:
1.
The Consolidation Coal Company, Inc., owns and
operRtes the Blacksville No. l Mi~e and is subject to the
j
sdiction of the Federal Coal Mine Safety and Health Act
of 1977, Public Law 91-173, as amended by Public Law 95-164
(Act) .
2.
The Administrative Law Judge has jurisdiction over
this proseeding pursuant to Section 105 of the 1977 Act.
3.
The subject orders (Nos. 2713945, 2713946, 2713952,
2713953) and terminations thereto were properly served bv a
duly authorized representative o~ the Secretary.
4.
Copies of Order Nos. 2713945, 2713946, 2713952,
2713953 (attached to the Peti
for Adjudicbtion of civil
Penalty) are authentic copies of the original orders.
5.
The assessment of a civil penalty in this proceeding will not affect respondent's ability to cont
in
business.
6.
The operator has been assessed 852 violations for
the two-year period prior to February 25, 1986.
7.
1985 annual production for the Blacksville No. 1
Mine was 1,609,803 tons of coal.
1984 annudl riroduction
was 1,775,322 tons of coal.

I.

DOCKET NO. WEVA 86-217-R; ORDER NO. 2713945

Order No. 2713945, issued pursuant to Section 104 (d) (2)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et seq. (the Act) alleges a violation of the regulatory
standard at 30 C.F.R. § 77.205(b) 1) and charges as follows:
In the Slurry Pump House, located on the surface
facility of the underground mine, the travelways
in the housing were not being maintained free of
slipping hazards. Water was flowing freely from
a pump on to the floor where a sediment had built
up over a long period of time approximately 1 1/2
inches in depth.
Little or no effort was being
made to maintain these work areas.
A trough to
catch run off from the pumps had its end cut off
allowing this material to run onto the floor
and across the facility floor and out the door.
The work-travel areas were approximately 20' feet
in length overall.
This condition was obvious
and should have been identified by management.
FINDINGS OF FACT
1.
The order was issued at 9:40 a.m. on February 25,
1986, by MSHA Inspector Joseph Migaiolo during a "AAA" inspection at the slurry pumphouse located on the surface
of the Blacksville No. 1 Mine.
2o
The slurry pumphouse is a 15' long x 10' wide
building which functions as a recycling facility for coal
residue (slurry) emitted from coal cleaning operations.
3.
During this aforementioned inspection, Inspector
Migaiolo observed water approximately 1/4 inch deep, exiting
the front doorway of the pumphouse, at a rate he estimated
to be five (5) gallons per minute.
4.
Inside the pumphouse, the entire floor was
covered with slurry sediment, consisting of fine coal
particles, oil shale and water.
However, the water and
slurry materials were concentrated along the back wall of
the pumphouse where the depth of the mixture near Pump No.
4 on Exhibit No. G-5 was three inches.
The mixture was one
and one-half inches deep at Point "C" on Exhibit No. G-5.
1/

30 C.F.R § 77.205(b) provides as follows:
Travelways and platforms or other means of
access to areas where persons are required to
travel or work, shall be kept clear of all extraneous material and other stumbling or slipping
hazards.

1737

5.
There was an open-ended water trough on the floor
of the pumphouse at Point "C 11 on Exhibit No. G-5 at which
point water was freely flowing onto the floor, adding to the
wetness of the slurry sediment mixture as well as completely
submerging two insulation mats which were on the floor near
two electrical devices. Water was also flowing onto the
floor from Pump No. 2 towards the back wall of the pumphouse due to a defective packing around the "drive shaft".

6. I specifically find that this slurry-water mixture
created a slipping hazard on the floor of the pumphouse.
7.
While the slurry pumphouse is not a high travel
area, the facility is inspected on each shift to ensure the
proper functioning of the pumps and to detect any existing
hazards.
8.
The presence of the slurry-water mixture on the
pumphouse floor created a reasonably-likely risk of a slip
and fall type injury to any employee entering the building
or maneuvering around the equipment inside.
Furthermore,
the presence of the two submerged insulating mats on the
floor created a somewhat higher risk of a slip and fall
injury in the somewhat less likely event an employee were
to step on one of them.
9.
The type of injuries that would likely be involved
if such an accident occurred would be back injuries, concussions, and/or broken bones.
10.
Shift foreman Jack Yost observed water flow from
the pumphouse approximately sixteen inches wide and a
quarter-inch deep the day before the issuance of the
stant order.

11. The operator, through its shift foreman, Yost, had
actual knowledge of the condition of the pumphouse at least
the day before the instant order was issued and likewise
knew or should have known and appreciated the slipping
hazard presented by the aforementioned conditions on the
floor of the slurry pumphouse.
CONCLUSIONS OF LAW

1. Consol is subject to the provisions of the Act in
the operation of the subject mine.
I have jurisdiction over
the parties and subject matter of this proceeding.
[This
finding applies to all the orders considered in this proceeding.]

1738

2.
The evidence as set out above in the Findings of Fact
establishes a violation of 30 C.F.R. § 77.205(b) due to the
existence o~ a slippery slurry-water mixture dn the entire
floor of the slurry pumphouse inc'luding those areas where
persons are required to travel and work.

3. The violation was of such a nature as could significantly and substantially contribute to the cause bf a coal
mine safety hazard, and I accept the testimony of Inspector
Migaiolo that there was a reasonable likelihood that that
hazard could have resulted in serious injury to a person or
persons.
I therefore conclude that the violation was significant and substantial and serious. Mathies Coal Company,
6 FMSHRC 1 (1984).
4.
I further find that the violation was caused by the
"unwarrantable failure" of the operator to comply with the
standard.
Based on the same evidence, I find that the mine
operator was negligent.
In Zeigler Coal Company, 7 IBMA 280
(1977), the Interior Board of Mine Operations Appeals interpreted the term "unwarrantable failure" as follows:
An inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines that the operator has failed to abate the
conditions or practices constituting such violation, conditions or practices the operator knew or
should have known existed or which it failed to ·
abate because of lack of due diligence, or because
of indifference or lack of reasonable care.
The Commission has concurred with this definition to
the extent that an unwarrantable failure to comply may be
proven by a showing that the violative condition or practice
was not corrected or remedied prior to the issuance of a
citation or order, because of indifference, willful intent,
or serious lack of reasonable care.
United States Steel
Corp. v. Secretary of Labor, 6 FMSHRC 1423 at 1431 (1984).
It is not disputed that Mr. Yost's knowledge is attributable
to the operator and he knew of the violative condition on
the
before the inspector saw it.
The failure to correct
these conditions reflects indifference to them or a serious
lack of reasonable care to see that they are abated.
5.
Considering the criteria in Section llO(i) of the
Act, I conclude that a penalty of $800, as proposed, is
appropriate.

1739

II.

DOCKET NO. WEVA 86-218-R; ORDER NO. 2713946

Order No. 2713946, issued pursuant to Section 104(d) (2)
of the Act alleges a violation of the regulatory standard at
30 C.F.R. § 77.1104 ~/ and charges as follows:
In the hoist house, located on the surface
facility of the underground mine, the drum
pit was saturated with a layer of oil.
Such
area had this condition for a long period of
time due to a bucket placed beneath the
structure to catch the drippings (3 to 6" in
depth) .
However the portion not collected by
the bucket had layered on the metallic structure of the base area.
In addition the elevated break reservoir had a leak of oil which
had spread over the base structure and was
being .delivered to the pit area.
This condition
was obvious and had been previously identified
·by management as having parts on orde.r and that
leaks from the pit metallic oil connections were
just a special connection that leaks normally.
Accumulations of combustible materials which
can start fires are not permitted.
FINDINGs~op

FACT

1.
The order was issued at 9:20 a.m. on February 25,
1986, by MSHA Inspector Joseph Migaiolo durincr a "AAA" inspection of the hoist house facility located on the surface
of the Blacksville No. 1 Mine.
2.
Situated in the hoist house is a 20 1 long x 15'
wide x 7' deep concrete.pit, called a "drum-pit" which
houses a drum hoist and an electric motor driving a hydraulic
pump for the hydraulic brakes which in turn control movement
of the drum.
3.
A brattice-type cloth was spread over the floor bf
the pit to catch dripping noncombustible qraohite rope dressings.
However, due to hydraulic fluid leak.s ·from the various hydraulic connections existent in the pit, two-thirds
of the brattice cloth was saturated with hydraulic fluid,
and the adjacent floor areas were covered with a thin layer
of hydraulic fluid.

2/

30 C.F.R. § 77.1104 provides as follows:
Combustible materials, grease, lubricants, paints,
or flammable liquids shall not be allowed to accumulate
where they can create a fire hazard.

1740

4.
Consol was aware of the hydraulic fluid leakage,
evidenced by the fact that a f
9allon bucket was on the
pit floor to catch hydraulic fluid leaks from the hydraulic
hose fittings.
Further, it is undisputed that the bucket
had failed to catch all the
and these amounts accumulated on the bratticecloth.
5.
Consol's
with the leakage,

personnel were generally familiar
not consider it a safety hazard.

6.
Before a f
could result from this accumulation
of hydraul
f
, a flame or electrical arc must first
reach the brattice cloth. The only possible ignition source
was a motor
in the front left-hand corner of the pit.
7. A flame or an electrical arc from this motor could
possibly, although not very likely, reach the brattice cloth
if it overheated from an overcurrent condition.
8. Most
tantly, however, this electric motor was
equipped with both
breakers and a power suppression
system for overcurrent protection. Accordingly, I find it
to be unlike
that an ignition source existed in the drum
pit.
In s~ ho
, I specifically reject Inspector Migaiolo's
suggestion that the solenoid located in the pit could be a
second potential source of ignition.
9.
The poss
employee exposure to whatever hazard
existed, if any, was very limited. A single employee would
visit the hoist house once or twice a day to spend a few
minutes in
the area.

CONCLUSIONS OF LAW
1. On
25, 1986, the operator violated 30
C.F.R. § 77.1104 due to the accumulation of combus
e
hydraulic f
d in the drum pit of the hoist house facil
at the Blacksville No. 1 Mine. No matter the likelihood or
unl
lihood of a f
actually resulting from this accumulation, the
aul
fluid was allowed to accumulate where it
could create a f
hazard.
Therefore, it is a viol
on of
standard.
2.
The violation was not of such a nature as could
s
f i
y and substantially contribute to the cause of
a coal
safe
hazard.
There was no reasonable 1
li
hood that the presence of the hydraulic fluid on the
cloth or the floor of the pit generally would s
nificantly
te to a fire hazard because there was no
rea
ignition source.
Further, there was no

1741

showing of a reasonable 1
lihood, that
the unlikely
event of a f
, there would be an injury of any type, let
alone an injury of a reasonably
nature.
Mathies
Coal Company, supra.
3.
The violation was nonetheless caused by an unwarrantable failure to comply with the standard in question.
It is uncontroverted that the operator knew the violative
condition
sted. The operator's belief that the brattice.
cloth did not create a fire hazard and was not a violation
of the mandatory standard cited was in error. My holding
here
is that any appreciable accumulation of hydraulic
fluid on the floor 0£ the drum pit, regardless of the likelihood of ignition (so long as that likelihood is not absolute zero), can create a fire hazard, and is therefore a
violation.
That vio
on is "unwarrantable" if the operator fails to abate a condition that he knew
sted, as
here.
Zeigler Coal Co., supra.
In the instant case the
violative condition had existed for a long time.
A bucket
was being utilized to catch some of the fluid drippings,
but did not contain all.
The brattice cloth that was
found saturated by Inspector Migaiolo was purportedly
routinely changed when it became saturated.
It appears to
me that this was a condition management simp
had decided
to 1
with rather than repair.
This apparent attitude
reflects indifference or at least a serious lack of reasonable care to abate.
United States Steel Corp.,
For example, the leakage from the accumulator was e
nated by simply tightening four bolts on the s
of the
accumulator cylinder subsequent to the issuance of the
instant order.
4.
Considering the
teria in Section llO(i) of the
Act, I conclude that a penalty of $400 is appropriate.
III.

DOCKET NO. WEVA 86-219-R

ORDER NO. 2713952

Order No. 2713952, issued pursuant to Section 104(d) (2)
of the Act al
s a violation of 30 C.F.R. § 77.205(e) ~/
and charges
llows:
On the second floor trave
, in the preparat
plant on the surface, approximate
75
feet of toe-boards were not provided in these
3/

30 C.F.R. § 77.205(e) provides as follows:
Crossovers, elevated walkways, elevated ramps,
and stairways shall be of substantial construction,
provided with handrails, and maintained in good
·
condition. Where necessary toeboards shall be
provided.

1742

elevated walkways.
In addition a railing was not
proper
maintained.
Such had been cut apart,
hinged so as to make an opening.
However the
hinged door was not bolted together at the middle.
Such could cause persons to fall to the main
floor approximately 12 feet.
These conditions
are obvious and should have been identi
by
management.
In addition two other travelways on
the same floor had segments of railing
ssing
approximately 36 inches in length.
FINDINGS OF FACT
1.
The order was is
at 12:15 p.m. on February 25,
1986, by MSHA Inspector Joseph Migaiolo during a "AAA" inspection of the preparation plant located on the surface of
the Black
lle No. 1 Mine.
During this inspection, Inspector Migaiolo inspected the second floor travelway of the
said plant.
2.
The travelway on the second floor of the preparation plant lacked fifty-seven (57) feet of toeboard.
3.
Numerous activi
taking place on the ground
floor of the preparation plant place individuals, at times,
underneath the second floor travelways.
At any one time,
at least two workers may be found on the ground floor.
4.
Two storage rooms are located on the second floor
and materials and supplies are transported on the second
floor travelway.
In addition to these storage areas, the
company maintains the superintendent's and the shift boss's
offices on the second floor.
5.

Toeboards are necessary on the second floor
because an object being carried or otherwise
tran
could fall onto the trave
, roll off and
strike a worker directly underneath on the ground floor.
6.
The operator was aware of the absence of toeboards
on the second floor travelway and should have known of the
potential danger to its employees wo
below on the
ground floor.
Curiously, toeboards were installed on
every other floor of the preparation plant except the
second loor.
7.
The two-door loading gate located on the second
floor travelway was s
sfactorily constructed.
I am
satisf
that this gate would open.inward, as des
,
but would not open outward because of the sturdy construction
of the hinges on the
s.
In this regard, I speci cally
credit the testimony of Mr. Gross over that of Inspector
Migaio

1743

8.
The inspector also
ted two 3-foot sections of walkway on the second floor where the operator had not installed
handrails.
I find that the missing railing located in these
areas was
tuated where crossbeams and vertical I-beams
served in place of handrails and adequately served to satisfy
the regulatory standard.
CONCLUSIONS OF LAW
1. On February 25, 1986, the operator violated 30 C.F.R.
77.205(e) by its failure to provide toeboards on fiftyseven (57) feet of travelway on the second floor of the
preparation plant at the Blacksville No. 1 Mine.
§

2.
This violation was of such a nature as could significantly and substantially contribute to the cause and effect
of a coal mine
hazard. When the storage room "D" was
moved to the second floor, there was a concomitant increase
in the amount of foot traffic on the second floor travelway
and increased movement of tools and supplies along this
travelway in addition to that transported via the elevator.
It is therefore, I find, reasonably likely that during the
course of this transportation objects can and will be
dropped onto the travelway from whence
is likewise reasonably likely that they could have rolled of~ the travelway in those areas which were unprotected by toeboards.
If
an item, such as a ballbearing, weighing up to twenty-five
pounds, were to fall off the travelway onto the ground
floor below, there is the
stinct possibility that a
worker would be struck. Obvious
, such an occurrence
could result in a ser
injury.
3.
The operator knew of the violative condition, i.e.,
the lack of toeboards, and by serious lack of reasonable
care failed to abate that condition.
I therefore
nd that
the aforementioned violation constituted an unwarrantable
lure to comply with the standard.
4.
Those portions of Order No. 2713952 that alleqe
similar violations of the mandatory standard concerning the
loading
and the handrails are vacated for the reasons
·enumerated above in Fi
of Fact Nos. 7 and 8.
These
conditions, as described in the record, do not constitute
a violation of the mandatory standard at 30 c.~.R. § 77.205
(e), or considering the alternative, 30 C.F.R. § 77.204
either.
5.
Considering the criteria in Section llO(i) of the
Act, I conclude that a penalty of $500 is apnronriate for
the remaining portion of the order for which I have found
a violation.

1744

IV.

DOCKET NO. WEVA 86-220-R; ORDER NO. 2713953

Order No. 2713953, issued pursuant to Section 104(d) (2)
of the Act, alleges a violation of the regulatory standard
at 30 C.F.R. § 77.205 and charges as follows:
On the third floor of the preparation plant, adequate barriers or handrails were not present to
prevent persons who may accidently fall through.
An opening divided into two sections by a set of
conduit pipes existed:
the first opening adjacent
to the other was approximately 65 to 56 inches in
height, 22 inches in width and 16 inches in depth,
the second was 56 inches in height, 50 inches in
width and 16 inches in depth.
This was a very
obvious hazard and should have been detected by
management.
Similar violations of this type had
been cited the previous day on the floor below.
No apparent record of this opening was available
by management.
Persons falling through such opening could fall approximately 12 feet to the floor
below.
The petitioner subsequently moved to amend Order No.
2713953 to allege a violation in the alternative of 30
C.F.R. § 77.204 4/ or § 77.205(e).
I granted this motion
on the record at-the hearing of this case and therefore
will consider herein whether the record establishes a violation of either of the above standards.
FINDINGS OF FACT
1.
The order was issued at 10:00 a.m. on February 26,
1986, by MSHA Inspector Joseph Migaiolo during a "AAA" inspection of the third floor of the preparation plant at the
Blacksville No. 1 Mine.
2.
During this inspection, Inspector Migaiolo noted
two areas on the third floor of the preparation plant which
lacked handrailing.
One of the areas was approximately 22
inches wide between four steel conduits and a vertical Ibeam.
For an individual to fall the 12 feet through to the
floor below, he would have to first negotiate his way
through that 22 inch opening and then through a 16 inch
wide ooening to the floor.
The other area was similar.
It
was 50 inches wide and 16 inches deep in to the coal chute.
4/

30 C.F.R. § 77.204 provides as follows:
Openings in surface installations through which
men or material may fall shall be protected by railings, barriers, covers or other protective devices.

1745

3. I find both of these aforemSntioned areas were
adequately protected by a crossbeam which acted as a barrier across the lower portion of the openings and a second
crossbeam which acted as an adequate barrier across the
upper portion of the openings. This pre-abatement arrangement of I-beams satisfactorily served as railing.
I specifically find that no safety hazard existed at either of these
openings. My impression after carefully reviewing the
record concerning this alleged violation, particularly the
photographic evidence submitted, is that it would fairly
take an acrobat to fall through either one of these openings.
CONCLUSIONS OF LAW
1. The cited absence of handrails in Order No. 2713953
is not a violation of either 30 C.F.R. § 77.204 or 77.205(e).
Accordingly, Order No. 2713953 will be vacated.
ORDER
Based on the above findings of fact and conclusions of
law, IT IS ORDERED:
1. Order No. 2713945, contested in Docket No. WE'ffi
86-217-R, properly charged a violation of 30 C.F.R. § 77.205(b)
and properly found that the violation was significant and
substantial and resulted from Consol's unwarrantable failure
to comply with the standard involved. Accordingly, Order
No. 2713945 IS AFFIRMED.
2. Order No. 2713946, contested
Docket No. WEVA
86-218-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R.
§ 77.1104.
Further, the order properly concluded that the
said violation resulted from Consol's unwarrantable failure
to comply with the standard involved,
3. Order No. 2713952, contested in Docket No. WEVA
86-219-R, properly charged a violation of 30 C.F.R. § 77.205(e)
and properly found that the violation was significant and
substantial and resulted from Consol's unwarrantable failure
to comply with the standard involved. Accordingly, Order
No. 2713952 IS AFFIR~ED.
4.
86-220~R,

Order No. 2713953, contested in Docket No. WEVA
IS VACATED.

5. The Consolidation Coal Company
TO PAY a civil penalty of $1,700
of this decision.

hereby ORDERED
days of the date

!/;lt~
urer
ative Law :Judge

1746

Distribution:
W. Henry Lawrence, Esq., Steptoe & Johnson, Union National
Center East, Clarksburg, WV 26301 (Certified Mail)
William T. Salzer, Esq., Office of the Solicitor, U. S. Department of Labor, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)

1747

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

22041

NOV 1?. 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 86-287
A.C. No. 46-06646-03505
River Mine

THOMPSON COAL & CONSTRUCTION,
INC.,
Respondent
DECISION
Appearances:

Therese I. Salus, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the
Petitioner;
·
James W. Thompson, President, Thompson Coal
and Contruction, Inc., Clarksburg,
west Virginia, pro se.

Before:

Judge Koutras
statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of
the Federal Mine Safety and Health Act of l977, 30 U.S.C.
§ 820(a), seeking civil penalty assessments in the amount of
$84 for two alleged violations of certain mandatory safety
standards found in Part 77, Title 30, Code of Federal
Regulations.
The respondent filed a timely answer and contest, and a
hearing was held in Morgantown, West Virginia, on August 27,
1986. The parties waived the filing of posthearing bri s.
However, I have considered their oral arguments made on the
record during the course of the hearing.
'Issues
The issues presented in this proceeding

ar~

as follows:

1. Whether the respondent violated the
cited mandatory safety standards, and if so,
the appropriate civil penalties to be assessed
for those violations based on the criteria
found in section llO(i) of the Act.
2. Whetber the inspector's "sign icant
and substantial" (S&S) findings concerning the
violations are supportable.

3. Additional issues raised by the
parties are identified and disposed of in the
course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

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

3.

Commission Rules, 20 C.F.R. § 2700.1

et~

Stipulations
The parties stipulated to the following (Tr. 4-6):
1. The subject mine is owned and operated
by the respondent, and the respondent is subject to the jurisdiction of the Act and the
presiding judge.
2. The subject citations and terminations
were properly served by a duly authorized representative of the Secretary of Labor upon an
agent of the respondent on the dates, times and
places stated therein.
They may be admitted
into evidence for the purpose of establishing
their issuance, but not for the truthfulness or
relevancy of any statement asserted therein.
3. The parties stipulate to the authenticity of the exhibits, but not to the relevance nor to the truth of the matters asserted
therein.
4. The alleged violations were abated in
a timely fashion.

1749

5. The River Mine produced twenty-one
thousand, seven hundred and twelve (21,712)
annual production tons in 1985, and Thompson
Coal & Construction, Incorporated, also produced twenty-one thousand, seven hundred and
twelve (21,712) production tons in that year.
6. The proposed penalty assessments will
not affect the respbndent's ability to continue
in business.
With regard to the respondent's history of violations,
MSHA's counsel stated that the respondent was issued four
section 104(a) "S&S" citations during the 24-month period
prior to the issuance of the violations in this case, and
that the respondent has paid civil penalties in the amount of
$170 for these violations. Counsel agreed that the respondent has a good compliance record (Tr. 7).
Bench Ruling
Respondent proposed and agreed to make full payment in
the amount of $42 for contested Citation No. 2706004,
January 30, 1986, 30 C.F.R. § 77.410, and stated that it no
longer wished to contest the citation. The citation was
issued because of an alleged defective backup warning device
on an end loader.
I treated this proposal by the respondent
as a settlement proposal pursuant to Commission Rule 30,
29 C.F.R. § 2700.30, and it was approved from the bench (Tr.
8). Testimony and evidence was then received with respect to
the remaining citation.
Discussion
Section l04(al "S&S" Citation No. 2706002, issued on
January 30, 1986, cites an alleged violation of 30 C.F.R.
§ 77.1605(b), and the condition or practice is described as
follows (Exhibit G-1):
"The caterpillar front-end loader,
Serial No. 25K339 has a defective parking brake due to when
the parking brake is set, it will not hold the end loader in
place. Located on the job site. Larry Reall is the area
foreman."
MSHA's Testimony and Evidence
MSHA Inspector David D. Workman, testified as to his
background and experience, and confirmed that he conducted a
regular inspection of the respondent's mine on January 30,
1986, and that three miners were there at the time (Tr~ 13).

Mr. Workman identified a copy of Citation No. 2706002, and
confirmed that he issued it because of a violation of mandatory safety standard section 77.1605(b), which requires that
parking brakes be provided on any.equipment being operated on
the surface areas of strip mines (Tr. 15).
Mr. Workman stated that after beginning his inspection,
he observed the cited end loader "setting over to the side,"
and spoke with the loader operator, a Mr. Bays. Mr. Workman
stated that the day was cold and that it had snowed. He
described the mine terrain as frozen, but containing ruts and
soft mud caused by equipment travelling through the mine
surf ace areas.
He stated that work was being done in a pit
area, and that the end loader was "parked up and out of the
pit area, over to the left. 11 The loader was not in operation, and its bucket was down on the ground (Tr. 16).
Mr. Workman testified that he requested Mr. Bays to
start up the end loader so that he could check it for safe
operation. Mr. Bays informed him that the parking brake was
not functioning properly and that he had reported the condition to foreman Larry Reall, but that the condition was not
repaired. Mr. Workman confirmed that the loader was not
·tagged out, and Mr. Bays started it up, and it was functional
and not mechanically disabled. Mr. Workman did not believe
that a lowered bucket on such an end loader would serve as a
brake in the event it were parked on a grade (Tr. 18).
Mr. Workman confirmed that foreman Reall advised him
that he did not make a record of the defective brake condition. Mr. Workman stated that he got into the loader operator1 s compartment with Mr. Bays. The brake was set, and
when Mr. Bays accelerated the machine while in reverse gear,
it moved backwards with the brake set (Tr. 19). The machine
was removed from service, a record was made of the defective
brake, and parts were ordered to repair it. The abatement
time was extended because of difficulties in obtaining parts,
but once the end loader was repaired, Mr. Workman abated the
citation (Tr. 20-22).
Mr. workman stated that the purpose of the parking brake
is to prevent the end loader from drifting if parked on a
grade.
If the machine drifted, it could run into someone or
a piece of equipment. Three em~loyees and a foreman were in
the "immediate area," and if the machine drifted and hit someone, it would reasonably be expected to cause injuries or
even death. Mr. Workman also believed that it was reasonably
likely that the end loader could drift, and that this has

1751

occurred several times in work areas in MSHA District 3 ·(Tr.
21).
On cross-examination, Mr. Workman testified that while
he has operated D-8 and D-9 dozers, he has not operated any
larger surface "high lifts" and is not familiar with the
mechanics of braking system.
He also confirmed that he had
no knowledge of the mechanical operation of the particular
parking brake in question (Tr. 26-27).
Mr. workman confirmed that the end loader was not in
operation when he cited it, and that it was parked in a level
area with the bucket down.
He looked at the "daily book 11
kept by the loader operator, and found no record concerning
the parking brake (Tr. 27).
He confirmed that except for the
parking brake, the rest of the braking system was functioning
properly (Tr. 28). Mr. Workman stated that when the loader
is not in operation and parked, the parking brake must be set
in order to keep the machine from moving in any direction.
While the machine bucket lowered and dug into the soft ground
would hold a machine pointed downhill, this does not satisfy
the law (Tr. 29).
In response to further questions, Mr. Workman stated
that he also cited another end loader at the same work site,
and when he returned the next day to abate that citation, he
had the machine tested on a steep elevated area, and when the
parking brake was set with the machine in neutral, it would
not move. With regard to the end loader cited in this case,
Mr. Workman confirmed that he tested it by having the operator operate the machine in reverse, and then putting it in
neutral to see if it would continue to move (Tr. 31).
Mr. Wor~~an confirmed that at the time of the inspection, he did not know whether or not the respondent intended
to use the end loader.
However, if the machine is not tagged
out or dismantled, he assumes that it can be used and will
inspect it and issue a citation if he finds any defective
conditions (Tr. 32). Mr. Workman conceded that it was
unlikely that the machine would move and strike someone from
the location where he found it parked.
His concern was that
the machine would be put in operation with a defective parking brake, and if this were done, one could reasonably expect
an accident to occur (Tr. 36).
Mr. Workman confirmed that his inspection of the pit
area was his first inspection of that site, and he stated
that he was familiar with strip mining operation.
He stated
that the pit had only enough room for one end loader and a

1752

truck, and that work on the pit was being finished up in order
to move to another site. He observed other pieces of equipment which were not operational parked "off to the left," and
reiterated that the cited end loader "was sitting on a very
flat area, with the bucket down" (Tr. 37).
In response to
further questions, he stated as follows (Tr. 37-38):
Q.
What I am driving at is:
How do you know,
or how did you come to the conclusion, that
there was a reasonable likelihood here that
there would be an accident? Is it based on
your experience, generally,·about end loaders;
that they are sometimes parked in elevated
areas and sometimes you have runaways with
parking brakes? Or is there something specific
about this operation?

A.

No, sir. We have had, in the past, in
different operations where end loaders were
found in areas -- in elevated areas, where
they would drift, and come into other equip-ment.
And this is from different work sites,
and even surface areas of underground mines.
It's not uncommon to find Mack packs or end
loaders working in surface areas of underground
mines.

Q.

Okay.

A.

It's quite common toward our inspections.

Q.

Now, if Mr. Thompson can establish in this
case that he has a nice little tidy parking
lot, paved area, where he puts his end loaders
all of the time, and if he can establish, for
example, that they're never parked in elevated
areas or on ramps, and once they have finished
their business in the pit, they are simply
taken out and parked someplace in a level
area, would your opinion change as to whether
there would be a likelihood of an injury in
this case?
A..

No, sir.

Q.

Your opinion would be the same?

A..

Yes, sir.

1753

Q.

Based on your experience?

A. Of accidents that are recorded and accidents that have occurred throughout our
industry.
Respondent's Testimony and Evidence
Junior L. Bays testifi.ed that he is employed by the
respondent as an end-loader operator, and has been so
employed for 17 years. He confirmed that he was the operator
of the end loader inspected and cited by Inspector Workman on
January 30, 1986. He stated that the end loader was not in
operation and had been parked for 3-days prior to the inspection. He confirmed that he advised the mine superintendent
that the loader had defective brakes and that he also made an
entry to this effect in a personal log book. Mr. Bays did
not know whether parts had been ordered to repair the
machine, and he confirmed that he never attempted to operate
the machine after the superintendent told him to park it (Tr.
4 0-41).

Mr. Bays stated that if the loader engine were shut off,
all four wheels will lock and it would be impossibe to move
the machine, regardless of whether it were parked on the level
or on a slope. He explained that the machine radiator blew
one day, and when attempts were made to move the machine while
hooked to a dozer with a cable, the machine would not move.
Mr. Bays confirmed that he had the keys to the loader in his
pocket, and was told not to run it (Tr. 42). He earlier testified that the superintendent said nothing to him about not
running it, and simply told him to park it (Tr. 41).
Mr. Bays stated that the most effective braking for the
loader occurs when it is operated in 'the forward mode, and
that operating it in reverse "is next to no brakes at all"
(Tr. 43). He confirmed that the machine had a good foot
brake, and that if left with the engine shut off and the parking brake on, the machine cannot be moved (Tr. 43). He also
confirmed that because of the cold day the only piece of
equipment operating on the day of the inspection was a "275
Michigan" ('J'r. 43).
On cross-examination, Mr. Bays confirmed that on the day
in question, he parked the machine on the level with the
bucket down, and he had the k~y in his pocket so that no one
else could operate it. He gave his daily log book to
Mr. Reall, and confirmed that he had entered a notation "No

1754

parking brake" in the book, but Mr. Reall did nothing about
it other than to tell him to park it (Tr. 46).
Mr. Bays stated that the purpose of the parking brake is
to serve as a safety device if the loader is parked on a
grade. Although the parking brake helps to hold the machine
while on a grade, if the machine is on a 10 or 12 percent
grade and operated in gear, it will still move, even with the
parking brake set (Tr. 47). The machine cannot be moved with
the engine off and all four wheels locked, and the foot brake
will hold the machine when it travels in reverse (Tr. 49).
In response to further questions, Mr. Bays stated that
he first discovered the defective parking brake when he was
operating the loader in the pit stripping away the dirt in
preparation for loading out the coal. He explained that a
buzzer signal device on the machine alerted him to the fact
that the parking brake was defective and that this occurred
3 days before the inspection. He further explained that certain disks and plates had to be ordered to repair the parking
brake. When he discovered the condition he was told to take
the machine out of service and park it, and that is what he
did (Tr 50-51). Once the machine was repaired, he intended
to use it again (Tr. 52).
Mr. Bays stated that the pit was only large enough to
permit the operation of two end loaders, but that no trucks
enter the pit while he is there. Once the coal is reached in
the pit, it is loaded out by an end loader and loaded onto
trucks which are out of the pit. However, a truck would enter
the pit if the pit were large enough, nut in this instance
there was only enough room for one end loader in the pit, and
he would not have used the end loader in question in the pit
(Tr. 53). At the end of the day, he would fuel the loader,
grease it, and take it out of the pit and park it on good
solid level ground (Tr. 54).
MSHA's Arguments
In closing oral argument, MSHA's counsel asserted that
the evidence adduced in this case establishes that the cited
end loader was parked on the respondent's .mine site, and had
the vehicle been parked on a grade, it could have moved as a
result of the malfunctioning parking brake, and could have
struck employees working in the area. Counsel asserted that
one employee was exposed to this hazard (Tr. 56).
In further support of her case, MSHA's counsel cited a
decision by former Commission Judge John Cook in MSHA v.

Middle Kentucky Construction, Inc., 2 MSHC 1044 (1980),
2 FMSHRC 2589, September 12, 1980, in which Judge Cook
affirmed a similar violation for a defective parking brake on
a truck and an end loader. Judge Cook rejected an affirmative defense advanced by Middle Kentucky, similar to the one
in this case, that the cited equipment had been removed from
service prior to the inspection.
In rejecting this defense,
Judge Cook relied on the Commission's decision in Eastern
Associated Coal Corporation, 1 MSHC 2209, October 23, 1979,
holding that the mere placement of a danger tag on a piece of
equipment and permitting it to remain in the mine's active
workings, was insufficient to render the machine "removed
from service" within the meaning of the Act.
In Eastern
Associated Coal, the Commission stated as follows at 1 MSHC
2210:
It is undisputed that the inoperable parking brake was a violation. For a violation
such as this, there are two basic ways to
abate -- repair or withdrawal from service.
Assuming that the jitney could not have been
repaired safely in the time set for abatement,
the question in this case is whether a danger
tag alone constitutes withd~awal from service.
We hold that tagging the jitney was not sufficient to withdraw the jitney from service
because the danger tag did not prevent the use
of the defective piece of equipment. The
jitney was still operable and the danger tag
could have been ignored. To abate under. these
circumstances, the jitney should have been
made inoperable. There is no suggestion in
the record that the jitney could not have been
rendered inoperable safely, thus eliminating
the danger posed within the abatement period.
On the facts of the instant case, MSHA's counsel pointed
out that the end loader was not tagged out, and nothing prevented the actual use of the equipment since the operator had
the keys in his pocket. Although the respondent may have
established that the operator was directed not to use the end
loader, counsel suggested that a breakdown in communication
could result in a miner remaining unapprised of respondent's
decision to remove the equipment from service. Coun$el also
pointed out that in the Middle Kentucky Construction case,
Judge Cook ruled that the term "parldng brake" as used in the
standard, referred to a braking system separate and independent from any service or emergency brakes on the front-end
loader (Tr. 55~58).

1756

Respondent's Arguments
Respondent argued that the 'cited end loader was taken
out of service and parked 3-days prior to the citation, and
that no one but the operator had the key.
Respondent
asserted that it only works one shift and that Mr. Bays was
the only end-loader operator, and he had the key in his possession. He parked the end loader on level ground, and since
the automatic braking system he described had taken over, the
end loader was rendered unmovable. The respondent also
pointed out that any vehicle with the parking brake set will
move in reverse if placed in reverse gear, but will not move
forward.
Assuming it is parked on a down grade, the parking
brake will in all probability hold it, but if it were parked
so that it could run backwards on the same grade, it probably
would not. The respondent also suggested that the cited
standard only required that the end loader be equipped with a
parking brake, and does not state that it must be an operating parking brake.
The respondent also pointed out that the
parking systems on trucks are different from braking systems
on end loaders and "high lifts" (Tr. 59-60).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1605(b), because of the defective parking brake on an end loader. Section 77.1605(b),
provides as follows:
"Mobile equipment shall be equipped·
with adequate brakes, and all trucks and front-end loaders
shall also be equipped with parking brakes."
The evidence adduced in this case establishes that the
cited end loader was not equipped with an adequate parking
brake and that the brake was defective and in need of repair
at the time it was inspected and cited by Inspector Workman.
Although one may question the validity of testing the ef fectiveness of the parking brake by operating the machine in
reverse gear on level ground, the respondent here concedes
that the parking brake was defective because the loader operator was alerted to this fact when the alarm sounded, and he
confirmed that certain brake disks and plates needed
replacement.
The respondent's suggestion that section 77.1605(b) only
requires that an end loader be equipped with a parking brake,
without the necessity for maintaining it in a serviceable or

1757

safe condition is rejected. Although the language of the
standard implies that brakes other than parking brakes are to
be adequate, I believe the clear intent of the standard is to
insure that all braking systems on such a piece of equipment
be maintained serviceable and functionable so as to insure
the margin of safety intended by the installation of these
braking systems. Further, since the standard is obviously
intended for the protection of the miners, any other interpretation would be contrary to the intent and purposes of the
Act.
In this case, the loader operator conceded that the
purpose of the parking brake is to serve as a safety device
when the machine is parked on a grade.
The unrebutted evidence in this case establishes that
the respondent took the end loader out of service and parked
·it on level ground when the operator discovered the defective
parking brake condition. The respondent's suggestion that it
may avail itself of this voluntary withdrawal of the equipment as a defense to the citation is rejected. The facts
reflect that the end loader was not tagged out, nor was it
rendered inoperable. Even if it were tagged out, the respondent may not avail itself of this fact as an absolute defense
to the citation, and my suggestion during th~ course of the
hearing that it may was in error (Tr. 63-64). The case law
as enunciated in the Middle Kentucky Construction and Eastern
Associated Coal Corporation cases, supra, is to the contrary.
In Eastern Associated Coal, the Commission ruled that even
though the equipment was tagged out, it was not rendered
inoperable and the danger tag could have been ignored.
Although the facts in the instant case reflect that the
end-loader operator was the only person with the key, was
clearly aware of the defective brake, and testified that he
would not have attempted to use the end loader until it was
repaired, the fact remains that the machine was not rendered
inoperable until such time as the parts could be ordered and
repairs made. The unrebutted evidence establishes that the
foreman did nothing to immediately order parts or attempt to
repair the machine before the inspector found it. The inspector found no evidence that the machine was dismantled or disabled (Tr. 18). Although the respondent presented unrebutted
evidence that the machine, with its engine shut down, effectively resulted in the locking of all four wheels, thus rendering the machine immovable, in light of the Commission's
holding in Eastern Associated Coal Corporation, I cannot conclude that this fact rises to the level of rendering the
machine inoperable.

1758

In view of the foregoing, I conclude and find that MSHA
has established a violation of section 77.1605(b), by a preponderance of the credible evidence adduced in this case, and
the violation IS AFFIRMED.
Size of Business and Effect of Civil Penalty on the
Respondent's Ability to Continue in Business
On the basis of the stipulations by the parties, I conclude and find that the respondent is a small mine operator
and that the civil penalty assessed for the violation in question will not adversely affect its ability to continue in
business.
History of Prior Violations
The record establishes that the respondent paid $170 in
civil penalty assessments for four section 104(a) citations
issued during the 24-month period prior to the issuance of
the contested citation in this case.
I conclude and find
that the respondent has a good compliance record, and this is
reflected in the civil penalty assesment for the violation
which has been affirmed.
Good Faith Abatement
The parties have stipulated that the violation was
abated in good faith by the respondent. I adopt this is my
finding and conclusion on this issue, and it is reflected in
the civil penalty assessment.
Negligence
There is no evidence in this case that the respondent or
the end-loader operator continued to operate the machine once
aware of the defective brake condition. The unrebutted testimony by the respondent reflects that the loader operator first
became aware of the condition while operating the machine, and
that he immediately notified his foreman who instructed him to
take the machine out of service and park it. MSHA presented
no evidence that the respondent should have been aware of the
condition prior to the operator using the machine, or that it
failed to inspect or test the brake before allowing the operator to run the machine.
Although foreman Reall was made
aware of the brake defect after it was discovered, there is no
evidence that he had prior knowledge of the defect, nor is
there any evidence of any attempts to use the machine after
the operator took it out of service. Under the circumstances,
I cannot conclude that the respondent was negligent.

1759

Gravity
On the facts of this case, I cannot conclude that the
violation in question was serious.
MSHA has presented no
credible evidence to support its conclusion that one miner
was exposed to a hazard resulting from the defective parking
brake. Although I agree that if someone is struck by a piece
of free rolling equipment he would likely be injured, the
record in this case is devoid of any evidence that anyone was
ever placed in jeopardy by the defective parking brake.
I take note of the fact that in the Middle Kentucky
Construction case, the inspector who cited the truck and end
loader for defective parking brakes, found the equipment
parked on grades.
Judge Cook also found that the equipment
was parked in close proximity to other equipment and mine
personnel, and that if it moved, it could have rolled down
the incline thus exposing miners and other equipment to a
hazard. The facts in the instant case establish that the end
loader was parked on a level grade and out of the pit with
the wheels locked and the engine turned off.
The available
key was in the pocket of the operator who was aware of the
defective braking brake and who took the machine out of service and parked it until it could be repaired.
The inspector
conceded that from the location where the machine was parked,
there was no likelihood of the machine even moving, let alone
rolling anywhere and striking someone (Tr. 35). The inspector's conclusion of the existence of a potential hazard was
based on his presumption that the equipment would be op2rational in the pit (Tr. 35).

Inspector Workman conceded that his inspection on
January 30, 1986, was the first time he had inspected the
site, and that his citation was not based on any specific
operational procedures at the site in question (Tr. 37). His
conclusion that a hazard existed, or was likely to exist had
the machine been in operation with a defective parking brake,
was based on his knowledge of other mine sites where equipment on elevated areas were known to drift free and strike
other equipment, and from recorded incidents industry wide
(Tr. 37-38).
MSHA presented absolutely no credible evidence to suggest
that the respondent's end loaders are ever parked on elevated
grades in proximity to any equipment or miners.
The loader in
question was parked on level ground, with its bucket down,
with the engin~ off and all four wheels locked.
The loader
operator testified that his usual and normal procedure at the

1760

end of the work shift is to take the end loader out of the pit
and park it on level ground with the engine off, and MSHA has
not rebutted this fact.
Further, the loader operator's unrebutted testimony is that no trucks actually enter the pit for
loading, and that the end loader comes out of the pit to load
the trucks.
In the instant case, he testified that the pit
was only large enough to accomodate one end loader, and he
would not have used his loader in the active pit. The inspector confirmed that this was the case (Tr. 37).
though Inspector Workman stated that the terrain at
the mine included up-and-down grades, he conceded that any
conclusion concerning a hazard from a defective parking brake
would depend or where the end loader would be operated and
where it would be parked (Tr. 20). On the facts of this case,
I find no credible evidence to support any conclusion that any
of the respondent's end loaders are ever parked, operated, or
stopped on grades requiring the use of the parking brake.
Significant and Substantial Violation
A "significant and substantial" violation is described
in section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F.R. § 814(d)(l).
A violation is properly
designated significant and substantial "if, based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or
lness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822,
825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant and substantial" as follows:
In order to establish that a violation of
a mandatory safety standard is significant and
substantial under National Gypsum the Secretary
of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a aiscrete safety hazard--that is, a measure of
danger to
ety--contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury;
and (4) a reasonable likelihood that the injury
in question will be of a reasonably serious
nature.

1761

In United States Steel Mining Company, Inc.,
7 FMSHRC 1125, 1129, the Commission stated further as
follows:
We have explained further that the third
element of the Mathies formula "requires that
the Secretary establish a reasonable likelihood that the hazard contributed to will result
in ah event in which there is an injury." U.S .
. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984).
We have emphasized that, in accordance
with the language of section 104(d)(l), it is
the contribution of a violation to the cause
and effect of a hazard that must be significant
and substantial.
U.S. Steel Mining C6mpany,
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
Incorporating by reference my gravity findings, and
applying the principles of a "significant and substantial"
violation as articulated by the Commission in the aforementioned decisions in terms of continued normal mining operations, and in the absence of any credible evidence or facts
to support any conclusion that the defective parking brake in
question could contribute to a hazard, I cannot conclude that
MSHA has established that there was a reasonable likelihood
that an accident or injury would occur.
Accordingly, the
inspector's "significant and substantial'' finding IS VACATED,
and the citation is modified to reflect a non-"S&S" violation.
Civil Penalty Assessment
In view of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude that a civil penalty assess1nent in the anount
of $20 is reasonable for the citation which has been affirmed.
ORDER
The raspondent IS ORDERED to pay a civil penalty assessment in the amount of $20 for section 104(a) non-"S&S'' Citation No. 2706002, January 30, 1986, 30 C.F.R. § 77.1605(b),
and a civil penalty assessment in the amount of $42 in settlement of section 104(a) Citation No. 2706004, January 30, 1986,

1762

30 C.F.R. § 77.410.
Payment is to be made to MSHA within
thirty (30) days of the date of this decision, and upon
receipt of payment, this proceeding is dismissed.

Distribution:
Therese I. Salus, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
street, Philadelphia, PA 19104 (Certified Mail)
James w. Thompson, President, Thompson Coal &
Construction, Inc., P.O. Box 228, Clarksburg, WV 26301
(Certified Mail)

Mr~

/fb

1763

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

NOV 1~1986

333 W. COLFAX AVENUE, SUITE 400

DENVER. COlORADO

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

80204

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 85-61-M
A.C. No. 39-00055-05540
pocket No. CENT 85-103-M
A.C. No. 39-00055-05548

v.

Docket No. CENT 85-110-M
A.C. No. 39-00055-05549

HOMESTAKE MINING COMPANY,
Respondent

Homestake Mine
DECISION APPROVING SETTLEMENT
Before:

Judge Lasher

Upon Petitioner's motion for approval of a proposed settlement and the same appearing proper, the settlem~nt is approved~
The terms of the settlement are as follows:
A. Docket No. CENT 85-61-M
Citation No.
2097485

Assessment
$3,000

Settlement
$3,000

B. Docket No. CENT 85-103-M
2097236

$4,000

$2,000

c. Docket No. CENT 85-110-M
2097499

$1,000

Vacated
(Unsupportable}

The reduction of the penalty for Citation No. 2097236 in
CENT 85-103-M appears justified, even though the violation
resulted in a fatality. The parties agree that the degree of
Respondent's negligence was "low" rather than "moderate" and that
the miner's death resulted from his unanticipated performance of
a chore normally accomplished on another shift and that he did
such in a way contrary to company policy. Accordingly, this
compromise is approved.

1764

Respondent, if it has not previously done so, is ordered to
pay to the Secretary of Labor within 30 days from the date hereof
the sum of $5,000.00.

'J;tu~. £ tf· ~-c;;-1 /l
Michael A. Lasher, Jr.
Administrative Law Judge
Distribution:
Eliehue c. Brunson, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO
64106 (Certi~ied Mail)
Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203 W.
Main, P.O. Box Box 898, Lead, SD 57754 (Certified Mail)

/bls

1.765

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

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

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

NOV 14 1986

22041

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-123
A.C. No. 36-05018-03605
Cumberland Mine.

v.

U.S. STEEL MINING CO., INC.,
Respondent
CONTEST PROCEEDING

U.S. STEEL MINING CO., INC.,
Contestant

Docket No. PENN 86-178-R
Citation No. 2678489; 4/28/86

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

Cumberland Mine

DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA, for
Petitioner/Respondent;
Billy M. Tennant, Esq., U.S. Steel Mining Company
Pittsburgh, PA, for Respondent/Contestant.

Before:

Judge Fauver

After the evidentiary hearing, counsel for the Secretary
has moved to withdraw his petition for civil penalty and to
vacate Citation No. 2678489.
ORDER
FOR GOOD CAUSE SHOWN, the petition for civil penalty in
PEKN 86-123 is DISMISSED and Citation No. 2678489 in PENN 86178-R is VACATED, thereby concluding both proceedings.

(J~~~
William Fauver
Administra
Distribution:

1766

Law Judge

David T. Bush, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Billy M. Tennant,
. , U.S. Steel Mining Company, Inc.,
600 Grant Street, Room 1580, Pittsburgh, PA 15230 (Certified
Mail)

kg

1767

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

22041

NOV 18 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 86-11
A.C. No. 18-00621-03553

v.
METTIKI COAL CORPORATION,
Respondent
METTIKI COAL CORPORATION,
Contestant
v.

CONTEST PROCEEDING
Docket No. YORK 86-5-R
Citation No. 2701541; 5/5/86

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

"A" Mine
DECISION

Appearances:

Susan Chetlin, Esq., and Timothy Biddle, Esq.,
Crowell & Moring, Washington, DC, for Contestant;
Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Respondent.

Before:

Judge Melick

These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et ~~q~, the "Act," to challenge the issuance by
the Secretary of Labor of a citation under section 104(d)(l)
of the Act,~/ and for review of civil penalties proposed by
the Secretary for the violation alleged therein.
~/

Section 104(d){l) provides as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created
by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation
to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he
shall include such finding in any citation given to the
operator under this Act."

1768

The general issues before me are whether Mettiki has
violated the cited mandatory standard and, if so, whether
that violation was of such a nature as could significantly
and substantially contribute to-the cause and effect of a
mine safety or heal th hazard i.e., whether the violation w·as
"significant and substantial." If a "significant and substantial" violation is found it will also be necessary in order
to sustain the citation as a citation under section 104Cd){l)
to determine if the violation was caused by the "unwarrantable failure" of the operator to comply with cited standard.
Finally if a violation is found it will also be necessary to
determine the appropriate civil penalty to be assessed in
accordance with section llO{i) of the Act.
The citation at bar, No. 2701541, charges a "significant and substantial" violation of the regulatory standard
at 30 C.F.R. § 75.400 and states as follows:
Float coal dust, coal spillage, rock and a mixture
of fire clay, was allowed to accumulate on the
back side of the longwall shields. The accumulation [sic] were 0 to 12 inches deep, 1 foot wide
and approximately 18 inches in length on all
shields. Most of the accumulations were damp and
no source of ignition was present. John Morgan,
longwall foreman, and John Sisler responsible.
The condition found at the B-Portal.
The cited standard provides that "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."
Charles Wotring, an inspector for the Federal Mine
Saf
and Health Administration (MSHA), was conducting a
regular inspection of the Mettiki "A" mine on May 5, 1986,
accompanied by another inspector, Mine Foreman Dennis Dever
and Mine Manager William Pritt. According to Wotring there
were coal accumulations around the shields along the entire
650 foot length of the longwall face wi
the blackest accumulations lying between shields number 83 and 126. Float dust
and fine ground-up coal mixed with some coal and rock were
also present. Wotring measured several of the accumulations
and found them to be 12 inches wide, 18 inches long and "most
were" 12 inches deep. Wotring also found float coal dust on
the jacks and shields.
The accumulations were admittedly damp and no methane
gas or ignition sources were present. Wotring opined that
while a methane or dust explosion could trigger an explosion

1769

of even this damp material, there was "little likelihood" of
such an explosion.
He further acknowledged that the accumulations on shields number 1 to 83 were not hazardous because
they were mixed with fire clay to the point of incombustibility.
Mettiki witnesses, Foreman John Morgan and General Mine
Foreman Dennis Dever, agreed that there were accumulations
around the longwall shields but testified that those accumulations consisted primarily of noncombustible fire clay,
soapstone, and slate. These witnesses also acknowledged
however that a fine mist of float coal dust appeared on those
longwall shields which had not been hosed down before the
longwall broke down earlier that morning.
In rebuttal Inspector Wotring observed that the areas
depicted in the photographs in evidence (Exhibits C-1 through
C-5) indeed contained primarily rock as alleged by Mettiki's
witnesses but he pointed out that the area in which he found
the violative coal accumulations were not depicted in any of
the photographs. Wotring noted without contradiction that
the cited accumulations were located in the area depicted in
Exhibit C-6 cross-hatched in blue.
Within this framework it
is clear that coal dust, including float coal dust, loose
coal and other combustible materials had not been cleaned up
and were permitted to accumulate in violation of the cited
standard.
Accordingly the violation is proven as charged.
In light of Wotring's admission however that "there was
little likelihood of an explosion" I cannot find that the
violation was "significant and substantial" or of high
gravity.
In order for a saf
violation to be "significant
and substantial" there must be a reasonable likelihood that
the hazard contribut~d to will result in an injury and a
reasonable likelihood that the injury will be of a reasonably
serious nature.
Secretarv v. Mathies Coal Co., 6 FMSHRC 1
(1984).
Under the circumstances the citation at bar, issued
under section 104(d)(l) of the Act, must be modified to a
citation under section 104(a) of the Act.
The issue of
whether or not the violation was caused by the "unwarrantable
failure" of the operator to comply with the cited standard is
therefore moot.
fn. 1 supra.
In evaluating the civil penalty negligence criteria I
accept the undisputed testimony of inspector Wotring that
from the c:ompactness of the accumulated coal spillage it was
reasonable to inf er that the accumulations had existed since
the previous shift.
Accordingly those accumulations should
have been discovered tluring the preshif t examination or the
onshift examination which had already been conducted that
morning by Foreman Morgan.
The failure to have removed the
accumulations was therefore the result of operator negligence.
It is noted that Mettiki easily removed the coal dust accumulations by merely attaching a hose to the water line and
washing them down.
1770

In determining the amount of penalty herein I have also
considered that the operator is medium in size and has a
moderate history of reported violations. The condition was
in fact abated in a timely and good faith manner. Accordingly a civil penalty of $250 is deemed appropriate.
ORDER
Citation No. 2701541 is modified to a citation issued
under section 104(a) of the Act and, as modified,
affirmed.
The Mettiki Coal Corporation is order to pay a civil penalty
of $250 within 30 days of the date of this decision.
~

\

,,

L\..,A...,,,-· ··- \,_/,. /\

Gary Melick
Administrative Law Judge
Distribution:
Susan Chetlin, Esq., and Timothy Biddle, Esq., Crowell &
Moring, 1100 Connecticut Ave., N.W., Washington, DC, 20036
(Certified Mail)
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department of Labor, Room 1440-Gateway Building, 3535 Market
Street, Philadelph
/ PA 19104 (Certified Mail)
rbg

1771

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

22041

NOV 211986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
JOSEPH G. DELISIO, JR.,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 86-83-D
MSHA Case No. CD 85-9
Mathies Mine

v.
MATHIES COAL COMPANY,
Respondent
DECISION
Appearances:

Linda M. Henry, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the
Complainant;
Carl H. Hellerstedt, Jr., Esq., Volk,
Robertson, Frankovitch, Anetakis &
Hellerstedt, Pittsburgh, Pennsylvania, for
the Respondent.

Before~

Judge Koutras
Statement of the Proceeding

This proceeding concerns a discrimination complaint
filed by the Secretary of Labor (MSHA), on behalf of the
complainant ~ursuant to section 105(c)(l) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c)(l).
The complainant alleges that the respondent discriminated
against him by issuing him a verbal warning threatening
possible disciplinary action because of his desire to serve
as the designated miner's walkaround representative during
Federal inspections of the mine.
A hearing was held in this matter in Pittsburgh,
Pennsylvania, and the parties have filed posthearing briefs
in support of their respective positions. All of the arguments made by the parties in their briefs, as well as during

1772

the hearing, have been considered by me in the course of
this decision.
Issues
The critical issue in this case is whether or not the
respondent has interferred with the complainant's right to
accompany Federal inspectors during mine inspections as the
duly recognized union walkaround representative of the
miners. Additional issues raised by the parties are identified and disposed of in the course of this decision.
Applicable Statutory and Regulatory Provisions
1.

30

The Federal Mine Safety and Health Act of 1977,

u.s.c. § 301 et ~-

.2. Sections (105(c)(l), (2) and (3) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815(c)(l),
(2) and (3).
3. Section 103(f) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 813(f).
4.

Commission Rules, 29 C.F.R. § 2700.l, et ~-

Complainant's Testimony and Evidence
Joseph Delisio, Jr., testified that he is employed by
the respondent as a mine examiner, and has worked for the
company for 12 years.
He has served as the chairman of the
union mine safety committee since May, 1983, and is a member
of the miner's Political Action Committee.
He is registered
with the respondent as the miner's safety representative,
and has notified mine management of this fact.
He indicated
that in the event of a Federal mine inspection, if a member
of the mine safety committee, of which there are three, were
available, he would be the first choice to accompany the
inspector as the walkaround representative (Tr. 19-21).
Mr. Delisio stated that he works 1 week on the daylight
shift and 1 week on the afternoon shift.
He confirmed that
since most MSHA mine inspections (95 perceni), take place
during the day shift, he would generally be performing his
duties as a miner examiner if he were working the afternoon
shift. While working the day shift, he is the only available
member of the safety committee.
He confirmed that he works at
the Thomas Portal, and that when inspections occur at that
portal during his shift, he acts as the miner represent~tive
during these inspections. He confirmed that mine management

1773

has never threatened him with any disciplinary action, or
attempted to discipline him for acting as the miner walkaround
representative at the Thomas Portal. He also confirmed that
the Thomas Portal does not produce coal, and that coal production takes place at the Linden Portal which is approximately
5 miles away (Tr. 23).
With regard to the exercise of his walkaround rights at
the Linden Portal, Mr. Delisio stated that in June, 1985, he
attended a ·communication meeting with Mine Superintendent
Edmund Baker and raised the question concerning his ability
to act as the walkaround representative at that portal.
Mr. Delisio stated that Mr. Baker "recommended" that he not
serve as the walkaround, and "that some type of action may
be taken.against me" (Tr. 24) •. Mr. Delisio stated that he
again raised the question on July 30, 1985, while on his way
to work at the Thomas Portal. He stopped by the Linden
:Portal, which is on the way to the Thomas Portal, and asked
Mine Superintendent George Karazsia if he would allow him to
accompany the Federal inspector as the union walkaround
representative. With him at the time was Ron Stipanovich,
president of the local union, and Federal Inspector Phil
Freese. Mr. Karazsia informed him that "he had no problem
with me travelling with the inspector, but if I did management would take disciplinary action against me, and I could
consider that a verbal warning" (Tr. 24).
Mr. Delisio stated that on the evening of July 29,
Mr. Baker telephoned his home, spoke with his wife, and
informed her that it was his understanding that he (Delisio)
would be at the Linden Portal in the morning to accompany an
inspector. Mr. Baker advised his wife that he (Bai<.er) recommended that Mr. Delisio not do that, and if he did, "some
type of action would be taken against me" (Tr. 25).
Mr. Delisio stated that he did not accompany the inspector as a walkaround at the Linden Portal on July 30, and he
confirmed that no miner representative accompanied the
inspector that day (Tr. 26).
He also confirmed that on that
same day he travelled to the MSHA office in Washington,
Pennsylvania, and filed his discrimination complaint
(exhibit G-1, Tr. 26).
Mr. Delisio stated that in February, 1986, he was at the
Linden Portal in the company of Federal Inspector Francis
Wehr.
He again asked Mr. Karazsia if he could accompany the
inspector on his regular mine inspection as the union walkaround representative, and that Mr. Karazsia informed him

1774

that since his discrimination case was on·appeal, he recommended that he wait until the case was heard and decided.
Mr. Delisio stated that he then inquired of Mr. Karazsia if
there would be a problem in Mr. Delisio reporting to the
Thomas Portal and then driving his own car back to the Linden
Portal to accompany the inspector, and that Mr. Karazsia
responded that since the case was on appeal "they would have
a problem if I did that." Mr. Delisio stated that he received
the same response when he asked Mr. Karazsia if he could
report to the Thomas Portal and then travel underground to
meet and accompany the inspector at the Linden Portal (Tr.
27).
Mr. Delisio confirmed that his normal work reporting
t
at the Thomas Portal during the day shift was 8:00 a.m.,
and th~t he offered to report at 7:30 a.m., in order to have
time to travel back to the Linden Portal before the inspector
would start his inspection at 8:00 a.m. (Tr. 28).
·
Mr. Delisio stated that there have been occasions when
he did not report to his assigned portal withbut informing
mine management of his whereabouts.
He cited ·instances wh.en
he had "safety business" at the union international district
office or "sudden" safety meetings where he could not contact
mine management.
On some of these days the local union president would turn in an excuse for him, and on other days when
no excuses were turned in, mine management never questioned
him or inquired as to his whereabouts.
He also stated that
management has never disc lined him for not reporting to
work or for not informing them of his whereabouts.
Mine
management never threatened him with disciplinary action or
gave him any verbal warnings for not reporting to work on
those days (Tr. 29).
Mr. Delisio stated that when he reports for work at the
Thomas Portal, the foreman can visually observe his presence,
and he does not report in to anyone.
He simply changes
clothes, gets his equipment, and starts work underground.
He
does not use any check-in or checkout system, and no time
clock is used.
Even if he reported to the
nden Por
and
called the Thomas Portal, mine management would know
his
whereabouts, and during an inspection, a representative of
management always accompanys the inspector (Tr. 30).
~r. Delisio cited several examples of miners using their
own vehicles to travel from portal to portal.
Motormen have
driven from one portal to another when their is a shortage of
qualified motormen, miners have driven between portals for

1775

retraining, and safety committeemen have driven between portals when there are problems, accidents, or fires, ·and this
is all on company time (Tr. 32). Forbidding him to drive his
own.vehicles also precludes his attending mine inspection
close-out conferences held at the Linden Portal (Tr 33).
In
his opinion, the actions taken by mine management in his case
have interferred with his ability to act as the miners' walkaround representative (Tr. 34).
On cross-examination, Mr. Delisio confirmed that he is
at the Thomas Portal by his own personal choice and that he
bid on a job at that location (Tr. 34).
If the same job
were to become available at the Linden Portal, he would bid
on it (Tr. 35). He confirmed that he is the only safety
committeeman on the day shift, and that other miners accompany Federal inspectors at the Linden Portal because he is
not allowed to accompany them during his shift. The miners
that accompany inspectors are designated to do so by the
safety committee, but Mr. Delisio believes he is better qualified than those miners (Tr. 36-37).
He conceded that the
safety committee is sa sfied with the qualifications of the
miners who accompany the inspectors (Tr. 37). He also con-:
ceded that there is another representative who would function
in his absence during any close-out conferences (Tr 37), but
believes that it is more efficient for the union if he were
present if at all possible (Tr. 38).
Mr. Delisio stated that while no other miner walkaround
accompanied the MSHA inspector on July 30, 1985, respondent's
safety manager Malcom Dunbar did mention that another miner
other than Mr. Delisio could accompany the inspector.
However 1 Mr. Delisio asserted that Mr. Dunbar's suggestion was
made after the inspector had started his inspection (Tr. 39).
With regard to his absence from the mine on union safety
matters, without first notifying mine management, Mr. Delisio
could not state how frequently this occutred, and indicated
only "several times throughout the year." He indicated that
the respondent has an absenteeism policy, but that he has not
been subjected to this policy because of his absences (Tr.
41)

0

With regard to the use of personal vehicles by saf
committeemen to travel from portal to portal, Mr. Delisio
stated that this occurred when there was a fire, accident, or
injury, and that it did not occur too often. The on
occasion he would have to travel in a government vehicle with an
inspector was when the inspection started at the Thomas Portal and the inspector conducted a surface inspection of the

1776

dumps or the impoundment.
This did not happen frequently
because the inspectors usually show up at the Linden Portal
(Tr. 42}.
Mr. Delisio confirmed that the threatened disciplinary
action against him amoun
to warnings and that he has
suffered no loss of pay (Tr. 43).
He confirmed that what he
was seeking in this case is the following (Tr. 43):

Q.
I will - - I just have, really, one more
question, and that is am I incorrect iri the
impression that what you would want to do is
to accompany a Federal Inspector anytime that
Federal Inspector is inspecting the mine, as
long as that inspection is occurring on your
regularly scheduled shift?
A.

That is correct.

And, at (Tr. 72-75):
JUDGE KOUTRAS:
Okay.
Now, what's - - tell
me just in your own words, how you feel that
you should
able to do your job there as
mine examiner, and also fulfill your obligations as a union walk around? How would you
- - if you had your druthers, how would.you
prefer to do.it?

THE WITNESS:
I would - -.you mean how would
I prefer to travel with the Inspector and do
my job?
JUDGE KOUTRAS:
No, first of all, you're a
paid employee by Mathies as a mine examiner,
that's yo~r livelihood.
THE WITNESS:

Yes, yes.

JUDGE KOUTRAS:
And then your also the
Chairman of the Safety Committee des nated
as the walk around.
THE WIT~ESS:
JUDGE KOUTRAS:

Yes.
There seems to be some

1777

THE WITNESS: Among - - among other duties,
I'm paid as - - for my job as Chairman of the
Safety Committee also.
JUDGE KOUTRAS:
that?
THE WITNESS:
job also.

You're paid by the union for
Yes.

So that's - - that's my

JUDGE KOUTRAS:
But, you' re a paid employee
of Mathies, is that correct?
THE WITNESS:

Yes.

JUDGE KOUTRAS: You're not suggesting - you're not under the control of Mathies as an
employee?
THE WITNESS:

Yes.

JUDGE KOUTRAS: And, they have the right to
tell you, you know, you bid on the job at
Thomas, they have the right to say to you
that your working hours are such and such to
such and su~h, and these are your duties) and
this is where you'll report to work.
Is that
correct?
THE WITNESS:
don't - - -

As far as walk around, I

JUDGE KOUTRAS:
No, no, no, no, as far as
your - - you're wea~ing two hats.
Let's put
on the employee hat. As a paid employee of
Mathies, do you dispute the fact that the
Cornpany has the
the management has
the - - THE WITNESS:

Right to direct a work force.

JUDGE KOUTRAS: Right to direct it's work
force.
Tell you where to report for work?
THE WITNESS:

Yes.

JUDGE KOUTRAS:
Okay. Now, you tell me how
you would like to accomodate both things.
From what I heard from the opening statements

1778

in this case mine management wants you to
report to the Thomas portal and go to work,
and then whe.n you' re called upon to do the
walk around that they more or less according
to the Government side of the story here - THE WITNESS: I would have no problem going
to the Thomas portal. I will go to the
Thomas portal and check in there, and then
travel to wherever the Inspector is at for
his inspection.
JUDGE KOUTRAS:
that - -

Okay, you're willing to do

THE WITNESS:
no.

I have no problem doing that,

JUDGE KOUTRAS:

You're willing to do that?

THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

I'm willing to do that.
In your own personal vehicle?
Yes.

JUDGE KOUTRAS: And, you say the Company
management doesn't want you to do that?
THE WITNESS:
said.

That's what management has

JUDGE KOUTRAS: And, what reasons are they
giving you for refusing you to use your own
vehicle?
THE WITNESS: Well, at the time that I
requested to do that was the second meeting
in February, and, at that time Mr. Karazsia
said that he just
t I should wait for this
particular case to go to a hearing, and let
you decide that.
JUDGE KOUTRAS: What about the first time,
now, I couldn't understand, once the case is
in litigation -

1779

THE WITNESS: The first time - - the first
time was
the question wasn't brought up
about me using my own vehicle.
JUDGE KOUTRAS:

What was brought up then?

THE WITNESS: About me just traveling with
the Inspector - ~ that particular day.
And,
at that time I was told that action would be
taken against me. There was never a question
b+ought up about me reporting to my work
portal and then traveling back to the Linden
portal.
That was brought up at the second
meeting.
And, at (Tr. 84-85):

*

*

*

*

*

*

*

THE WITNESS:
I believe what you're getting
at there is me traveling from Thomas to
Linden in my own vehicle, which I stated
earlier, I'm willing to do that prior to the
shift.
I'm willing to do that on my own
time, not on company time.
I'm willing to
take the responsibility to drive my own
vehicle, and my liability myself, traveling
from the portal to the other portal.
JUDGE KOUTRAS:
Once you get there, taking
the chance of the Inspector showing up, is
that what you're saying? What if he doesn't
show up?
THE WITNESS: Well, the Inspector is normally
there at 7:30 in the morning.
I could easily
call - - you're talking about ten minutes
difference in traveling time, I could easily
call that portal, if the Inspector was there
then travel - - - be at that portal before
8:00 a.m., where I would still be on my own
time~ I wouldn't be on company's time.
I
could actually leave Thomas portal at a
quarter to
ght, and be at Linden portal
before 8:00 a.m., on my own time where I
would not start on company time until
8:00 a.m.

1780

JUDGE KOUTRAS:
And, what if the Inspector
weren't there, you'd just turn around and
come back?
THE WITNESS: Well, I would call to make sure
- - if he wasn't there I wouldn't travel to
that portal.
I mean if I called that portal
at twenty to
ght, and, no Inspector was
there - - the majority of the times the
Inspector wouldn't be coming that particular
day.
Just about in all cases they're there
by half past.
Mr. Delisio stated that during 1985 there were approximately 70 different occasions when he missed a partial work
shift or left the mine early to attend to union business,
and that mine management never objected to his.absences or
complained that his mine examiner duties could not be performed by anyone else (Tr. 44).
He confirmed that on each
of these occasions~ other union members accompanied the
inspectors on their inspection rounds.
These walkarounds
representatives would either be persons designated by him or
the regular walkarourrd representative at the Linden Portal.
He also confirmed tha:t there is a regular union w~lkaround
. representative available at the Linden Portal during the
sh if ts that he works at the Thomas Portal (Tr. 4 5 . . . 4 7).
He
further explained the circumstances concerning his absences
from work as follows (Tr. 59-61):
JUDGE KOUTRAS:
Mr. Delisio, let me ask you
this que~tion.
These times when you have
business downtown with the National or
International Union, you mean to tell me you
simply go, and mine management is total
unaware of it?
THE WITNESS:

On occasion.

JUDGE KOUTRAS:
About how many occasions? Is
it ~sually your practice to let somebody know
at the mine that you're not going to be there
so somebody else THE WITNESS:
I make an attempt to but,
there's occasions when I can't - - JUDGE KOUTRAS:
How many times are you successful in reaching the mine management to

1781

tell them that you're going to be away on
union business? More than the other way?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Yes~

Simply not showing up?
More, yes.

JUDGE KOUTRAS: What is your job.as a mine
examiner what precisely do you do as a mine
examiner?
THE WITNESS:
I examine an area of the mine
for hazardous conditions, for gas - JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
right?
THE WITNESS:

Preshift, that sort of thing?
Preshift examination, yes.
'fhat' s a pretty important job
Yes, it is.

JUDGE KOUTRAS: Now, if you simply don't show
up, and go on downtown, where does that put
the - - THE WITNESS:
I really don't know, cause
management has never questioned me on it.
JUDGE KOUTRAS:
But, what I'm - - the point
I'm making,. is it true or not true that most
·of the time that you're away on union busi~
ness, and mine management is aware of it,
it's not simply a situation of your not showing up, and them not doing anything.
THE WITNESS:
Yeah, I would say the majority
of the time, yes, they would know that.
I'm
sure the foreman at the start of the shift
looks to see if I'm there on occasions when I
don't call in, and, he's aware of it then,
and that foreman the majority of.the time
does. my job. That particular foreman.

1782

JUDGE KOUTRAS:
Well, on those occasions when
you are not there, does he naturally assume
that you're off on union business, or I don't know.
He's never quesTHE WITNESS:
tioned me on it so I really don't know what
he assumes.
JUDGE KOUTRAS:
When you report back on your
next shift do you always have an excuse of
some kind, a note or something?
THE WITNESS:

No, I don't.

JUDGE KOUTRAS:
So, any time you're not there
at the mine, mine management just knows automatically that· you're off on union business,
and they don't say anything to you?
THE WITNESS:
I - - I - - I imagine that's
what they do, I really don't know how they
handle that.
JUDGE KOUTRAS:

Okay.

THE WITNESS:
I have to say that a lot of
those instances, I mentioned 70 cases, a lot
of those 70 cases were when I was at the
Linden portal on a safety inspection.
I do
monthly safety inspections where I'm at the
nden portal, and some of those other
instances where I would be at the Washington
MSHA office, at Manager's conferences.
It's
not that I'm missing 70 days of work a year,
you know, I'm on union business either out
there at a conference where managements with
me at that time, or I'm at the Linden portal
where the prep plant will have you on safety
inspections.
I don't want you to look at
that number and say well, this
llow is missing 70 days of work, or 70 partial days of
work a year, you know - - Mr. Delisio believes that he is the "most qualified"
first choice of the miners at the Linden Portal to accompany
inspectors during their inspections because the chairman of·
the safety committee has always travelled with the inspectors and none of the walkarounds at the Linden Portal have
state safety certifications as he does (Tr. 48).
MSHA's

1783

counsel conceded that there are no particular "certification
requirements" for a miner to serve as a walkaround representatives, and whoever the miners select for this task may
serve as their walkaround representative (Tr. 49).
Counsel
further explained her position as follows at (Tr. 50-52):
JUDGE KOUTRAS: Well, is he the first choice
because he says he's the first choice, or is
it because he's on the Safety Committee, or
is he the first choice because the miners
have said, Mr. Delisio, you as Chairman of
the Safety Committee, are the only Safety
Representative qualified to accompany a
Federal Inspector? How many members are on
the Safety Committee? Three?
MS. HENRY:

Three.

JUDGE KOUTRAS:
How about the other two?
What choices would they be, second and third,
or - -

MS. HENRY:

They're all on different shifts.

JUDGE KOUTRAS:
shifts?

They work on different

MS. HENRY:
Yes, Yorir Honor.
ticular time - JUDGE KOUTRAS:
works on -

So on the par-

On the shift that Mr. Delisio

MS. HENRY:
On the shift that Mr. Delisio
works, he would be the only Safety Committee
member available to accompany the Federal
Inspector.
JUDGE KOUTRAS:

I understand.that, but - - -

MS. HENRY:
And, our point is that
our
contention is that this is the miners first
choice as the representative.
When the
miners go in to elect members of the Safety
Committee, as there has been testimon~, they
are aware that the duties of the members of
the Safety Committee is that of walk around.
If they wanted somebody else to accompany the

1784

Inspector on a walk around, they would elect
that person to the Safety Committee.
JUDGE KOUTRAS: You mean the only reason for
·someone being on the Safety Committee is that
he's available and willing to go as a walk
around?
MS. HENRY:
Not the only reason, but one of
the reasons. And, that management here is
attempting, and has been, in numerous cases
struck down, attempting to interfere with the
miners choice of representative. The plain
language of the Statute states that the
miners choice must accompany the Inspector,
not the most convenient choice for the
Company, to accompany the Inspector.
And, - - JUDGE KOUTRAS:
Do you view that right as
being absolute?
MS. HENRY:
Yes, Your Honor.
the
islative history - - -

initely.

JUDGE KOUTRAS: Well, it's not absolute when
he's missing though, and designates somebody
else.
MS. HENRY~
Yes, Your Honor, but, that is the
miners choice, not the Company's choice.
Mr. Delisio stated that in 1980 or 1981, mine management
allowed union president Ron Stipanov h to travel from portal
to portal in his own car on company time to accompany inspectors during inspections. He confirmed that mine management
has never indicated to him that he was not the £.irst choice
of miners for purposes of serving as the union inspection
walkaround representative {Tr. 54-55). He conceded that the
union-management collective ba
ning agreement does not
specify who may function as the walkaround representative
(Tr. 55, 58).
Although Mr. Delisio claimed that other miners
were permitted to travel from portal to portal, he could not
identify them (Tr. 58}.
Mr. Delisio confirmed that the mine was shut down for
10 months from June 1982 to May 1983, an~ that prior to this
t
the mine employed approximate
600 miners who entered
at two production portals. Since that time, the mine employs

1785

approximately 320 miners, and the Linden Portal is the only
production portal, while the Thomas Portal only has miners
involved in haulage and some construction and maintenance
work CTr. 57, 64).
Mr. Delisio confirmed that when he worked at the Linden
Portal, other union members at the Thomas performed the walkaround duties during an inspection at that portal. He also
confirmed that at the present time, if he is absent from _the
Thomas Portal the safety committee may designate other
miners as the walkaround representative in his absence (Tr.
65). When asked whether he had ever travelled from the
Linden Portal to the Thomas Portal to accompany any inspectors during their inspections, he explained as follows (Tr.
66-69):
THE WITNESS:
Did I ever travel from Linden
portal to Thomas portal .to go with an
Inspector?
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
you?

Right.
No, I didn't.
My question is, why didn't

THE WITNESS:
Because - - I can't answer why
Because I felt that the Company
I didn't.
policy was that I was not allowed to do that
- - - the only thing I can say.
It's always
been told to the Safety Committee by management that we are not allowed to travel from
portal to portal, and that's what the Safety
Committee - - this Safety Committee had
believed until we got an interpretation of
the law, or until we found out that we were
being denied our rights.
JUDGE KOUTRAS:
Who gave you the interpretation that you had a right to go from portal
to portal?
THE WITNESS: Well, I don't know whether I
got the intepretation myself from reading the
Federal law, or whether it came from someone
assoc ted with the Federal Government~

1786

JUDGE KOUTRAS: Well, who - - I mean, did
somebody suggest to you that - - THE WITNESS:
I believe I got it looking at
cases that were decided on walk around rights.
JUDGE KOUTRAS:
THE WITNESS:

*

*

JUDGE KOUTRAS:
then?

What cases?
I

don't know.

*

*

*

*

*

Why wasn't a case brought

THE WITNESS:
Because there was never - - as
I said, I felt that, you know, I was told
that I was not allowed to d9 that, so I just
assumed that that was correct.
JUDGE KOUTRAS:
Okay. When you went to - initially with Mr. - - with the Federal
Inspector to the Linden portal on the day of
July 30th, how did that all come about? Was
this - - I'm going to lay it right on the
line, was this a test situation? Was this a
planned confrontation, or was this - - you
just happened to appear at the Linden portal
knowing that the Inspector was going to be
there?
THE WITNESS:
It was a situation that came
about in June when I mentioned it at a communication meeting that I was going to stop at
Linden portal on my daylight shift and accompany the Inspector.
And, that was a Monday,
that was my daylight shift and that's exactly
what I did.
Yes, I guess you could say it
was a - - How did you know the Inspector
JUDGE KOUTRAS:
was coming to Linden?
THE WITNESS: Well, I got to the Linden portal
roughly around 7:30 and the Inspector was
already at the property.
If the Inspector was
not at the property I would have proceeded to
my work portal at Thomas.

1787

JUDGE KOUTRAS: So, you just .took a chance
that he would be there?
THE WITNESS: Ninety-nine percent of the time
they are there. They do regular inspections
at the mine.
JUDGE KOUTRAS: Are you familiar with - well, - -. Ninety-nine of the inspections
are done at Linden, and also ninety-nine percent of the inspections are also done on the
daylight shift, rather than the afternoon
shift, right?
THE WITNESS:

Right.

JUDGE KOUTRAS: So, at that particular Mathies
operation the mine operator has a pretty good
idea on when an Inspector is likely to show
up, and where he's expected - - where he's
likely to show up, is that the idea?
THE WITNESS:

Yes.

Mr. Delisio confirmed that it was the past and present
position of the Union that it did not want miners to be in
vehicles operated by company personnel and did not want
miners using their own personal vehicles for transportation
between locations at the mine, and that this position 6as
been communicated to mine management (Tr. 82). However, he
stated that the Union has never taken this position with
respect to safety committeemen travelling from portal to
portal in their personal vehicles for the purpose of accompanying inspectors, and that mine management has never
stated the union's position as a reason for not allowing him
to use his vehicle to travel from portal to portal for inspection purposes (Tr. 83).
MSHA Special Investigator John Chambers conf irrned that
he conductd the investigation .of the complaint filed by
Mr. Delisio in this case, and that he interviewed and took
statements from mine management representatives Edmund Baker,
George Karazsia, and Malcolm Dunbar.
He stated that all
three individuals advised him that they were not preventing
Mr. Delisio from travelling with the inspector, but wanted
him to report to his place of work (~r. 88).
Mr. Chambers stated that during his investigation,
Safety Director Baker confirmed that he had telephoned

1788

Mr. Delisio's home on July 29. Mr. Chambers identified
exhibit G-3, as a list of questions asked of Mr. Baker during the investigation, and he read into the record the
following question ask.ed of Mr. Baker, and his response (Tr.
89-90):
Q.
Okay. Could you read where I'm pointing,
the last question.
Could you read that for
us for the record?

A.
Yes, ma'am.
"If Joe Delisio had first
reported to his designated work station, then
informed management of his desire to change
portals, who would - - what would management's
position be?" And, do you want the answer?

Q.

Yes, please.

A.
"Management would not authorize a portal·
change since the portal is more than - - since the portal is more than well represented
with union walk arounds. With market conditions, and absenteeism as they are, Matnies
cannot properly afford the moving of work
force from portal to portal."
Mr. Chambers identified exhibit G-2, as a statement
taken from Superintendent George Karazsia, and he confirmed
that Mr. Karazsia gave Mr. Delisio a verbal warning and indicated that action would be taken if he did not report to his
reporting work portal.
He also indicated that the statement
by Mr. Karazsia reflects that ~r. Delisio was told not to
leave the Thomas Portal and go to Linden, or report to
Linden before his shift (Tr. 92-93). Mr. Chambers confirmed
that he spoke with MSHA Inspector Philip Freese, but that he
no longer is employed with MSHA (Tr. 92).
On cross-examination, Mr. Chambers stated that he conducted the investigation alone, spoke to several company
officials, but has no notes.
He confirmed that his investigation reflected no real dispute concerning the facts and no
variation among the statements made by either side of the
dispute (Tr. 94).
He discussed the procedures he followed
in reporting the results of his investigations, and did not
believe that there ~ere any undue delays in processing the
case (Tr. 95-96). Mr. Chambers stated that the question
concerning the use of private automobiles was not raised
during his investigation, and that "the thing that came up
durin9 the investigation was that they- did say if you don't

1789

report to your place of duty, there will be action taken"
(Tr. 99).
On recall, Mr. Chambers stated that during the course
of his investigation he did not contact any of the miners at
the Linden Portal other than Union President Ron Stipanovich.
Mr. Chambers confirmed that exhibit G-5 is a list of the
miners working at the Linden Portal, and exhibit G-4, is a
list of available walkarounds at that portal.
Both lists
were supplied by mine management during the investigation.
Based on these lists, Mr. Chambers confirmed that during the
day shift at the Linden Portal there were approximately
12 miners who were familiar with the duties of a walkaround
representative, and had served as walkarounds during July
and August 1985.
He confirmed that he did not interview any
of the miners on the lists (Tr. 109-113).
Joseph Tortorea, MSHA Mining Engineer and Senior Special
Investigator, stated that his duties include the assignment
of cases to special investigators and the review of investigative reports to determine whether or not there is enough evidence to forward the case to MSHA's Arlington, Virginia
office for action. Mr. Tortorea stated that his initial
review of Mr. Delisio's complaint raised a question of interpretation of what mine management meant by Mr. Delisio "not
reporting to his portal." He confirmed that he drafted the
questions put to Mr. Baker by Mr. Chambers in exhibit G-3
(Tr. 103).
Mr. Tortorea confirmed that after reviewing Mr. Chambers'
final report, he concluded that mine management intended to
discipline Mr. Delisio if he did not report to work at the
Thomas Portal, regardless of his desire to report to Linden
first or to report to Thomas and then travel to Linden (Tr.
105).
On cross-examination, Mr. Tortorea confirmed that the
case was not referred to Arlington within 45 days because of
the additional work that had to be done by Mr. Chambers. He
believed the case was referred to Arlington within 58 or
59 days, and once this was done he had no part in any MSHA
subsequent decisions.
He also confirmed that while he was
not actively engaged in the investigation of the complaint
and conducted no interviews, he monitored the case as it
progressed, and does so in all cases which he assigns for
investigation (Tr. 106).
In his opinion, any threat of disciplinary action against a miner by means of a warning would
be considered "interference" and "discriminatory" (Tr. 107).

1790

Ronald L. Stipanovich testified that he has been
employed by the respondent for over 11 years and is the president of the union local and a member of the mine safety
committee. He stated that sometime in 1977 or 1978, he participated in a local union meeting where the miners voted
that the safety committee would serve as the walkaround representatives to accompany Federal inspectors during their
inspections. Since the chairman of the safety committee was
the individual who received the most votes in the election,
it was decided that the chairman should be "the first to go
if there was an inspector on the property," and
Mr. Stipanovich could not recall the actual words "first
choice" being used (Tr. 130). This decision was made by a
vote of the general membership of the local, and since he
became president in April, 1983, no members have expressed
any dissatisfaction with the designation of the safety committee as the miner'.s representatives on walkarounds and the
matter has never been brought up again for another vote (Tr.
132-133).
Mr. Stipanovich stated that the union furnishes written
lists to mine management indicating the names of the union
representatives and the members of the safety committees.
The chairman of the committee usually furnishes the names of
the individuals who serve as walkaround representatives (Tr.
134). He confirmed that he has served as a walkaround representative, and that prior to 1982, before he became president
of the local, and prior to the lay off, there were two
instances when he travelled from the Thomas Portal, which was
his work station, to the Linden Portal or the preparation
plant in his automobile to accompany Federal inspectors on
their inspection and there "was no problem.
He stated that
before 1982, this was a "common practice" (Tr. 135).
11

Mr. Stipanovich stated that exhibit G-5 is a list of
the crew members used by the foremen to ascertain who is on
each particular crew. The names of the foremen are ''blacked
out," and the list is not a list of authorized miner walkaround representatives.
He identified exhibit G-4, as a
list containing the names of miners who have accompanied
Federal inspectors, and he did not regard it as a list
supplied by the union to mine management.
Be alluded to two
other lists given to management as "a courtesy" by the union
in order to insure that the miners were paid in the event
they decided to accompany an inspector during an inspection.
He did not regard these lists as definite chosen union walkaround representatives (Tr. 137). He regarded these lists
as "substitute lists" of walkarounds to be used when the

1791

safety committee or chairman were not available.
He indicated that it was common knowledge and practice that the
chairman and the safety committee are the first options to
accompany inspectors, and the other miners listed are substitutes (Tr. 138). The lists were never intended as designated
"first choices" of miner walkaround representatives (Tr. 139).
Mr. Stipanovich stated that he knew of no instances when
the miners have met to select someone other than a safety
committeeman or chairman to be their walkaround representative (Tr. 141). He stated that it is reasonable to assume
that the miners listed on exhibit G-4, as accompanying inspectors on the dates indicated, did so because the regular
safety committeemen were not available on those days (Tr.
144).
In order to protect its members, the union makes sure
that someone is available to accompany an inspector (Tr .•
14 4).

Mr. Stipanovich stated that at the present time there
is usually only one MSHA inspector at the mine, but at least
2 days a week there may be two or three inspectors present.
There are times regularly when someone else other than the
safety committeemen would need to be available to serve as a
walkaround (Tr. 148). He confirmed that he was not always
available, and that rotations of individuals serving as walkarounds are necessary as the work shifts rotate (Tr. 148).
Mr. Stipanovich stated that it has been his experience that
once mine management issues a verbal warning, it usually
follows it up with some kind of discipline (Tr. 150).
Mr. Stipanovich stated that on two occasions since
February, 1984, he has travelled with company safety escort
Kosack from the Linden Portal to the Thomas Portal or. the
preparation plant in a company car to meet an inspector and
management never refused to allow him to do this (Tr. 151).
Prior to the layoff there were numerous occasions when he
travelled with company safety inspectors from one portal to
another in their personal vehicles or his own automooile
because company vehicles were not available (Tr. 152-153).
Mr. Stipanovich stated that the question concerning the
use of private automobiles on mine property came about
primarily as a result of the union's concern with miners
transporting 10 to 12 people in the back of their pickups or
in their automobiles.
The union decided that this was not a
safe and good practice, because accidents occurred.
He
stated that one miner, Jimmy Mills "utilizes bis own vehicle
a lot" because he begins work at 6:00 or 6:30 a.m. running

1792

the fans and works at the water treatment plant in Mingo
(Tr. 154).
On cross-examination, Mr. Stipanovich responded as
follows with respect to Jimmy Mills' use of his own
automobile {Tr. 157-159):
Q.
Mr. Stipanovich, to pick up something
here, this Jim Mills, the individual you
named, you left me with the distinct impression that he uses his personal vehicle
throughout his work shift to go and check on
things like fans and things like that, am I
correct in what you're trying to tell me?

A.

I say that he doesn't use it everyday,
but, he has utilized his own personal
vehicle, yes.

Q. Well, isn't it true that he is issued a
truck by the Company to make these kinds of
stops where he has to go inspect fans or
sub-stations?
A.

Well, there's a truck there, yes.

Q.

Isn't it the fact that what happens is
that sometimes on his way to his port~l,
he'll stop and check one of these locations,
and, then when he gets there he uses the
Company truck throughout the rest of the day
to accomplish his authorized duties?

A.
Sometimes that does happen, but, also he
has - - I know that.he has used his own
vehicle.

Q.

Well, I'm trying to make it clear when he
uses his own vehicle, and, I'm asking if
isn't it true that what happens with this
individual is that apparently wherever he
lives he can stop off on his way to his
assigned portal, and, check a fan or something, drive to work, park his car, he'll get
in the Company truck and he'll continue to do
whatever he's doing in checking above ground
facilities.
And, thac's whats happening with
Mr. Mills.

1793

A.
Sometimes it does, but, I stated sometimes
he uses his own vehicle during the course of
his day.
And, how often is that. sometimes, do you
know?

Q.

A.

I don't have an average~ you know, if you
want me to say twice, three times a week, I
can't answer that.

Q.

You don't know?

A.
I know that the fact that he has used his
own vehicle.

Q.

He has used it, but, you don't know how
of ten?

A.

Yes.

Q.
Okay. Now, you indicated you were aware
that the union and the - - perhaps you individually, had raised the concerns with the
Company about the miners use of personal
vehicles to transport miners between
locations?
A.

Yes.

Q.

Now, you left me with the distinct impression that the only concern the miners had was
getting in the back of open pick up trucks,
or something like that?
A.
That was the complaint that was issued to
management.

Q.

Well, I'm going to ask you straight out
now, is that the only thing, about people
getting in the back of pick up trucks, or,
did the miners aLso let the Company know that
they were concerned about miners driving their
cars inside automobiles between locations?

A.

It was both.

1794

Q.
It was both, right. And, when you raise
a concern like that to the Company, you expect
them to take an interest in it, do you not?
A.

Yes, sir, I do.

Mr. Stipanovich stated that prior to 1982, there.were
many times when two or more MSHA inspectors were on the
property and no safety committeeman or chairman was available, he would drive his own car to meet or travel with an
inspector.
These occurrences varied from one Jay to 5 days
(Tr. 161). He stated that mine management has never directly
instituted a policy against the use of private automobiles by
miners on mine property, and he has never inquired about any
such policy (Tr. 162). He confirmed that since 1984, he has
on two occasions been transported by a member of mine aianagement in that individual's private automobile from portal to
portal or to the preparation plant for the purpose of accompanying a Federal inspector, and that he has no objection to
doing this (Tr. 162).
Mr. Stipanovich identified the members of the safety
committee for the period July 9 through August 30, 1985, as
Mr. Delisio, chairman, and Ronald Mason and Joe Balluch.
He
confirmed that he recognizes the names of the 14 miners which
appear on exhibit R-1, dated August 9, 1983, and that the
document is signed by Mr. Delisio.
The list contains the
names of Mr. Mason and Mr. Balluch. He characterized the
list as a "convenience list," and conceded that it does not
designate the "choices" for walkaround pu
s (Tr. 165).
He did not know whether a current list is n existence (Tr.
167). With regard to exhibit G-4, containing a list of
miners who served as walkarounds from July 9 to September 30,
1985, Mr. Stipanovich stated that he knows of no complaints
concerning the names on that list (Tr. 169). MSHA's counsel
stated that she had no reason to believe that the individuals
listed did not accompany the inspectors on the dates indicated on the list in question (Tr. 110).
Mr. Stipanovich confirmed that he was with Mr. Delisio
when he informed Mr. Karazsia that he wanted to walk around
at the Linden Portal, and that Mr. Karazsia did not question
Mr. Delisio's designation as the authorized representative
of the miners (Tr. 176).
He also confirmed that in the years
he.has worked at the mine, mine management has never questioned a safety committeeman's designation as the authorized
miner representative for walkaround purposes.
Prior to
Mr. Delisio's case~ management never used as a reason for
denying a committeeman his walkaround rights the fact that he

1795

would have to travel from portal to portal to accompany an
inspector. Management never refused a committeeman the right
to accompany an inspector at another portal because he had no
means of travel (Tr. 176).
Mr. Stipanovich confirmed that mine management has on
occasion attempted to have a miner on "light duty" serve as
a walkaround, rather than the designated walkaround who may
be busier. He has resisted these efforts by informing
management that the designated representative must go, and
management has never contested his decision in this regard
{Tr. 178-179). Prior to Mr. Delisio's case, management never
contested the right of ariyone to serve as a walkaround
representative (Tr. 179).
Mr. Stipanovich stated that prior to July 30, 1985, the
safety committee raised the question of Mr. Delisio's desire
to accompany Federal inspectors at the Linden Portal at a
regular communications meeting held with mine management,
and Mr. Baker was present at that meeting (Tr. 183-184).
Mr. Stipanovich stated that in the event an inspector
decides to go to the mine supply yard or the preparation
plant to begin his inspection, a miner's representative would
not likely walkaround with him because there are only two
miners assigned to work at those locations and mine management would not likely excuse them f rorn their duties to accompany the inspector (Tr. 185). In this event, because of
management's policy prohibiting miners from travelling from
portal to portal to accompany inspectors, no miner representative would accompany the inspector, and only the company
escort would go with the inspector (Tr. 185-187). He
explained further that the two miners at the supply yard and
preparation plant begin work at 7:15 or 7:30 a.m., and quit
at 2:15 p.m.
By the time an inspector arrives, the men are
into their work shift, and management is not likely to
excuse them to accompany an inspector (Tr. 187).
With regard to the supply yard and preparation plant,
MSHA's counsel made the following assertions (Tr. 188-191).
MS. HENRY: The Company has a company wide
policy.
It won't let people travel from
portal to portal.
It's not just Mr. Delisio
travelling from the Thomas portal to the
Linden portal.
It won't let Mr. Delisio, if
he's on duty at the Thomas portal, go f rorn
the Thomas portal to the supply yard.
Or, it
won't let Mr. Delisio, if he's on duty at the

1796

Thomas portal during day shift, go from the
Thomas portal to the prep plant. There are
occasions, because there are two miners that
are working there, and, JUDGE KOUTRAS: Well, let them go there for
what reason, I mean MS. HENRY: For inspection.
For walk around.
As a result, there are some occasions where
the Inspector walks around in the prep plant
and in the supply yard when there is no union
representative, because the Company will not
allow travel. And, they will not allow the
designated representative of the miners ta
travel. And, what we are saying here today
is, whether it's Mr. Delisio's travelling
from the Thomas portal to the Linden portal,
or whether it's Mr. Delisio travelling from
the Thomas portal to the supply yard, whatever, this travel policy of the Company is
unreasonable, and designed to impede and
interfere with the miner's right to walk
around.
JUDGE KOUTRAS: Well, let me ask you this
question.
How long has this been going on?
MS. HENRY:
I don't know how long it's been
going on with the supply yard and the prep
plant.

*

*

*

*

*

*

*

MS. HENRY: And, it is our contention,
although I am sure the Company didn't want to
qualify that, it is our contention that that
is what occurred. That the Company will not
allow the designated representative of the
miners, if the designated representative is
not already at the supply yard or the prep
plant to travel from the Linden portal or the
Thomas portal to the prep plant or to the
supply yard.
It's all part of this general
- - - we're not allowing people to travel.
JUDGE KOUTRAS:
Did MSHA conduct an investigation about this general - - -

1797

MS. HENRY: we did not find out about that
particular event until this morning.
JUDGE KOUTRAS:

This morning?

MS. HENRY: Yes, Your Honor.
when we were -

We were - -

JUDGE KOUTRAS: And, why is this this morning, I mean, this case obviously has generated a lot of interest. You've got union
people here, probably from the International
and the National, and, all of a sudden this
morning you find out that the mine operator
has not permitted walk arounds at the supply
and the preparation plant.
I'm surprised
that the union hasn't - - MS. HENRY: Your Honor - - - I'm surprised
- - well, Your Honor we were in all fairness
concentrating on Mr. Delisio's specific right
in the investigation. We only concentrated
on the events of July 30, 1985. Was
Mr. Delisio the authorized representative?
Was he denied permission to go? MSHA's feeling is that when there is a designated authorized representative, the miner's authorized
representative, then he should be permitted
to go. And, believing that, and believing
that to be true in Mr. Delisio's circumstance,
we filed a complaint on Mr. Delisio's behalf
against the Company. Why the investigation - the investigation was not more broad than
that, it was concentrating on Mr. Delisio's
circumstance.
And, there was no inquiry as to
whether this particular circumstance might
have hampered other individuals, but, MSHA's
feeling was that the policy in general was
wrong, because it does hamper the efforts of
the miner's representative to be at the place
where the inspection is.
~nd, whether that
inspection is at the Linden portal or at the
prep plant or at the supply yard, when the
miner's designated representative is not
allowed, effectively whether it's through circular reasoning - - well, it's not your reporting, it's not that we think you're going on
the walk around we don't like, it's the fact
that you haven't reported - - whether it's

1798

that kind of circular reasoning or whether
it's simply straight out someone's not going,
that that's an interference with the language
is unambiguous, the only one that was investigated at the time.
Therefore, ·it was not discovered until this morning that there were - other than Mr .. Delisio's second complaint
second occurrence of trying to attempting to
go to the Linden portal.
In response to further questions, Mr. Stipanovich
stated that MSHA inspectors have initiated their inspections
at the suppy yard, but he could not be specific as to the
dates when this has occurred (Tr. 207).
John R. Schmitt testified that he has been employed by
the respondent since May, 1975, and serves as treasurer of
the local union.
He previously served as chairman of the
safety committee from 1976 to 1982, but lost the position
because of a layoff.
He confirmed that when he served as
chairman he was the authorized miner's walkaround representative for purposes of accompanying Federal mine inspectors.
He confirmed that he was on the safety committee and present
at the time the union membership voted to designate the
chairman and members of the safety committee as the authorized walkaround representatives of the miners.
He al30 confirmed that when he served as committee chairman he was the
designated authorized walkaround representative by virtue of
his office and the vote of the general membership (Tr.
213-214)0
Mr. Schmitt stated that when he served as chairman of
the committee he was able to travel from portal to portal to
accompany inspectors as the union walkaround representative
and did so by using his own automobile, and at no time did
the respondent ever deny that he was the authorized walkaroun~ representative (Tr. 214-215).
Mr. Schmitt stated
that he frequently travelled between portals in his own automobile from his normal work location at the Linden Portal.
During this time, he accompanied inspectors everyday while
on the steady daylight shift (Tr. 216), and he confirmed
that three full portals were in operation at that time (Tr.
215).
Mr. Schmitt stated that the resportdent never expressed
any disple~sure with his absences while accompanying inspectors, and he was never threatened in any way for serving as
the walkaround representative.
Once he determined that an
inspector was present at another portal, he would simply

1799

inform mine management that he was going to accompany the
inspector and would drive to the portal in his car to walk
around with the inspector.
He would travel from the Linden
Portal to the Thomas Portal in his car and management never
prevented him from doing so.
During the time he was.at the
Thomas Portal, other miners. were available to serve as walkarounds, but he went because he was the chairman of the
safety corrunittee and had to be present at inspection
close-outs, and had to deal with management and the inspectors on behalf of the union.
He stated further that the
"vote was taken that the chairman of the safety committee be
the head man to go" (Tr. 22 0).
Management never questioned
the fact that he was the designated union walkaround representative for the portals, the supply yard, or the preparation plant (Tr. 220-221).
Although he is no longer the chairman of the safety
committee, Mr. Schmitt confirmed that he has served as a
walkaround at his present portal because there is no safety
·committeeman there.
If a member of the safety committee
were there, he would recognize the committeeman as the
authorized walkaround, even though he himself is qualified
to walk around (Tr. 221).
No miners have ever questioned
the fact that the safety committeemen are their designated
representatives (Tr. 222).
There have been no suggestions
that miners get together oh their work shifts and designate
anyone other than a safety committeeman as their representative, and it is common knowledge among the miners that the
chairman or members of the safety committee act as their
walkaround representatives (Tr. 223-224)"
On cross-examination, Mr. Schmitt reiterated that in
1976 and 1977 when he served as safety committee chairman he
of ten left his home Gamble Portal to travel to another portal
where the inspector would be beginning his inspection, and he
did so in his own car.
In the event he encountered an inspector at one portal and the inspector decided to go to another
mine location for his inspection, he and the company representative would travel with the inspector in the inspector's car
(Tr. 226).
Mr. Schmitt confirmed that within the past month or
6 weeks he raised a concern with mine management about the
miners riding in or being transported in private vehicles,
and he explained the situation as follows (Tr. 227-228):
A.
Yes.
In that particular situation we had
a - - I forget just what it was
the
miners were not able to go into the mine at

1800

this particular time.
Okay, there was a
problem with the elevator that - - I think it
was the elevator at Linden portal. They
brought everybody upstairs and they had a
meeting, and, at this meeting they said that
they were going to transport everybody to the
Gamble portal and enter the mine from there.
And, I for one, was listening to what was
going on and I dee ided to raise my hand
because my concern is in all honesty that if
a group of individuals as ourselves were
transported in different cars, my question
was who is responsible for the insurance, you
know, if something were to happen to, you
know, this large amount of people going over
to the mine. The Company was accomodating
enough to say that we would take people in
Company cars, as many as we could.
I asked
Malcolm Dunbar at that meeting in front of
l of management and the union, what about
travelling in our own cars over there or are
you going to provide Company cars, and
Malcolm's answer to me was, that's a good
question.
I did not get an answer. He said,
that was a good question, we'll have to check
on that.
And, as - - not to create any
problems or anything further, we let it go at
that, and, I myself rode in the Company car
over to Gamble and whatever t
other men did
I don't know.
But, L assume that most of
them rode in Company cars.
Mr. Schmitt stated that while safety committeemen are
present at the Linden portal, they work different shifts.
The one committeeman who works the daylight shift would be
the one to accompany an inspector during that shift, but he
does not work the same shift as Mr. Delisio.
If no committeemen are present, the other miners listed on exhibit G-4,
including himself, would serve as the walkaround representative, and they have done so (Tr. 232~234).

Dunbar, respondent's saf
manager, identified
exhi
as a copy of the Mathies Mine map, and he seated
that the Thomas Portal is approximately 5 miles from the
Linden Portal, and that the preparation plant is approximately 10 miles from the Linden Portal. Mr. Dunbar stated
that on the morning of July 30, 1985, he was at the Thomas
c.,:_~;_::_=..:.:.~~~~

1801

Portal and received a telephone call concerning a discussion
between Mr. Delisio and superintendent George Karazsia which
was taking place at the Linden Portal. Mr. Dunbar went to
the Linden Portal at 8:00 a.m., and learned that Mr. Delisio
was there and wanted to accompany a Federal inspector on his
inspection rounds. Mr. Dunbar confirmed that Mr. Delisio
was advised by Mr. Karazsia that he could not change portals
on his own, and that if he insisted on accompanying the
inspector at the Linden Portal he could possibly be disciplined for not reporting to his regular duty station at the
Thomas Portal. Mr. Dunbar stated that he suggested that
Mr. Delisio designate a miner working at the Linden Portal
to accompany the inspector as the walkaround representative,
but that Mr. Delisio refused and stated that if he (Delisio)
was not permitted to accompany the inspector, no one would.
Mr. Dunbar confirmed that the inspector conducted the inspection without a walkaround representative (Tr. 244-248).
Mr. Dunbar stated that since Mr. Delisio is assigned to
the Thomas Portal, his foreman would expect him to show up
at that portal for work.
Allowing Mr. Delisio to first
report to the Linden Portal would cause confusion since the
foreman would not know his whereabouts or when he may be
expected for work. With regard to the use of private
vehicles, Mr. Dunbar confirmed that since 1982, and upon the
recommendation of the union, the respondent has to the extent
possible, limited the use of personal vehicles because of
liability problems which may occur while a miner is travelling
on mine property. Mr. Dunbar pointed out that there are many
narrow roads, and the presence of school children in the morning hours on the roads increases the potential liability (Tr.
2 4 9).

Mr. Dunbar confirmed that mine training sessions are
usually held at the Linden Portal, and since most of the
employees are at that portal, no transportation problems
exist.
For the miners working at the Thomas Portal, the
supply yard, and the preparation plant, they are usually
notified in advance of any training at the Linden Portal, and
they are permitted to initially dri~e their vehicles to the
Linden Portal, and when the training classes are over, they
simply dri~e home from the Linden Portal (Tr. 250). With
regard to replacement miners needed to operate the 50-ton
locomotives out of the Thomas Portal, Mr. Dunbar confirmed
that the company provides thein transportation, and that someone with a company car will pick them up at Linden and trans. port them to Thomas, and will then return them to Linden.
However, if a miner requests permission to us.a his own automobile, the company will permit them to do so.
He indicated

1802

that "a lot of them" request to drive their own cars to
Thomas so that they may shower, and they then drive home from
the Thomas Portal (Tr. 251).
Mr. Dunbar confirmed that during the year 1985, 391
Federal inspectors were at one time or another on the mine
property. He also confirmed that the mine worked 250 days
that year, and that on any given day, an inspector was at
the mine (Tr. 251).
Mr. Dunbar stated that the company has suggested that
if an inspector originates his inspection at the Thomas
Portal, Mr. Delisio could then travel with him and go whereever he chooses, and management would know where he is (Tr.
252). Mr. Dunbar also confirmed that within the last year,
miners have frequently accompanied Federal inspectors in the
inspector's government car during travel between different
mine locations (Tr. 252}.
He denied that the company has
ever refused a miner the right to walk around with inspectors at the supply yard or the preparation plant.
He
explained that when inspectors usually show up at these locations, the miners who are working there do not by choice
accompany the inspector.
However, he indicated that inspectors usually start their inspections at the Linden Portal
and have a walkaround with them when they go to the supply
yard or preparation plant. The only restriction by the company is to prohibit miners from using their personal vehicles
to shuttle between these locations (Tr. 254).
Mr. Dunbar confirmed that in February, 1986, Mr. Delisio
again attempted to accompany an inspector on an inspection
out of the Linden Portal, and he took the position that he
had an MSHA decision which allowed him to do this.
Mr. Dunbar
stated that he explained to Mr.
isio that the matter was
still in litigation, and that he advised Mr. Delisio that if
the inspector would init te his ins
ion at the Thomas
Portal and pick him up there, he could accompany the inspector
(Tr. 255).
Mr. Dunbar stated that allowing Mr. Delisio to travel
underground from the Thomas Portal to the Linden Portal would
present a problem since there is only one self-propelled jeep
that is used by the mine
ner.
Due to the comp
underground haulage system, the company would have to make special
arrangements to transport Mr. Delisio underground, and that
the transportation time would be from 20 minutes to an hour
underground between portals.
Further, due to the fact that
underground trips of coal have the right of way, additional
problems would be presented in transpor ng Mr. Delisio back

1803

and forth underground (Tr. 256-258). Mr. Dunbar confirmed
that the verbal warning given to Mr. Delisio on July 30, was
because of his failure to be at his proper work station, and
not because of his wish~n~ to serve as the miners'
representative (Tr. 259).
On cross-examination, Mr. Dunbar conceded that if
Mr. Delisio were to call his foreman from the Thomas Portal
once an inspection started, mine management.would know of
his whereabouts.
He also conceded that un~erground jeeps
are available at the Thomas Portal for the mine examiner,
shift foreman, and occasionally the maintenance foreman, and
if all three are running, there may be an extra jeep available for Mr. Delisio (Tr. 260).
In rPsponse to further questions, Mr. Dunbar testified
as follows (Tr. 261-267)~

Q. Okay. And, isn't it true as a result of
this statement that you state in that particular piece of information, that even if Joseph
Delisio had reported to the Thomas portal, and
his foreman knew where he· was, and knew that
he was at work, he would not be allowed to go
to the Linden portal to accompany the inspector from that point, from the Thomas portal?
He would not then be allowed to go to the
Linden portal?

A.

We don't want him to change portals, no.

Q. What you're saying is, once he reports at
that portal he cannot go to the Linden portal
to accompany the inspector?

A. That's what I said, we don't want him to
change portals.
Q. Well, if he reports at his regular portal,
is he not in fact there - - he has reported
once he's reported to the portal?

A.

That's correct.

Q.

You know where he is?

A.

That's correct.

1804

Q.
If he says he's going to the Linden portal
do you have any reason -- to accompany the
inspector on an inspection, would you have any
reason to believe that he-wasn't going to the
Linden portal to accompany the inspector?
A.

No.

Q. And, as you've already stated, once the
inspection starts, assuming he was there, you
would know at.all times where Mr. Delisio was
during the course of the inspection -- as much
as you could?
A.

Yes.

*

*

Can I add something to that?

*

*

*

*

*

THE WITNESS: You know, what we're talking
about here is you're going to set precedence
·for something that maybe right now you're talking about a good employee, Mr. Delisio, on a
one certain day going to another portal.
Well, this opens up where if it's fair for
this one individual, if next time we have two
inspectors or as the testimony has shown,
we've had three or four, I could have people
traveling from Thomas portal to the Linden
portal 1 and some leaving from the Linden portal going to the preparation plant 7 and some
leaving from the prep
nt going somewhere
else" And, this is what's causing the majority of managernentcs control problems is -- you
know, everybody talks about an isolated incidence, but, you're opening up a whole precedent setting po cy of losing control of a
management situation.
BY MS,

HENRY~

Q. Mr. Dunbar isn 1 t it true that under the
present circumstances with only the Linden
portal in full production that it's highly
unusual that you would have this back and
forth -- with the three inspectors that you're
talKing about.
At this point in time there's
on
one ins
general
on the pr
ses.

1805

A. No. Not with three hundred and ninety one
inspectors shifts in 1985, no. That's a lot
of inspectors.
Q. Yes, but, would you state that that the
majority of those inspection sh t occur at
the Linden portal?
A.

Oh, yeah.

The majority does.

Q. And, Mr. Dunbar, when Mr. Schmitt was on
the S
Committee and called in to his
mine, reported to his mine, and then reported
to a different mine, when the mine was in full
production -- when all these portals were
open; the company did not stop him from using
his personal vehicle to go from portal to portal at that point, did they?
A. No.
But, again I'd like to add something
if I could.

*

*

*

*

*

*

*

THE WITNESS: Whenever Mr. Schmitt gave his
testimony, he was Chairman of the Health and
Safety Committee at the mine. But, we· had a
different concept at the mine. We had a lot
more employees in the mine, we had almost
double the employees that what we have right
now" As far as the logistics problem, as far
as a r
cement problem for Mr. Schmitt, whenever he
t the property, it did not exist as
bad as it does right now.
BY MS. HENRY:
Q.
But, Mr. Dunbar, didn't you just state
that one of your concerns is the control of
people should the mine come to full production?
I mean, you
st stated that one of your concerns about allowing Mr. Delisio to use his
car is that should the mine come to full production, and there would be more than one
inspector there, you wouldn't know where
people were going in their cars? Didn't you
just say that?

A.

Yeah.

1806

Q. Okay, well doesn't that conflict with your
statement that the reason you let him do it
was because there was more people.
A.

No, I --

Q. Why didn't that become a problem when
Mr. Schmitt was the Chairman of the Safety
Committee?

A.
I never said, if the mine becomes full
production, I'm saying that the mine has a lot
inspectors, then we have a lot of cross
shif ng, and a lot of changing.
I'm not talking about adding more people, I'm talking
about three inspectors, or even two inspectors
with the same three hundred and ~ome people we
have right now.
Q. But, the -- assume for the moment,
Mr. Dunbar, that there is -- it is not possible for Mr. Delisio to travel with the MSHA
inspector in the car to
from one portal to
another. Would it still be mine management's
position at that point that he could not take
his own personal vehicle to travel from one
portal to another?
A.
Yeah. We still don't want him to travel
in his own personal vehicle.
Q. Well, if Mr. Delisio was given a warning
for not being in his proper work location, and
he is not permitted to travel from his work
location to the location where the inspector
is, aren't you in effect denying him his ri
to go to the location where the inspector is
and accompany the ins
?

A.
Not in my opinion because there's other
people available that can travel with the
inspector.
Q.
When you say there are other people available, are you talking about other people who
might then go on a walk around should Joseph
Delisio be unavailable?

1807

A.
I'm talking about people that -- yes, have
gone on an inspection a lot of times.
Q. Um-hum. And, during the times that
they've gone on these inspections, was Joseph
Delisio permitted to travel from his home portal, the Thomas portal to the Linden portal?
A.
He never raised that issue prior to
July.30, 1985.
Q.
Let's talk about post July 30, 1985.
That's a lot of what the list and -- particularly the list that is in the Government's
Exhibit right now mostly concerns that, and,
you will agree that he did raise the question
in June -- sometime in June of 1985, generally.
A. Yeah, I don't have personal knowledge, but
I believe that the testimony showed that.
Q.
Okay. And, the walk around list that has
been given starts in July of 1985, so, it
starts sometime after he raised the question,
but, before he actually went in and talked to
Mr. Karaz a on a specific day about a specific inspection.
A.

No response.

Q. Would you state that during that time
period Joseph Delisio was not permitted to
travel by his own personal vehicle once he
reported to ·Thomas portal, from Thomas portal
to Linden portal?
A.
Once it's in litigation he never attempted
but the one time in early 1 86.

Q. Um-hum. And, was he permitted at any time
to travel from the Thomas portal to say, the
preparation plant?
A.
Not -- not unless the inspection was originated out of there.
Q. And, how about from the Thomas portal to
the supply yard, would he have been permitted
to travel?

1808

A. Not unless the inspection was originated
out of Thomas.
Mr. Dunbar stated that he has no problem with the designation of the safety committeeman as. the representative of
the miners. He further stated that he was not previously
aware of any "pecking order" or formal vote by the miners as
to any order in which miners would serve as the walkaround
representative.
However, he conceded that if the chairman of
the safety committee were present at the same time that the
other miners were present, the gen
practice at the mine
since the 1970's is that the chairman would be the designated
representative (Tr. 268).
Mr. Dunbar confirmed that there are two members of the
safety committee working at the Linden Portal, and they would
normally accompany an inspector on his inspection. He also
confirmed that the union's request for a limitation on the
use of private automobiles was not in connection with travel
f iom portal to portal for the purpose of accompanying an
inspector (Tr. 269). He further confirmed that if no one at
the supply yard was willing to accompany an inspector there
during an inspection, a miner would not be permitted to
travel there in his personal vehicle or company vehicle in
order to accompany the inspector CTr. 270).
Mr. Dunbar confirmed that prior to 1982, safety
committeeman Schmitt was permitted to travel from portal to
portal in his own car to accompany an ins
(Tr. 271).
Since there are only 10 miners on Mr. De sio's shift at the
Thomas Portal, and since he is the only mine examiner, a
replacement would have to be brought in from the Linden
Portal for Mr. Delisio, and the policy was established so
that management could control the work force (Tr. 272).
Sven
if Mr. Delisio were employed at the Linden Portal, he would
still have to be replaced if he were to serve as
walkaround, and mine. management would still des e to exercise
management control over its workforce (Tr. 272-273).
In response to further questions, Mr. Dunbar stated as
follows (Tr. 274-278):
JUDGE KOUTRAS: Well, the other point is, do
you feel that the -- you recognize the r ht
of a union walk around to accompany a Federal
Inspector, I think that's obvious right?
THE WITNESS:

That's correct.

1809

JUDGE KOUTRAS:
But, you seem to feel if that
right the exercise of that right, entails
changing personnel from portal to portal that
somehow the right is ended.
Or, at least has
to be controlled in some way.
THE WITNESS:
No.
I see what you're saying,
but, my only thing with that is the way that
we read 103(f) of the Act is -- nowhere in
there does it say we have to have special
accomodations for people.
We're complying
with the Act by supplying a representative,
but, nowhere does it say we have to go out of
our way.
Just as MSHA says that they're not
bound by the Act to go down and pick him up at
that portal; well, in the same respect we're
not bound by the Act to do special things to
insure that this particular individual goes
with them.
JUDGE KOUTRAS:
You indicated that your policy
on use of private automobiles is limited to
the extent possible.
THE WITNESS: That's correct. we try to limit
it to -- as much as we could.
Now, we can't
say absolute that you know, nobody can You have no absolute ban
JUDGE KOUTRAS:
against the use of private automobiles?
THE WITNESS:
limit it.

Exactly.

Exactly.

We do try to

JUDGE KOUTRAS:
What would be the problem with
allowing Mr. Delisio to drive to the
nden
portal in his own automobile, after he reports
to duty at the Thomas portal?
THE WITNESS: Well, the only problem with that
is we would have to assume his liabili
with
driving.
Assume his liabili
once he's done
at the end of the day driving back to his
regula~ job.
And, again, this opens up a precedence that now it's just Mr. Delisio, but I
don't know - -

1810

JUDGE. KOUTRAS: Why don't you just have an
absolute ban on the use of private automobiles
on the property?
THE WITNESS:
It would be convenient to do
that, however, there are times when people for
their convenience like to drive down.
JUDGE KOUTRAS:
convenience?

Well, isn't this for his own

THE WITNESS:
It's for that and -- yes, I can
see what you're saying.
JUDGE KOUTRAS: What if he signs a waiver of
liability? I mean, are there ways that you
can accomodate Mr. Delisio exercising his
right of being a walk around at the Linden
portal?
THE WITNESS: Yeah, there's a real easy way
you can accomodate him, if MSHA will come down
and just - - JUDGE KOUTRAS:
THE WITNESS:
there.

And pick him up.
Just originate their inspection

JUDGE KOUTRAS:
THE WITNESS:

Start the inspection at Thomas?
Sure.

JUDGE KOUTRAS: Well, what I don't
understand -- there's riot t6o much to inspect
at the Thomas portal is that right? Most of
activity is at the Linden portal? ·
THE WITNESS:

Yes it is.

*

*

*

*

*

*

*

JUDGE KOUTRAS:
And, your position here is -seems to be that you didn't -- if he was
threatened, assuming one can come to the conclusion that Mr. Delisio was threatened or
chastised or told that he would be subject to
disci inary action, the Company's position is
that that threat or that conversation took

1811

place in the context of only because you
didn't report to duty, not because you want to
exercise your walk around rights?
THE WITNESS:

That's exactly correct.

JUDGE KOUTRAS:
But, if you put up these
barriers to having him carry out his rights as
a walk around, you're effectively doing the
same thing aren't you? You're precluding him
from doing it, if you tell him you can't use
the car, you can't do this. We want the MSHA
Inspector to start there, you're effectively
precluding him from exercising his right.
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

I see what you're saying, yeah.
Aren't you?
I see, yeah.

Edmund R. Baker, respondent's general mine manager, testified that during the summer of 1985, he was the underground
mine superintendent at the Mathies Mine. He confirmed that
the question of Mr. Delisio accompanying Federal inspectors
at the Linden Portal as the union walkaround representative
was the topic of conversation at a union/management "communi- ~
cations meeting" which he attended sometime in late June,
1985. Mr. Baker stated that Mr. Delisio indicated that he
wanted to go to the Linden Portal to accompany Federal inspec. tors when they appeared there for their inspections, but that
in view of the vacation period, Mr. Delisio was advised not
to do so. Mr. Baker stated that he informed Mr. Delisio that
he would subsequently contact him to convey management's posi- ·
tion, and that he later telephoned his home and spoke with
his wife.
Mr~ Baker confirmed that Mr. Delisio was advised that
the company had no objections to his serving as a union walkaround representative, but that it was management's position
that he had to report to his regular duty station at the
Thomas Portal and could not use his personal automobile to
travel to the Linden Portal for the purpose of accompanying
Federal inspectors. Mr. Baker stated that mine management
has suggested to Mr. Delisio that he assign miners regularly
working at the Linden Portal as the walkaround representative, but that management could not transport him from the
Thomas Portal in company vehicles. Mr. Baker confirmed that
mine management, through Superintendent George Karaszia,

1812

advised Mr. Delisio on July 30, 1985, that if he insisted on
first reporting to the Linden Portal instead of his usual
duty station at the Thomas Por
, he could be subject to
possible
sciplinary action.
Mr. Baker confirmed that he is
in total agreement with mine management's position in this
matter as testified to by
ety manager Malcolm Dunbar (Tr.
284-289).
Discussion
Section 103(f) of the Act, commonly referred to as "the
walkaround right," provides as follows:
Sub ct to regulations issued by the
Secretary, a representative of the operator
and a representative authorized by his miners
shall be given an opportunity to accompany the
Secretary.or his authorized representative
during the physical inspection of any coal or
other mine made pursuant to the provisions of
subsection (a), for the purpose of aiding such
inspection and to participate in pre- or
post-inspection conferences held at the mine.
Where there is no authorized miner representative, the Secretary or his authorized representative shall consult with a reasonable number
miners concerning matters of health and
safety in such mine.
Such representative of
miners who is also an employee of the operator
shall suffer no loss of pay during the period
of his participation in the inspection made
under this subsection. To the extent that the
Secretary or authorized representative from
each par
would further aid the inspection,
he can permit each party to have an equal
number of such additional representatives.
However, only one such representat
of
miners who is an employee of the operator
shall be entitled to suff2r no loss
pay
during the period of such participation under
the provis ns of this subsection.
Compliance
with this subsection shall not be a Jurisdictional prerequisite to the enforcement of any
provision of this Act.
The facts in this case are not in serious dispute.
Mr. Delisio is employed at the mine as a "fire ooss" or mine
examiner, and he also serves as the Chairman of the Ul:1WA Mine

1813

Safety Committee. The mine consists of two portals, a preparation plant, and a supply yard, all of which are inspected by
MSHA inspectors.
The main coal producing portal is the
Linden Portal, and the majority of the work force enters the
mine at that location and work there. Virtually all of the
mine inspections conducted by MSHA begin at the Linden Portal
during the 8:00 a.m. production shift. A small compliment of
miners, including Mr. Delisio, work at the second Thomas
Portal in construction and transportation functions.
The
Thomas Portal is approximately 6 miles overland from the
Linden Portal, and the preparation plant is approximately
15 miles from the Linden Portal.
Mr. Delisio has in the past accompanied MSHA inspectors
at the Thomas Portal in his capacity of safety committeemen
and designated miners' representative, and he did so without
objection or interference by mine management. Mr. Delisio is
the only safety committeeman on the day shift at the Thomas
Portal, and two other safety committeemen who work at the
Linden Portal, and who are also designated as miners' representatives, do not work the same shifts as he does. The
·respondent concedes that the safety committeemen are the duly
designated representative of miners for walkaround purposes.
The record establishes that in late June, 1985, during a
labor/management "communications meeting," .Mr. Delisio
informed mine management that he wished to accompany MSHA
inspectors as the miners' representative when they conducted
inspections at the Linden Portal. Subsequently, on July 30,
1985, Mr. Delisio, in the company of the president of his
local union and an MSHA inspector, arrived at the Linden
Portal shortly before the start
his work shift and
requested permission to accompany the inspector on his inspection at that portal. Mine Superintendent George Karaszia
purportedly had "no problem" with Mr. Delisio accompanying
the inspector, but "verbally warned" Mr. Delisio that if he
did not report to. his regular work station at the Thomas
Portal, he would be disciplined~ Mr. Delisio did not accompany the inspector, and he filed his complaint with MSHA that
same day.
The record establishes that the question of Mr. Delisio
accompanying MSHA inspectors at the Linden Portal arose again
in February, 1986, although no additional complaint was filed.
At that time, Mr. Delisio appeared at the Linden Portal in
the company of an MSHA inspector and requested permission
from superintendent Karaszia to accompany the inspector on
his inspection at that portal. Mr. Delisio suggested that he
either be.allowed to first report to the Thomas Portal and

1814

then drive his car to the Linden Portal to meet and accompany
the inspector, or the respondent furnish him with underground
transportation from the Thoma.s Portal to the Linden Par
Mr. Karaszia informed Mr. Delisio that since his discrimination complaint was still pending, he would have "a problem"
with Mr. Delisio's·suggestion, and advised him th~t he should.
await the results of his complaint. Mr. Delisio did not
accompany the inspector on this occasion.
MSHA's Arguments
MSHA argues that when Mr. Delisio requested to accompany
the MSHA inspector at the Linden Portal, he was engaged in
protected activity. MSHA rejects the respondent's suggestion
that Mr. Delisio need not be given the opportunity to walkaround with the inspector at this portal, and that the respondent may require Mr. Delisio to select an alternate walkaround
representative. MSHA's views the respondent's position in
this case as an attempt to force Mr. Delisio to design~te an
alternative by denying him access to transportation to the
Linden Portal from his usual duty station at the Thomas Portal.
MSHA concludes that the miners' choice of walkaround representative must be given great deference, and that Mr. Delisio
should be permitted to travel from portal to portal as the
miners' representative for purposes of MSHA inspections.
In support of its case, MSHA asserts that the statutory
right of a miner representativ~ to accompany an inspector is
clearly stated in the Act, and the legislative history
r
lects the Congressional intent that the scope of a miner's
protected activities, including the right to participate in
mine inspections, be broadly interpreted.
In determining
what c.ircumstances may excuse a mine operator from complying
with this right, MSHA emphasizes that the importance that the
Act places on the miner's participation in mine inspections
must be considered. MSHA concludes that the legislat
history evinces a clear intent to have the miner's partici
ion
as an important element in the inspection enforcement scheme.
Magma Copper Company v. Secretary, 645 F.2d 694 (9th Cir.
1981), cert. denied, 454 U.S. 940 (1981); Consolidation
Company v. Mine Workers, 2 MSHC 1185 (198
MSHA cites a decision by Judge Melick in support of its
argument that miners have the right to designate anyone of
their choosing as their primary representative, despite the
existence of others who could act as their representative.
In Truex v. Consolidation Coal Company, 7 FMSHRC 1401
(September 20, 1985), a miner, who also served as a member of
the mine safety committee, was desi9nated by the local union

1815

president to act as the representative of miners at a section
103(f) post-inspection conference arranged by an MSHA inspector with mine management.
The miner requested permission
from mine management to be allowed to work until the inspector arrived.
Management responded that it was company policy
to obtain miners' representative from the area an inspector
visits.
The miner then asked for permission to work in the
"Bottom" so that he could be available for the inspector, but
was refused.
He then announced that he was on "union business" because he believed that he would otherwise have been
unable to attend the conference as the representative of
miners. Management thereupon informed him that since he was
on "union business," he would not be permitted to perform any
work that d~y.
The miner performed no "union business" that
day other than attending the conference.
Upon the conclusion of the conference, which lasted
1-1/2 hours, the miner asked to go to work for the remainder
of the shift, and he was refused.
He was paid his regular
rate of pay for only the 1-1/2 hour conference.
He then
filed a discrimination complaint seeking compensation for the
rem~ining 6~1/2 hours of the shift he would have worked but
for his assumption of "union business" and the related
refusal of management to allow him to return to work.
The.
mine operator def ended on the ground that under the Nation~l
Bituminious Coal Wage Agreement of 1981, once the complaining
miner declared himself to be on "union business" he was no
longer under the operator's control or direction and that it
therefore had no obligation to pay him for his subsequent
activities.
The operator further argued that it did not have
to accept the miner as a representative of miners on the day
in question but could have complied with section 103(f) of
the Act by giving any one of the approximately 130 miners
then working the opportunity to accompany the inspector during the conference.
In rejecting· this argument 1 Judge I-1elick
states as follows at 7 FMSHRC 1403-1404"
Section 103(f) of the Act provides, as
relevant, that "a representative authorized by
his miners shall be given an opportunity to
accompany the . . . [inspector] . . . during
the physical inspection of any coal .
, mine
. Eor the purpose aiding such inspection
and to partici
in pre- or post-inspection
conferences held at the mine."
[Emphasis
added.]
Since it is not disputed in this case
that the post-inspection conference which
Mr. Truex attended was a conference within the
meaning of Section l03(f) of the Act it is

1816

clear from the above language that it is the
miners and not the mine operator, who authorize or designate a representative for the purpose 0£ participating in.such conference.
There is no statutory ambiguity on this point
and the plain meaning must prevail.
(Emphasis
in original).
MSHA further cites a decision by former Commission Judge
Steffey in a civil penalty case initiated by MSHA for a violation of section 103(f) of the Act, Leslie Coal Mining Company,
1 FMSHRC 2022, December 9, 1979.
In that case, a miner under
suspension by the mine operator reported to the mine for the
purpose of accompanying an inspector on a regular inspection.
The miner was a member of the safety committee, and he was
chosen by the committee to serve as the walkaround_during the
inspection.
Mine management refused to permit him to accompany the inspector because he was in suspension status, and
instead gathered together five available working miners who
selected someone else to accompany the inspector.
The MSHA
inspector had called his supervisor who apparently took the
position that the procedure of selecting the representative in
the absence of any other available representative was appropriate.
However, when the inspector subsequently returned to
his office, his supervisor instructed him to issue a citation
for a violation of section 103{f) upon his next return to the
mine.
Upon his return to the mine, the inspector issued the
citation charging the mine operator with a refusal to permit a
legally elected representative authorized by the miners to
accompany the inspector during his inspection of the mine.

In affirming a violation of section 103(f), Judge Steffey
stated as follows at 1 FMSHRC 2026-2027:

*

*

*

*

*

*

*

It. appears to me that the fact the company
had suspended Mr. Stiltner for this twenty-four
hour period does not give the company the right
to interfere with the fact that the representative--that the miners had selected
~r. Stiltner as their representative on that
specific day.

*

*

*

*

*

*

Consequently, when mine management
to let ~r. Stiltner go with the

d~clined

1817

*

inspectors on May 26, there was not then available another man to take his place who was
still·in the same category of a committeeman
that was desirable, because these were the
three men who were to be selected to accompany
the inspectors.
Now, I recognize and I feel that management should have a right to discipline its
miners, but in doing so I think that this type
of situation could be avoided either by
suspending--if they felt Mr. Stiltner was
going to accompany the inspector during a
period which was still within his suspension
period--they could either have anticipated the
situation by making it clear to Mr. Stiltner
on May 25 that one of the other committeemen
should come in on the day shift for the purpose· of accompanying the inspectors, or by
changing the suspension period in order to
permit Mr. Stiltner to make this inspection
with the inspectors.
In other words, I believe that the company cannot interfere with the person that the
miners choose to accompany the inspectors. As
long as he is still an employee and still a
member of the safety committee and is still
one of the people who is intended to accompany
the inspectors, I believe the company must let
him do so and must take that into consideration when they are suspending someone.
I do
not think it is something they can work around.
MSHA argues that Jddge Steffey's reasoning is clearly
applicable to Mr. Delisio's situation. MSHA asserts that
there is no d pute among the miners who testified that
Mr. Delisio was the miners' representative on the day in question, and that he was the representative for the entire mine,
not simply for a certain section. Further, MSHA maintains
that the testimony shows that safety committeemen at the
respondent's mine have been designated as the authorized walkaround representatives for the entire mine by a vote of the
UMW local. MSHA concludes that while safety committeemen
such as Mr. Delisio may designate replacements should they
choose not to act as walkarounds, the choice to waive the
right to walkaround should not be forced upon them by the
respondent, and the respondent cannot "work around" that

1818

selection by claiming that other potential representatives
exist.
MSHA maintains that the respondent bears a heavy af firmative burden
demonstrating what,
any, unusual and exigent
circumstances would justify excusing the failure to comply
with the Act by forcing a miner representative to choose a
replacement to act as the walkaround.
MSHA asserts that the
respondent's alleged concerns with transportation do not meet
this burden, and takes the pos
ion that section 103(f)
imposes on the respondent an implicit duty to arrange its
transportation regulations in a manner that will ensure the
opportunity of the authorized miners' representative to accompany the inspector.
This right would have little meaning if
the respondent could void selection by the miners of their
representative by enforcing transportation rules which prevent the representative's participation.
MSHA concludes that
the plain language of section 103(f) demonstrates that an
authorized representative such as Mr. Delisio is under no
duty to waive his right and select another representative
simply because it would be more convenient for management.
MSHA maintains that the walkaround rights granted miners
under the statute are broad and far reaching, and the fact
that the respondent would assert the degree of influence it
presently asserts in the selection of the miners' representative is inconsistent with the purpose Of section 103(£).
Although Mr. Delisio may designate another representative for
his own reasons, management cannot require Mr. Delisio,
through selective enforcement of transportation regulations,
to authorize another representative.
MSHA therefore concludes that it is clear that Mr. Delisio is the illiners' representative, and that in requesting permission to accompany the
MSHA inspector, he was asserting a right protected by the
Act.
MSHA concludes that the respondent engaged in discriminatory activity when it threatened to discipline Mr. Delisio if
he acted on his request to accompany the inspector as the
walkaround representative of miners.
MSHA suggests that the
discrimination that is motivated by such protected activity
need not be great, and it cites the legislative history which
makes it clear that threats of discipline for engaging in
protected activity, as well as actual discipline, are prohibited under section 105(c) of the Act.
MSHA also cites a decision by Judge Broderick in Curcio v. Kevstone Coal Mininq
Corporatio~, 3 MSHC 2119, 2120 (1985), where he held that a
1-day suspension was not a de minimis adverse action because

1819

the policy fol.lowed by the mine operator could result in discharge, thereby inhibiting or discouraging miners from bringing safety complaints to the union or to MSHA.
On the facts presented in this case, MSHA asserts that
Mr. Delisio was given a verbal warning that he would be disciplined if he chose to act ai a walkaround, and it concludes
that such a warning is a threat of reprisal which is clearly
discriminatory activity prohibited by the Act.
In response
to the respondent's contention that the warning was not motivated by any protected activity, but was issued because
Mr. Delisio would not have reported to his regular work portal, MSHA concludes .that this "circular argument" is not
supported by the evidence. MSHA asserts that mine management
has stated that if Mr. Delisio reported to his portal, he
would not have been permitted to travel to the portal of
inspection, and that management's safety director admitted
that the effect of this policy was to prevent Mr. Delisio
from travelling from portal to portal to accompany an inspector.
MSHA concludes that the verbal warning to Mr. Del io
had the practical effect of preventing his walkaround activities, and that this is impermissible discrimination under the
Act.
In response to the respondent's assertion that its traniportation policy is not discriminatory because Mr. Delisio
would be able to ride from one portal to another in an MSHA
inspector's car, MSHA believes that this is irrelevant
because the issue concerns the legality of the respondent's
conduct, and such a question cannot be decided by the actions
of third parties, such as MSHA inspectors.
MSHA maintains that the respondent acted discriminatorily
Delisio a verbal warning of future discipline if
he did not report to his work portal, and by refusing to allow
him to travel from his work portal to an inspection portal
r
the purpose of accompanying an MSHA inspector on his regular
inspection. MSHA states that the resoondent should be ordered
to refrain from such discrimination i~ the future, to post a
notice that it will refrain from such discrimination, and to
permit Mr. Delisio access either through company transporta-'
tion or personal transportation to the mine areas where inspections are to be held.
MSHJ\ also seeks an appropriate civil
penalty assessment against the respondent.

by giving Mr.

Respondent's Arguments
The respondent states that since the resumption of such
smaller operations in May of 1983, after a long shutdown,

1820

including a management change from Consolidation Coal Company
to National Mines Corporation, the respondent has maintained
a policy that miners must report to their assigned portal at
the beginning of their shift and are prohibited from using
their personal vehicles to travel between portals during
their working shifts. The policy regarding personal vehicles
was in part prompted by concerns raised by the Union.
The
concern was that the Union did not want the miner to expose
himself or his vehicle to the risk of having an accident,
especially involving third parties, when the personal vehicle
was used during his shift.
Respondent asserts that the policy regarding reporting
to the assigned portal at the beginning of the shift is based
on some obvious, common sense reasons.
Reporting to where
you work obviously is the best way to know a miner is in fact
at work and therefore must be accounted for as
ng underground.
In addition, relying on a miner to call from another
por
·to report his presence there rather thah reporting to
his assigned portal has some obv.ious drawbacks.
Phone cornmun.,..,
ications between portals at the busy change-of-shift time are
subject to be missed or not promptly communicated to others.
Also, it is di icult to maintain accurate verification that
an employee is where he says he is by his phone report.
An
employer does not have to assume that all employees are completely honest all the time.
Respondent states that another factor present in this
case is the frequency of inspections. Respondent points out
that a Federal inspector was present at the mine during 391
shifts in 1985. With approximately 250 work. days during the
year, this means a Federal inspector appears at the Linden
Portal very frequently.
ven Mr. Delisio's status as the
only designated miner on shifts which he is working (he
rotates 8-4 and 4-12 shifts), Mr. Delisio would be accompanying the inspector most days that he worked the daylight
shift, which is the shift when virtually all of the inspections occur.
This frequency means that most likely on four
(4) out of five (5) work days during his daylight shift,
Mr. Delisio would be reporting to the Linden portal, calling
to the Thomas Portal, and using his personal car to drive
back to the Thomas Portal at the end of the inspection.
Respondent argues that since Federal inspectors do not
give advance warning to the operator as to when.they will
appear for an inspection, it can only be assumed that
Mr. Delisio would either have advance knowledge or simply
show up at the Linden Portal on the assumption that a Federal

1821

inspector would appear before the start of the shift. Responassumes that if the Federal inspector did not appear for
an inspection, Mr. Delisio would call the Thomas Portal sometime soon after the start of the shift and inform management
that he would be reporting late for his job at the Thomas
Portal.
It also assumes that management would have made
arrangements to replace Mr. Delisio's fire boss position at
Thomas when he did not report at the beginning of his shift.
Respondent asserts that the practical effect of Mr. Delisio's
argument would be that virtually every daylight shift his
fire boss pas ion at the Thomas Portal would be filled by
transferring a miner qualified as a fire boss from the Linden
Portal at the start of every daylight shift.
d~nt

Given the frequency of mine inspections, the respondent
states that its concerns underlying its management policies
are all the more real and relevant, and it points out that
there is no evidence that these concerns underlying the
policies in question are a pretext by management.
Further,
respondent advances what it considers to be a simple solution
which would permit Mr. Delisio to accompany the Federal
ins·pector anytime he desired.
Respondent's solution would
have the Federal inspector appear at the Thomas Portal to
initiate the inspection. Mr. Delisio could .then declare himself to be the designated miner and accompanying the Federal
inspector in his v.ehicle anywhere the Federal inspector
wished to travel, including the Linden Portal or the preparation plant.
Respondent recognizes that its suggested solution is beyond its control because it cannot require the
inspector to initiate inspections at any particular location.
Respondent notes that inspectors have apparently frequently
used their vehicles to transport miners while conducting
their inspections.
The respondent asserts that the factor which mab..,s this
case factually unique is that it appears unusual that in a
mine of this size, the ~iners have apparently decided that
only a single miner can act as the designated representative
during inspections occurring on the shifts when that miner is
working.
Compounding the problem is the fact that the single
designated miner works at a re1note portal.
The respondent recognizes the fact that the Act prohibits
any interference with the choice of the designated miner or
that miner's ability to accompany an inspector on an inspection.
However, the respondent maintains that its policies
requiring all miners to report to their assigned portal at
the start of their shift and prohibiting the use of private
transportatiori to travel between locations during the shift

1822

are neither discriminatory nor do they constitute interference prohibited by the Act.
The respondent asserts that the complainant in this case
is in reali
requesting that the Act be interpreted to
require the respondent to accomodate his unusul circumstances
in his proclaimed status as the only miner who can act as the
designated miner for inspections. The ~espondent concludes
that the Act does not require the accomodation necessary to
allow Mr. Delisio to act as the designated miner the way he
desires the inspection process to operate. The respondent
concludes further that the complainant's accomodation request
is unworkable, and that this can be demonstrated by the
following analysis of what would take place if his pos ion
were sustained.
Every day Mr.
isio works the daylight shift (every
other week), he would drive to the Linden Portal to see if .a
Federal inspector was going to conduct an inspection.
If the
inspector was there, Mr. Delisio would call the Thomas Portal
at the 8:00 a.m. change of shift and report that he would be
going on an inspection. The respondent would then be required
to obtain a replacement for Mr. Delisio's position as fire
boss at the Thomas ~ortal.
The fire boss performs preshi£t
inspections for the next .shift, so it is essential that the
position be filled.
The replacement would come from the
Linden Portal because of the absence of qualified employees at
the Thomas Portal.
This assumes that all communications work
properly, which is obviously not always the case.
Because
most inspections end about 12:00 or 1:00 p.m., Mr. Delisio
would then drive to the Thomas Portal and report to his
regular job. Because the respondent would not know exactly
when to expect him, the replacement would have to assume that
the replacement would perform the afternoon preshift inspection.
Mr. Delisio would thus have to catch up to his replacement underground and relieve him.
The replacement would then
have to be .transported back to the Linden Portal to finish his
shift.
If the Federal inspector did not happen to be at the
Linden Portal, Mr. Delisio would call the Thomas Portal near
the start of the s
ft and report that he was going to report
at Thomas at approximately whatever t
it takes to drive
the six (6) miles between Linden and Thomas Portals.
Mr. Delisio would then drive to the Thomas Portal and report
late for his shift.
One or another of these two senerios
would occur every day that Delisio worked the daylight shift.
In addition, Mr. Delisio apparently engages in Union business
a great deal of the time. When he engages in Union business,

1823

he does not always report his whereabouts to the respondent.
This means that on any given day, the respondent would not
know where Mr. Delisio was or whether he was going to be
available.for his shift until immediately before or soon after
the shift started.
The respondent concludes that the policies it has
attempted to apply do not violate the Act and that the accomoda tion and treatment sought by the complainant in this proceeding is an unreasonable accomodation not required by the
Act.
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of 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), rev'd on other grounds sub. nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); and Secretary on behalf of Robinette v. United Castle
Coal Company, 3 FMSHRC 803 (1981).
Secretary on behalf of
Jenkin~ v. Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984).
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 fac
case in this manner it
may nevertheless affirmatively defend by proving that Cl) it
was also motivated by the miner 1 s unprotected activities
alone.
The operator bears the burden of proof with regard to
the affirmative defense.
Haro v. Magma Copper Company,
4 FMSHRC 1935 (1982).
The ultimate burden of persuasion does
not shift from the complainant.
Robinette, supra.
See also
Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan v.
Stafford Construction Company, No. 83-1566, D.C. Cir.
(April 20, 1984) (specifically-approving the Commission's
Pasula-Robinette test).
See also NLRB v. Transportation
Management Corporation,
U.S.~~ , 76 L.Ed.2d 667
(1983).
It seems clear to me that Mr. Delisio has a statutory
right pursuant to section 103(f) of the Act to serve as the
designated walkaround representative of the miners, and the
parties do not dispute this fact.
The dispute lies in the
manner in which Mr. Delisio seeks to exercise this right.
Mr. Delisio has advanced several alternatives which he
believes would permit him to effectively function as the

1824

miners' representative, and they are:
(1) that he be petmitted to first report to the Linden Portal to ascertain
whether an inspector is there.
If
is, Mr. Delisio wishes
to accompany the inspector on his inspection rounds after
notifying mine management at the Thomas Portal of his whereabouts; (2) Mr. Delisio would report early to his normal work
station at the Thomas Portal, and after confirming the presence of an inspector at the Linden Portal, he would drive his
car to that portal to accompany the inspector, and then return
to work after the completion of the inspection; (3) instead of
using his own car for transportation to and from the Thomas
Por
to the Lin.den Portal, the respondent would provide
Mr. Delisio with a self-propelled jeep as a means of travelling underground between the two portals in question.
Although recbgnizing Mi. Delisio.'s right to act as the
designated miner "first choice" walkaround representative,
the respondent's position is that it need not accomodate
Mr. Delisio ~n his terms.
In defense of its position, the
respondent asserts that Mr. Delisio's suggested 11 solutions 11
intrude on management's right to direct its own workforce,
and is contrary to its policy prohibiting embloyees to use
their personal vehicles while engaged in mine business on
mine property. The respondent's alternative "solutions"
include a suggestion that the inspectors pick up Mr. Delisio
in their government vehicles at the Thomas Portal, and. rE')turn
him there after the inspection is completed.
Another alternative is that Mr. Delisio designate other miners who are
readi
available at the Linden Portal to serve as the walkaround representative as he has often done in his absence or
unavailability.
MSHA's position is that the choice of a walkaround representat
lies with the miners.
Since Mr. Delisio is the
recognized "first choice"
miners by virtue of his safety
committeeman's position, MSHA takes the position that absent
any unusual or exigent circumstances, mine management may not
dictate who the representative shall be.
MSHA apparently
views the respondent's suggestion that other available miners
may serve as the walkaround representative as irrelevant, and
concludes that the respondent's insistence on applying its
transportation policy has effectively interferred with
Mr. Delis
's right to serve and function as the designated
miners' representative. MSHA does not address the respondent's conc~rn that permitting Mr. Delisio to initially report
to work at the Linden Portal before determining whether he
\vill work at the Thomas Portal or accompany the inspector at
the. Linden Portal is an unreasonable intrusion on management's
right to direct the workforce and to insure the whereabout~ of

1825

its employees. Rather, MSHA's focus is on the respondent's
transportation policy, and it concludes that section 103(f) of
the Act implic ly requires the respondent to arrange its
policy in such a manner that will insure Mr. Delisio's presence at the Linden Portal as the walkaround representative
whenever ha chooses to exercise that right during an inspection initiated at that portal.
In short, MSHA's position is
that Mr. Delisio must be accomodated, notwithstanding the
avowed policy in question.
In Beaver v. North American Coal Corporation,
2 MSHC 1417, June 2, 1981, former Commission Judge Cook dismissed a complaint by a miners' representativ~ alleging that
he was discriminated against because of tbe refusal of the
operator to compensate him for the time spent as a walkaround
on an idle day when he was not scheduled to work and other
scheduled miners were available to accompany the inspector.
Judge Cook found no evidence that the miner's idle day ~tatus
permitted the operator to directly or indirectly participate
in any manner in the process of selecting a walkaround representative, and there was no indication that the opertor manipulated the miner into an idle day status to discourage his
participation in the inspection.
In Ronnie R. Ross v. Monterey Coal Company, 3 FMSHRC 1171
(May 1981), the Commission upheld the dismissal of·a complaint
by a safe
committeeman who alleged that he was discriminated
against when a mine contractor performing work at a mine
placed a letter in his personnel file limiting his inspection
activi es to the work areas of the contractor rather than
non-contractor mine areas.
In affirming the Judge's dismissal
of the complaint, the Commission found that the record supported a finding that the letter was issued to protect a legitimate managerial interest in controlling the activities of its
workforce, and did not establish tnat the miner's exercise of
any statutory rights was in any way restricted.
In Local Union 1110, UMWA and Robert L. Carney v.
Consolidation Coal Co., 1 FMSHRC 338 (May 1979), the
Commission held that an operator discriminated against a
safety committeeman for disciplining him for leaving his
assigned work area to contact an inspector concerning a perceived safety hazard, contrary to the operator's policy that
permission by management was necessary
ore he cou
leave.
The Commission stated that "the Company's policy effectively
impedes a miner's ability to contact the Secretary when
alleged safety violations or dangers arise." 1 FMSHRC 341.

1826

The Commission found that miner's conduct involved his statutorily pro~ected right to nbtify the Secretary of any
violation or danger.
On appeal of the Truex case, supia~ Docket No.
WEVA 85-151-D, the Commission on September 25, 1986, affirmed
Judge Melick's decision, and at 8 FMSHRC 1298, stated the
following:
The judge found that "it is the miners
and not the mine operator, who authorize or
designate a representative for the purpose of
participating in . . . a [post-inspection]
conference. There is no statutory ambiguity
on this point and the plain meaning·must
prevail." 7 FMSHRC at 1404. We agree.
The
language of section l-03(f), providing that "a
representative authorized by his miners shall
be given an opportunity to accompany the
Secretary," unambiguously provides that mine.rs
possess the right to choose their representative for section 103(f) inspections and preand post-inspection conferences.
(Emphasis
.added). See also Leslie Coal Mining Co. v.
Secretary of Labor, 1. FMSHRC 2022, 2027
(December 1979) (ALJ).

*

*

*

*

*

*

The purpose of section 103(f) is to enhance
miner understanding and awareness of the
health and safety requirements of the Act.
The fact that section 103(£) protects the
miner representative, who is also an employee
of the operator, from a loss in pay in exercising
s section 103(£) rights evidences Congressional recognition that an operator would
be required to make modifications in work
assignments to permit miner representatives to
exercise section 103(f) rights. Here, Consol
was aware that an MSHA inspector would be
arriving for a meeting to review a hearing
conservation plan. Consol was also aware that
Truex was familiar. with the plan and had been
designated by the miners to participat~ as
their representative i~ the review of the plan.
Nevertheless, upon being notified that Truex
was the tepresentative of miners, Olzer
directed Truex to proceed underground with his

1827

regular crew.
Truex indicated his willingness
to do so, but asked that he be notified when
the inspector arrived. This request was
used.
Olzer further refused Truex's
request that he be permitted to work, until
the inspector arrived, in an area that would
have allowed him to be readily available for
the meeting. Under these circumstances,
Truex's requests rather than Olzer's responses
reflected the reasonable work adjustments
required under section 103(f) to fully effectuate that section's participation rights.
[Emphasis added.]
Protected Activity
On the facts of this case, it seems clear to me that
Mr. Delisio has established that in his capacity as Chairman
of the Mine Safety Committee, he is the designated first
choice of the miners for purposes of serving as their walkaround representative during MSHA inspections.
It is also
clear to me that the statutory right of a miner representative
to accompany an MSHA inspector during his inspection of the
mine is clearly stated in section 103(£) of the Act, and the
legislative history reflects that this right should be broadly
construed.
Any undue interferences with this right by a mine
operator constitutes discrimination prohibited by section
105(c)(l) of the Act. Although other miners may be available
to accompany an MSHA inspector, the respondent may not unduly
or unreasonably interfere with Mr. Delisio's right to accompany an inspector as the designated miner representative.
The respondent does not deny that it issued a verbal
warning to Mr. Delisio on July 30, 1985, informing him that
possible disciplinary action would follow if he did not report
to his normal work station. As a matter of fact, the record
establishes that the warning was conveyed to Mr. Delisio's
wife on
evening of July 29, by telephone call to his home
by a member of mine management.
Union President Stipanovich
testified that such verbal warnings are usually followed up by
some kind of disci ine, and the respondent has not rebutted
this fact.
·
The respondent's suggestion that the verbal warning
issued to. Mr. Delisio was solely because he would not have
reported.to his regular portal if he chose to accompany the
inspection as the designated walkaround representative is not
well taken. Given the facts and background of this case, the
respondent was well aware of the fact that Mr. Delisio was

1828

seeking some accomodation by the respondent to enable him to
effectively function as the walkaround representative.
The
respondent concedes that it raised the possibility of disciplinary action against Mr. Delisio because of its policies of
requiring a miner to report to his assigned portal and its
prohibition against miners using their personal automobiles
to travel from portal to portal during their work shifts.
Further, respondent's Safety Manager Dunbar and Mine Manager
Baker candidly conceded that because of its policies, even
Mr. Delisio were to first report to his home portal, he would
still be prohibited from changing portals for the purpose of
accompanying an inspector during his inspection of the mine.
Thus, the practical effect of management's insistence that
Mr. Delisio first report to his portal, and its application
of its policies, effectively, albeit indirectly, interferred
with his right to serve and function as the walkarounJ repre.,.;.
sentative, an activity which is protected by the Act. Thus,
I conclude that the verbal warning, backed up by possible
subsequent disciplinary action, constituted a discriminatory
threat or interference motivated in part by Mr. Delisio's
aborted attempt to serve as the walkaround
presentative.
The Respo~dent's Right to Direct its Workforce
The respondent has the inherent and legitimate right to
control its own workforce 1 and is free to implement workplace
polic
which it believes will permit an efficient and productive mining operation.
If the policies are consistently
and evenhandedly applied, and are not arbitrary or unreasonable in their application, I would have no basis for concluding that they are discriminatory.
In this case, there is
ng to suggest that the respondent's policy requi ng an
employee to report to his work station is pretexual or is
used to circumvent the law.
However, in light of the
Commission's decision in the Truex case and Judge Steffey's
decision in
lie Coal, a mine operator may have to adjust
its work po c es on a case-by-case basis in order to avoid
any discriminatory result which may occur by the manner in
which it applies its policy to any given employee factual
s i tua ti on.
The facts in this case establish that in his capacity as
a safety committeeman, and by virtue of
s union activities,
Mr. Delisio is often away from his job. Mr. Delisio admitted
that due to the press of union business, there have been occasions when he did not report to his portal without informing
management of his whereabouts, and that this has occurred
several times throughout the year (Tr. 29, 41).
He also
alluded to some 70 different instances when he was away from

1829

his job on inspections in other mine areas, or on union business attending conferences at MSHA's office (Tr. 61).
Mr. Delisio conceded that' mine management has the right
to expect him to report to work at his usual work station at
the Thomas Portal. While it may be true that mine management
has never made an issue of his absences, or applied its
absentee policy, the fact remains that management has the
right to expect Mr. Delisio to report for work, or to at least
notify management if he intends to be absent.
In my view, the facts in this case are different from
those presented in Truex.
In Truex, mine management was
aware of the fact that the designated committeeman had
arranged a day in advance to me.et with an MSHA inspector for
a post-inspection conference at the mine for the purpose of
reviewing .a hearing conservation plan. The committeeman's
requests to be allowed to work until the inspector arrived,
or to be allowed to work in a particular mine area so that he
would be readily available to meet with the inspector were
refused, and the basis for the· refusal was management's
policy of obtaining miners' representative from the area an
inspector visits. Further, once refused the right to be
available for the inspector, the committeeman was forced to
go on "union business" status because he believed he wouldc
otherwise have been unable to attend the post-inspection conference, and management refused to allow him to return to
work after the conference was over and refused to compensate
him for the remaining 6-1/4 hours of the shift he would have
worked but for his assumption of "union busines~" and the
related refusal to allow him to return to work.
Unlike Truex, which appears to have emanated from an
isolated instance of refusing to accomodate a designated
miners' representative who had a pre-arranged meeting with an.
inspector which was known to management, the respondent here
has no policy r~stricting miners' representatives to mine
areas where an inspection is taking place. More. importantly,
Mr. Delisio's situation does not involve an isolated i~stahce.
Mr. Delisio wants to regularly report to work at a portal
which is 6 miles from his usual place of work on a day-to-day
basis during his day shift every other week to ascertain
whether an inspector is present so that he may accompany him.
If an inspector is there, Mr. Delisio wishes to telephone his
foreman to advise· him that he will not report.to work.
If an
inspector is not present, Mr. Delisio would report late for
work. Since Mr. Delisio·· s job as mine examiner requires him
to preshift .his portal, mine management would be placed.in
the untenable po~ition of arranging and rearranging for a

1830

suitable replacement to be brought in from another portal to
do Mri Delisio's job frequently and unpredictably.
I cannot conclude that the respondent's policy requiring
Mr. Delisio to report to his assigned portal at the beginning
of his work shift is arbitrary or unreasonable, and the
respondent's arguments in this regard are well taken.
Given
the fact that Mr. Delisio is the only available qualified
mine examiner on the day shift at the Thomas Portal, and the
frequency of inspections which have occurred at the mine, I
find nothing unreasonable or discriminatory in the application of this reporting policy.
From a safety standpoint, the
respondent has a duty and obligation to account for all of
its employees while they are on the job.
From a management
point of view, and in order to fulfull its obligations in
this regard, the respondent should be free to manage its workforce, and the scenarios presented by the respondent with
respect to what will no doubt occur in terms of employee disruptions and replacements between portals in the event
Mr. Delisio is allowed to decide when and where to initially
report for work are legitimate and real concerns, rather than
pretexts to preclude Mr. Delisio from functioning as the
designated representative of miners.
Respondent's Private Vehicle Policy
During the course of the hearing in response to
Mr. Delisio's "suggestion" that he be permitted to drive his
personal vehicle between portals for the purpose of serving
as the miners' walkaround representative, the respondent took
the position that it does not wish to expose itself to liabili
or risks to Mr. Delisio or other miners while driving
private automobiles on company property while in the course
of company business.
Respondent's counsel asserts that this
concern was voiced by the miners themselves several years
ago, and reiterated over time.
Counsel pointed out that this
concern, both by the miners, and mine management, came about
as a result of miners being alerted to the potential liability to third
ies, with resulting lawsuits, in the event
of their involv~ment in accidents on mine property while using
their private automobiles in the course of their employment
(Tr. 10).
Respondent maintains that it has offered a reasonable
resolution by suggesting that Mr. Delisio be picked up at his
regular Thomas Portal duty station by the inspector conducting the inspection, and be taken along with the inspector
during his inspection.
Respondent maintains that it has been
customary for an inspector to transport miners in their

1831

Government vehicles while conducting inspections, that it has
occurred in the past, and the respondent would prefer this
procedure to continue (Tr. lL).
Respondent argues that it does not believe that it has
discriminated against Mr. Delisio by declining to provide him
with company surface or underground transportation from his
regular duty portal to another portal where an inspector
decides to initiate his inspection, or to permit him to drive
his own automobile. With regard to underground travel between
the two portals, respondent asserts that while a company jeep
is normally available for Mr. Delisio's use while performing
his fire boss duties at the Thomas Portal, the availability of
underground transportation is determined by production schedules and the necessities of the operation at that portal.
Respondent does not believe that it is obligated to provide or
schedule "special trips" for Mr. Delisio or any other miner
for the purpose of trahspor ng them underground from portal
to portal. Making an exception for Mr. Delisio would result
in the unavailability of a jeep at the Thomas Portal for
safety inspections at that location, and would require the
company to replace the jeep with another one while it is gone
(Tr. 12) ..
During the hearing, MSHA agreed that the only accomodation that the respondent seems willing to make in this case
is to suggest that the Federal mine inspectors pick up
Mr. Delisio in their Government automobile at the Thomas
Portal, his regular duty station, and transport him to the
Linden Portal 1 where regular inspections normally begin or
end, or transport him to other mine areas where an inspection
may take place. MSHA asserts that the Linden Portal is more
accessible to everyone in the first instance, and that the
respondent's suggestion is totally unacceptable, and would
entail a special trip just to pick up Mr. Delisio, would be
time consuming in instances where time may be of the essence
during an inspection, and would conflict with Government regulations regulating the offic 1 use of Government vehicles
(Tr, 15.-16).
MSHA's position is that if the respondent is unwilling
to permit Mr. Delisio to initially report to the Linden
Portal to determine whether he will be accompanying an inspector as to the union walkaround, and insists that he must first
report to the Thomas Portal, it must accomodate Mr. Delisio by
permitting him to use his own automobile to drive to the
Linden Portal, or provide him with company transportation.
MSHA argues that the respondent cannot have it both ways by
taking the position that company policy dictates against the

1832

use of private automobiles on mine property, and that the use
of a company vehicle for Mr. Delisio's transportation would
effectively deprive the company of the use of that vehicle at
the Thomas Portal where it is needed. MSHA maintains that
this positidn by the respondent is discriminatory because
there have been other occasions where other miners were permitted the use of their private vehicles on company property,
and that on other occasions miners do not report to their regular portal as planned, and no action has been taken against
them.
MSHA concludes that the respondent's position can only
be viewed as an action against Mr. Delisio for attempting to
exercising his rights as the walkaround representative of the
miners.
Coupled with the respondent's suggestion that other
miners working at the Linden Portal can accompany the Federal
inspectors as miner walkarounds, MSHA concludes that this is
an attempt by the respondent to choose who the miner representative shall be for purposes of inspection walkarounds, and
that this is prohibited by the Act (Tr. 17-18). MSHA further
concludes that on the facts of this case, the respondent's
failure to accomodate Mr. Delisio by permitting him to use
his own vehicle, or to provide him with company transportation, interferes with his rights as the miner walkaround
representative (Tr. 6).
I take note of the fact that Mr. Delisio's complaint.
makes no mention of the respondent's policy with respect to
the use of private vehicles by miners.
Respondent's safety
manager Dunbar testified that prior to July 30, 1985, this
was never raised as an issue by Mr. Delisio, ~nd MSHA special
investigator Chambers confirmed that the question concerning
the use of private vehicles was not raised during his investigation of the complaint.
MSHA~s counsel conceded that she
first learned about the transportation policy on the morning
of the commencement of the hearing (Tr. 191). Although
Mr. Delisio raised the question of the use of his own car to
travel from portal to portal in February, 1986, when he again
requested permission to accompany the inspector, this came
well after the filing of the complaint, and management at
that time communicated no decision to Mr. Delisio because his
case was still in li tiga ti on.
Res pond en t' s safety manager
Dunbar did suggest, however, that ~r. Delisio arrange to have
the inspector pick him up at the Thomas Portal, and that if
this were done, there would be no problem (Tf. 255).
Respondent's safety manager Dunbar conceded that the
respondent will not permit Mr. Delisio to use his private
automobile as a means of travel between the Thomas and Linden

1833

Portals for the purpose of exercising his walkaround rights
as the miners' designated representative, and he stated two
reasons for this position. The first reason is that company
policy precludes the use of private automobiles by miners,
and the second reason is that respondent believes there are
other miners available at the Linden Portal to serve as the
walkaround representative, and they have done so in the past.
The respondent further concedes that it raised the possibility of disciplinary action against Mr. Delisio because of its
reporting and transportation policies which it enforces at
the mine (respondent's proposed finding #6). As stated
earlier, the thrust of MSHA's arguments in support of its
case is the assertion and suggestion that the application of
the travel policy in Mr. Delisio's situation has interferred
with his right to accompany an inspector as the duly designated miners' representative. Under these circumstances, the
issue concerning the travel policy in question must be
addressed.
The respondent produced no evidence to establish that
its ban on the use of private automobiles by miners is in
writing or absolute, nor has it established any definitive
ground rules for the application of the policy. On the facts
of this case, it seems clear to me that the policy is not
consistently applied, and respondent's safety manager Dunbar
candidly admitted that there is no absolute ban on the use of
private automobiles by miners, and that the use of automobiles
by miners is limited to the extent possible. Mr .. Dunbar also
admitted that there are times when miners like to drive their
automobiles for their own convenience.
The credible testimony in this case establishes that
safety committeemen have in the past been permitted to drive
their own automobiles from portal to portal for the purpose
of accompanying inspectors on their inspection rounds. While
it may be true that the union has in the past voiced its
objections to the use of private vehicles by miners for
travelling between portals, some of the objections apparently
resulted from the practice of transporting a number of miners
in the back of pickup trucks, or transporting too many miners
in one vehicle. There is nothing to suggest that the union
intended to preclude committeemen from using their automobiles
to perform their duly recognized walkaround duties.
The credible testimony also establishes that miners have
been permitted to use their private vehicles for their own
convenience while attending training sessions held at the
mine.
One ~iner (Jim Mills), who reports to work early and
is responsible for the mine fans, has been permitted to use

1834

his private vehicle while checking the fans before he actually
reports to his portal. A number of replace~ent locomotive
operators who normally work at the Linden Portal and who may
be needed at the Thomas Portal to operate locomotives are permitted to drive their automobiles to the Thomas Portal from
the Linden Portal for their own convenience because they
shower there and leave directly for home. Consequently, it
seems clear to me that the respondent has made exceptions with
respect to the use of private vehicles, and it has done so for
the convenience. of the miners and notwithstanding any liability considerations. Under the circumstances, I conclude that
the respondent must also accomodate Mr. Delisio and permit him
an opportunity to use his automobile to travel from the Thomas
Portal to the Linden Portal for the purpose of accompanying an
MSHA inspector as the duly.recognized miners' walkaround represent~tive.
In the alternative, I further conclude that the
respondent must make a reasonable accomodation to Mr. Delisio
by providing him with any available underground transportation
between the Thomas and Linden Portals for purposes of accompanying inspectors as the walkaround representative of miners.
If none is .readily available, then Mr. Delisio should be permitted to ~rive his own automobile between portals.
The credible testim6ny iri this case establishes that by
virtue of his position as the chairman of the safety committee, Mr. Delisio is the designated "first choice" walkaround
representative,- and that other miners who have S<;?.rved as walkarounds in his absence are not the "first choice." Further,
respondent concedea that this is. the case Ciespondent's posthearing proposed findings #8 and #9). Since Mr. Delisio is
the ''first choice, 11 respondent may not obstruct or impede his
right to serve through an unreasonable application of an
inconsisterit and somewhat nebulous p~ivate vehicle pcilicy.
By precl~ding Mr. Delisio from using his private automobile
as a means of travel between portals for purposes of exercising his right as the duly designate.a miners' walkaround representative, the respondent has effectively prevented
Mr. Delisio from exercising a right protected by the Act, and
has forced him to designate someorie other than the rniners 1
"first choice" to perform this function.
The result of the
respondent's private automobile policy, as applied to
Mr. Delisio, is an unreasonable and unwarranted interference
with his right to serve as the duly designated representative
during his shift.
On the facts of this case, and in light of the foregoing
findings and conclusions, I conclude and find that the application of respondent's purported policy of prohibiting the
use of private automobiles by miners to Mr. Delisio, has

. 1835

resulted in discrimination prohibited by section 105(c) of
the Act. Given the fact that the respondent has conceded
that after first reporting to his regular job at the .Thomas
Portal, Mr. Delis.io would not then be permitted to drive his
private automobile to the Linden Portal to accompany an
inspector, I further conclude and find that the verbal warning
given to Mr. Delisio constituted a discriminatory interference
with his right to serve as the walkaround representative.
Given these circumstances, I conclude that MSHA has established a violation of section 105(c) by a preponderance of the
credible evidence and testimony adduced in this case, and the
complaint is there.fore AFFIRMED.
Respondent's Request for Dismissal of the Complaint as
Untimely
In its answer of March 14, 1986, to the complaint filed
the respondent asserted that MSHA's
complaint was untimely filed.
In its posthearing arguments,
respondent reasserts this argument and seeks dismissal of the
case.
The respondent states that Mr. Delisio filed his complaint with MSHA on July 30, 1985, and that MSHA did not file
its complaint with the Commission until February 10, 1986,
more than .the 90-days required by section 105(c)(3) of the
Act.
by MSHA in this case,

After due consideration of the respondent's arguments
concerning the late-filing of the complaint, they are
rejected, and the respondent's request for a dismissal of the
complaint on this ground IS DENIED.
It has been held that
the filing deadlines found in section 105(c) of the Act are
not jurisdictional in nature, Christian v. South Hopkins Coal
Company, 1 FMSHRC 126, 134-136 (1979); Bennett v. Kaiser
.Aluminum & Chemical Corporation, 3 FMSHRC 1539 (1981).
Further, as remedial legislation, the Act should be liberally
construed so as not to unduly prejudice a miner for MSHA's
delay in filing its complaint.
In this case, I find no protracted delay on MSHA's part, nor can I conclude that the
delay has prejudiced the respondent in its ability to present
its defense.
Civil Penalty Assessment
MSHA seeks a civil penalty assessment in the amount of
$1,200 for the respondent's violation of section 105(c) of
the Act, and has submitted information concerning the six
statutory criteria for penalty assessments found in section
llO(i) of the Act.

1836

On the facts of this case, I do not consider the violation to be egregious.
I believe that the respondent's initial
verbal warning of possible disciplinary action against
Mr. Delisio was made out of a good faith belief by the respondent that it had an inherent right to expect its employees to
report to their normal duty station. With regard to the subsequent refusal to permit Mr. Delisio to accompany an inspector,
this came after the case was in litigation, and I cannot conclude that given the posture of the case at that point in time,
that the respondent acted unreasonably. While it is true that
the application of the respondent's transportation policy effectively prevented Mr. Delisio from serving as a walkaround representative, there is no evidence of any pretexual motive on the
respondent's part, nor is there any evidence that the respondent has directly or indirectly interferred with Mr .. Deli~io's
activities on behalf of his union. To the contrary, the record
here establishes that the respondent has been more than tolerant of Mr. Delisio with respect to his union activities in his
capacity as a committeeman, and mine management has not inte;rferred with, or otherwise impeded Mr. Delisio's activities in
this regard.
MSHA's proposed civil penalty assessment of $1,200, IS
REJECTED.
In the circumstances presented in this case, I
conclude that a civil penalty assessment of $100 is reasonable
and appropriate.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED THA'r:
1. The respondent permit the complainant
Joseph Delisio access to the Linden Portal
during his work shift for purposes of exercising his walkaround rights to accompany MSHA
mine inspectors on their inspection rounds by
permitting him to drive his private automobile
from his usual reporting place at the Thomas
Portal to the Linden Portal for this purpose,
or in Lhe alternative, to provide him with
underground company transportation between
portals for this purpose.
2.
The respondent expunge from its
personnel or other records any references to
the verbal warning given to Mr. Delisio.on
July 30, 1985, with respect to his reques~ to

1837

accompany an MSHA inspector on that day as the
walkaround representative.

m~ners'

3. The respondent post a copy of this
decision on the mine bulletin board or other
locatio~ readily available or accessible to
miners.
4. The respondent remit to MSHA a civil
penalty assessment in the amount of $100 for
its violation of section 105(c) of the Act.
Full compliance with this Order is to be made by the
respondent within thirty (30) days of the date of this
decision.
·

Distribution:
Linda M. Benty, Es~., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 (Certified Mail)
Carl H. Hellerstedt, Jr., Esq., Volk, Robertson, Frankovitch,
Anetakis & Hellerstedt, Three Gateway Center, Sixth Floor
East, Pittsburgh, PA 15222 (Certified Mail)
/fb

1838

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

NOV 2 4 '986
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 86-203
A. C. No.

36-05018-03613

v.
Cumberland Mine
UNITED STATES STEEL MINING
COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Weisberger

Petitioner•s Motion to Withdraw civil
ty was filed with
the Commission on November 3, 1986. To date respondent has not
responded to this motion.
Petitioner in its motion, has alleged, in essence, that the
circumstances of the two citations in this case are indistinguishable from prior adverse decisions to peritioner. The citations
in this case, cite, in essence, allegations that battery lids
were not secured on batteries on a scoop.
It appears that the issue here was decided adverse to
petitioner in prior proceedings involving the same parties,
u. s. teel, 6 FMSHRC 1617 (1984) (ALJ);
FMS HRC
0 ( 19 8 4) ( ALJ) ;
v.
( 19 8 4 ) ( ALJ ) •
Accordingly, as the above decisions are Res Judicata (See
v. U. S. Steel 5 FMSHRC 1334 (1983) , the Motion to
aw ivi
s GRANTED. Citations Numbers 2683479 and
2683654 are VACATED, and this case is DISMISSED.
I

I '

',,·"--'~

Avram Weisberger
Administrative Law Judge
(703) 756-6210

1839

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

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

80204

NOV 2 5 1986

CIVIL PENALTY PROCEEDING
Docket.No. WEST 85-142-M
A.C. No. 42-01929-05502

v.

Treasure Box

IRON MOUNTAIN ORE COMPANY,
Respondent
DECISION
Appearances:

Margaret Miller, Esq., Office of the Solicitor,
U;S. Department of Labor, Denver, Colorado,
for Petitioner;
Mr. Carlyle Johnson, Iron Mountain Ore Company,
Cedar City, Utah,
pro se.

Before:

,Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating safety
regulations promulgated under the Fede~al Mine Saf e~y and Health
Act of 1977, 30 U.S.C. § 801 et seq.,. (the "Act").
After notice to the parties, ~.hearing on the merits took
place in Las Vegas, Nevada on August 27, 1986.
At the hearing the parties waived their right to file
post-trial briefs but subsequently respondent filed a letter.
The judge considered the letter to be a post-trial submission.
The Secretary was given an opportunity to reply to the letter but
did not do SOo
Issues
The threshold issue is whether respondent is subject to the
Act.
If this is resolved in the affirmative then issues arise as
to whether respondent violated the regulations and what penalty
is appropriate.
Evaluation of the Threshold.Evidence
A credibility issue arises concerning the activities being
conducted at Iron Mountain.

1840

Inspector Wilson described the activities as an above ground
"crushing and screening" operation (Tr. 16, 17). He furthet
stated that he "may be corrected later on" but as he.recalled Mr.
Johnson's company drills and blasts large boulders.
On the other hand, Mr. Johnson states his company picks up
iron ore from the surface.
The ore Itself was mined some 30
years ago.
Iron Mountain then crushes, screens and ships the
surface material to its customers specifications~/ (Tr. 97, 98).
I credit Mr. Johnson's version of the manner in which the
company functions.
As the operator he would be in a position to
know.
In addition, the inspector's testimony that the company
drills and blasts boulders is, at best, vague and hesistant.
The factual situation thus presented is whether respondent
is subject to the Act when it merely picks up iron ore from the
surface and then crushes and screens it.
Section 3Ch) of the Act defines a coal or other mine as
follows:
"(h)(l) 'coal or other mirie' means (A) an area of land from
which minerals are extracted in nonliquid form or, if in
liquid form, are extracted with workers underground, (BJ
private ways and roads appurtenant to such area, and (Cl
lands, excavations, und~rground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment,
machines, tools or other property including impoundments,
retention dams, and tailings ponds, on the surface of underground, used in, or to be used in, or resulting from, the
work of extracting such minerals from their natural deposits
in nonliquid form, or if in liquid form, with workers und~r
ground, or used in, or to be used in, the milling of such
minerals, or the work of preparing coal or other minerals,
and includes custom coal preparation facilities.
In the unique circumstances involved here I agree with
respondent that it did.not extract minerals from the land.
Hence
it is not a mine as defined in (A) of the statutory definition.
However, this 30 acre site is land used in the "milling of such
minerals". 2; Accordingly, respondent meets the statutory
definition as set forth in paragraph (CJ.
l/ A 15 x 18 foot jaw crusher reduces the ore to the size of
about two-inch pellets (Tr. 65).
l l Milling is defined, in part, as the grinding or crushing of
ore. A Dictionary of Mining, Mineral, and Related Terms, 707,
U.S. Department of Iriterior, 1968.

1.841

Respondent further relies on the regulations of the State of
Utah (Ex. Rl, page 64). These regulations, according to
respondent, exclude Iron Mountain as a "mining operation."
Respondent's argument is rejected.
The determinative issue
is whether respondent is subject to the federal Act, not the
State of Utah regulations.
In his evidence respondent also adduced evidence that the
company had received other MSHA citations but they were not the
subject cif the .instant appeal.
While the Commission has the authority to grant declaratory
relief the granting of such relief is discretionary.
Climax
Molybdenum Co. v. Secretary of Labor, 703 F.2d 447. Such relief.
should not be granted in this case because the record is inadequate to determine this issue.
Mr. Johnson also protests the action of the inspector· in
"terminating" the citations when such authority rests with the
Commission.
Mr. Johnson has confused the administrative actions of the
MSHA inspector with an adjudication by the Commission. When an
inspector, as he did here, terminates a citation he does so
because respondent has abated the violative condition.
Failure
of the inspector to terminate the citation could result in
subjecting an operator to additional sanctions as contained in
Section 104(d) of the Act, 30 U.S.C. § 814Cd).
In this case
Inspector Wilson correctly, on an administrative basis, terminated the instant citations. The authority of the Commission,
on the other hand, rest~ on an .adjudicatory level as provided by
Section 113 of the Act.
For the foregoing reasons, respondent's threshold contentions are denied.
Citation 2360842
§

This citation charges respondent with violating 30 C.F.R.
48.23 which provides as follows:
(a) Each operator of a mine shall have an MSHA approved
plan containing programs f.or training new miners, training
newly-employed experienced miners, training miners for new
tasks, annual refresher training, and hazard training for
miners as follows:
Cl> In the case of a mine which is operating on the effective date of this Subpart B, the operator of the mine shall
submit such plan for approval within 150 days after the effective date of this Subpart B.
(2) Within 60 days after the operator submits the plan for

1842

approval, unless €Xtended by MSHA, the operator shall have
an approved plan for the mine.
(3) In the case of a new mine which is to be opened or a
mine which is to be reopened or reactivated after the effective date of this Subpart B, the operator shall have an
approved plan prior to opening the new mine, or reopening
or reactivating the mine unless the mine is reopened or reactivated periodically using portable equipment and mobile
teams of miners as a normal method of operation by the
operator. The operator to be so excepted shall maintain an
approved plan for training covering all mine locations which
are operated with portable equipment and mobile teams of
miners.
Inspector Wilson issued this citation because respondent did
not have any plan on file with MSHA (Tr. -19, 20).
The inspector discussed the citation with Mr. Johnson.
was not aware such a plan was required (Tr. 21).

He

The citation was abated (Tr. 21).
Carlyle Johnson testified that he was unaware that he was
subject to MSHA's rules (Tr. 74).

The facts estabish that respondent did not have a plan filed
with MSHA.
Mr. Johnson failed to establish a defense to the
citation.
The citation should be affirmed.
Citation 2360843
§

This citation charges respondent with violating 30 C.F.R.
56.18-10, now § 56.18010, which provides as follows:
§ 56.18010
First aid training. Selected supervisors shall
be trained in first aid. First aid training shall be made
available to all interested employees.

Inspector Wilson issued this citation when he learned that
Mr. Johnson had not received formal first aid training in years
(Tr. 21). The other employees had received no or little training
<Tr. 21-22). The first aid training had not been made available
to the employees (Tr. 22). There is no lead time granted for the
training of employees in first aid (Tr. 23, 24, 55).
Generally, to be effective first aid training has to be
taken every two years (Tr. ·55).
The citation was abated (Tr. 22).

1843

Mr. Johnson indicated that he had extensive first aid
training at U.S. Steel in the spring of 1984 (Tr. 76).
Evaluation of the Evidence
Mr. Johnson, as a supervisor, was trained in first aid.
such training had not been made available to interested
employees.

But

The citation should be affirmed.
Citation 2360844
§

This citation charges respondent with violating 30 C.F.R.
56.15-1, now§ 56.15001, which provides as follows:
Adequate first-aid materials, including stretchers and
blankets, shall be provided at places convenient to all
working areas. Water or neutralizing agents shall be available where corrosive chemicals or other harmful substances
are storedt handled, or used.

Inspector Wilson did not recall seeing any stretchers or
blankets on the mine property but there were a few supplies on
hand (Tr. 24, 25, 55). The nearest town was 18 miles away (Tr.
2 5) •

The citation was abated (Tr. 25).
Mr. Johnson testified that there were first aid materials
and a stretcher on the job. The stretcher, constructed of pipe
and wire, was 400 yards from the work area (Tr. 76, 77). After
the company was cited Mr. Johnson brought over the ladder (Tr.
76-77). Additional first aid material was purchased and brought
to the site the following morning (Tr. 77).
At the time of the inspection Mr. Johnson had a standard
first aid kit available in his trailer (Tr. 77). The witness did
not know if blankets were on hand (Tr. 78).
Evaluation of the Evidence
Inspector Wilson's testimony is credible. Accordingly, the
first aid ~aterials, stretchers and blankets were not provided at
places convenient to the working area. A stretcher 400 yards
away was not at a convenient place.
The citation should be affirmed.
Citation 2360845
§

This citation charges respondent with violating 30 C.F.R.
56.14-1, now § 56.14001, which provides as follow~~

1844

§ 56.14001
Moving machine parts. Gears; sprockets; chains;
drive, head, tail, and takeup pulleys; flywheels; couplings;
shafts; sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and which
may cause injury to persons, shall be guarded.

Inspector Wilson issued this citation when he observed an
unguarded jaw crusher flywheel (Tr. 25-27).
The flywheel rotates
in a circular motion when the jaw crusher runs at a high rate of
speed (Tr. 27; Ex. Pl, P2).
The condition was accessible.
In addition, this condition
has been known to kill or maim miners (Tr. 27, 28, 56). This can
occur when parts of their bodies or clothing are caught in the
unguarded assembly (Tr. 28).
This type of violation could cause a reasonably serious
injury (Tr. 30).
The inspector observed tracks around the jaw crusher but he
didn't know when they had been made (Tr. 56).
The citation was abated (Tr. 56).
Mr. Johnson testified that no one had to go near the exposed
parts involved in Citation 2360845 and 2360846. Cleanup is done
when the machinery is shutdown.
There was considerable room around the equipment (Tr. 79;
Ex. R8).
Evaluation of the Evidence
The credible evidence adduced by Inspector Wilson
establishes a violation of the regulation.
Mr. Johnson's testimony that was "considerable room" around
the equipment does not excuse the violative condition.
The citation should be affirmed.
Citation 2360846
This citation charges respondent with violating 30 C.F.R.
now § 56.14001, cited supra, for unguarded moving
machine parts.
§ 56.14-1,

Inspector Wilson observed that a flywheel~ a "V" belt and
the pulley assembly were unguarded (Tr. 31: Ex. P3).
Numerous fatalities and serious injuries have occurred in
industry from such conditions (Tr. 32).
The citation was abated (Tr. 32, 80).

1845

Mr. Johnson testified MSHA was right in requiring that this
condition be guarded but there was no necessity to get near the
area (Tr. 80; Ex. R8).
Evaluation of the Evidence
The testimony of Inspector Wilson establishes a violation.
Mr. Johnson does not contradict the evidence that a violation
existed.
The citation should be affirmed.
Citation 2360847
This citation charges respondent with violating 30 C.F.R.
now § 56.14001, cited supra, for unguarded moving machine
parts.
§ 14-1,

Inspector Wilson issued this citation when he saw an
unguarded conveyor belt and "V'' belt.
The condition, which could
cause a serious injury, was adjacent to a walkway (Tr. 33, 36,
37; Ex •. P4, PS)~ This machinery was moving at 100 rpm's or more
(Tr. 34).
The inspector considered this to be a significant and
substantial violation (Tr. 36).
The condition was abated (Tr. 37).
For illustrative purposes, Mr. Johnson presented at the
hearing a two horse motor mounted on a bearing assembly (Tr. 80).
The motors go into a 15 to 1 gear reduction and the head pulley
turns at a 15th of 1,120 rpms, or about 75 rpms (Tr. 81).
Mr.
Johnson differed with the inspector's claim that the condition
could cause a fatality (Tr. 81, 82).
Evaluation of the Evidence
Mr. Johnson's evidence js cr~dible and persuasive.
I agree
that this particular unguarded equipment could not cause a
serious injury.
However, the violation existed and the citation should be
affirmed.
Citation 2360848
§

This citation charges respondent with violating 30 C.F.R.
56.12-8, now § 56.12008, which provides as follows:
§ 56.12008
Insulation and fittings for power wires and
cables.
Power wires and cables shall be insulated adequately where they pass into or out of electrical compartments.
Cables shall enter metal frames of motors, splice boxes,

1846

and electrical compartments only through proper fittings.
When insulated wires, other than cables, pass through metal
frames, the holes shall be substantially bushed with insulated bushings.
Inspector Wilson observ.ed an S.O. cable feeding power to the
motor.
It was not bushed nor was it provided with an appropriate
fitting where it entered the motor makeup box (Tr. 38~ 57; Ex.
P4, PS).

There was not an appropriate fitting (Tr. 39). The primary
purpose of a clamp or a bushing is to prevent the cable from
being stressed (Tr. 39-40).
It also prevents dirt, dust and rain
from entering the box CTr. 40).
The wires here were rubbing against the edge of the metal
(Tr. 40).
Normally a bushing citation is a minor violation but
the inspector considered this to be serious due to the lack of
electrical grounding (Tr. 41).
The hazard here involved electrical shock or electrocution
CTr. 41).
The inspector had read of numerous fatalities caused
by these conditions (Tr. 41).
He believed the citation was
significant and substanti
because of the amper~ge and because
the plant was not electrically grounded (Tr. 41). The entire
conveyor belt frame could have been energized {Tr. 42).
The condition was abated

CT~.

42).

Mr. Johnson testified that the grommet provided by the
factory had pulled out.
There was no short and the wiring was
still intact (Tr. 82).
Evaluation of the Evidence
The regulation requires that cables enter metal frames
through proper fittings.
Inspector Wilson established the
violative condition and Mr. Johnson confirmed it.
The citation should be affirmed.
Citation 2360849
§

This citation charges respondent with violating 30 C.F.R.
56.12-25, now § 56.12025, which provides as follows:
All metal enclosing or encasing electrical circuits shall
be grounded or provided with equivalent protection. This
requirement does not apply to battery-operated equipment.

Inspector Wilson found that the 220 volt AC three phase
electrical system was not continuously grounded.
However, it was
grounded by a copper rod and wire at the box (Tr. 42, 43).
In
effect, a portion of the electrical system.was grounded and
portion was not (Tr. 44, 46).
·

1847

Mr. Johnson told the inspector the equipment was groundsd
because it was resting on iron ore.
In the inspector's view such
grounding was inadequate (Tr. 44, 58).
Mr. Wilson discussed various ways the system could be
grounded (Tr. 44, 45, 46).
But he apparently did not use a meter
to test the ground (Tr. 46). The violation. was obvious since
there was no fourth wire and no bonding (Tr. 47).
In the event of an electrical fault the entire metal
conveyor belt frame could be energized.
This could cause a fatal
electrocution (Tr. 47).
The citation was abated (Tr. 48, 60, 83);
Mr. Johnson testified there was six inches of iron dirt
every place you walk.
Iron is highly conductive but not as good
as copper wire (Tr. 83).
·
Evaluation of the Evidence
A violation exists in these circumstances.
In this
connection, I cr~dit Mr. Wilson's expertise that metal resting on
iron ore does not constitute adequate grounding.
Citation 2360850
This citation charges respondent with violating 30 C.F.R.
now§ 55.4-24(b), which provides as follows:

§ 56.40-24Cb),

§ 56.4-24
Mandatory. Fire extinguishers and fire suppression devices shall be: (b) Adequate in number and size
for the particular fire hazard involved.

Inspector Wilson found a wooden storage shack containing
oil, grease, rags and paper boxes. There were no fir~ extinguishers in or about the shack which was 50 to 100 feet from
the trailer hous~ (Tr. 50, 52, 60-61).
The standard requires fire extinguishers in the vicinity ·of
flammable or combustible material (Tr. 51) ~
The inspector did not consider the violation to be
and substantial because the shack was away from the
work area (Tr. 53).
signific~nt

The violation was abated (Tr. 53).
Mr. Johnson indicated there was a fire extinguisher 50 feet
from the building. There were no grease rags; however, they did
store unopened oil cans and fi~e gallon buckets of motor oil, as
well as grease and paper boxes containing extra parts (Tr. 83,
8 4) •

1848

Evaluation of the Evidence
The parties agree that a fire extinguisher was 50 feet from
the shack.
However, a fire among combustibles· requires a quick
response.
Valuable time would be lost in obtaining the fire extinguisher under the circumstances involved here.
The citation should be affirmed.
Civil Penalties
In this case the Secretary has proposed the following
penalties:
Citation No.
2360842
2360843
2360844
2360845
2360846
2360847
2360848
2360849
2360850

subject
Proposed
$20
MSHA approved plan
First aid training
20
First aid materials
20
Unguarded flywheel
74
Unguarded pulley
74
Unguarded conveyor belt
74
No fit~ing to metal box
74
Electrical system ungrounded
74
No fire extinguisher
20

The statutory criteria to assess civil penalties is
contained in Section llO(i) of the Act.
In reviewing the evidence in relation to the statutory
criteria it appears that the company has a favorable prior
history since it was not previously cited (Tr. 62). The company
had only five or six employees.
The number of the employees and
its gross income of approximately $511,000 causes me to conclude
that the company's size is relatively small (Tr. 88).
The
company must be considered as negligent since the violative
conditions should have been known to Mr. Johnson.
The assessment
of a penalty would severely affect the company if it were still
in business.
At the time of the inspection the company had been in
operation for three months.
In 1985 the company grossed $511,000
but spent $580,000. Mr. Johnson has financed the company by.
borrowing on property he owns.
However, he is "broke" (Tr. 88,
89). Mr. Johnson's bank balance was $328.
From this amount he
drew out $100 to come to the hearing.
In his personal account he
has a balance of $197.
At the tim~ of the hearing U.S. Steel
owed Iron Mountain $5,000 but payment has been delayed due to the
fact that the company is on strike.
He also has a bill of $8,000
with the Bank of Iron County but he has no way of paying it (Tr.
95). Johnson stopped operating the mine on October 1, 1985 (Tr.
9 5) •

Except for the unguarded moving machine parts, the gravity
of all of the violations was minimal.·

1849

~he company's good faith was apparent in that they fully
abated the citations. They also furnished gloves, safety shoes
and hard hats.
In addition, the company fully cooperated with
MSHA.,

As a gSneral rule, the text and legislative history of
Section 110 of the A.ct require the Secretary to propose a penalty
assessment for each violation and the Commission and its judges
to assess some penalty for each violation found.
Tazco, Inc., 3
FMSHRC 1895 ( 1981).
In Tazco the Conunission ruled that the
Commission and its judges do not have the power to suspend
penalties. 3 FMSHRC at 1897. But in Tazco the Commission
specifically noted that it was not passing on the propriety of
nominal penalties, 3 FMSHRC 1898, footnote 4.
Precedent for the assessment of nominal penalties is
contained in Potochar and Potochar Coal Company, 4 IBMA 252, 1
MSHC 1300 (1975).
In the instant case the operator abated the violative
conditions and fully cooperated with MSHA.
The company has
ceased operations and there is no indication in the record that
the company intends to resume its activities. The company and
its owner, Mr. Johnson, have lost a substantial amount of money.
In fact, they are essentially bankrupt.
I do not believe that the imposition of more than nominal
penalties in these circumstanc~s would serve tbe purposes of the
Act or the best interests of justice.
Accordingly, a penalty of $1 should be assessed for each
violation.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusion
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2. Respondent violated all of the regulations for which it
was cited in this case.
Based on the foregoing facts
the following:

a~d

conclusions of law I enter

ORDER

1. Citation 2360842 is affirmed and a penalty of $1 is
assessed.
2. Citation 2360843 is affirmed and a penalty of $1 is
assessed.

1850

3 . Citation 2360844 is affirmed and a penalty of $1 is
assessed.
4 . Citation 2360845 is affirmed and a penalty of $1 is
assessed.
5. Citation 2360846 is affirmed and a penalty of $1 is
assessed.
6. Citation 2360847 is af finned and a penalty of $1 is
assessed.
7• c
assessed.

at ion 2360848 is

firmed and a penalty of $1 is

8. Citation 2360849 is
assessed.

firmed and a penalty of $1 is

9.
Citation 2360850 is affirmed and a penalty of $1 is.
assessed.

Distribution:
Margaret Miller, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Iron Mountain Ore Company, Mr. Carlyle Johnson, P.O. Box 365,
Cedar City, UT 84720 (Certified Mail)
/bls

1851

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

COLFAX AVENUE SUITE 400

DtNVER, COlORADO

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

80204

NOV 2 5 1986

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-173-M
A.C. No~ 48-01405-05502

v.

Lovell Plant

N.L. BAROID-DIV/N.L.
INDUSTRIES,
Respondent
DECISION
Appeatances:

James H. Barkley, Esq., Office of .the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
·
Mr. J.D. Fontenot, NL Baroid/NL Industries, Inc.,
Houston, Texas
se.

Before:

Judge Morris

This is a civil penalty proceeding initiated by petitioner
against respondent in accordance with the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~The civil penalty
sought here was for the violation of 30 C.F.R. § 56.5-l(a), a
mandatory standard promulgated pursuant to the Act.
After notice to the parties, a hearing on the merit.s
commenced in Billings, Montana on November 4, 1986.
At the
hearing petitioner moved to vacate
s citation and dismiss his
petition.
Pursuant to Commission Ru
11, 29 C.F.R. § 27800'.ll and for
good cause shown, the motion to vacate is granted.
Accordingly, the case is dismissed.

Law Judge

1852

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
NL Baroid/NL Industries, Inc., Mr. J.D. Font~not, Manager, Safety
& Health, P.O. Box 1675, 2404 S.W. Freeway, Houstdn, TX 77251
(Certified Mail)

/bls

1853

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

22041

NOV 2 6 1986
CIVIL PENALTY PROCEEDING

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

Docket No. SE 86-84-M
A.C. No. 09-00024-05501-CSA

v.

Georgia Marble

DRILLING AND BLAS
SYSTEMS, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Be

e Broderick

On November 20, 1986~ the ~ecre
of Labor filed a
motion for approval of a setilement reached by
parties
in this case.
The violations were orig
ly assessed at
$147 and the parties propose to settle for $85.
The motion states that Respondent is a small independent
contractor and has no history of prior violations.
The
motion states that the gravity and negligence were over
evaluated.
The alleged viola ti on, which res.ul ted in the
death o the son of the President of Respondent, occurred
on mine property but 400D feet from the
site, and
there is some question of jurisdiction.
I accept the allegations
in the mot~on.
I have considered the motion in the l
of
criteria in section llO(i) of the Act, and conclude
that it should be approved.
~ccording
, the settlement i
APPROVED and Re
is ordered to pay the sum o $85 within 30
of the date
of this order, if it has not already done so.

~he

h~aring

Georgia is

scheduled for December 7, 1986 in Atlanta,

CA~CELLED.

A. Broderick
strative Law Judge

1854