March 1987
COMMISSION DECISIONS
03-20-87
03-20-87
03-20-87
03-20-87
03-25-87
03-30-87
03-30-87

Perry Drilling Company
Patriot Coal Company
Doug Connelly Sand & Gravel
Sec.Labor/Andy Brackner v. Jim Walter
Resources, Inc.
Jim Walter Resources, Inc.
Rushton Mining Company
Sec. Labor/James & Robert Corbin & A.C.
Taylor v. Sugartree Corp., & Terco, Inc~

PENN 86-273
WEVA 86-400
WEST 86-196-M
SE
86-69-D

Pg.
Pg.
Pg.
Pg.

SE
87-29-R
PENN 85-253-R
KENT 84-255-D

Pg. 390
Pg. 392
Pg. 394

VA
86-34-D
KENT 86-139-D
PENN 86-221-D

Pg. 401
Pg. 409
Pg. 413

S.E
86-121-D
WEST 85-162-M
WEVA 86-73-D
SE
86-121-D
SE
86-139-R
SE
86-141-R
WEVA 86-386
WEVA 86-375-D
KENT 86-123-D
WEST 86-101-R
SE
86-125-R
LAKE 87-22-DM
PENN 86-44-R
KENT 86-159-D
WEVA 86-231
PENN 85-279-R
SE
86-23-M

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

379
382
385
388

ADMINISTRATIVE LAW JUDGE DECISIONS
03-02-87
03-05-87
03-05-87
03-05-87
03-05-87
03-05-87
03-09-87
03-11-87
03-11-87
03-11-87
03-12-87
03-16-87
03-16-87
03-17-87
03-18-87
03-19-87
03-20-87
03-20-87
03-25-87
03-25-87

Sec.Labor/Bobby G. Keene v. S & M Coal Co.
Newton J. Johnson v. Allied Coals, Inc.
Larry Brian Anderson v. Consol Pennsylvania
Coal Company
Harlan L. Thurman v. Queen Anne Coal Co.
Sierra Aggregate Company
Alfred H. Cox v. Pammlid Coal Company
Harlan L. Thurman v. Queen Anne Coal Co.
Jim Walter Resources, Inc.
Jim Walter Resources, Inc.
Consolidation Coal Company
James H. Harmon v. Consolidation Coal Co.
Ronald Tolbert v. Chaney Creek Coal Corp.
Emery Mining Corporation
Jim Walter Resources, Inc.
Ricky Vernon Hein v. Puskarich Limestone Co.
Rushton Mining Company·
Gary K. Ratcliff v. Crockett Coal Co., Inc.
United States Steel Mining Co.
Rushton Mining Company
Brown Brothers Sand Company

419
426
435
526
533
538
545
549
580
595
604
610
611
618
619
630
636

MARCH i987
The following cases were directed for review during the month of March:
Secretary of Labor', MSHA v. Southern Ohio Coal Company, Docket Nos.
WEVA 86-190-R, 86-194-R, 86-254. (Judge Maurer, February 2, 1987)
Secreta~y of Labor, MSHA v. Union Oil Company of California, Docket No.
WEST 86-1-M. (Judge Lasher, February 12, 1987)

Secretary of Labor, MSHA v. Perry Drilling Company, Docket No. PENN
86-273. (Judge Merlin, Default order of February 11, 1987)
Secretary of Labor, MSHA v. Patriot Coal Company, Docket No. WEVA
86-400. (Judge Merlin, Default order of February 11, 1987)
Secretary of Labor, MSHA v. Doug Connelly Sand & Gravel Co., Docket
No. WEST 86-196-M. (Judge,Merlin, Default order of February 11, 1987)
Western Fuels-Utah, Inc., v. Secretary of Labor, MSHA, Docket No.
WEST 86-108-R, WEST 86-245. (Judge Maurer, February 19, 1987)
Rus.hton Mining Company v. Secretary of Labor, MSHA, Docket No.
PENN 85-253-R, PENN 86-1. (Judge Broderick, February 20, 1987)
Review was denied in the following cases during the month of March:
Secretary of Labor, MSHA on behalf of Andy Brackner v. Jim Walter
Resources, Inc., Docket No. SE 86-69-D. (Judge Broderick, February 9, 1987)

COMMISSION DECISIONS

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

20006

March 20, 1987

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PENN 86-273

v.
PERRY DRILLING COMPANY

BEFORE:

Ford, Chairman; Backley, Lastowka and Nelson,
Commissioners

ORDER
BY THE COMMISSION:

In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982),
Commission Chief Administrative Law Judge Paul Merlin issued an Order of
Default on February 11, 1987, finding Perry Drilling Co. ("Perry
Drilling") in default for failing to respond to a show cause order and
assessing a civil penalty of $500. Six days after the default order
issued, the judge's law clerk received a telephone call from Richard C.
Perry of Perry Drilling in which Mr. Perry asserted, according to a
memorandum placed in the official file by the law clerk, that the
company had not received the Secretary of Labor 1 s penalty proposal or
the show cause order. The clerk suggested that Perry advise the
Commission in writing of these assertions. On February 26, 1987, the
Commission received a letter from Perry stating that the company "never
received the initial fine." We consider Perry's letter to constitute a
timely petition for discretionary review, vacate the order of default,
and remand for further proceedings.
We have observed repeatedly that default is a harsh remedy and
that if the defaulting party can make a showing of adequate or good
cause for failing to respond, the failure may be excused and appropriate
proceedings on the merits permitted. See,~·· Kelley Trucking Co.,
8 FMSHRC 1867, 1869 (December 1986); M.M. Sundt Constr. Co., 8 FMSHRC
1269, 1271 (September 1986). Here, Perry Drilling filed a timely "Blue
Card" request for a hearing in connection with the Secretary's proposed
assessment of a civil penalty for one alleged violation of a mandatory
safety standard. In response, the Secretary filed with the Commission a
petition for assessment of civil penalty. When no answer to the
petition was received, the judge, on November 26, 1986, ordered Perry
. Drilling to send an answer or show cause for failure to do so. The show
379

cause order was mailed to Perry Drilling by certified mail, return
receipt requested. The return receipt in the official file, dated
December 2, 1986, bears the signature, "Richard C. Perry."
We are unable on the basis of the present record to evaluate the
credibility of Perry's assertions. We note that the Secretary attached
a certificate of service to his petition for assessment of civil penalty
stating that a copy of the petition was mailed to Richard C. Perry.
Further, the signature "Richard C. Perry" appears on the return receipt
of the judge's show cause order. We will permit Perry Drilling to
present its position to the judge, who will determine whether sufficient
grounds exist for excusing the failure to timely respond. ~··Kelley
Trucking, supra, 8 FMSHRC at 1869.
For the foregoing reasons, the judge's default order is vacated
and this matter is remanded for proceedings consistent with this
opinion. Perry Drilling is reminded to serve the Secretary with copies
of all its correspondence and other filings in this matter. 29 C.F.R.
§

2700.7. ll

Lastowk

~

L. Clair Nelson, Commissioner

lf

Commissioner Doyle believes that, given the return receipt to the
show cause order bearing Perry's signature and there being no assertion
in Perry's letter of February 26 that he never received that order, the
default order should not be vacated.

380

Distribution
Richard C. Perry
Perry Drilling Company
Box 26
Frostburg, PA 15740
Therese I. Salus, Esq.
Office,of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
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
730 K Street, N.W., Suite 600
Washington, D.C. 20006

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

March 20, 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
.ADMINISTRATION (MSHA)
Docket No. WEVA 86-400

v.
PATRIOT COAL COMPANY

BEFORE:

Ford, Ch~irman; Backley, Doyle, Lastowka and Nelson,
Commissioners
ORDER

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission Chief Administrative Law Judge Paul Merlin issued an Order of
Default on February 11, 1987, finding Patriot Coal Company ("Patriot")
in default for failure to respond to a show cause order. The judge
assessed a civil penalty of $250. For the reasons that follow, we
vacate the default order and remand the case for further proceedings.
On March 3, 1987, Patriot's general manager wrote a letter to
Judge Merlin requesting that the judge review his decision in light of
its answer, attached to the letter. The attachment, a letter from
Patriot's president dated Jariuary 5, 1987, and addressed to the
Department of Labor's Regional Solicitor in Philadelphia, contains a
short and plain statement of the reasons why Patriot disagrees with a
backup alarm violation alleged by the Secretary. Patriot's March 3
letter was received by the Commission on March 9, 1987.
The judge's jurisdiction over the case terminated when his
decision was issued. 29 C.F.R. § 2700.65(c). We are trr;ating Patriot's
letter requesting review of the judge's order as a timely petition for
discretionary review because it was received within 30 days of the
judge's decision. 29 C.F.R. § 2700.70(a). The petition is granted.
'!'he record discloses that on April 16, 1986, an inspector of the
Department of Labor's Mine Safety and Health A~inistration ( 11MSHA 11 )
issued a citation to Patriot alleging a violation of 30 C.F.R. § 77.410
for failure to equip a parts truck with an automatic warning device.
Upon preliminary notification by MSHA of the civil penalty proposed for
the alleged violation, Patriot filed a 11 Blue Card" request for a hearing
before this independent Commission. On August 25, 1986, counsel for the
382

Secretary served Patriot with the Secretary's penalty proposal. When no
answer to the penalty proposal was filed, the judge, on November 18,
1986, issued a show cause order directing Patriot to file an answer
within 30 days or show good reason for the failure to do so. As noted,
Patriot's president served an answer on the Secretary by mail on January
5, 1987. Other than as an attachment to Patriot's March 3 letter, the
Commission's official record does not contain a copy of the answer.
Under the Commission's rules of procedure, the party against whom a
penalty is sought must file an answer with the Commission within 30 days
after service of the proposal for penalty. 29 C.F.R. § 2700.S(b) & .28.
Patriot's March 3 letter also mentions a thirty-day extension of
time in which to answer, which it states it requested and was granted.
Again, the Commission's official record contains no documentation that
such a request was made or granted.
Patriot has not provided any explanation for its failure to file a
timely answer or for its failure to timely respond to the judge's show
cause order. However, we note that Patriot is proceeding pro ~· that
it did serve the Secretary with its answer prior to issuance of the
judge's default order, and did bring the existence of a possible excuse
to the attention of the Commission. In light of these factors, we
believe that the operator should have the opportunity to present its
position to the judge.
For the foregoing reasons, the judge's default order is vacated
and the matter is remanded to the judge, who shall determine whether
relief from default is appropriate. See,~·· Kelley Trucking Co.,
8 FMSHRC 1867, 1869 (December 1986).

383

Distribution
Richard B. Bolen, Gen. Mgr.
Patriot Coal Company
Route 12, Box 245
Morgantown, West Virginia 26505
James E. Culp, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
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 Street, N.W., Suite 600
Washington, D.C. 20006

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

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

March:20, 1987

Docket No. WEST 86-196-M

v.

DOUG CONNELLY SAND & GRAVEL

BEFORE:

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

BY THE COMMISSION:
In this civil penalty proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission Chief Administrative Law Judge Paul Merlin issued an Order of
Default on February 11, 1987, finding Doug Connelly Sand & Gravel
("Connelly") in default for failure to respond to a show cause order.
The judge assessed civil penalties totalling $2,179. For the reasons
that follow, we vacate the default order and remand the case for further
proceedings.
On March 3, 1987, Connelly's attorney wrote a letter to Judge
Merlin seeking vacation of the default order on the ground that he
mistakenly had filed Connelly's answer to the Secretary's penalty
proposal with counsel for the Secretary instead of with the Commission.
In support of this assertion, copies of Connelly's Answer, Affirmative
Defense and Counterclaim were attached to the letter, together with
copies of a mailing receipt for certified mail dated August 7, 1986, and
a signed receipt for delivery dated August 8, 1986. Connelly's lettf,r
was received by the Commission on March 6, 1987.
The judge's jurisdiction over the case terminated when his
decision was issued. 29 C.F.R. § 2700.65(c). We will treat Connelly 1 s
letter requesting relief from the judge's order as a timely petition for
discretionary review because it was received within 30 days of the
judge's decision. 29 C.F.R. § 2700.70(a). The petition is granted.
The record discloses that on May 1 and 2, 1986~ an inspector of
the Department of Labor's Mine Safety and Health Administration ("MSHA")
issued nine citations to Connelly alleging violations of various safety

385

regulations. Upon preliminary notification by MSHA of the civil
penalties proposed for these alleged violations, Connelly's owner filed
a "Blue Card" request for a hearing before this independent Commission.
On July 24, 1986, counsel for the Secretary served him with the
Secretary's penalty proposal. As noted, Connelly's attorrtey served an
answer on the Secretary by certified mail return receipt requested on
August 7, 1986. However, the document was never filed with the
C0mmission. Under the Commission's rules of procedure, the party
against whom a penalty is sought must file an answer with the Commission
within 30 days after service of the penalty proposal. 29 C.F.R.
§ 2700.S(b) & 28.
Not having entered an appearance, Connelly's attorney never
appeared on the distribution list for relevant Commission documents.
The return receipt for the judge's show cause order indicates that it
was ·delivered to-someone named 11 Connelly. 11 While Connelly failed to
respond to the judge's show· cause order, we recognize that Connelly's
attorney did prepare an answer and serve it on the Secretary in a timely
manner. In light of this fact and counsel's promptness in bringing the
existence of a possible excuse to the attention of the Commission, we
believe that the operator should have the opport~nity to present its
position to the judge.
For the foregoing reasons, the judge's default order is vacated
and the matter is remanded to the judge, who shall determine whether
relief is appropriate. See,~·· Kelley Trucking Co., 8 FMSHRC 1867,
1869 (December 1986).

~

~irm~-n-/_/
___

f.~-;;~G£44~)tic~k-.
'Richard V. Backley,

Commis~r Y

L. Clair Nelson, Commissioner

386

-

Distribution
Gary W. Brandstetter, Esq.
Suite 5 Katlin Building
122 Avenue A
Snohomish, Washington 98290
Faye von Wrangel, Esq.
Office of the Solicitor
U.S. Department of Lab.or
8003 Federal Office Bldg.
Seattle, Washington 98174
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 Street, Suite 600
Washington, D.C. 20006

387

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

March 20, 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
ON BEHALF OF ANDY BRACKNER
·Docket No. SE 86-69-D

v.
JIM WALTER RESOURCES, INC.

ORDER
On March 16, 1987, Jim Walter Resources, Inc. ("JWR") filed with
the Commission a petition for discretionary review of the administrative
law judge's decision issued February 9, 1987. The petition was untimely
filed and contains no explanation for the late filing. Moreover, the
petition contains no reasons supporting the assignments of error.
Accordingly, the petition for discretionary review is dismissed.
Valley Rock and Sand Corp., 2 MSHC 1673 (March 1982); Victor McCoy v.
Crescent Coal Co., 2 FMSHRC 1202 (June 1980).

~
~/~
Richard V. Backley, Commissioner

~L~~
L. Clair Nelson, Commissioner

3$8

Distribution

David M. Smith, Esq.
Maynard, Cooper, Frierson & Gale, P.C.
12th Floor, Watts Bldg.
Birmingham, AL 35203
Ann Rosenthal, Esq.
Office ~f the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James Broderick
Federal Mine Safety and Health
Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

389

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

March 25, 1987
JIM WALTER RESOURCES, HTC. ,

v.
Docket No. SE 87-29-R

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

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

BY THE COMMISSION:
In this matter pending on review, Jim Walter Resources, Inc. ("JWR"),
has filed an unopposed motion to withdraw its petition for. discretionary
review and to dismiss the proceeding.
In his decision below, Commission Administrative Law Judge Avram
Weisberger concluded that JWR had failed to comply with a notice to
provide safeguards relating to clearance on an underground rail system
and dismissed JWR's contest of the citation issued for the violation.
9 FMSHRC 102 (January 1987)(ALJ). On February 24, 1987, the Commission
granted JWR's petition for discretionary review. In its present motion,
JWR asserts that a stop-block system has been installed along. the rail
system to abate the alleged violation and that now "[n]o true dispute
remains between the parties •••• " JWR also states that the Secretary
of Labor does not oppose the granting of this motion.

Upon consideration of Jt1R's motion, it is granted. Accordingly,
the Commission's direction for review in this matter is vacated, and
this proceeding is dismissed.

A. Lastowka, Commissioner
.ames
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.1 ·-·'- '-·"r1t7\./

t". Clair Nelson, Commissioner

390

Distribution
R. Stanley Morrow, Esq.
Harold D. Rice, Esq.
Jim Walter Resources, Inc.
P.O. Box C-79
Birmingham, Alabama 35283
Harold D. Rice, Esq.
Jim Walter Corporation
1500 North Dale Mabry Highway
Tampa, Florida 33607
Barry Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety and Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

391

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

March 30, 1987
OFFICE OF THE CHAIRMAN

Docket Nos.

RUSHTON MINING COl-0.'ANY

PENN 85-253-R
PENN 86-1

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

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

BY THE COMMISSION:
Petitioner, Rushton Mining Company, has filed a petition for discretionary review together with a motion to stay the administrative law
judge's decision and a motion to remand this case to the judge for
further proceedings.
Petitioner presents two ·issues: Whether an operator is entitled to
reimbursement from the Secretary for costs and attorney's fees under
Rule 11 of the Federal Rules of Civil Procedure and, if so, whether the
facts in this case support such reimbursement.
The administrative law judge's jurisdiction in this case ceased
with the issuance of his decision on February 20, 1987. Thus, by operation of Commission Rule 2700.65, petitioner did not have the opportunity
to present the issue of reimbursement before the trier of fact.
We believe that under the circumstances it is appropriate that the
administrative law judge be given the opportunity to rule on the issues
raised in the petition.

392

Accordingly, it is ordered that this case be remanded to the administrative law judge for the purpose of developing a record and ruling on
the issues presented in the petition for discretionary review.

/)

,~//_(~~~

Richard V. Backley, CommisSiOn~

~~d~
cOlllmiSSi:ner

Joyce A. Doyle,

-~

:IK9G=er
L. Clair Nelson, Commissioner

Distribution
Joseph T. Kosek, Jr .., Esq.
Rushton Mining Company
P.O. Box367
Ebensburg, PA 15931
David T. Bush, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

393

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

March 30, 1987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JAMES CORBIN,
ROBERT CORBIN, and A.C. TAYLOR
Docket No. KENT 84-255-D
v.

SUGARTREE CORPORATION,
TERCO, INC., and RANDAL LAWSON
BEFORE:

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

BY THE COMMISSION:

This discrimination proceeding arises under section lOS(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1982). 1/ Terco, Inc. ( 11 Terco 11 ) , seeks review of a decision by
Corranission Administrative Law Judge Gary Melick finding Terco, as
successor to Sugartree Corporation ("Sugartree"), liable for back pay
and other costs determined to be due as a result of Sugartree's

1./

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

30 U.S.C.

§

815(c)(l).

394

discriminatory discharge of the complainants. 8 FMSHRC 206 (February
1986)(and appendices)(ALJ). For the reasons set forth below, we affirm.
Sugartree was owned by Randal Lawson, who was also its president.
In July 1984, Sugartree operated the Sugartree No. 1 coal mine in K~ox
County, Kentucky. On the last workday prior to the July 4, 1984
holiday, and again on July 5, 1984, 1Sugartree miners James Corbin,
Robert Corbin, and A.C. Taylor complained to their section foreman and
to mine foreman Joe Watkins th~t malfunctioning watersprays on the
continuous mining machine were cr~ating a severe dust and ventilation
hazard in the section where the miners were working. On July 5, 1984',
after unsuccessful repair efforts; Watkins ordered the crew of seven or
eight miners to continue working, but the entire crew left the mine
rather than ~ork under the existing dusty conditions. The crew returned
to work the next day and, at the end of their shift, Watkins issued to
the Corbins and Taylor lay-off slips that attributed dismissal "to the
sharp decline in production during the last several weeks." No other
miners were laid off. Lawson testified that he had picked these three
miners for lay off because "they were the ones that [were] complaining •..• " Tr. 406. '!:_/
On July 12, 1984, the three miners filed complaints of discriminatory discharge with MSHA. 30 U.S.C. § 815(c)(2). Shortly thereafter,
in July 1984, Sugartree ceased mining operations and Terco began mining
at the same mine. On September 15, 1984, Terco, pursuant to 30 C.F.R.
Part 41, submitted to MSHA a legal identity report for the "Terco No. 2
Mine" that bore the same mine I.D. number as the Sugartree No. 1 Mine.
The report listed Randal Lawson as president of Terco.
On September 25, 1984, the Secretary of Labor filed with the
Commission applications for the temporary reinstatement of the complainants. 30 U.S.C. § 815(c)(2); 29 C.F.R. § 2700.44 (1984). Two days
later Commission Chief Administrative Law Judge Paul Merlin issued
orders of temporary reinstatement directed to Sugartree. Shortly after
receiving copies of Judge Merlin's order, the two Corbins went to the
mine to be reinstated but were informed that they would have to apply to
Terco for employment. On October 3, 1984, the Secretary moved to amend
the reinstatement orders by including Randal Lawson and Terco as
parties. However, no further action concerning temporary reinstatement
was taken pending determination of Terco 1 s liability. A subsequent
legal identity report for Terco and the Terco No. 2 mine, submitted on
February 2, 1985, listed Terry McCreary as president and Carol McCreary
as secretary. Both McCrearys had served p1~eviously as officers of
Sugartree, Terry McCreary as vice-president and Carol McCreary as
secretary-treasurer.

~/

On July 10, 1984, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") conducted a ventilation
inspection at Sugartree No. 1 mine and issued to Sugartree two
citations, one of which alleged that the water pressure in the
continuous miner's spray system was lower than required by the mine's
ventilation plan.

395

On December 27, 1984, the Secretary filed a discrimination
complaint against Sugartree on behalf of the three complainants. 30
U.S.C. § 815(c)(2). In April 1985, following prehearing discovery,
Judge Melick permitted the Secretary to amend the complaint to add
Lawson and Terco as respondents.
After a hearing on the merits, the judge concluded that the
complainants had been discharged from their jobs in violation of section
105(c)(l) of the Mine Act. In reaching this conclusion, the judge found
that the complainants had made protected safety complaints regarding
both the defective water spray on the continuous mining machine and the
unhealthy dust conditions in the working section of the mine and had
engaged in a protected work refusal. 8 FMSHRC at 209-12. He further
determined that the complainants were laid off permanently,
,
discharged "based solely on their protected safety complaints and/or
their refusal to work in the face of clearly hazardous conditions."
8 FMSHRC at 211-12. The judge found that Randal Lawson, as an
individual, and Sugartree, for which Lawson was an agent, were
responsible for the unlawful discharges and, consequently, were liable
for violating complainants' rights under the Mine Act. 8 FMSHRC at 212.
The judge further determined that Terco was Sugartree's successor and,
as such, was jointly and severally liable for remedying the illegal
discrimination. 8 FMSHRC at 212-14. The judge assessed a $1,000 civil
penalty against Sugartree, Terco, and Lawson for the violation of
section 105(c)(l), ordered them to pay approximately $35,000 in back pay
and interest to each of the complainants, and directed Terco to
reinstate immediately the complainants either to the same positions held
at the time of their illegal discharges or to comparable positions. 8
FMSHRC at 206-07, 214-15. J/

J/

Terco thereafter reinstated the Corbins. Complainant Taylor
waived reinstatement because he had obtained other employment. On July
23, 1986, the Secretary filed new discrimination complaints on behalf of
the Corbins, alleging that they had again been discharged illegally by
Terco. FMSHRC Docket Nos. KENT 86-131-D & 86-132-D. The cases were
assigned to Judge Melick and ultimately became the subject of a
settlement agreement between the Secretary and Terco, under the terms of
which Terco agreed to pay the Corbins $50,000 damages and the Corbins
agreed to waive any right to reinstatement by Terco. The Secretary
agreed to "forego any enforcement action on behalf of the Corbins 11 in
the instant proceeding. However, the settlement agreement also stated
that in this present proceeding the Secretary would "take all action
necessary to enforce the award on behalf of A.C. Taylor," who was not a
party to the agreement. Based on the settlement, Judge Melick allowed
the Secretary to withdraw the new discrimination complaints and
dismissed those proceedings. 9 FMSHRC 24 (January 1987)(ALJ). The
Secretary then moved the Commission to vacate that portion of the
Commission's direction for review in the pending proceeding pertaining
to liability and remedial issues affecting the Corbins. We granted the
motion, but emphasized that all liability issues (including the question
of successorship) and all personal remedy issues insofar as they affect
•.• A.G. Taylor, remain for decision. 11 9 FMSHRC 197, slip op. at 2
(February 10, 1987).

396

.

Terco was the sole respondent to seek review of the judge's final
decision. Terco has raised no question on appeal regarding the validity
of the judge's findings of unlawful discrimination or the responsibility
of Lawson and Sugartree for the violation. The sole question before us
concerns the derivative liability of Sugartree's a~leged successor,
Terco.
To determine whether Terco was liable for the damages stemming
from Sugartree 1 s discrimination, the judge applied the successorship
doctrine enunciated by the Commission in Glenn Munsey v. Smitty Baker
Coal Co., 2 FMSHRC 3463 (December 1980), aff 1 d in relevant part, rev'd
in part on other grounds sub nom. Munsey v. FMSHRC, 701 F.2d 976 (D.C.
Cir. 1983), cert. denied, 464 U.S. 851 (1983), and analyzed the case
_according to the nine factors set forth in Munsey (see 2 FMSHRC at 346566) for determining successorship status. 8 FMSHRC at 212-14. In
particular, the judge found as follows: Terco had notice of the charges
of discrimination; Sugartree ~ould not provide remedial relief to the
complainants; and a substantial continuity of business operations was
maintained from Sugartree to Terco. 8 FMSHRC at 213-14. On the basis
of these findings the judge concluded: "Terco was a successor business
entity [to Sugartree] and accordingly is jointly and severally liable
for [Sugartree's] illegal acts of discrimination in this case." 8
FMSHRC at 214.
In Munsey, this Commission noted that the statutory protection
against discrimination afforded miners is similar to the statutory
protection afforded workers under other labor statutes. The Commission
stated: "In certain circumstances, the protections of· those other
statutes have been construed to include the liability of bona fide
purchasers and other successors for their predecessors' act of
discrimination ••• and ... in appropriate cases the successorship
doctrine should also be applied [by the Commission] .••. " 2 FMSHRC at
3465. Although Munsey was decided under the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)(amended 1977)
("Coal Act 11 ) , the predecessor to the Mine Act, the discrimination
protections afforded miners under the Mine Act are even greater than
those afforded miners under the Coal Act, and the successorship doctrine
clearly applies under the Mine Act as well.
In determining whether a successor should be required to remedy
unlawful discrimination, consideration of a variety of relevant
liability and economic factors is appropriate. In Munsey, the
Conunission approved for consideration nine such factors:
(1) whether the successor company had notice of the
charge, (2) thP- ability of the predecessor to
provide relief, (3) whether there has been a
substantial continuity of business operations 1,
(4) whether the new employer uses the same plant,
(5) whether he uses the same or substantially the
same work force, (6) whether he uses the same or
substantially the same supervisory personnel,
(7) whether the same jobs eJJ-:i_st under substantially
the same working conditions~ (8) whether he uses the

397

same machinery, equipment and methods of production
and (9) whether he produces the same products.
2 FMSHRC at 3465-66 (restating factors set forth in EEOC v. MacMillan
Bloedel Containers, Inc., 503 F.2d 1086, 1094 (6th Cir. 1974)). These
and similar factors have been applied under both the Civil Rights Act of
1~94 (~.,MacMillan Bloedel, supra) and the National Labor Relations
Act(~., NLRB v. Winco Petroleum Co., 668 F.2d 973, 976-78 (8th Cir.
1982)).
The first two factors considered by the judge were whether Terco
had notice of the complainants' charges when it acquired Sugartree 1 s
business operations and whether Sugartree was able to provide relief to
the complainants. Substantial evidence supports the judge's findings
that Terco 1 s know~edge of complainants' charges may be inferred
reasonably and that 'Sugartre~ was unable to provide relief. Legal
identity forms submitted by Sugartree in July 1984 and by Terco in
September 1984 listed Randal Lawson as president and Carol McCreary as
secretary-treasurer of both companies. The complainants filed their
complaint of discrimination with MSHA on July 12, 1984, and MSHA's
investigation of the complaint followed. We agree with the judge that
the existence of identical corporate officers during this period is
evidence that Terco had notice of the complainants' charges,
particularly where, as here, Lawson, by his own admission, discharged
the complainants for an illegal reason. Terco cannot be heard to say
that it lacked notice of potential liability arising from the illegal
actions of its president at the time it succeeded to Sugartree 1 s mining
operation. As to the ability of Sugartree to provide relief, it is
clear from the record that Sugartree ceased business activity and that
its assets were sold to satisfy Lawson's personal debts. Tr. 432.
Under these circumstances, complainants could not obtain reinstatement
or monetary damages from Sugartree.
The seven other factors discussed in Munsey provide a framework
for analyzing the crucial question of whether there was a continuity of
business operations and work force between the successor and its
predecessor. Here, the judge found that a substantial continuity in
business operations was maintained from Sugartree to Terco, and the
evidence substantiates this finding. A comparison of the payroll
records of Sugartree and Terco indicates that of the fifteen employees
hired by Terco in July 1984 for the Terco No. 2 mine (formerly the
subject Sugartree mine), approximately thirteen were employed formerly
by Sugartree. Ex .• P-27; Tr. 488-491. Terco acimits that approximately
50% of its total work force is composed of former Sugartree employees.
T. Br. 3. Further, Terco continued to mine coal at the same mine and
Sugartree 1 s mine superintendent and section for~man remained with Terco.
Although Terco made some changes in its mining methods and equipment,
these changes were dictated primarily by the r~quirements of mining
engineering and not by any substantial change in its business operation.
Moreover) no change in personnel was required to effect these changes.
Under these circumstances, we conclude that the judge properly found
that there was a substantial continuity in business operations between
Sugartree and Terco.

398

Terco, citing Golden State Bottling Co. v. NLRB, 414 U.S. 168
(1973), argues that only a successor who purchases the assets and stock
of its predecessor with knowledge of the charges of discrimination may
be held liable for remedy of the predecessor's illegal acts. Terco
asserts that it did not make such a purchase but rather merely acquired
Sugartree 1 s coal leases. We reject this narrow reading of the
principles of successorship law. Golden State does not hold that the
purchase of the assets or stock of the predecessor by the successor is
necessarily the determinative factor in establishing successorship.
Rather, the Court merely emphasized that in cases like Golden State,
which involve a bona fide purchaser, the successor may protect itself in
the purchase arrangement against any potential liability. 414 U.S. 17274. Purchase of the assets or stock of the predecessor undoubtedly
should be weighed in the mix of successorship factors when it is
present. However, its absence does not negate a finding of successorship liability. As the Court recognized, successorship transactions may
assume many forms and liability may obtain in a number of business
contexts. 414 U.S. at 182-83 n. 5. See also Munsey, 2 FMSHRC at 3465.
Accordingly, we affirm the judge's decision and, in particular,
his finding that Terco is a successor business entity to Sugartree
jointly and severally liable for remedying the illegal acts of
discrimination committed by Sugartree and Lawson. In light of the
settlement agreement discussed above and the Commission 1 s prior order
vacating that portion of the direction for review in this case
pertaining to the Corbins (n. 3 supra), Sugartree, Terco and Lawson are
directed to immediately comply with that portion of the judge's order
directing payment of monetary damages to A.G. Taylor.

~-n----

399

Distribution
Mary Griffin, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Carlos Morris, Esq.
Morris & Morris
P.O. Box 1008
Barbourville, Kentucky

40906

Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

400

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAR 2 1987
SECRETARY OF LABOR,
MINE SAFETY.AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF BOBBY G. KEENE,
Complainant

v.

..
.

DISCRIMINATION PROCEEDING
Docket No. VA 86-34-D
NORT CD 86-8
No. 4 Mine

S & M COAL CO., INC.,
JEWELL SMOKELESS COAL
CORPORATION,
PRESTIGE COAL COMPANY, INC.,
TOLBERT P. MULLINS, and
SHIRLEY A. MULLINS,
Respondents

.
.
..
.

.

DECISION
Appearances:

Carol Feinberg, Esq., and Jonathan Kronheim,
Esq., Office of the Solicitor, U.S. Department
of Labor, Arlington, Virginia, for the
Complainant;
Daniel Bieger, Esq., and Gay Leonard, Esq.,
Copeland, Molinary and Bieger, Abingdon,
Virginia, for S&M Coal Co., Inc., Prestige Coal
Co., Inc., Tolbert P. Mullins and Shirley A.
Mullins; Joseph Bowman, Esq., for Jewell
Smokeless Coal Corporation.

Before:

Judge Melick

This case is before me upon the complaint by the
Secretary of Labor on behalf of Bobby Keene under section
105(c){2) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et~, the "Act", alleging that Mr. Keene
was discharged rom S&M coal Company, Incorporated (S&M) on
February 13, 1986, in violation of section 105(c)(l) of the

401

Act.l/ The Secretary further alleges in this case that
Tolbert Mullins, part owner and president of S&M, was a
"person" under section 105Cc)(l) also responsible for the
unlawful discharge of (and unlawful failure to rehire) Mr.
Keene. The Secretary also alleges that Prestige Coal Corporation (Prestige) is a successor-in-interest to S&M and as such
is jointly and severally liable for costs, damages and the
reinstatement of Mr. Keene.~/
In order to establish a prima facie violation of section
105(c)(l) the-Complainant must prove by a preponderance of
the evidence that Mr. Keene was engaged in an activity protected by that section and that the discriminatory action
taken against him was motivated in any part by that protected
activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 C3d
Cir. 1981). See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir.
1983) and NLRB v.'rr'ansportation Management Corporation, 462
U.S. 393 (1983), affirming burden of proof allocations
similar to those in the Pasula case. A miner's "work
refusal" is protected under section 105(c) of the Act if the
~/

Section 105(c)(l) of the Act provides in part as follows:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner • • • in any coal or other mine subject to this Act because such miner • • • has filed or made a
complaint under or related to this Act, including a complaint
notifying the operator or the operator's agent • • • of an
alleged danger or safety or health violation in a coal or
other mine • • • or because such miner • • • has instituted
or caused to be instituted any proceedings under or related
to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner • • •
on behalf of himself or others of any statutory right afforded
by this Act.

~/

At hearing the Secretary, with Mr. Keene's consent, moved
to dismiss Jewell Smokeless Coal Corporation as a
Party/Respondent in light of the settlement agreement filed
herein. At the close of hearing the Secretary also agreed to
the dismissal of Shirley Mullins as a Party/Respondent.
There was no objection to what were redeemed to be requests
to withdraw pleadings under Commission Rule 11, 29 C.F.R. §
2700.11, and the requests were granted.

402

miner has a
a hazardous
Cir. 1982>:
Coal Co., 3

good faith, reasonable belief in the existence of
condition. Miller v. FMSHRC·, 687 F.2d 194 (7th
Secretary on behalf of Robinette v. United Castle
FMSHRC 803 (1981).

The evidence shows that Bobby Keene was a statecertif ied electrical repairman and maintenance foreman with
underground mining experience dating from 1974. He began
working for the Mullins Coal Company in 1984 as an electrician responsible for maintaining electrical equipment and the
electrical "books" and was transferred by Tolbert Mullins to
S&M as an electrician in the latter part of 1985.
While at S&M, Keene became concerned because there was
"too much bridging going on". As described by Keene,
"bridging" is the utilization of a piece of wire on any
electrical equipment to bypass its safety features. Anyone
touching equipment that has been "bridged-out" can be electrocuted under certain conditions.
According to Keene, about two weeks before February 13,
1986, he was asked by Mine Superintendant Monroe Nichols to
"bridge" the transformer and he refused. Around the same
time Nichols also asked him to "bridge" the ground fault
system and again Keene refused. Keene also complained to
both Nichols and Section Foreman Jerry Looney around this
time about "bridging-out" the ground system to the miner.
According to Keene, Nichols responded that he would
"bridge-out" whenever and whatever he wanted so long as he
was supetintendant.
On his way into the mine at the commencement of the day
shift on February 13, 1986, Keene was telling the workcrew on
the mantrip in effect that the "bridging" would have to stop.
Later he told Nichols that if the "bridging" was not stopped
then that Friday (the next day} would probably be his last
shift. Around 10:30 that morning the continuous miner
"tripped". Keene repaired the problem but as they began
running coal, the breaker again "tripped" and the power was
cut. The breaker would not reset this time and Keene told
Section Foreman Looney that there was trouble in the ground
monitor system of the miner cable. According to Keene,
Looney then told him "to bridge the cable at the transformer"
and when Keene refused stating that it would be unsafe for
the miner operator, Looney gave him the choice of either
"bridging" the cable or getting his "bucket" and leaving for
home. Keene decided to leave and on the way out ran into
Superintendant Nichols. Keene says he told Nichols that
Looney fi~ed him because he refused to "bridge-out" the cable.
Keene also reportedly told Nichols that he was going to talk

403

to the "Federals" about it. K:eene explained at hearing that
there was a "big risk" of electrial shock and electrocution
to operate the miner with a "bridged-out" cable.
Keene's testimony was corroborated in essential respects
by three othez; miners. Michael Sayers worked the day shift
operating the shuttle car. He observed that during the first
two months of 1986 the continuous miner broke down almost
daily because of the cable. According to Sayers if the cable
coula not be fixed either Bobby Keene or Jerry Looney would
"bridge it out." He had heard both Looney and Nichols tell
Keene to "bridge-out" the system. He also heard Keene
complain while on the mantrip into the mine that he was tired
of "bridging-out" the cables and that he was afraid somebody
was going to get hurt or killed. According to Sayers, Loo.ney
only replied that "we've got to run coal somehow, someway".
On February 13, Sayers heard Keene say that he had been fired
for "bridging" the cable and Superintendant Monroe responded
that "well something has got to give around here". According
to Sayers both Looney' and Nichols continued to "bridge-out"
the miner after Keene left the mine.
Matney was day shift miner operator at the No. 4 mine ..
He too had heard Keene complain about "bridging-out" the
cables and specifically heard him say that if the practice
was not stopped "someone is going to get killed." According
to Matney it was standard practice to "bridge-out" the cable
if it could not be fixed within a few minutes. During the
day shift on February 13, 1986 Matney heard Looney tell Keene
to either "bridge-out" the cable or get his bucket and walk.
Keene left the mine and only a few minutes later they were
again running coal. Nichols and Looney continued to
"bridge-out" the equipment.
Jimmy Sexton was hired on February 17, 1986 as a shuttle
car operator. He observed that when the continuous miner
broke down it was standard practice at the mine for Looney or
Nichols to "bridge-it-out."
Keene's testimony is further corroborated by Looney
himself. Looney acknowledged that he said to Keene "let's
bridge it out" just before telling Keene that if he did not
like the way the mine was operated he could leave. Looney
also acknowledged that he was not then a certified electrician
and that he knew that "bridging-out" the miner could result in
fatal electrial shock.
Of the remaining witnesses testifying on,behalf of the
Respondent only George Lester was present during this
exchange between Keene and Looney. It· is apparent however

404

that even Lester failed to hear critical parts of the
exchange. For example while Looney admitted that he said to
Keene "let's bridge-out the monitor", Lester purportedly did
not hear that statement. Lester's testimony at hearing also
conflicts with a prehearing interview and his credibility
suffers accordingly.
I find additional material support to the Complainant's
case in the testimony of both of Respondent's witnesses,
Moproe Nichols and Jerry Looney. Both admitted that they had
"bridged-out"- electrical equipment, a procedure they knew to
be in violation of federal regulatory standards and hazardous.
Indeed the evidence in this case is uncontradicted that Keene
was in effect told to perform an illegal and dangerous procedure or be fired.
Keene clearly entertained a good faith
and reasonable belief that the procedure of "bridging" was
hazardous to himself or to anyone coming into contact with
the "bridged-o~t" miner. Consolidation Coal Co. v. FMSHRC et.
al., 795 F.2d 364 (4th Cir. 1986). I also find that since
the dangers inherent in such a procedure were obvious and
admittedly known to both Looney and Nichols there was no need
to further "communicate" the nature of the hazard to them.
See Secretary on behalf of Dunmire and Estle v. Northern Coal
Co., 4 FMSHRC 126 (1982). Keene's departure from the mine
immediately after being given the choice of performing a
procedure known to be illegal and likely to have fatal
consequences to himself or others or getting his bucket and
walking was accordingly a discharge in violation of the Act.
Robinette, supra.
The Complainant in this case also alleges that Tolbert
Mullins is individually liable as a "person" unlawfully discriminating against him under section 105(c)(l). See footnote 1, supra. According to Keene, on February 26~9~he
telephoned Mr. Mullins at the request of the MSHA investigator in efforts to settle the case. Keene says that during
the course of this conversation Mullins told him that he
could have his job back but only as an electrician. Moreover
in response to Keene's concerns about the illegal practice at
S&M of "bridging-out" electrical equipment Mullins purportedly
responded that Keene would not have to report the practice in
the electrical inspection books.3/ This conversational
exchange is not disputed and accordingly I accept Keene's
3; It is undisputed that Keene as a certified electrician
would be legally required to report such violative conditions
in the electrical inspection books.

405

testimony in this regard. This evidence clearly supports a
finding that Mullins, as an individual, was a "person"
discriminating against Keene in violation of the Act in his
refusal to reemploy Keene except under illegal and dangerous
conditions. See Munsey v. Smitty Baker Coal Company, Inc.,
et al, 2 FMSHRC 3463 (1980).
Finally the Complainant argues that Prestige Coal
Company Inc., (Prestige) is a successor-in-interest to S&M
Coal Company and accordingly under the criteria set forth in
the Munsey decision is jointly and severally liable for ·
costs, damages and reinstatement in this case. In Munsey
the Commission applied the factors used by the Federal Courts
in EEOC v. McMillan Blowdell Containers, Inc., 503 F.2d 1086,
1094 (6th Cir. 1974) for determining such liability. These
factors are:
Cl> whether the successor company had notice of
the charge, (2) the ability of the predecessor to provide
relief, (3) whether there has been a substantial continuity
of business operations, (4) whether the new employer uses the
same plant, (5) whether it uses the same or substantially the
same work force (6) whether it uses the same or substantially
the same supervisory personnel, (7) whether the same jobs
exist under substantially the same working conditions, (8)
whether it uses the same machinery, equipment, and methods of
production, and (9) whether it produces the same product.
In this case there is no dispute that Prestige continues
to produce the same product as S&M i.e., coal. It is also
apparent from the record that Tolbert-Mullins as president
and part owner of both S&M and Prestige Cand therefore as
agent for both companies) was in a position to have notice on
behalf of Prestige of the charges by the Complainant in this
case.
It is also established that S&M is not able to provide
adequate relief to the Complainant in this case. It is no
longer in business and has no liquid assets. Moreover its
only unpledged assets consist of old mining equipment having
but •little value as parts and scrap metal and having limited
marketability.
Of the eight employees presently working at Prestige
only two formerly worked for S&M. However one of the two
employees, Monroe Nichols, was a supervisor at S&M and is a
supervisor at Prestige. The Prestige mine is a surface mine
and S&M was an underground mine. Accordingly,the machinery,
equipment and methods of production differ. The specific
jobs at Prestige are also different but many of the skills
are transferrable. Within this framework I find on balance
that indeed Prestige is a successor-in-interest to S&M and
accordingly is jointly and severally liable for costs,
damages, reinstatement and civil penalties.

406

Civil Penalty
I find the acts of discrimination by S&M and Tolbert
Mullins to be particularily serious in this case because of
the direct impact they had on the safety of miners. Here the
practice of bridging-out safety features on electrical equipment continued unabated after the discharge of Mr. Keene and
after his discharge it was highly unlikely that anyone else
would have protested the dangerous practice. In additon
Mr. Mullins and the other S&M officials knew that they were
requiring Keene to perform illegal and dangerous acts. Their
discharge (and refusal to take back) Keene for refusing to
perform such tasks was therefore willful. In assessing a
penalty herein I have considered that S&M is no longer in
business. I have also considered its history of violations
and the fact that it was a small operation. The violative
conditions of course have not been abated since Keene has not
been reinstated nor has he been reimbursed for lost wages,
costs, and interest.
ORDER
~n light of the stipulations entered in this case S&M
Coal Company, Inc. and Prestige Coal Company are ordered,
jointly and se~erally to pay to Bobby Keene within 30 days of
the date of this decision, costs amounting to $654.18, backpay of $3,082.16 and interest to be computed in accordance
with the formula set forth in Secretary ex rel. Bailey, v.
Arkansas Carbona Company, 5 FMSHRC 2024 (1983). It is further
ordered that Tolbert Mullins jointly and severally with the
aforementioned Respondents, pay the said costs of $654.18 and
$2,089.75 of said backpay (inasmuch as his chargeable act of
discrimination occurred on February 26, 1986) within 30 days
of the date o this decision. It is further ordered that
Prestige Coal Co., iminediately provide employment to Bobby
Keene in a capacity commensurate with his skills and at no
less pay than he was receiving at the time of his discharge
from S&M Coal Company, Inc. on February 13, 1916. It is
further 0,rdered that S&M Coal Company, Inc., P estige Coal
Company, and Tolbert Mullins, jointly and seve ally pay a
civil penalty of $1, 000 within 30 . ays of the ate of this
decision.
I

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407

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Distribution:
Carol B. Feinberg, Esq., and Jonathan Kronheim, Esq., Office
of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203 (Certified Mail>
Daniel R. Bieger, Esq., and Gay Leonard, Esq., Copeland,
Molinary & Bieger, 212 West Valley Street, P.O. Box 1296,
Abingdon, VA 24210 (Certified Mail)
Joseph Bowman; Esq., Street, Street, Street, Scott & Bowman,
P.O. Box 2100, Grundy, VA 24614 (Certified Mail)
rbg

408

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

DECISION
Before:

Judge Fauver

This proceeding was brought by Complainant, Newton J.
Johnson, under section lOS(c) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801, et seq., for
reinstatement and back pay.
~
Section 105(c) (1) of the Act provides:
"No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such miner, representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners
or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative of
miners or applicant for employment on behalf of himself or
others of any statuto~y right afforded by thi~ Act."
This matter is now before me upon Respondent's Motion
for Summary Decision, filed on January 27, 1987, pursuant to
29 C.F.R. § 2900.64"
Complainant was served a copy of the·
motion and, by order of February 23, 1987, was granted three
weeks to respond to the motion. No response has been filed.

409

The record affirmatively shows the followed undisputed
facts:
1. On June 4, 1984, Johnson applied for the job of
night watchman at Allied Coals, Inc.
Terry Mullins, Allied's
mine superintendent, interviewed Johnson for the job.
Mu~lins told him the night watchman position would include
picking up garbage and washing vehicles. Mullins hired
Johnson for tpe night watchman job and Johnson started at
$3.35 per hour.
2. While employed at Allied, his tasks included watching
the No. 1 and 2 mines, loading supplies, washing vehicles,
picking up garbage, shoveling the belt line on the outside
of the mine, ang other odd jobs. Johnson did these tasks
when asked by his·supervisor, Vernon Noble.
In between
tasks and on weekends when the mine was not operating,
Johnson remained in the night watchman's office.
3. While employed at Allied, Johnson did not complain
to anyone in management about the safety or health conditions
of the jobs he was doing. He never complained that the jobs
he was asked to do were unsafe, or that he lacked training.
4.
In April of 1985, Johnson asked Terry Mullins
a
raise.
Johnson told Mullins he wanted a raise because his
job involved tasks other than simply watching the property.
Mullins refused to give him a raise.
5. On May 8, 1985, Vernon Noble told Johnson to go to
Mine No. 2 and help supplyman Kirn Rice. When Johnson arrived,
Rice told him to shovel the outside belt line. Johnson had
shoveled the belt line several times before.
This time, he
did not want to· do it and he quit.
Johnson went to Vernon
Noble and told him "I wasn't shoveling no belt line."
Johnson told Noble he was quitting and left the property.
6. Almost a year later, on April 24, 1986, Johnson
filed a discrimination claim with the Mine Safety and Health
Administration, United States Department of Labor.
On
August 5, 1986, the Mine Safety and Health Administration
notified Johnson that in its opinion no violation of §
105(c) had occurred. On August 11, 1986, Johnson filed this
complaint with the Federal Mine Safety and Health Review
Commission.
DISCUSSION
To establish a claim under § 105(c) of the Act, the
complaining miner has the burden of proving that he engaged

410

in protected activity and that the employer took adverse
action against him that was motivated in part by the protected
activity. Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2799-2800 (October 1980), revd. on other grounds
sub nom. Consolidation Coal Company v. Marshall, 663 F. 2d
12ll~d Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (1981); Boich v. Federal
Mine Safety and Health Review Commission, 704 F. 2d 272 (6th Cir.
1983).
Johnson admits that his sole complaint is that he was
required to perform tasks that involved more than merely
watching the property and that others who were performing
some of the same tasks were paid at a higher rate {Dep. 31,
38, 44, 54, 61-62, 97-98}. For example:
Q.

Okay.

What is your claim against the Company?

A. They ought to have been paying me $10.50 just the
same as they was paying all them other workers, like Dean
Mullins and all of them. Cause they was unloading supplies
and so was r.
Q.

Is that that your whole claim against the Company?

A.

Yeah.

{Dep. 38).

Johnson's only complaint is that in his opinion, he
should have been paid more. He asked for a raise once and
quit a month later (Dep. 18, 28-30). This is not protected
activity under the Act.
Also, Allied did not take any adverse action against
Johnson. He admits that he voluntarily quit, and that he
quit only because he did not want to perform his assigned
tasks at the rate the company was paying him.
(Dep. 35-36,
37, 47-48):

Q.

Okay.

Why did you quit?

A.

QCause I wasn't going to shovel that belt line no
more over at the #2.
(Dep. 33).

Q.

You just didn't want to do it?

Is that right?

A. That's right.
I ain't going to shovel no belt line
Why should I shovel it, and somebody else shovel it and they
getting $10.50 for it and me just getting $3.35. (Dep. 35}.

411

The Act does not protect a miner from the consequences
of voluntarily resigning a job for reasons unrelated to
safety or health. See, e.g., Munsey v. Federal Mine Safety
and Review Commission 595 F. 2d 735, 744 (D.C. Cir. 1978}.
Johnson voluntarily quit his. job for reasons unrelated
to any safety or health concerns. Respondent is therefore
entitled to summary decision.
On an independent ground, Johnson's complaint to MSHA
was severely late, and barred by the 60-day time limit for.
filing complaints under the Act.
ORDER
WHEREFORE IT IS ORDERED that Respondent's Motion for
Summary Decision is GRANTED and this proceeding is DISMISSED.

lJ~ ~Ir~

William Fauver
Administrative Law Judge

Distribution:
Mr. Newton' J. Johnson, P.O. Box 8, Brinkley, KY 41805 (Certified
Mail)
John W. Fischer, Esq., Leslie St. Clair, Esq., Denlinger,
Rosenthal & Greenberg, 2310 First National Bank Center, 425
Walnut Street, Cincinnati, OH 45202 {Certified Mail)

kg

412

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

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

MAR 5 1987
LARRY BRIAN ANDERSON,
Complainant
v. -

..
.
.:

DISCRIMINATION PROCEEDING
Docket No. PENN 86-221-D

CONSOL PENNSYLVANIA
COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Michael J. Healey, Esq., Healey & Davidson,
Pittsburgh, Pennsylvania, for Complainant1
Michael R. Peelish, Esq., Pittsburgh, Pennsylvania,
for Respondent.

Judge Broderick

STATEMENT OF THE CASE
On July 14 and September 17, 1986, Complainant filed a
complaint with the Commission alleging that he was denied
employment by Respondent because of allegations that he "turned
in" a foreman of a mine operated by a related company for a
safety violation. Complainant stated that these allegations are
not true.
On September 18, 1986, Respondent filed a Motion to Dismiss
on the grounds that it was not properly served and that
Complainant failed to state a claim under section lOS(c) of the
Act. By order issued October 2, 1986, I denied the Motion.
Pursuant to notice, the case was heard in Pittsburgh,
Pennsylvania, on December 16, 1986. Larry Anderson, Kerry
Anderson and James Miller testified on behalf of Complainant.
Victor J. Columbus, Richard E. Kidd, Louis Barletta and
Ed Dudzinsky testified on behalf of Respondent. Both parties
have filed post hearing briefs. Based on the entire record and
the contentions of the parties, I make the following decision.
FINDINGS OF FACT

At all times pertinent to this proceeding, Respondent was
the owner and operator of an underground coal mine in Greene

413

County, Pennsylvania, known as the Bailey Mine.
affiliated with Consolidation Coal Company.

Respondent is

Complainant worked as a miner for Consolidation Coal
Company at its McElroy Mine from January 1976 to 1979, as a
shuttle car operator and loader operator. He worked as a shuttle
car operator at a U.S. Steel Mine for about a year beginning in
February 1980. In March 1981, he was recalled by Consol at the
Lov~ridge Mine and worked until he was laid off in December 1984.
He worked as a __ continuous miner operator and bolter operator.
In January 1985, Complainant submitted an application for
employment at Respondent's subject mine. He underwent a
mechanical aptitude test and psychological test and was
interviewed March 26, 1985 by the mine's industrial relations
supervisor Ed Dudzinsky. Following the interview, Dudzinski "was
impressed" with Complainant and stated he would recommend him as
a face equipment operator~
Complainant was then interviewed
A:t¥"il 10, 1985,by Louis Barletta, mine foreman at the subject
mine. At that time Barletta was seeking maintenance and general
personnel rather than face equipment operators. Because
Complainant's experience was as an equipment operator, his
application was placed "in the active file for further
consideration." (Tr. 95). No applicants have been hired for work
at the face since April 1985.
Several weeks after Barletta interviewed Complainant,
Dudzinsky called the personnel representative Wayne McArdle at
the Consol McElroy mine and talked to him about claimant and
other applicants who had worked at McElroy. Mccardle told him
that better people than Complainant were available from McElroy
and that Complainant had had problems with a supervisor. Bailey
Mine personnel assistant Richard Kidd was asked to do a
"reference check" on Complainant. Mccardle told Kidd that
Complainant was an average employee at best. His attendance was
average. He also told Kidd of an incident in which Complainant
"was involved in trying to set up foreman Nicely for some type of
roof control violation."
(CX3; Tr. 116). Four others at McElroy
stated that Complainant was a good worker and they would
recommend him. Al Polis of the Loveridge mine stated that
Complainant "had been nothing but trouble • . • all types of
illness." ( CX3).
On October 4, 1985, Complainant wrote to B.R. Brown, Chief
Executive Officer of Consolidation Coal Company complaining that
he was not hired because of his religious convictions. Brown
referred the letter to the subject mine where the current
Supervisor of Industrial Relations Victor Columbus (Dudzinsky's
successor) began an investigation. Dudzinsky told Columbus that
"he felt uncomfortable with [complainantf because he felt

414

[complainant] had not been straightforward with him in the
interview • • • " (Tr. 56). Columbus obtained Complainant's
attendance record when he worked at the Loveridge Mine in 1983
and 1984. These show three unexcused absences in 1983 and six
unexcused absences in 1984. Further evidence shows that
Complainant was under a doctor's care and received substantial
treatment in 1983 and 1984 for a back condition. Based on this
investigation, Columbus in early 1986 decided that he would no
longer consider Complainant for employment at the subject mine.
In the summer of 1985, Complainant filed a complaint with
the Pennsylvania Human Relations Commission charging Respondent
with discrimination on the basis of religion and handicap. A
hearing was held on April 3, 1986. At the hearing on the
complaint, Columbus stated on behalf of Respondent that
Complainant along with other "had turned in a boss for a safety
violation, going under an unsupported roof." (Tr. 21). This was
given as a reason for not hiring Complainant. In fact,
Complainant had never complained to State or Federal authorities
of safety violations or alleged safety violations by his
supervisors.
With respect to Complainant's attendance, the record shows
that at McElroy Mine his "attendance was average, did miss some
days." (Tr. 116). It further shows that his attendance was "very
good, travels a long way • • • always on time • • • willingness
to work overtime as needed • • • " CCX 3, Tr. 117-118). These
remarks were based on discussions with McElroy personnel and with
Bailey Mine personnel who knew Complainant. Since he filed his
application with Respondent, Complainant received training in
electrical work at the Tri-State Training Services. He took an
examination and has been certified by MSHA in low, medium and
high voltage electrical work. He notified Columbus of this by
telephone.
ISSUES
1. Did Respondent discriminate against Complainant in
violation of section 105(c) of the ~ct when it refused to hire
him or when it refused to consider him for future employment?
2.

If it did, to what remedy is Complainant entitled?

CONCLUSIONS OF LAW
JURISDICTION
Complainant and Respondent are protected by and subject to
·the provisions of section 105(c) of the Act, Complainant as an
applicant for employment in a mine, and Respondent as the

415

operator of the subject mine.
I have jurisdiction over the
parties and subject matter of this proceeding.
PROTECTED ACTIVITY
Ordinarily a Complainant alleging discrimination must show
that he engaged in protected activity and the adverse action
complained of resulted from that activity. Secretary/Fasula v.
Consolidation Coal KCo., 2 FMSHRC -2786 (1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d
1211 (3rd cir::-T981). In this case Complainant states that he
did not engage in safety-related protected activity, but that
Respondent believed he did and discriminated against him because
of that belief. In Moses v. Whitley Development Corporation, 4
FMSHRC 1475 (1982), the Commission faced a similar issue and held
that a Complainant may establish a prima facie case by proving
that (1) the operator suspected that he had engaged in protected
activity, and (2) the adverse action was motivated in any part by
such suspicion.
I conclude that Respondent believed or suspected that
Complainant reported safety violations committed by his
supervisor, which would have clearly been protected activity.
ADVERSE ACTION
Following Complainant's interview by Louis Barletta on
April 10, i985, he was not hired for the openings at the subject
mine and his application was put back "in the active file." This
was adverse action. In "early 1986, 11 Respondent decided that it
would no longer consider Complainant for employment and his
application was removed from the active file. This was further
adverse action.
MOTIVATION
Respondent advances three reasons for the adverse action
described above:
Cl) Complainant's absentee record at other
Consol mines: (2) The lack of openings at the subject mine for a
miner with Complainant's experience and skills: (3) Complainant's
lack of candor in failing to inform Respondent that he complained
of
ety violations committed by a supervisor at a Consol mine.
With respect to the third reason, I have found as a fact that he
did not make such complaints. Nevertheless, Respondent believed
that he did and its refusal to consider him for any position at
the subject mine was motivated in part by that belief.
Therefore, Complainant has established a prima facie case of
discrimination under section 105(c).

416

I conclude that Respondent's reliance on Complainant's
absentee record was pretextual and not a genuine motive for
either of the instances of adverse action referred to above. I
base this conclusion on a consideration of Complainant's
employment record at Consol mines, as disclosed by exhibits, and
the tetimony of Respondents witnesses Columbus, Kidd and
Dudzinsky. I am persuaded that the ultimate reason for rejecting
Complainant's application was the belief that he accused a
supervisor of a safety violation and failed to disclose this
incident.
However, the evidence also establishes that the rejection of
Complainant for employment in April 1985 was because he was not
sufficiently qualified for the openings them available at the
subject mine. This decision was made by Barletta and the
evidence does not indicate that he was aware of the alleged
incident involving a safety complaint at McElroy. I conclude
that Respondent would·have taken this adverse action (refusal to
hire) for unprotected activity alone. See Pasula, supra1 Moses,
supra.
However, the action in 1986 in removing Complainant from
consideration for any job was not motivated by his work
experience and skill, but rather by Respondent's conclusion that
he was a troublemaker, i.e., that he "was involved in trying to
set up" a foreman for some type of safety violation. This
motivation is proscribed by section lOSCc). Therefore, I
conclude that Respondent's removal of Complainant from
consideration for employment in "early 1986" was a violation of
section lOSCc) of the Act.
REMEDY
Fashioning' an effective remedy for the discriminatory
conduct I have found is difficult. Barletta testified that no
miners have been hired to work at the face between April 1985 and
December 16, 1986. Complainant's qualifications are primarily
though not exclusively for face work. In an attempt to remedy
the misconduct, Respondent will be ordered to reinstate
Complainant's application and consider it in good faith for
openings at the subject mine without regard to his alleged
absentee record, and without regard to his alleged retorting of
supervisor's safety violations. This shall include a 1 work for
which Complainant is qualified, considering his experience and
his recent electrical training. Respondent will be ordered
to notify me within 30.days of the date of thi~ decision of what
steps it has taken to comply with this order. 'Finally,
Respondent will be ordered to reimburse Complainant for
reasonable attorneys fees and costs of litigation.

417

ORDER
Based on the above findings of fact and conclusions of law,
Respondent is ORDERED:
Cl) To reinstate Complainant's application for employment at
the subject mine and consider it in good faith for openings for
which he is qualified, without regard to his alleged absentee
record at Consol mines and without regard to his alleged
reporting of sµpervisor's safety violations;
(2) To cease and desist from considering prior protected
safety activity in denying employment applications at the subject
mine;
(3) To notify me within 30 days of the date of this decision
wh"at steps it has taken to comply with the above orders;
(4) To reimburse complainant for his reasonable attorney

fees and costs of litigation. If counsel can agree on the amount
of such fees and expenses they shall so notify me within 20 days
of the date of this decision. If they cannot agree, counsel for
Complainant shall submit his statement of fees and expenses
within 20 days and counsel for Respondent shall have 20 days
thereafter to reply.
(5) This decision is not final until the matters in Order
(3) and (4) are submitted, and I have issued a supplementary

decision concerning such matters.

),!WU5 ,k (],,,,~,_'ef;_
(/
·

James A. Broderick
Administrative Law Judge

Distribution:
Michael J. Healey, Esq., Healey & Davidson, 1906 Law and Finance
Bldg., Pittsburgh, PA 15219 (Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Rd., Pittsburgh, PA 15241 (Certified Mail)
slk

418

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

MAR 5 \981
HARLAN L. THURMAN,
Complainant

...:

v.

.
.
.

QUEEN ANNE COAL COMPANY,
Respondent

DISCRIMINATION PROCEEDING
Docket No. SE 86-121-D
BARB CE 86-51

DECISION
Appearances:

James c. Shastid, Esq., Knoxville, Tennessee, for
Complainant1
Charles A. Wagner, Esq., Knoxville, Tennessee, for
Respondent

Before:

Judge Weisberger
Statement of the case

Complainant filed a complaint with the Commission under
Section 105(c) of the Federal Mine Safety and Health Act of 1977
30 u.s.c. § 815(c) Cthe Act) alleging that he was illegally discriminated against in that, in essence, he was forced to quit his
job with Respondent due to the danger to him as a consequence of
harrassment from co-workers and his foreman.
Pursuant to notice of September 16, 1986, the case was set
for hearing in Knoxville, Tennessee on November 4, 1986. On
October 22, 1986 Respondent filed a Motion for Continuance. On
October 29, 1986 a Order was issued granting the Motion for
Continuance and scheduling the case for hearing on December 2,
1986. On November 24, 1986 Respondent filed a Motion to Dismiss
on the ground that: 1. the Complaint was not timely filed, and
2. the Complaint failed to state a violation of 30 u.s.c.
§ 815Cc) 1.
At the hearing on December 2, 1986 an oral argument
was presented by the Parties as to Respondent's Motion. After
listening to the arguments, I denied the Motion to Dismiss that
was based upon the ground that the complaint was not timely filed.
I reserved decision on the Motion to Dismiss which was made on
the grounds that the complaint failed to state a violation of
Section 815Cc) 1 supra.

419

The case was subsequently heard in Knoxville, Tennessee on
December 2, 1986. At the hearing Complainant was represented by
James c. Shastid, and Respondent was represented by Charles A.
Wagner, III. Harlan Thurman and Deborah Thurman testified for
Complainant. Robert Swisher, Dempsey Lindsey, Crawford Harness,
Jeffery Mason, and Dewayne Mason testified for Respondent. On
December 9, 1986 a letter was received from Complainant in which
he advised that Attorney James Shastid was no longer representing
him. This was confirmed in a letter. from Mr. Shastid received on
December 12, 1986. Subsequent to the hearing, the Parties, on
February 2, 1987 filed posthearing briefs. On February 17, 1987
a reply brief was filed by Complainant. On the same date a .
letter was received from Counsel for Respondent who, in essence,
waived his right to file a Reply Brief.
Findings of Fact
The Complainant, Harlan L. Thurman, had been employed as a
miner by the Respondent, Queen Anne Coal Company, for 3 years
prior to March 1986. During that time, he worked the night shift
with the same personnel.
The Complainant testified that in the 3 years that he worked
for the Respondent there was no outside man. Robert Swisher, the
President, and one of the owners of Respondent testified that
there has not been any outside man at Respondent's mine for
approximately 9 or 10 years. Thurman, in essence, testified that
during the 3 years he worked for Respondent his co-workers and
foreman continuously hassassed him. He said that they put urine
in his tea, that his clothes were tied up, that dish washing
liquid was poured over his clothes, that there was grease placed
on the seat of his vehicle, there were logs placed under the
vehicle's wheels, and a headlight was broken on his vehicle. He
also said that in the summer of 1985 he was sent to work alone by
his foreman Crawford Harness. It also was Thurman's testimony
that when he started to work for Respondent there was an incident
when only four men were on the shift and a miner was being
operated. In the summer of 1985, Complainant made a complaint to
Dempsey Lindsey, the Respondent's superintendent, that Crawford
had cursed him over a mistake in transporting certain supplies.
Complainant also made a complaint to Lindsey, in the summer of
1985, that the men had left him alone when he had to get a scoop
cart out of the mud.
Complainant's work shift usually commenced at 4:00 p.m. and
concludad at 1:30 a.m. On March 6, 1986 the Complainant started
to work on the shift at 4:30 p.m. and left early at 10:30 p.m.,
in essence, because he felt that the harrassment from his foreman
and co-worker, coupled with the lack of an outside man, created a
dangerous condition to him under ground. Prior to March 6, 1986

420

the complainant had not made any safety complaints to MSHA
Officials, or company management officials.
On March 7, 1986 the Complainant went to see Emroy Haggard,
the bookkeeper and part-owner of the Respondent, and told him, in
essencr, that Respondent's employees were taking coal. He also
"explained to him what had been going on and some of the stuff
that been happening". (Tr. 32). Haggard then set up a meeting
for the Complainant with Swisher the following Monday. At that
meeting Complainant indicated that the men on the shift were
harrassing him. Thurman had told him that at one time that
.Crawford stuck his fist in his face and threatened to whip him.
Swisher also said that Thurman told him that the men on the shift
were: stealing company coal; had broken the headlight on his
truck while it was on Respondent's site1 had urinated in his
food, and had locked him inside the gate. Thurman also told
Swisher that there was· no outside man. He also told Swisher that
Harness does not have any education. Thurman had also told him
that when he first started to work for Respondent his shift ran a
miner with only four people on the shift.
swisher than convened a meeting the following Thursday with
himself, Thurman and the men on the shift along with Foreman
Dempsey. At that meeting, in essence, Complainant's complaints
were reiterated, then Swisher told the men on the shift that he
would not tolerate any horseplay. According to Thurman, Swisher
told him then to go back to work. Swisher also asked Lindsey to
find Thurman a job on the day shift.
After the meeting Thurman intended to return to work. However, shortly after he left, Thurman returned to the office and
told Dempsey and Swisher that, in essence, that he could no
longer work under ground with the men on the shift. Thurman gave
his reason that he feared for his safety because Dempsey and
Harness were "like they were a clique". (Tr. 107). Swisher told
Lindsey to try to get Thurman a job on the day shift. However,
Lindsey has testified that in general it is diffcult to get men
from the day shift to transfer to the night shift, and that in
this case none of the day shift men wanted to trade with Thurman
and work on the night shift. Lindsey also talked to the president and manager of another mining company, where Thurman had
previously worked, with regard to obtaining a job for Thurman.
Thurman did not return to work after he left early on
March 6, and subsequently obtained other non mining employment.
Issues
1. Whether the Complainant has established that he was
engaged in an activity protected by the Act.

421

2. If so, whether the Complainant suffered adverse
action as the result of the protected activity.
3.

If so, to what relief is he entitled.
Conclussions of Law

Complainant and Respondent are protected by and subject to
the provisions of the Act, Complainant as a miner and the
Repondent as the operator.
The Commission, in a recent decision, Goff v. Youghiogheny
& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated
the legal standards to be applied in a case where a miner has
alleged acts of discrimination. The Commission, Goff supra at
1863, stated as follow:
A complaining miner establishes a prima facie case of
prohibited discrimination under the Mine Act by proving
that he engaged in protected activity and that the
adverse action complained of was motivated in any part
by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United castle Coal
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 not motivated in any part by protected activity. Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
(D.C. Cir 1984); Boich v. MSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test).
Protected Activity
Thurman's complaints to Swisher on or about March 10, 1986
with regard to the lack of an outside man, and complaints the
following Thursday that there was an incidence whereby a miner
was operated with only four men in the section, both contained
allegations of safety violiations and as such are considered
protected activities. The balance of the complaints made to
Swisher, Haggard, and Lindsey, all had to do with allegation of
harrassment by Thurman's co-employees, were not protected
activities (see Jimmy Sizemore and David Rife v. Dollar Branch
Coal Company, 5 FMSHRC 1251 (July 1983)). In the same way
complaints to Swisher and Haggard with regard to co-workers
taking Respondent's coal, are not safety related and thus are not
·protected activities.

422

Adverse Action
Complianant, in essence, complains of four adverse actions
by Respondent:
1. Swisher told Thurman to go back to work on about March
13, 1986 after Swisher had heard Thurman's various complaints.
2. The fact that Respondent had not found a job for Thurman
on its day shift.
3. The fact that the Respondent had not cured its alleged
violation of not having an outside man.

4. Swisher threatened Thurman by telling him about a former
employee of Repondent who was killed when a tank that he had put
a torch to had blown up.
There is no evidance that Respondent took any adverse action
against Thurman which was motivated in any part by safety complaints. Indeed, I find that although Thurman at the hearing
complained of unsafe practices such as not having an outside man
and operating a miner with only four men, there is no evidence
that Thurman made any complaint about these condition to any
government official, or agent of Respondent prior to the date
that he left work, i.e., March 6, 1986. Thurman alleges that
after he made various complaints to Swisher on or about March 10
and March 13, 1986, Swisher told him to go back to work. I hold
that Swisher's comments to Complainant, in indicating on or about
March 10, 1986 that Thurman should go back to work, did not constitute any adverse action. Surely, having Thurman return to his
usual job can not be found to be an adverse action. Similarly,
although Thurman might reasonably have felt that for him to
return to his section, where he was subject to harrassment, would
be a danger to him, this can not constitute any type of constructive discharge. In this connection, it is manifest that the Act
does not contemplate protecting a miner from harrassment from a
co-worker, when that harrassment is not motivated by the miner's
safety complaints. In this case, there is no evidence that
harrassments from Thurman's co-workers were motivated in any part
by Thurman's complaints about not having an outside man.
Indeed,
all evidance indicates that Thurman's complaints in this regard
occurred subsequent to the date that he left work. Also there is
no evidence that the harrassment from co-workers were abetted or
encourged by management. Indeed, Swisher's uncontradicted
testimony was to the effect that at the meeting with Thurman's
co-workers on March 6, 1986, after Thurman had complained of
harrassment, he (Swisher) told them to stop engaging in horseplay.

423

Also, it is clear that Respondent did not commit any adverse
action in not finding Thurman a job on the day shift. Not only
is there no evidence that this was not in any way motivated by
Thurman's protected activities but to the contrary, the only
evidence in record, testimony by Dempsey, is that none of the day
shift wanted to switch shifts with Thurman. To require Respondent
to create a position for Thurman on the day shift, would unduely
interfere with its business decisipn in managing its mine.
Thurman might have felt threatened by hearing Swisher
telling him of· a former miner, who had some type of emotional
problem, who was killed in an accident at the mine. However,
there was not evidence that Swisher, in telling of this incident,
had any intent to threaten Thurman. Nor is there any evidence
that his telling of this incident in any way was motivated by
Thurman's protected activities. Indeed, Swisher testified that
he told of the incident in order to relate his care for his
employees.
Complainant appears to arguing that inasmuch as Respondent
continues to operate without an outside man at the mine, that
this is an adverse action against him. It is clear that although
failure to provide a miner with a safe work place might be a
violation under the Act but that "such a failure does not without
more consititute discrimination." {Lund v. Anamax Mining Company
4 FMSHRC 249, 251 (February 1982)).
Therefore, based upon the above I conclude that Thurman
failed to established the second element of a prima facie case
i.e., that he did not show that there was an adverse action by
Respondent motivated by in any part by safety complaints. I
conclude that accordingly Complainant has not established that he
was discriminated against under Section 105(c) of the Act.
Order
Based upon the above Findings of Fact and Conclusions of
Law, it is ORDERED that this proceeding be DISMISSED. As such,
Respondent's Motion to Dismiss is GRANTED.

Avram Weisberger
Administrative Law Judge

424

Distribution:
Mr. Harlan L. Thurman, P.
Mail)

o. Box 561, Norris, TN 37828 (Certified

Charles A. Wagner, Esq., 1801 Plaza Tower, P.
Knoxville, TN 37901-1308 (Certified Mail)

o. Box 1308,

Robert Swisher, Queen Anne Coal Company, P. O. Box 498,
Lake City, TN 37769 (Certified Mail)
dcp

425

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFF1CE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

CIVIL PENALTY PROCEEDINGS
:

v.

Before:

Docket No. WEST 85-162-M
A.C. No. 04-04707-05502
Docket No. WEST 85-174-M
A.C. No. 04-04707-05503

SIERRA AGGREGATE COMPANY,
Respondent

,,
Appearances:

MAR 5 1987

Red Top Mine
DECISION

Joseph T. Bednarik, Esq., Office of the Solicitor,
U.S. Department of Labor, Los Angeles, California,
for Petitioner1
Mr. Donald Jolly, Bishop, California,
pro se.
Judge Lasher

These proceedings were initiated by the filing of petitions
for assessment of a civil penalty by the Secretary of Labor
(herein the Secretary) pursuant to Section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. Section 820(a)
Cl977)Cherein the Act). A hearing on the merits was held in
Bishop, California on September 16 and 17, 1986, at which
Respondent represented itself. The Secretary was well and ably
represented by.counsel.
The Secretary seeks assessment of penalties against
Respondent for a total of 7 alleged violations involved in the
two dockets which were consolidated for hearing in the Notice of
Hearing issued July 23, 1986.
PRELIMINARY DISCUSSION

1. Background.
On March 18, 1985, MSHA Inspector Ronald Ainge conducted an
inspection of the Red Top Mine operated by Sierra Aggregate
Company near Victorville, California. At all relevant times the
mine was owned and operated by Mr. and Mrs. Donald Jolly (T. 4,
11, 41, 42) as a sole proprietorship i,n a community property
state. The Red Top Mine is one of two owned and operated by the
Jollys. The other, the Black Point Mine, is located near Bishop,
California. The offices of Sierra Aggregate Company are located
at 2239 Sunrise Drive in Bishop.

'426

Inspector Ainge observed 3 men working at the mine site when
he arrived on March 18, 1985. One of these, Bret Redman, was
employed full-time by Respondent as a watchman and front-end
loader operator CT. 77) and the other two, although characterized
by Respondent Donald Jolly as independent contractors CT. 79) and
11
self-employed 11 CT. 78) were actually hourly-paid, part-time
employees (T. 76-80). Mr. Redman accompanied Inspector Ainge
during the inspection.
2. Federal Pre-Emption.
Respondent, in correspondence (letter dated November 7',
1985) has raised the issue that regulation of his mine by MSHA is
improper since such is also regulated by the California
Occupational Safety and Health Administration (CAL-OSHA). The
California OSH Act does not preempt the Federal Mine Safety and
Health Act of 1977. Brubaker-Mann, Inc., 2 MSHRC 227 (1980).
Section 506 of the Act (provided in the original 1969 Mine Act
and left intact by the 1977 Amendments) permits concurrent state
and federal regulation, and under the federal supremacy doctrine,
a state statute is void to the extent that it conflicts with a
valid federal statute. Dixy Lee Ray v. Atlantic Richfield
Company, 98 S. Ct 988, 435 U.S. 151, 55 L. Ed. 2d 179 Cl978):
Bradley v. Belva Coal Company, 4 MSHRC 982, 986 (1982). Accordingly, Respondent's contention is found to lack merit and is
rejected.
3. Interstate Commerce.
The principal activity at Respondent's two mines is the
excavation and processing of volcanic material into cinders. CT.
42-43). This material is sold for the production of concrete
blocks CT. 43), decorative bricks CT. 44), soil additives CT.
44-45) and highway cinders CT. 70). Approximately 99% of the
output of the Black Point Mine and 20% of the output of the Red
Top Mine was sold to the State of California which used the
cinders in the maintenance of highways, including U.S. Highway
395 and Interstate 15 (T. 72-74).
Sierra Aggregate Company owns a substantial amount of mobile
equipment which is used at both mine sites. The equipment was
manufactured out-of-state primarily by Caterpillar CT. 56-59, 81,
84) and is powered by diesel fuel. The total amount of diesel
fuel purchased by Sierra Aggregate Company in 1985 exceeded 7,000
gallons CT. 83). Such was purchased from wholesale distributors
of products manufactured by Chevron CT. 64) and Union Oil CT. 63).
I take notice that these are businesses engaged in interstate
commerce.
Accordingly, it is concluded that Respondent mine operator
owns and operates the mine in question at which volcanic material
(cinders> is mined and processed for sale or use in or affecting
interstate commerce.

427

4. Respondent's Mine in Operation.
Respondent contends that the mine (plant) was not in
operation and that the Citations thus should not have been issued.
The record, however, is clear that the plant was in operation on
and off during the period February through May, 1985, and that on
the day of the inspection, Bret Redman, who was characterized by
Mr. Jolly at the hearing as being a front-end loader operator and
watchman, was engaged in work as were two other part-time
employees. This contention simp~y lacks merit and is rejected.
5. Preliminary Findings With Respect To Penalty Assessment
Criteria.
a. Respondent, a sole proprietorship owned by Donald Jolly
and his wife, Janis, is a small mine operator engaged in the
surface mining, crushing, sizing, loading, sale and shipment of
volcanic cinder (T. 42-48, 63-66, 70).
b. Respondent is a small mine operator (T. 31-33, 43, 53,
69, 70).
c.

Respondent has no history of previous violations CT.

9 7) •

d. Payment of penalties in this matter will not jeopardize
Respondent '.s ability to continue in business CT. 97, 98).
e. With respect to Citations Nos. 2364580, 2364581~
2364582, 2364583, and 2364586, the Secretary concedes that
Respondent, after notification of the violation, proceeded in
good faith to promptly abate the violative conditions. With
respect to Citations Nos. 2364584 and 2364585 the Secretary
contends that Respondent did not proceed in good faith to
promptly abate the violative condition; findings will be made in
the separate discussion of these two violations which follows.
With the exception of the first Citation litigated and
discussed herein, No. 2364580, which subsequently herein I have
vacated, the remaining Citations charge contravention of safety
and health standards in Part 56 of Title 30 of the 1984 Code of
Federal Regulations (Revised as of July 1, 1984) covering sand,
gravel and crushed stone operations.
The mandatory assessment factors of negligence, gravity and,
where pertinent, abatement, will be taken up subsequently in the
discussion of the separate alleged violations.
Docket No. WEST 85-174-M (Citations Nos. 2364581, 2364582 and
2364583)
Citation No. 2364581
The standard infracted, 30 C.F.R. § 56.12-28 provides:

428

Mandatory. Continuity and resistance of grounding systems
shall be tested immediately after installation, repair
and modification; and annually .thereafter. A record of
the resi~tance measured during the most recent test shall
be made available on a request by the Secretary of his duly
authorized representative.
'The violative condition (or practice) was described by the
Inspector as follows:
There was no record of a continuity and resistance of
grounding check being done within the recent past or at
least Mr. Redman could not produce them.
The Respondent, Mr. Jolly, conceded on the record that the
violation occurred CT. 90). Although the Inspector did not
believe the violation was likely to result in the happening of
the contemplated hazards (minor shock to electrocution), the
gravity of the potential injury mandates a finding that the violation was at least moderately serious. Mr. Jolly, as previously
noted, admitted the violation, and more specifically, conceded
that the test itself had not been performed. Approximately one
year prior to the issuance of the subject citation, Inspector
Ainge advised Mr. Jolly that he was required to perform this test
CT. 87, 88). Accordingly, Respondent is found to be negligent in
the commission of this violation. The Secretary concedes that
this violation was abated promptly and in good faith upon
Respondent's notification thereof CT. 102). A penalty of $30.00
is assessed.
Citation No. 2364582
The standard infracted, 30 C.F.R. § 56.4-12 CT. 136)
provides:
All flammable and combustible waste materials, grease,
lubricants or flammable liquids shall not be allowed to
accumulate where they can create a fire hazard.
The violative condition Cor practice) was described by the
Inspector as follows:
There was a large amount of diesel fuel spillage on
the ground at the fueling area.
The Inspector testified that there was extensive diesel fuel
oil on the ground inside Respondent's refueling shed and that the
mine operator had been notified of the fire hazard created
thereby on a previous inspection. There were fire ignition
sources in the area as well as other materials which would burn
in the event of a fire.
Had a fire started in the area, the

429

violative condition observed, as a minimum, would have' contributed to and aggravated the hazard. Because diesel fuel is not
as flammable as gasoline and since the possibility of a fire· occurring was relatively remote, this violation is found to be but
moderately serious. The mine operator, having prior knowledge of
the hazard created, was clearly negligent. The violation was
abated in good faith by the Respondent upon notification thereof.
A penalty of $20.00 is sought by the Secretary and such is found
apptopriate and assessed.
Citation No. 23683
The standard infracted, 30 C.F.R. § 56.4-7 CT. 135-137)
provides:
"Means shall be provided to remove or control spilled
flammable or combustible liquids."
t
The violative condition (or practice) was described by the
Inspector as follows:

"The buckets that were placed under the oil barrels on the
oil rack had been turned upside down and oil had been
allowed to contaminate the earth under the oil rack."
The same violative condition had been cited on a previous
inspection by Inspector Ainge. As to seriousness, the Inspector
indicated that it would take "quite a fire" to get 'the oil-contaminated area to burn. Accordingly, this violation is found to
be of a low degree of gravity and to have resulted from
Respondent's negligence in allowing the condition to re-occur.
Since this violation, like the previous one, was abated promptly
and in good faith by the mine operator upon notification, the
Secretary 6 s administrative "single penalty assessment" of $20.00
is found appropriate and is assessed.
bocket No. WEST 85-162-M
Citation No. 2364580
The standard infracted, 30 C.F.R. § 50.30Ca) provides:
Preparation and submission of MSHA Form 7000-2 - Quarterly
Employment and Coal Production Report.
{a) Each operator of a mine in which an individual worked
during any day of a calendar quarter shall complete a MSHA
Form 7000-2 in accordance with the instructions and criteria
in § 50.30-1 and submit the original to the MSHA Health and
Safety Analysis Center, P.O. Box 25367, Denver Federal
Center, Denver, CO 80225, within 15 days after the end of
each calendar quarter. These forms may be obtained from

430

MSHA Metal and Nonmetallic Mine Health and Safety Subdistrict Off ices and from MSHA Coal Mine Health and Safety
Subdistrict Offices. Each operator shall retain an
operator•s copy at the mine office nearest the mine for 5
years after the submission date.
The violative condition (or practice) was described by the
Inspector as follows:
"Mr. Redman could not produce the quarterly reports that
are to be maintained on file at the mine property as stated
in Part 50, 30 Code of Federal Regulations."
The regulation requires that the operator shall retain an
operator•s copy of the required quarterly report form "at the
mine office nearest the mine •••• " The record clearly establishes that this small mine operator's nearest-and only-mine
"office" was in Bishop, California, and that indeed a copy of the
form required retained there. The Inspector apparently was under
the impression at the time he issued the Citation that the form
was required to be kept at the mine site, since in the body of
the Citation he mentioned that such reports ttare required to be
maintained at the mine property." Since under the precise requirements of the regulation and in the perspective of the
geographic configuration of this modest mine operation the form
was kept where it was required to be, no violation is found to
have occurred.
Citation No. 2364584
The standard infracted, 30 C.F.R. § 56.14-1 provides:
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.
The violative condition Cor practice) was described by the
Inspector as follows:
"There were not any guards on either the head or tail
pulley on the feed belt under the feed hopper. The plant
was down for crusher repair."
During his inspection on March 18, 1985, Inspector Ainge
observed that neither the head pulley nor the tail pulley on the
conveyor system had guards to protect employees from contacting
the pinch point CT. 143). A guard would have prevented contact
between the pinch point and an individual's body or clothing or
any tools which the individual may be using (T. 144). According
to Mr. Ainge, the most likely result of such contact would be a

431

loss of limb (T. 151). Since the plant was not in production at
the time of the inspection, Mr. Ainge felt that an injury was not
likely to occur CT. 151). The violation is thus found to be of
only a moderate degree of seriousness.
Inspector Ainge discussed the condition with Mr. Redman CT.
151) and explained what modification would be required to abate
the hazard CT. 152). An abatement date of April 2, 1985, was
selected (T. 152). On May 10, 1985, the conveyor were reinspected by Inspector Ainge (T. 152). At that time, the head
pulley was guarded but no work had been performed on the tail
pulley CT. 153). A continuation was issued by the Inspector CT.
153).
Inspector Ainge reinspected the conveyor on May 30, 1985.
No additional work had been performed on the tail pulley CT. 153).
A Section 104{c) non-compliance order was issued by Ainge after
which abatement was accomplished.
While there was no specific evidence of Respondent's
negligence attendant to the initial violation CT. 158),
Respondent's failure to promptly abate the violation after
notification thereof was willful; the plant was in operation at
least four days during the interim period after the Citation was
issued and before abatement was accomplished CT. 158; 2d
Transcript, T. 17). A penalty of $200.00 is assessed.
Citation No. 2364585
The standard infracted, 30 C.F.R. § 56.14-1 provides:
"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."
The violative condition (or practice) was described by the
Inspector as follows:
"The head pulley on the 30" x 80' feed belt was not
guarded. The plant was not working due to repair on the
crusher."
The Inspector testified that a miner could have been pulled
into the head pulley with resultant severe injuries including the
separation of a limb. It was also his opinion, however, that it
was unlikely such an accident would occur. The Respondent only
partially abated the violative condition even after the Inspector
extended the original abatement time, and it was necessary for
the Inspector to issue a Section 104(b) non-compliance order. No
evidence of negligence or willfulness was proffered with respect

432

to the initial commission of the violation. A penalty of $200.00
is assessed in view of the Respondent's intransigence - or
substantial neglect - with respect to prompt abatement of the
violation.
Citation No. 2364586
The standard infracted, 30 C.F.R. § 56.11-1, relating to
travelways, provides:
''Safe means of access shall be provided and maintained
to all working places."
The violative condition (or 'practice) was described by the
Inspector as follows:
"There is three elevated conveyor belts that have gear
reduction boxes on them. This area must be serviced at
regular intervals. The people have been walking up the
conveyor belts to access these areas."
The hazard foreseen by the Inspector was that miners
servicing and lubricating would be required to walk up the
conveyor belt to do so and there being no "safety means" present
such personnel could fall to the ground- a distance of some 40
feet.
Had such an accident occurred, there was a "strong
possibility" of a fatal injury, according to the Inspector.
Although Respondent was given one month to abate the violation,
such was not accomplished. The Inspector concluded, and I find,
that Respondent knew of the violative condition/practice and was
negligent in continuing such. While it does not appear that
Respondent proceeded in good faith to promptly abate the violation after notification, Petitioner specifically makes no such
contention, so it is found that Respondent did abate the
violation in good faith. This violation is serious in view of
the gravity of the hazard posed. Further, Respondent presented
no rebuttal to the Secretary's allegation that this was a
"serious and substantial" violation. In view of the severity of
the hazard posed by the violation, the operator's apparent lack
of concern for compliance with mine safety standards, and the
Inspector's testimony as to the likelihood of the occurrence of
an accident, it is concluded that the Secretary established the
prerequisite elements of proof for "significant and substantial"
violations mandated by the Federal Mine Safety and Health Review
Commission in its decision in Mathies Coal Co., 6 FMSHRC 1 (1984,
to wit:
"(l) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the violation: (3)
a reasonable likelihood that the hazard contributed to will
result in an injury~ and (4) a reasonable likelihood that
the injury in question will be.a reasonably serious nature."

433

In the premises, the Citation is affirmed in all respects
and a penalty of $150.00 is assessed.
ORDER
1.

Citation No. 2364580 is vacated.

2. The remaining 6 Citations hereinabove discussed are
affirmed in all respects.
3. Respondent shall pay the Secretary of Labor within 30
days from the date hereof the six penalties hereinabove
individually assessed in the total sum of $620.00.

/Jud~'l': ct:~.;'.{/~'

/Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Joseph T. Bednarik, Esq., Office of the Solicitor, U.S. Department of Labor, 3247 Federal Building, 300 North Los Angeles
Street, Los Angeles, CA 90012 (Certified Mail)
Sierra Aggregate Companv, Donald and Janis Jolly, ·2239 Sunrise
Drive, Bishop, CA 935la (Certified Mail)
/bls

434

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

t1AR 5 \987

ALFRED H. COX,

v.

:

DISCRIMINATION PROCEEDING

:
:

Docket No. WEVA 86-73-D
MSHA Case No. MORG CD 85-18

Complainant

.
: No. 5 Mine

PAMMLID COAL COMPANY,
Respondent

DECISION
Appearances:

Paul R. Stone, Esq., Charleston,
West Virginia, for the Complainant1
William c. Garrett, Esq., Garrett & van
Nostrand, Webster Springs, West Virginia, and
Laura E. Beverage, Esq., Jackson, Kelly, Holt
& O'Farrell, Charleston, west Virginia, for
the Respondent.
Rebecca Betts, Esq., King, Betts & Allen,
Charleston, West Virginia, for Carson Jackson
and Rodney Blankenship (respondent's president
and vice-president).

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint
filed by the complainant Alfred H. Cox against the respondent
pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq. Mr. Cox filed
his initial complaint on June 11, 1985, with the Secretary of
Labor, Mine Safety and Health Administration CMSHA), claiming
that his discharge from his job as a scoop operator on or
about May 11, 19 85, was based or, his "safety concerns" at the
mine. In several subsequent statements submitted to MSHA in
support of his complaint, Mr. Cox further alleged that he was
discharged for making safety complaints to mine management
concerning certain alleged unsafe mine conditions which he
assertedly documented in a personal log or notebook. In addition, ·auring the course of the hearing, Mr. Cox alleged that
his discharge was also prompted by certain alleged complaints
that he made to MSHA inspectors. Following an investigation

435

of his complaint, MSHA determined that a violation of section
105(c) had not occurred, and notified Mr. Cox of this finding
by letter dated November 7, 1985. Mr. Cox then filed his
pro se complaint with this commission on December 6, 1985.
The matter was assigned to former Judge Joseph Kennedy for
adjudication, but was subsequently reassigned to me upon
Judge Kennedy's retirement.
The respondent filed a timely answer to the complaint
and denied tpat it discriminated against Mr. Cox in violation
of section 105(c) of the Act. As an affirmative defense, the
respondent· asserted that Mr. Cox was discharged for insubordination, and in support of its defense asserted that in a decision of the West Virginia Department of Employment Security,
dated May 29, 1985, in connection with Mr. cox's application
for unemployment benefits, Mr. Cox reportedly stated that the
reason he was fired was for unsatisfactory service, and not
because of his alleged complaints about unsafe mine practices.
In a subsequently filed pleading in response to a pretrial
order issued by Judge Kennedy, the respondent asserted that
Mr. Cox was discharged for unsatisfactory service after making certain threats to the respondent's President Carson
Jackson during a telephone conversation of May 11, 1985, and
to one Neal Pleasants, Jr., Senior Vice-President for Brooks
Run Coal Company, during a second telephone conversation that
same day. The alleged threats concerned Mr. Cox's purported
assertions that he would call the "Labor Board" and "Union"
in to stop the men from working at the mine and that he would
shut the mine down.
A hearing was held in Charleston, West Virginia, on
October 28-29, 1986, and the parties appeared and participated
fully therein. The parties filed posthearing briefs, and the
arguments presented have been fully considered in the course
of my adjudication of this matter.
Issue
The critical issue in this case is whether Mr. Cox's
termination by the respondent was prompted in any way by his
engaging in protected activity, or whether it was the result
of unsatisfactory services or other legitimate reasons as
claimed by the respondent. Additional issues raised by the
parties are identified and disposed of in the course of this
decision.

436

Applicable Statutory and Regulatory Provisions
1.

30

The 'Federal Mine Safety and Health Act of 1977,

u.s.c. § 301 et seq.

, 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.

Commission Rules, 29 C.F.R. § 2700.1, et seg.

The respondent's motion to quash a subpoena duces tecum
served on two of the respondent's operating officers for the
production of certain records was denied, and the respondent
produced copies of the'requested documents for the complainant's examination, including a mine map, an MSHA record of a
battery explosion, fire boss records, and records of reported
roof falls (Tr. 6-12, 10-28-86). The parties also stipulated
to the admissibility of Mr. Cox's deposition, taken on May 28,
1986 (Tr. 13). In addition, the posthearing deposition of
Mr. Carson Jackson, respondent's president and general mine
superintendent, was submitted and admitted as part of the
record.
The complainant's subpoena for the testimony of MSHA
Inspector John G. Tyler, was withdrawn after the parties
agreed to stipulate to his testimony were he to appear as a
witness in this case (Stipulation, Joint Exhibit JE-1), (Tr.
5, 10-28-86). The complainant subpoenaed MSHA Inspector Joey
Adkins, and he appeared and testified.
Complainant's Testimony and Evidence
In support of his case, the complainant subpoenaed eight
present employees of the respondent, including Mr. Carson
Jackson, respondent's president and general mine superintendent, and Mr. Rodney Blankenship, respondent's vice-president,
and general mine and section foreman. Respondent also subpoenaed two MSHA inspectors, and one testified. The parties
agreed to stipulate to the testimony of the other inspector.
Wayne Lee, Cutting Machine Operator, confirmed that roof
falls have occurred in the mine, but "we done what we could 3
to support the roof by installing longer bolts and cribs. At
times, when the roof. bolts were found to be too far from the
face, company management took corrective action by installing
more bolts and cribs where necessary (Tr. 20, 28-29). Mr. Lee
could supply no details as to the roof falls, nor could he
recall any of the details of the reported roof falls made by

437

the respondent (Tr. 18, 37). The roof conditions were
discussed by the miners among themselves, including Mr. ·cox,
and with company management. However, Mr. Lee never heard
Mr. Cox discuss any roof conditions.with Mr. Jackson or
Mr. Blankenship, and he did not know whether Mr. Cox complained to management about any roof conditions. Mr. Lee
stated that there were "differences of opinion". as to the
existing roof conditions (Tr. 34-37).
Mr. Lee stated that on one occasion, when a miner complained to Mr. Jackson about the roof bolts being too far
back from the face, and after he (Lee) confirmed that this
was the case, Mr. Jackson assured them that he would take
care of the condition, and after 2 or 3 days, the condition
was corrected. Mr. Lee explained that while the roof bolter
would install two rows of roof bolts, the roof-control plan
required additional support at the discretion of management
if they were required to make the place safe. If any miners
believed that the roof bolting was inadequate, they would
discuss it among themselves and would try to correct it, and
Mr. Lee was aware of several occasions when Mr. Jackson
required the roof bolter to go back and rebolt an area.
Mr. Lee asserted that there were occasions when Mr. Jackson
was not aware of the roof conditions, but that "maybe he was,
I don't know" CTr. 39-43).
Mr. Lee confirmed that powder and caps were hauled in
the mine on equipment and left there together, rather than
being left in the explosives magazine, and that this was a
common practice until 2 or 3 weeks before the hearing in this
case. Although he denied that he ever engaged in such a
practice, Mr. Lee named three shot firers and drillers who he
claimed did (Tr. 21>. Mr. Lee explained that leaving the
powder and caps on the drill machine or other equipment made
it easier on the miners because it would save them time going
back and forth from the magazine. Mr. Lee believed that
management was aware of this practice, because the powder and
caps were in full view of anyone in the area, and no attempts
were made to conceal the practice. He was sure that Foreman
Blankenship was aware of the practice, and Mr. Lee knew of no
complaints to management about it (Tr. 44-45).
Mr. Lee stated that ventilation curtains were often
rolled up rather than being kept down, and that this was a
common mine practice. He explained that leaving them up made
it easier on the equipment operators who were tearing them
down, and it made the mining cycle go faster. Mr. Lee
believed that management was aware of the practice {Tr. 24).

438

Mr. Lee testified about a battery explosion incident
involving Mr. Cox which occurred sometime in 1984 or 1985,
and another similar incident involving another miner, but
could not recall all of the details. However, he believed
that the incident involving Mr. Cox was cause by lack of
adequate battery ventilation, and Mr. Cox's failure to turn
off the battery charger power when he plugged in the battery.
This caused an arc which set off the explosion (Tr. 37-38).
Mr. Lee confirmed that he has shut off his personal dust
sampling device in order to obtain a "good sample," and that
this was a common practice for him. However, he was not
aware of any MSHA violations ever being issued because the
respondent exceeded the applicable MSHA dust standards (Tr.
31-33).

Mr. Lee stated that he was aware that Mr. Cox was keeping a personal notebook, but never saw any of the entries
until he was given an opportunity to review the book during
MSHA's investigation of Mr. Cox's complaint. He had no
independent personal knowledge of any of the incidents
recorded by Mr. Cox in the book (Tr. 48-54). Mr. Lee stated
that he never complained to any MSHA inspectors about the
practices in question, and that he has never been threatened
by mine management (Tr. 27).
On cross-examination, Mr. Lee asserted that bad roof
conditions can exist anywhere in the mine, and that he does
what he can to protect himself and his fellow miners. He
confirmed that the respondent uses roof bolts longer than
those required by the roof-control plan, and also installs
support straps and plates in some places (Tr. 58-59). On one
occasion, management decided to leave longer coal pillars
rather than taking all of the available coal, and this helped
to support the roof. Although falls have occurred around
belts and in some face areas, no men or equipment were
involved. Although it is not done on a regular basis,
Mr. Blankenship has discussed the roof plan with miners (Tr.
60-62). Mr. Lee confirmed that he never heard Mr. Cox complain to management about roof or dust conditions, and that
the miners simply discussed it among themselves (Tr. 65).
Mr. Lee stated that the respondent rock dusts on a
regular basis, and that the water sprays on h
machine are
operable. When they are not, the respondent takes the appropriate action to repair them and makes an effort "to go along
with me on water to keep the dust down" (Tr. 65-66).

439

Mr. Lee stated that Mr. cox himself has kept powder and
caps on his drilling machine, and he never heard anyone from
mine management approving of this practice (Tr. 63). He has
heard Mr. Blankenship tell people to keep the ventilation
curtains rolled up (Tr. 64-65). When miner Cogar complained
to Mr. Cox about the powder and caps, Mr. Cox responded that
the company "was doing things wrong too" (Tr. 73).
Mr. Lee stated that company policy dictates that all
roof bolting be done in sequence and that Mr. Cox himself has
bolted out ot sequence, and Mr. Lee was present when management advised Mr. Cox of the requirement that bolting be done
in sequence (Tr. 70). On one occasion when miner Alva Cogar
complained to management about the bolting being out of
sequence, Mr. Jackson took care of the problem and Mr. Cogar
still works at the mine (Tr. 68-69).
Mr. Lee confirmed that Mr. Blankenship has shut off his
(Lee's) personal dust sampler, and he has heard that this was
done with other samplers (Tr 77-78). However, no one has
ever complained to MSHA about the practice (Tr. 78-79).
Further, Mr. Lee has never heard Mr. Cox state that he would
take any of his complaints to MSHA or other mine agencies
(Tr. 76). Mr. Lee stated that Mr. Jackson does what he can
"for the most part" to run a safe mine, and that he can
communicate with Mr. Jackson and Mr. Blankenship (Tr. 68).
When asked why miners were not concerned about the dust
samplers being shut off, Mr. Lee stated "it ain't that we
don't care; its that we've got to make a living" and without
decent dust samples, inspectors would always be there and
shut the mine down for noncompliance and there would be no
work (Tr. 79-80}.
James Ramsey, Jr., roof bolter operator, stated that he
was aware of roof falls between October, 1984 and May, 1985,
but could not state how often they occurred. He does what he
has to do to insure adequate roof support, and if longer
bolts are needed he installs them. He would report bad top
to his foreman, and was always instructed to install longer
bolts or cribs. Mine management has never instructed him to
work under bad top, and has never ignored him when he
reported bad top to his foreman or to Mr. Blankenship. On
occasion, when he (Ramsey) believed that more could be done
to support the roof, he never advised his foreman about this,
nor did he complain to ~r. Blankenship (Tr. 81, 95-99).
Mr. Ramsey stated that he was aware of drillers keeping
powder and caps on their machines, but no one ever complained,

440

and the practice has since stopped. He was also aware of
ventilation curtains being rolled up, and a battery explosion
involving Mr~ Cox, but he knew no details since he was not
there when it happened, and he and Mr. Cox worked on different
shifts (Tr. 81-84, 89, 106).
Mr. Ramsey confirmed that he has shut off his own personal dust sampler, but was not aware of anyone else doing it
or Mr. Blankenship's involvement. When asked why he shut his
off, Mr. Ram~ey responded that "he just did" (Tr. 94).
Mr. Ramsey stated that he has never complained to MSHA about
any of these practices, and when asked why, he responded that
he wants "to go along with everybody" (Tr. 92).
On cross-examination, Mr. Ramsey remembered two roof
falls on a belt, and he confirmed that management installed
cribs and canopies over the belts, took steps to support the
roof, and explained the roof control procedures to the miners
(Tr. 102-103). In response to further questions, he confirmed that he has roof bolted out of sequence, but did not
make a practice of it. He uses his own judgment in roof control after taking into account the prevailing conditions, and
he never told management about bolting out of sequence and
"just did it." He admitted that he took it upon himself to
bolt out of sequence, and on occasions when Mr. Blankenship
and Mr. Jackson observed him doing it, they instructed him to
do it the proper way. Mr. Ramsey stated further that he
bolted out of sequence only twice in the past 6 months, and
that he did so because he believed it was safer, and not as a
short cut (Tr. 110-115).
Mr. Ramsey stated that ventilation curtains were rolled
up because it increases production and made it easier on the
crew. Although dust increases from this practice, the face
areas are rock dusted every evening, and no excessive levels
of methane have ever been detected in the mine (Tr. 103-105).
He thought there "may be trouble" with management if he
didn't go along with the curtains being rolled up, but did
not know what management's reaction would be if he rolled
them down. He was aware of his right to make complaints to
MSHA, but never did, and never saw a need to do so (Tr.
108-109) •
Mr. Ramsey stated that he is not afraid of Mr. Blankenship
and has told him about adverse roof conditions when they were
encountered (Tr. 108). He confirmed that he observed miner
Alva Cogar with powder and caps on his drill machine CTr. 107).

441

Roger Groves, electrician, stated that he was aware of
roof falls in the mine, and they resulted from broken roof or
areas where it was hard to hold. However, he believed the
roof was bolted according to the approved roof-control plan
(Tr. 127). He did report one bad top condition to
Mr. Jackson, but mining continued in the area for a week CTr.
131). He was aware of rolled up ventilation curtains, and
believed that this was the rule rather than the exception
CTr. 128). He has "heard talk" about dust samplers being
turned off, but could not recall any details (Tr. 129). He
was also aware of the battery explosion incident involving
Mr. Cox CTr. 130). Mr. Groves stated that he never made any
safety complaints to MSHA, and has no knowledge that Mr. Cox
did (Tr. 132) •
On cross-examination, Mr. Groves confirmed that he was
responsible for the maintenance of the mining equipment, and
that the respondent's policy is to keep all equipment in good
operating condition. He does what is necessary to keep the
equipment in good repair and proper operating condition. The
ATRS and water sprays on the cutting machines were kept in
good condition, and Mr. Blankenship frequently discussed the
roof-control plan with the men, usually in the morning.
Mr. Groves stated that he never observed any evidence that
the respondent did anything to endanger miners under unsupported roof, or that the roof was not supported according to
the approved plan (Tr. 135-139).
Mr. Groves stated that during his 5 years of employment
at the mine, he complained once about bad top. The roof had
dropped in a roadway away from the face and the weight was
pulling thru the bolts and half-headers. After he reported
this to Mr. Jackson, mining continued for a week, but
Mr. Jackson.took care of the condition in time, and he was
not antagonistic because he had complained. Mr. Groves
stated further that Mr. Jackson and Mr. Blankenship never
left him with the impression that if he made safety complaints, his job would be in jeopardy, and he recalled a
meeting at which Mr. Jackson stated that he would rather shut
the mine down than have someone injured (Tro 144 46)9
With regard to the battery explosion incident? Mr. Groves
was of the opinion that it was caused by a gas buildup under
the lids. Although the lids are vented, they were kept closed.
He could not state whether Mro Cox was aware of the fact that
the lids and vents should be opened for adequate ventilation,
and when he plugged in the battery with the charger connected,

442

an arc resultedo Itvs possible that Mr. Cox forgot to deenergize the charger, and that this caused the arcing CTr.
142-144).

In response to further questions, Mr. Groves stated that
while he never observed Mr. Jackson or Mr. Blankenship present when powder and caps were on the equipment, since they
were in and out of the section, and were the bosses, he
assumed that they knew of the practice, but he never discussed
it with them_, nor did he bring it to their attention (Tr.
148-150). Mr. Groves confirmed that he is a certified shot
firer, and that he observed powder and caps on equipment,
rather than stored in a box. Keeping the powder and caps on
the equipment made it easier on the shot firer (Tr. 152-153).
MrQ Groves was aware of the Holmes Safety Group sponsored
by the respondent, and he has seen notices posted informing
the men about meetings. He denied that he was concerned about
his job or the mine shutting down if he complained, and he
could not recall Mr. Cox ever complaining to Mr. Jackson or
Mr. Blankenship about any safety matters. He also stated that
Mr. Cox never told him that he had made any complaints (Tr.
154-157).
Aaron Bender, coal drill operator and shot firer, confirmed that he worked with Mr. Cox on the same shift when he
was first employed, and then went to the evening shift in
1984. Mr. Bender was aware of some roof falls because of bad
top, and the top would fall above the roof supports CTr. 163,
175). Mr. Bender admitted that he has kept powder and caps
on his drill because it makes his work easier and faster. He
was also aware of multiple powder bags or boxes being carried
about, and admitted that he had done this and was aware of
the fact that it is a violation. He denied any knowledge of
any uncertified persons drilling or shooting. He was aware
that ventilation curtains were not always maintained within
10 feet of the face and in the down position, and admitted
that he did not always keep the curtains down because it
slowed him down. He has helped roof bolters and they always
bolted in sequence, and he was not aware of any roof bolting
being done out of sequence (Tr. 164 68).
On cross-examination, Mr. Bender stated that he was
familiar with the roof-control plan and has helped out on
roof support. He stated that the roof-control plan was
followed "pretty well, as close as we could," and that cribs
or larger bolts were set if the roof "started working.''
There.were never occasions when nothing was done to attempt
to keep the roof intact, and when he pointed out adverse roof

443

conditions to his foreman Dave Young, Mr. Young always cautioned him to watch the roof and to rebolt it when it was
safe to do so. There were instances of roof falls in places
which had been bolted, but this did not occur every day or
every week. However, additional support was always installed
in these areas, and he believed it was adequate. Additional
support would be installed in those instances when he
reported adverse conditions to Mr. Young CTr. 177-180).
Mr. Ben~er stated that the respondent provides bags for
carrying powder, and it is his understanding that he can
carry enough in the bags to shoot three or four places. He
also knew that he was not to keep the powder and caps on his
drill, but he did so anyway because it made his work easier
and saved him time because he did not have to walk back and
forth from the powder magazine (Tr. 182).
Mr. Bender explained that the ventilation curtains were
kept rolled up to preclude knocking them down with equipment.
If they are knocked down, the equipment operator is supposed
to stop and put it back up, but many times he did not stop
after knocking down a curtain, and usually, no one observed
him. on one occasion, Mr. Young observed him tear down a
curtain but did not stop him or order him to put it back up
(Tr. 184-186).
Mr. Bender stated that he never complained about the
curtains being knocked down, but "us workers used to talk to.
each other about it." He also stated that he was not concerned' about knocking down curtains because "you probably
wouldn't run coal if you went by every law that you had to go
by" (Tr. 186-187). Mr. Bender stated that he was not aware
of anyone complaining to management about safety concerns,
and he never complained to Mr. Jackson about safety or about
any dissatisfaction with his job. Mr. Bender confirmed that
anytime he believed something was not safe, he discussed it
with his foreman CTr. 189-190).
Steve Mullins, scoop operator, testified that he was
aware of roof falls in the mine, but they were not frequent
occurrences, and he recalled one or two a year in the 5 years
he has worked at the mine. He was aware of powder and caps
kept on equipment, and believed that it was a commonplace
occurrence. He engaged in the practice because it made his
work easier, and he never believed he was in any danger.
Foreman Blankenship has sent him for powder and caps, and
Mr. Mullins would bring it in and place it on the drill.
Mr. Mullins was of the opinion that Mr. Blankenship was aware

444

of the practice because "he was there all day and so he'd
have to have seen it" CTr. 195, 201).
On cross-examination, Mr. Mullins stated that he has
served as a substitute section boss, and has also served as a
shot firer. He has cleaned up debris after a roof fall, and
confirmed that adequate steps were taken to resecure any roof
fall areas, and that headers, cribs, and canopies have been
installed in these areas. He believed that most places where
falls occurred were too high for the bolter to reach. He
conceded that keeping powder and caps on his scoop was not a
smart thing to do, and he would' never have done it if he
believed he were in any danger (Tr. 211).
Michael R. Poole, formerly employed by the respondent as
a bratticeman, confirmed that Mr. Cox is his uncle and helped
him get his job. Mr. Poole stated that he was fired by the
respondent for failing to appear for work on Saturday, May 11,
1985, and that he had worked for the respondent as a bratticeman for 3-years prior to his termination. Mr. Poole stated
that during May 1984 to May 1985, the mine experienced eight
roof falls in the working area. He also stated that the
ventilation was not kept up to par, and that the only time it
was is when an inspector was present for an inspection every
6 months (Tr. 218-219). Curtains were rolled up and nailed to
roof headers, and at times no curtains were installed unless
an inspector was on his way into the mine. However, the permanent brattices and stoppings were installed and maintained
properly CTr. ~22, 245).
Mr. Poole confirmed that powder and caps were frequently
kept on machinery underground and he named five management
individuals who he claimed knew about this practice, including Mr. Jackson and Mr. Blankenship (Tr. 219). Mr. Poole
stated that on occasion, he operated the coal drill and helped
shot firer Alva Cogar, and Mr. Jackson and Mr. Blankenship
would walk in and see the powder and caps on the machine CTr.
210).
Mr. Poole stated that he never wore any dust sampler,
but they were made available to other miners. Although he
never personally heard Mr. Blankenship order anyone to
deactivate a sampler, two of his fellow workers told him
Mr. Blankenship told them to turn off their samplers, and
Mr. Poole stated that he observed samplers in a box on a
rectifier and that they remained there during the entire
shift (Tr. 223-225) •.

445

Mr. Poole stated that on one occasion during his last
year on the job he complained to Mr. Blankenship about the
practice of keeping powder and caps on the equipment when the
top was bad, and that he often told Mr. Jackson's son Kit
about the ventilation and float coal dust. Mr. Poole stated
that he complained to Kit Jackson, and knew that he would
tell his father about it (Tr. 232). Mr. Poole stated that
on one occasion, Mr. Cox told Mr. Blankenship that the next
time an inspector was in the mine, he (Cox) "would have a
talk with hi~, and a week later Mr. Cox was fired (Tr. 233).
11

When asked whether he or the other men had ever threatened to go to an inspector with his complaints, Mr. Poole
responded as follows (Tr. 233):
A. I think we've all discussed it at one time
or another, yes, but later, right before we
got fi~ed, within a month or two months,
maybe, before we got fired, I even told Kit
that I might go and try to get the union in
there to get it straightened out. And I'm
sure that he went back and told Carson and
Rodney.

*

*

*

*

*

*

*

A.
I'm sure, while we was gathered around,
you know, eating lunch or something, that a
few of them has mentioned such things as bad
top and things like that, but most of them was
scared they was going to lose their jobs and
they wouldn't ever threaten the company as far
as going to the mine inspectors or anything
because they was all afraid of losing their
job.
JUDGE KOUTRAS:
it?

Did they ever talk about doing

THE WITNESS: A lot of them a lot of times,
quite often, they'd say somebody needs to do
something about it, you know. As a matter of
fact, Alva Cogar, he's the one -- he runs the
coal drill, and he was always complaining that
something was needing done, too.
Mr. Poole stated that although he is not a certified shot
firer, he was required to shoot coal in the absence of the
regular shot firer, and that he did so at Mr. Blankenship's

446

direction (Tr. 238-239). He also stated that he shot coal
while a trainee, but was not sure who directed him to do it.
However, he believed that foreman Euhl Damron and
Mr. Blankenship knew .about it, and that Mr. Blankenship
assigned him to help the coal driller and the firer (Tr. 240).
Mr. Poole stated that there were occasions when Mr. Blankenship
would leave the section, or would be late in arriving, and no
foreman would be present, or he would assign scoop operator
Steve Mullins to be in charge (Tr. 242).
On cross-examination, Mr. Poole stated that after Mr. cox
received a telephone call at his home from Mr. Jackson on
Saturday morning, May 11, 1985, Mr. Cox informed him that
Mr. Jackson fired him for not reporting to work that day.
Mr. Poole confirmed that Mr. Jackson was the person who initially hired him, that Mr. Jackson is the person who decides
when employees are required to work, and that he (Poole) was
told by his foreman that he was scheduled to work that particular Saturday CTr. 247). However, Mr. Poole also stated that
he was led to believe from Mr. Blankenship that he did not
have to work that day (Tr. 248). Mr. Poole denied that either
he or Mr. Cox attempted to convince other miners not to report
for work that day (Tr. 249). Mr. Poole confirmed that because
of certain personal problems with his spouse, he was staying
at Mr. Cox's house and was sleeping when Mr. Jackson called,
and he did not hear the telephone conversation.
Mr. Poole stated that he and Mr. Cox went to the mine on
Monday, May 13, 1985, and he did not understand that he had
been fired until everyone else went into the mine. He and
Mr. Cox were summoned to the office by Mr. Jackson, and
Mr. Jackson handed them their paychecJcs and termination
notices~ and the notices stated that they were fired for
"services unsatisfactory" (Tr. 251).
Mr. Poole confirmed that prior to his discharge, he had
been late for work "a few times," and had two unexcused
absences because of personal problems, and had been warned by
Mr. Jackson and Mr. Blankenship that his absences would not
be tolerated in the future. Mr. Poole denied that he was
ever given a written warning about his absences, but admitted
that Mr. Jackson or Mr. Blankenshl.p had given him "a slip of.
paper" which recorded the dates of his unexcused absences and
days that he was late for work. Mr. Poole stated that when
he received this, he went to Mr. Jackson' home and informed
him that he would understand it if Mr. Jackson fired him for
his absences and tardiness, but that Mr. Jackson simply told
him not to miss anymore work "if I could help it" (Tr. 252).

447

Mr. Poole confirmed that he filed a discrimination complaint with MSHA after he was fired, and later received a
letter advising him of MSHA's findings that the respondent
had not violated the law and that his case would not be
pursued further. Mr. Poole stated that he moved out of state
and did not pursue the matter further (Tr. 253-254; 270-271).
With regard to his assertion that roof falls had occurred
in virtually every entry during the period immediately before
his discharg~ of May 11, 1985, Mr. Poole stated that the only
evidence he has of this allegation is his word and the word of
Mr. Cox, and "if a couple of the other guys hadn't left, their
word" (Tr. 254). He further explained as follows at (Tr.
255-257):

Q. As far as you know, when the roof falls
occurred were reports of the roof falls made
to the proper governmental officials?
A. As far as I know, no. As far as I know,
they may have reported every one of them.

Q.

You don't know.

A.

As far as knowing, no, sir, I don't.

Q. Did the investigators come while you were
there and investigate the areas where the
falls occurred?
A.
I think one time there was a mine inspector came and investigated.
When the falls were occurring, was
Mr" Jackson doing anything? was he investigating it himself?

Qo

1

A. He looked at a few of them, I do know
that, but I was pretty well busy the times I
was there.

Q. The point I'm getting at is this: did the
company -- you testified you were concerned
and worried about the condition of the roof.
Was the company management also concerned
about the roof?
A.
I would say they was worried to where they
didn't want their roadways blocked. They're

448

pretty well used to it. They've been underground twenty or thirty years, you know and
it's just' normal i you hear popping and cracking, you know. You get used to it and you
don't really worry that much about it.

Q. Are you saying they had more knowledge
about the condition of the roof than you did?
Do you admit that?
A.

I'm- saying more experience.

Q.

In dealing with roof conditions?

A.

Right.

Q. And were you aware that the company took
steps to support the roof in the areas that
they were having trouble with the roof?
A. Not all of them, but in a lot of them,
yes.

Q. You admit that the company took extra
added steps to ensure a supported roof?
A.
In a few places, yes.
though.

Not everywhere,

Q. Did you point out bad roof areas to anyone
in management that they ignored?
A.

Yes.

Q.

They ignored it?

A.

Yes.

Q.

They did nothing?

A.

Right.

Q. All right.
instances?

Can you give me specific

A. Like, most of the time we'd eat on the
rectifier. Probably two weeks before we was
fired, three weeks before we was fired, me,
Kit, Rodney, probably Steve Mullins and my

449

uncle was sitting on the rectifier, and Wayne
Lee came up there and I pointed out to Wayne,
Kit and all of them the way that that rib was
cutting -- they call it cutting but the top
just keeps falling out in small pieces, and,
you know, it's hard telling how much of it
will fall out. And No. 5 entry, that was the
only roadway going to the face passable by
scoops or any big machinery. Wayne Lee looked
at it two or three times with me; my uncle
looked at it with me; Kit has looked at it
with me and I showed them -- normally, when
you have so much pressure on a bolt, the plate
-- you have a half header above the bolt -the half.header, ~o much weight will come
against it, it will squeeze plumb in two and
an end will even fall off. But these particular ones, the bolt head itself was ripping
the plate and pulling the head of the bolt
through the plate. That's how much weight was
on them.
Mr. Poole confirmed that the permanent stoppings were
usually constructed and maintained in compliance with the
law, and that when he shot coal as a trainee he never did it
without being supervised, but he was not sure whether the
person who supervised him was a certified shot firer. With
respect to his shot firing after his training was over,
Mr. Poole stated that he was still not a certified shot
firer, and while Mr. Blankenship may have at times been
present, he was not under his direct supervision (Tr. 260).
With regard to his complaints about the coal dust,
Mr. Poole confirmed that he made no direct complaints to mine
management but that he "would be talking about it" (Tr. 262).
He stated that management agreed with him "a lot of times,"
and conceded that he rock dusted the affected areas, and that
the maintenance shift also rock-dusted in order to keep the
dust down. Mr. Poole believed that rock dusting was done
75-85 percent on his shift as well as on the maintenance
shift (Tr. 263).
Mr. Poole agreed that his shift and the third shift kept
the brattice cloth within 10 feet of the face, but disagreed
that this was always done (Tr. 264). He explained further as
follows (Tr. 264-265):
JUDGE KOUTRAS: Let me ask you this: what if
I were to tell you hypothetically that six

450

miners testified in this case that the curtain
was always hung up in the right locations, but
it was rolled up. It was hung, but it was
rolled up, and that way, it interfered with
ventilation. Do you disagree with that? Are
you saying it was never hung up in the right
place?
THE WITNESS: No, no, that's not what I'm -- a
lot of ~imes it would be hung up in the right
place and rolled up. But I would say at least
forty percent of the time, especially if, like
Monday, Tuesday and Wednesday a mine inspector
came and he finished -- I think it's called a
general inspection -- for two weeks, probably,
there wouldn't be hardly any curtain put up.
JUDGE KOUTRAS:

At all?

THE WITNESS: We'd go something like two
breaks before any curtain would be put up
again -- a lot of times. I'm not saying all
the time or every time; I'm saying a lot of
times.
With regard to his asserted "complaints" to mine management, Mr. Poole stated as follows (Tr. 265-268):

Q. Now, you said earlier you made complaints
to management or you talked with management
about the float dust. And you talked about
the rock dust; you talked about the curtains.
Did you make any other complaints to
management?
A. Yes. The more the top got bad the more
everybody complained, more or less, but all of
us would discuss the top getting worse,
possibly falling on the drill and blowing us
all up. There was a lot of people talking
about it.

Q. That's fine. A lot of people were getting
concerned about the driller hauling shot and
caps on his drill as the roof got worse, and
that would be getting close to the time that
you were discharged. Is that correct?

451

A.

Right.

*

*

*

*

*

*

*

Q.

Who are you talking about when you say a
lot of people?
A. I would say just about everybody that was
an employee on the day shift: Roger Groves,
Steve Mµllins, Wayne Lee, Alva Cogar, me, my
uncle.

Q.

Were these conversations you had among
yourselves or were these conversations you
also had with members of management?

A. Not all the time, but a lot of times,
management would be there, too, yes.

Q. Let's talk about that. Alva Cogar,
Mr. Groves, Mr. Mullins, Mr. Lee, your uncle,
yourself --did you say any more?

A.

We wouldn't all be there at one time,
don't get me wrong. Three or four of us would
talk about it at lunch, and three or four of
us would talk about it when we was taking a
break or something.

Q.

When you'd talk about it and management
would be present, what would be management's
response?

A. A lot of times they wouldn't even comment
on it.

Q.

Did they ever disagree that you can
recall, about this driller hauling powder on
his machine?

A. As far as I can recall, no, but like I
said, most of the time they wouldn't have any
comment on the subject.

Q. Besides complaining about the float dust
and complaining about the powder and caps on
the drill, were there any other complaints
that either you or your uncle or other members
made to management?

452

A.

*

I can't think of any at this time.

*

*

*

*

*

*

Q. Let's talk about those complaints now, a
minute. What was the nature of the complaints?
How would they be made to someone from
management?
A.

How would they be made?

Q. How would you make the complaint?
form -- in what form were they made?

What

A. Somebody needs to do something about the
dust. Somebody needs to get the ventilation
right so that this float dust will be taken
out of here. Different things, different ways
like that.
When asked whether he had ever made any safe complaints
to any Federal or state inspectors, Mr. Poole testified as
follows at CTr. 269):

Q.

Did you ever make a complaint about these
two areas· or any other safety concern that you
had in the mine to an investigator from the
federal government or state government? To an
inspector?

A. I went to Mr. Tyler's house. He's a
federal mine inspector. I went along with my
uncle, and we discussed what was going on at
the mine. And he told us a couple of steps to
take.

Q.

And did you take those steps?

A. We tried to take them and then we was
fired, yes.
I don't remember if we got fired
right before we started the procedures or
what, but we did try to take the steps.

Q. The question I'm asking you is, did you
contact anyone from MSHA -- the right person
from MSHA prior to your discharge?

453

A. I don't think prior to my discharge1 I'm
not for sure.
Q.

You didn't then.

A.

I don't think so.

Q. And after your discharge, you did.
that right?

A.

Is

Yes-~

With regard to his visit to the home of MSHA Inspector
Tyler when Mr. Cox purportedly complained to him about safety
violations,. Mr. Poole stated that he also complained to
Mr. Tyler (T~. 275) •. Mr. Poole confirmed that this was the
only time he went to see Mr. Tyler, and that he was aware of
the MSHA publication informing him that he could complain to
any MSHA inspector, and he assumed that seeing Mr. Tyler was
adequate (Tr. 277). Mr. Poole stated that Mr. Cox had previously gone to Inspector Tyler's home during the summer of
1984, in response to an ad that.Mr. Tyler had placed concerning some automative parts for a Subaru which he wanted to
sell. Mr. Poole explained that his visit to Mr. Tyler's home
came 3 months later when Mr. Cox again visited Mr. Tyler, and
he was with him at that time {Tr. 278-279). Mr. Poole stated
that the second visit was "just the other day" (Tr. 280). As
far as he knew, no one from mine management knew about the
first visit to Mr. Tyler's home (Tr. 280).
Mr. Poole stated as follows at (Tr. 272-273):
Do you know of any instances where, prior
to your discharge, employees were discharged
or punished because they made complaints about
safety?

Q.

A.

I can't think of any right off, no.

Did you ever hear Mr. Jackson, the
president of the company, make any such claims?
That he would lay off or fire or punish anyone
because they were concerned about safety?

Q.

A.

No.

Q. And it's a fact that you knew Mr. Jackson
was the boss?

A.

Yes.

Q.

And he was the one that hired and fired
the men?

A.

Yes.

Q.

And your purpose was to get your job back
by trying to get Brooks Run to interfere with
the management decision of Mr. Jackson. Is
that correct?

A.

Yes.

Q.

Sir?

A. Maybe not to interfere, but to talk to him
and maybe ask him about getting it back,
things such as this, not really to interfere
with it.
Q. Well, what hold did you and your uncle
hold over Brooks Run to get them to get
Mr. Jackson to change his mind and give you
your job back? Weren't some threats made?
A. Not really threats1 just my uncle told him
that we were going to the MSHA off ice and see
if there wasn't something could be done about
it.
Q. Didn't he also tell him that they weren't
going to run no more coal and they were going
to shut the mine down and have a walkout, work
stoppage? Isn't that a fact, Mr. Poole?

A.

Not to my knowledge, no.

Q.

Not to your knowledge.

A.

No.

Q. You're saying that your uncle did not tell
Mr. Pleasants over the phone -- all you could
hear was your uncle's part of the conversation
-- that you'd better get his nephew's job back
or he was going to have a work stoppage and
stop running coal on that mountain?

455

A.

No.

Q.

And he didn't mention anything about there
was going to be trouble up there if you didn't
get your job back.

A. My uncle told Mr. Pleasants that he had
trouble in one of his mines; that his nephew
had been fired -- ref erring about me -- and
that he_ was going to have trouble up there if
something wasn't done.

Q. And the trouble you mean is what we're
doing today. Is that right? Because you
didn't get your job back.
A.

Probably so, yes.

With regard to Mr. Cox's telephone call of May 11, 1985,
to Mr. Neil Pleasants, a business associate of Mr. Jackson, and
the person to whom the respondent sells its coal, Mr. Poole
confirmed that he heard one-side of the conversation, and he
confirmed that he heard Mr. Cox tell Mr. Pleasants that he was
planning to go to a federal mine inspector and complain about
violations at the Pammlid Mine. Although he was not sure,
Mr. Poole believed that Mr. Cox also mentioned that he would go
to the "labor.board" with his complaints CTr. 274-275).
Mr. Poole identified Mr. Pleasants as the "head honcho"
at the Brooks Run Mine, and he believed that Mr. Pleasants
had the authority to shut the respondent's mine down until
"any problems were taken care of" (Tr. 281). Mr. Poole stated
that after Mr. Cox informed him that he had been fired, he.
(Poole) asked him to call Mr. Pleasants. Mr. Poole stated
that he did not wish to call Mr. Pleasants because he (Poole)
was "kind of hot headed" and did not know how to communicate
with people, and believed that Mr. Cox could serve as his
"mediator" (Tr. 282).
Mitchell Nash, scoop operator, confirmed that he was
aware of a roof fall on the belt because of bad top and inadequate support. He was also aware that ventilation curtains
were rolled up most of the time, and stated that the only
time they were down was when an inspector was in the mine.
He explained a battery explosion incident in which he was
involved, and stated that while the ventilation was adequate,
a gas build-up under the battery which had been idle for
2 day~ caused an explosion sparked by an arc when he plugged
in the battery. Had the battery lids been lifted, he did not

456

believe an explosion would have occurred, and he was not
instructed to lift them prior to the incident. After the
incident, Mr. Jackson instructed him to open the lids for
ventilation (Tr. 6-10).
Mr. Nash was not aware of anyone turning off dust samplers, but was aware of powder and caps on equipment, and
that he did it "to bring up pro(luction." He confirmed that
the practice has since stopped. He was not aware of any
miners compl~ining to management or MSHA, and Mr. Cox never
spoke to him about complaining or threatening to make safety
complaints to state or federal mine authorities. He stated
that neither Mr. Blankenship or Mr. Jackson ever instructed
him to store powder and caps on equipment, nor did they imply
that this should be done (Tr. 11-18).
On cross-examination, Mr. Nash stated that when the
battery explosion occurred, Mr. Blankenship wanted him to go
to the hospital but that he (Nash) said he was "all right"
and wanted to return to work. Mr. Blankenship told
Mr~ Jackson to file an accident report, and while Mr. Jackson
was reluctant to do it at first, he did report the incident.
Mr. Nash went to the hospital and was checked by a doctor who
gave him aspirin and he was sent home. He had no follow-up
care_and returned to work, and he identified exhibit R-1 as
the accident r~port of May 17, 1985, relating to the incident
(Tr. 23-27).
Mr. Nash stated that the roof fall he mentioned could
have been prevented because the roof was dribbling, and the
foreman knew it was weak. However, it fell over a weekend
when no one was in the mine, and it covered half of the belt
feeder. After the fall, Mr. Blankenship began watching the
roof closer and longer roof bolts were used for support.
Mr. Nash did not know whether MSHA inspected the fall area.
He confirmed that a state roof inspector has discussed roof
conditions with the miners, and that his foreman and
Mr. Blankenship discussed the roof plan with him and
instructed him to check the roof bolt test holes (Tr. 29-35).
Mr. Nash stated that he took it upon himself to keep
powder and caps oa the equipment because it made his work
easier, and no one from management suggested that he ·do so to
speed up production.. He has torn down ventiiation curtains
with his equipment, and has stopped to replace them only if
an inspector were present. Stopping to replace curtains
slows his work down. The curtains were always rolled up when
an inspector was not present, and he never complained to
management or any inspector about the practice. Since he is

457

paid by the hour, he is not concerned about production (Tr.
35-41), nor is he concerned about his job if he were to
complain CTr. 53).
Mr. Nash stated that when he was hired by Mr. Jackson, he
was told that he would be required to work some overtime. He
,ponfirmed that Mr. Jackson is responsible for hiring, firing,
and salaries, and that everyone knows it. He stated that when
he was hired he went to the office of the Brooks Run Coal
Company to inquire as to whether he would be paid or given the
day off on hls birthday, and when Mr. Jackson found out about
it he called a meeting of the men and told them that he runs
the mine and that Brooks Run did not. Mr. Jackson also
advised the men that if anyone contacted Brooks Run asking
about Mr. Jackson's mine, he would fire them. Mr. Nash confirmed that "Mr. Jacks·on makes no bones about who runs the
mine" (Tr. 44-46).
In response to further questions, Mr. Nash stated that
he went to Brooks Run because he assumed they operated the
respondent's mine, and that when he was looking for a job he
went to Brooks Run, and they sent him to Mr. Jackson (Tr.
48).
Joey Adkins, testified that he is an MSHA inspector
assigned to the Mt. Hope District Four Office, and he confirmed that his office does not have enforcement jurisdiction
of mines in Webster County. He confirmed that Mr. Cox visited
him before his discharge and expressed some concerns about the
safety conditions at the mine where he was then working.
Mr. Adkins could not specifically state when the visit
occurred, and he stated that Mr. Cox did not identify the mine
in question. He stated that Mr. Cox complained about the
hauling of explosives on electrical equipment, poor mine ventilation, and some roof problems (Tr. 112).
Mr. Adkins stated that carrying or storing explosives on
equipment is a violation of the law, and it could be an imminent danger. Mr. Cox also complained about the lack of line
curtains and indicated that mine ventilation was poor.
Mr. Adkins stated that the question as to whether this would
be a violation would depend on the applicable approved mine
ventilation plan. If he were to find a ventilation curtain
rolled up in a mine which he inspects it would be a violation
(Tr. 115). He explained further that Mr. Cox stated that the
mine had "bad roof" and said something about a "double
linear." Mr. Adkins stated that "anytime you go through
those,- you've got a bad top anyway," but this condition is
not of itself a violation, unless it is not taken care of.

458

The condition is corrected by roof bolting, cribbing, timbering, strapping, or "whatever is necessary." The condition
could be a violation of section 75.200, but he did not see
any of the reported roof conditions (Tr. 116). If a miner
went under unsupported roof, this would be a violation of
section 75.200 CTr. 117).
Mr. Adkins stated that he has observed rolled up ventilation curtains which are kept out of the way in some mines
which he has inspected, and he confirmed that he has issued a
citation for· such a condition (Tr. 118-119). He was of the
opinion that rolling up curtains and then rolling them down
is a bad practice because air would not be sweeping the face
to dispel methane, and he is aware of no ventilation plans in
his office that allow this practice CTr. 120).
Mr. Adkins stated that additional roof support such as
cribs would be required if the top is pulling through the
bolts and plates, and if the roof is taking weight and is not
supported and "it's popping the plates off," this would be a
violation (Tr. 120-121 ).
Mr. Adkins stated that after discussing Mr. Cox's complaints with him, he advised Mr. Cox to file a section 103(g)
complaint so that MSHA could look into the matter or to put
the complaint in writing and give it to the MSHA inspector
who inspects the mine (Tr. 121). Since Mr. Cox told him that
the mine was near Summersville, Mr. Adkins advised him to go
to the MSHA office in Summersville to lodge his complaint,
and that they would help him out CTr. 126).
Mr. Adkins confirmed that exhibit C-6, is an MSHA publication entitled in part "A Guide to Miner's Rights and Responsibilities," and stated that while he was not familiar with
it, he may have seen it or "looked at it one time" (Tr. 122).
Mr. Adkins stated that there is no particular MSHA "form" to
fill out for filing a section 103(g) complaint, but it needs
to be in some written form, and he simply advised Mr. Cox to
file it, and did not discuss the matter with anyone else at
that time (Tr. 128). Mr. Adkins confirmed that Mr. Cox came
to see him a second time after he was discharged, and advised
him that he was filing a discrimination complaint and would
probably subpoena him if he needed him (Tr. 129). Mr. Adkins
stated that after this second visit, he spoke with MSHA
special investigator Leighton Farley about the matter (Tr.
129)

0

Mr. Adkins explained the procedure for taking personal
dust samples, and he stated that once he puts a sampler on a

459

miner, he may or may not follow him around and observe him
during the shift, but in any case, he would remain at the
mine. The sampler is required to be checked during the first
2 hours and last hour of the sampling period. Although not
required to do so, Mr. Adkins checks the sampler at least two
or three additional times during the day (Tr. 130-132).
Mr. Adkins stated that shooting more than one place at a
time may or may not be a violation, and that this would depend
on the approved mine plan. With regards to any ATRS roof control requirement, he stated that MSHA does not require such a
system, but if it is required by a state plan, the mine operator must keep them in a safe operational condition, but that
this too would depend on a particular approved roof-co~trol
plan (Tr. 132-133). He also stated that MSHA only requires
that a section foreman "run his place every two hours," and
that a foreman cannot be with his crew every minute they are
underground. If a shift is over at 5:00, a foreman can leave
at 3:30 as long as he's inspected the section within the last
2 hours CTr. 134).
On cross-examination, Mr. Adkins confirmed that he has
known Mr. Cox since he was a child, and that he lives 3 miles
from him. He does not socialize with Mr. Cox, and Mr. Adkins
confirmed that everyone in the community knows that he is a
Federal mine inspector. Mr. Adkins stated that he first
learned about Mr. Cox's complaints when he spoke with him
over the CB radio, and he told Mr. Cox to come to his home to
speak to him about the matter. Mr. Adkins could not state
precisely when this occurred, and that a day or so later
Mr. Cox came to see him. Mr. Adkins confirmed that he took
notes during his discussion with Mr. Cox, and Mr. Adkins did
not believe that Mr. Cox was complaining to him, but simply
wanted to know what he could do about it because he knew he
was an inspector (Tr. 137). Mr. Adkins confirmed that he
told Mr. Cox that transporting explosives on equipment was a
violation. With regard to Mr. Cox's statements that the
"ventilation wasn't being kept up, 11 that "it was poor," and
that "curtains weren't kept up," Mr. Adkins stated that he
would have to inspect the mine before he could determine any
violations of the ventilation plan, and that he explained
this to Mr. Cox (Tr. 139-140).
With regard to Mr. Cox's complaint about "bad top, 11
Mr. Adkins reiterated that "bad top" is not a violation,
unless it is ignored and not taken care of, and that Mr. Cox
was of the opinion that the roof needed more support (Tr.
141). ·Mr. Adkins confirmed that he cannot determine whether

460

a roof is adequately supported without conducting an inspection (Tr. 141). The same is true for ventilation curtains.
He would have to look at the ventilation plan and inspect the
mine before he could conclude that there were any violations
(Tr. 142).
Mr. Adkins stated that after discussing the need for
Mr. Cox to file a section 103Cg) complaint, he was confident
tha~ Mr. cox understood him.
Mr. Adkins confirmed that a
complaint co~ld have been filed with any MSHA office (Tr.
144). Mr. Adkins confirmed that he did not advise Mr. Cox
that he could file such a complaint with him, but did advise
him to stop by MSHA's Summersville office because it was convenient to him (Tr. 144). Mr. Adkins also stated that Mr. Cox
advised him that he spoke to the inspectors at the mine, "but
couldn't get anything out of those guys," and that he advised
Mr. Cox about the "hot,line" and that the Summersville office
could give him the telphone number (Tr. 146).
Mr. Adkins stated that after Mr. Cox's first visit, he
did not call him again about any safety complaints, and that
during the period between the two visits, Mr. Adkins did not
discuss Mr. Cox's visit with anyone (Tr. 148). However, he
did mention it to Inspector Leighton in his office after
Mr. Cox's discharge, and he did so because Mr. Cox advised
him that he may subpoena him CTr. 149).
Mr. Adkins confirmed that in the event Mr. Cox had filed
a section 103(g} complaint with him, he would have had to
turn it in. He reiterated that he simply told Mr. Cox of the
need to file such a complaint, and advised him that it had to
be in writing. He did not, however, quote the section 103(g)
statutory provision to Mr. Cox (Tr. 151).
NOTE: The complainant subpoenaed the attendance of
Mr. Rodney Blankenship as an adverse witness for testimony in
this case. In view of the testimony of the witnesses regarding certain alleged illegal mine practices implicating
Mr. Blankenship, respondent's counsel advised him to seek
additional counsel to advise him of his rights against selfincrimination and possible criminal liability for those
alleged practices. Mr. Blankenship retained counsel to represent him in this matter, and counsel entered her appearance
on his behalf (Tr. 161-162; October 29, 1986). In response to
certain questions, and on advice of counsel, Mr. Blankenship
declined to answer, and pleaded his Fifth Amendment right not
to incriminate himself. His objections are noted below.

461

Rodney Blankenship, confirmed that he is employed by the
respondent as a section foreman and general mine foreman. He
is a one-sixth owner of the mine and serves as respondent's
vice-president. Mr. Blankenship confirmed that he was
Mr. Cox's supervisor on the first shift, which worked from
7:00 a.m. to 3:00 p .. m .. , and that he is responsible for the
logging of some MSHA and state mine reports, including
onshift and fire boss reports, but denied that he was respon,9ible for any dust sample reports (Tr. 165).
In response to questions as to whether anyone, including
Mr. Cox, had ever made any complaints to him about any safety
violations in the mine during 1984 and up to mid-May, 1985,
Mr. Blankenship declined to answer (Tr. 165-166). He also
declined to answer whether anyone ever reported or threatened
to report, any mine safety violations to MSHA or state mining
officials CT~. 166-169). Mr. Blankenship was then proffered
as a witness for the respondent.
Mr. Blankenship confirmed that Mr. Carson Jackson is the
respondent's president, and in that capacity, he makes all of
the decisions with respect to the hiring and firing of mine
personnel, hours of work, and work and shift assignments.
Mr. Blankenship stated that at one time in 1984, Mr. Cox
worked as a roof bolter on his section, but was transferred
to another job at Mr. Jackson's direction. Mr. Blankenship
confirmed that at the time this decision was made, two jobs
were open, and he gave Mr. cox a choice as to which job he
would prefer. Mr. Cox informed him that he would prefer a
scoop operator's job because it was an easier job, and
Mr. Blankenship assigned him to that job, with Mr. Jackson's
concurrence (Tr. 171-172). Mr. Blankenship explained that
Mr. Coxvs transfer to the scoop operator's job was the result
of a suggestion by an MSHA inspector (Tr. 172).
Mro Blankenship stated that during the time Mr. Cox
worked for him, Mr. Cox was "vocal and loud," made threats,
and Mr. Blankenship considered him to be "a bully." Mr. Cox
complained about working on Saturdays, as did other miners.
Mr. Blankenship stated that Mr. Cox "threatened to whip me in
front of the other men," and that this occurred at the time
he was transferred from roof bolter to scoop operator (Tr.
175). Mr. Cox was upset and unhappy over the transfer because
he believed his work was being questioned, and Mr. Blankenship
stated that the transfer had nothing to do with his work (Tr.
17 5) •
Mro Blankenship stated that on the Monday prior to
Saturday, May 11, 1985, all mine personnel were notified that

462

they were required to work that Saturday. Mr. Jackson made
the decision, and Mr. Blankenship informed the crew of this
decision. Mr,. Cox informed him that he was the coach of his
son's little league baseball team and that he could no longer
work on Saturdays because he had to be with the team.
Mr. Blankenship denied that he gave Mr. Cox permission to be
off that Saturday, and stated that he did not have the authority to give him the day off. Mr. Blankenship could not recall
specifically giving Mr. Cox any instructions as to what to do
about his desire to be off on Saturdays, but confirmed that
his general advice in such a situation was to instruct a crew
member to "take it up with Carson Jackson," and that his decision would prevail (Tr. 176-177).
With regard to any permission given to Mr. Poole that he
did not have to work on Saturday, Mr. Blankenship stated that
in view of the fact that Mr. Poole had missed so much work
time, he warned him countless times that he would be discharged for not working. Mr. Poole advised him that he was not
going to work on Saturday, May 11, 1985, and Mr. Blankenship
stated to Mr. Poole that "I didn't want to hear it," that he
did not make those decisons, and that he expected him to work
that day. Mr. Blankenship stated that he was not aware that
Mr. Poole was not going to work until he failed to show up for
work that day (Tr. 177). Mr. Blankenship confirmed that he did
not give Mr. Poole· permission to be off that day (Tr. 178).
Had he given: him permission to be off, Mr. Blankenship would
have so informed Mr. Jackson, and Mr. Poole would not have been
fired (Tr. 179).
Mr. Blankenship stated that apart from his absenteeism
record, Mr. Poole was a good worker, and that he liked him,
and still does. His only complaint about Mr. Poole was his
irregular work habits, and he warned him many times about it.
Mr. Blankenship stated that he and Mr. Jackson warned
Mr. Poole that he would be discharged if he missed another
day of work, and that Mr. Jackson prepared a written warning
for Mr. Blankenship to give to Mr. Poole (Tr. 180).
Mr. Blankenship stated that in addition to Mr. Poole and
Mr. Cox, the only other person who did not work on Saturday,
May 11, was Mr. Wayne Lee. Mr. Jackson gave Mr. Lee permission to be off, and Mr. Jackson's brother-in-law worked in
his place (Tr. 180). Mr. Blankenship stated that he was not
a party to the telephone conversation between Mr. Jackson and
Mr. Cox on Saturday morning, May 11, 1985. He confirmed that
Mr. Jackson consulted with him before placing the call, and
informed him that he was going to fire Mr. Poola because of

463

his irregular work and Mr. Blankenship concurred in that decision. Mr. Blankenship confirmed that the sole reason for
Mr. Poole's discharge was "because he wouldn't work" and had
missed so many days and was late for work. He confirmed that
Mr. Poole was having marital problems, and that he took this
into consideration (Tr. 182).
Mr. Blankenship stated that when Mr. Cox failed to come
to work on Saturday, May 11, 1985, M~. Jackson filled in for
him and ran the scoop that day. Mr. Blankenship heard about
the telephone call from Mr. Pleasants to Mr. Jackson, but had
gone home and was not a party to that conversation (Tr. 183).
He learned of Mr. Cox's discharge from Mr. Jackson later that
day when Mr. Cox telephoned him at his home asking for a meeting with the six mine owners. Mr. Blankenship stated that he
informed Mr. Cox that he did not know he had been fired, but
would try to find out what happened, and Mr. Cox never called
back <Tr. 184).
Mr. Blankenship stated that after Mr. Cox called him, he
spoke with Mr. Jackson later that Saturday evening, and
Mr. Jackson informed him that Mr. Cox had called Mr. Pleasants
and "made some threats as far as our company, and he'd discharged him" {Tr. 185). Mr. Blankenship confirmed that
Mr. Jackson had previously advised his personnel that Brooks
Run Coal Company is independent from the respondent's company
and had nothing ·to do with its management. Mr. Jackson also
told his personnel that if anyone contacted or complained to
Brooks, Run about wages or other company matters, he would discharge them (Tr. 185). Mr. Blankenship stated that everyone,
including Mr. Poole and Mr. Cox knew about Mr. Jackson's
policy, and the fact that he, and not Brooks Run, made company
policy for the respondent (Tr. 186).
Mr. Blankenship stated that he was at the mine when
Mr. Poole and Mr. Cox came to the mine on Monday, May 13,
1985. They were in the lamphouse getting dressed, and he told
Mr. Cox "to get his coveralls on and let's go to work and he
said he was fired. And I just put my clothes on and he went
out" (Tr. 186). Mr. Blankenship stated that he thought "maybe
it might blow over," but that the decision of Mr. Jackson to
discharge Mr. Cox apparently stood and that he was going to·
enforce it (Tr. 187). Mr. Blankenship denied that he had any
imput into the decision to fire Mr. Cox, and that the decision
was solely that of Mr. Jackson. When asked the reason given
by Jackson for firing Mr. Cox, Mr. Blankenship responded as
follows (Tr. 187-188):

464

THE WITNESS: He told llfe that Pete Cox had -was going to -- called Neil Pleasants, Brooks
Run Coal Company, and was going to shut down
their operations and our operations, and he
fired him for trying to take over the mines.
JUDGE KOUTRAS: How was he going to do that?
Do you have any idea how Mr. Cox planned to
shut the mine down?
THE WITNESS: No, I don't. All I'm telling
you is what Mr. Jackson to·ld me.
Mr. Cox's counsel declined to ask Mr. Blankenship any
further questions (Tr. 188).
NOTE: The complainant subpoenaed the attendance of
Mr. Carson Jackson as an adverse witness for testimony in this
case. In view of tqe testimony of the witnesses regarding
certain alleged illegal mine practices implicating Mr. Jackson,
respondent's counsel advised him to seek additional counsel to
advise him of his rights against self-incrimination and
possible criminal liability for those alleged practices.
Mr. Jackson retained counsel to represent him in this matter,
and counsel entered her appearance on his behalf CTr. 188-189;
October 29, l986). In response to certain questions, and on
advice of counsel, Mr. Jackson declined to answer, and pleaded
his Fifth ·Amendment right not to incriminate himself. His
objections are noted below.
·carson Jackson confirmed that he is part owner of the
mine and serves as the general mine superintendent, as well
as president of the company. He confirmed that he is ultimately responsible for reviewing and counter-signing most
official mine reports and documents, including dust sample
reports (Tre 189-199)0
When asked about his knowledge concerning the alleged
mine practices testified to by the prior witnesses,
Mr. Jackson declined to answer (Tr. 201). Mr. Jackson denied
any knowledge of miners other than Mr. Cox either making complaints to MSHA or threatening to do so (Tr. 202). With
regard to Mr. Cox, he confirmed that he never heard Mr. Cox
threaten to go to MSHA about anything in the mine while he
was employed there (Tre 201). He confirmed that none of his
employees ever complained to him about any mine safety violations during 1984 and up to mid-1985 (Tr. 203). Mr. Jackson
stated that he is not in the mine at all times, and if any
complaints were made he might not hear all of them CTr. 205).

465

Mr. Jackson stated that Mr. Cox has upset him at times
when he would arrive late for work, and that "quite a few
times" they have exchanged words, and even cursed each other
(Tr. 205-206). Mr. Cox also upset him "a few times" when
"he's tried to tell me how to run the mines, that people
didn't have to work on Saturdays" (Tr. 207).
Mr. Jackson identified exhibit C-7 as a copy of the ter'mination notice given to Mr~ Cox, and he confirmed that he
changed the discharge date on the form from May 13, 1985 to
May 11, 1985, and that he did so because "I either had to do
that or get him to knock my brains out." He also confirmed
that the reason for Mr. Cox's discharge as shown on the form
is "service unsatisfactory" (Tr. 201-208). Mr. Jackson stated
that he actually fired Mr. Cox on Monday, May 13, 1985, and
that when he called him at his home on Saturday, May 11, 1985,
he only fired his nephew Mr. Poole. Mr. Jackson further
explained that he changed the date to Saturday because Mr. Cox
demanded that he do so, and that the date made no difference
to him (Jackson) (Tr. 208-211). When asked when he decided to
fire Mr. Cox, Mr. Jackson responded as follows (Tr. 211-213):
A. I decided to fire him when he called Neil
Pleasants. I run the scoop the day that this
fellow was off. I didn't get outside until
about three o'clock. And after the threats
and stuff that he made over the telephone, -I
told -Q. About the labor board and that sort of
stuff?

A. Stopping the mines
going to throw a
picket line up around the mines.
Q. It was after the telephone call, then, to
Neil Pleasants, that you decided to fire him?
A.

I decided to fire him right then.

Q. Did Neil Pleasants communicate the content
of that telephone call on Saturday, May 11,
1985, to you, just before you decided to fire
Cox?
A.

Yes.

466

Q. You say you're doing it after the
telephone call. Pleasants, then, must have
called you. Is that correct?
A.

I decided it during the telephone call.

Q.

I mean, as a result of the telephone call.
You weren't on a conference call. Pleasants
had to call you and tell you that Cox had
called µim?

A.

That's right.

Q. And made some threats about closing the
mine down, going to the labor board and such
as that?
A.

He was going to cause a lot of trouble.

Q. Did he say something about the labor
board?
A. He was going to throw a picked line up
around there. He said he was going to go to
all the agencies.

Q. In other words; the mine enforcement
agencies, like MSHA?
A. I don't know what he meant by that. But
when he said a picket line, I knew what it
was.

Q. He said he was going to the agencies.
that right? Is that what you just said?
A.

Is

Yes, he was going to the agencies.

On cross-examination, Mr. Jackson stated that when he
was upset with Mr. Cox he may have warned him, but he never
threatened, reprimanded, or punished him in any way so as to
effect his job security at the mine. Mr. Jackson did, however; warn Mr. Cox about his future with the company because
of his frequent tardiness and his complaints about how
Mr. Jackson was running the mine (Tr. 214). Mr. Jackson
stated that Mr. Cox threatened "to whip his ass" several
times, and that this would upset him. Mr. Jackson stated
that he received information that other members of management
and other workers were similarly threatened by Mr. Cox, and

467

that he (Jackson) had no similar probl~ms with any of the
other men (Tr. 215).
Mr. Jackson confirmed that he did not protest the
unemployment claims filed by Mr. Poole and Mr. Cox after their
discharge, and Mr. Jackson confirmed that he told Mr. Cox that
he was tired of Mr. Cox trying to run the mine (Tr. 216>.
Mr. Jackson denied that Mr. Cox's discharge had anything to do
with any safety complaints, and that ~he decision to fire
Mr. cox was his alone, and neither Mr. Blankenship or any of
the other mine owners had nothing to do with it CTr. 217).
Mr. Jackson stated that at no time during his employment
did Mr. Cox or any other miner ask to review the mine fire
boss records, or any records required to be kept by
Mr. Blankenship (Tr. 218). Mr. Jackson expressed doubt that
Mr. Cox could have asked to see those records without his
being aware of it (Tr. 219).
In response to further questions, Mr. Jackson stated
that while work was required to be done on Saturdays, he did
not like Saturday work because he had to pay time and a half.
However, Mr. Cox and Mr. Poole did not like to work on
Saturdays, and Mr. Cox attempted to influence his crew not to
work on Saturdays. He did this by letting it be known that
he had gone to the "labor board" and there was nothing
Mr. Jackson could do about working on Saturdays, and that the
men could leave. Mr. Jackson stated that Mr. Cox said "you
can lay off, you can be off, there's nothing he can about it"
(Tr. 22·3). When asked whether Mr. Cox had ever made that
statement to him, Mr. Jackson replied "He didn't tell me
nothing. He would tell it someplace where he knew I would
get hold of it" CTr. 223).
Mr. Jackson stated that when he first hired Mr. Cox, he
informed him about Saturday work, and that Mr. Cox advised
him that "I'll work on Saturday, Sunday, 16 hours a day
anytime you want." Mr. Cox also stated to him "anytime you
don't like my work or anything, you just tell me, you won't
have to discharge me, just tell me and you'll never see me no
more" CTr. 223). When asked whether Mr. Cox ever refused to
work on Saturday, Mr. Jackson replied "he didn't refuse, he
always had something to do" (Tr. 224). When asked why he did
not fire Mr. Cox when he threatened him, Mr. Jackson replied
"He was a good worker. I tried every way in the world to get
along with him. Mr. Cox is moody. He'll get better for a
week or two, then he's hell for a while" (Tr. 224).

468

In view of the unavailability of Mr. Jackson's private
counsel, the parties agreed that Mr. Jackson could be deposed
posthearing, and Mr~ Jackson's posthearing deposition was
taken and filed as part of the record in this case.
Mr. Jackson testified as to his background and experience and
confirmed that he is a certified mine foreman. He confirmed
that Mr. Cox and Mr. Poole were the only two miners ever discharged, but that others had been laid off as a result of a
reduction in force (Tr. 7). Mr. Jackson reiterated that when
he first hir~d Mr. Cox he informed him that Saturday work may
be required, and Mr. Cox agreed, that he would work if called
upon to do so. Mr. Jackson also confirmed that Mr. Cox was
desperate for a job when he hired him. Mr. Jackson stated
that Mr. Cox's starting pay was $100 a shift, and time-and-one
half for work over 8 hours. All miners were paid the same
regardless of their job classification, and whatever he
instructed them to do was their job (Tr. 10).
Mr. Jackson st~ted that Mr. Cox was first hired as a
bratticeman, and when a roof bolter quit, he assigned Mr. Cox
to a roof bolter's job. Mr. Jackson later decided to take
him off the roof bolter's job after a discussion with MSHA
inspectors, and Mr. Cox was assigned to do brattice work.
However, Mr. Blankenship asked him to assign Mr. Cox to a
scoop because his back was bothering him and lifting bratti.ce
blocks was hurting him. Mr. Jackson stated that he accomodated Mr. Cox and allowed him to work as a scoop operator
(Tr. 11).
Mr. Jackson stated that he considered Mr. Cox to be a
good worker, but "if you tell him to do something he don't
always do it the way you want him to" (Tr. 12). Mr. Jackson
also stated that Mr. Cox has always had a problem in taking
orders and that he resented authority (Tr. 12). After he was
taken off the roof bolter, Mr. Cox resented doing what was
asked of him, and didn't want to work overtime. Although
Saturday work was considered a regular work day and
Mr. Jackson was not required to pay overtime pay, he always
paid the men at the overtime rate, but Mr. Cox resented working on Saturday even though very few Saturdays were scheduled
as a work day (Tr. 13). Mr. Jackson stated that he hired
Mr. Poole after Mr. Cox asked him to give him a job (Tr. 14).
Mr. Jackson confirmed that he had problems with
Mr. Poole's work attendance and that he warned him about it
at least three or four times before he finally fired him (Tr.
15). Mr. Jackson identified a copy of the mine's attendance
records beginning in February, 1984, through.June, 1984, and
May, 1985, and he confirmed that Mr. Cox and Mr. Poole did

469

not work Saturday, May 11, 1985, and were terminated the
following week (Tr. 19, deposition exhibit No. 1).
Mr. Jackson confirmed that he excused Mr. Poole from work
when he had a death in his wife's family, and advanced him
money to purchase an airline ticket for his wife (Tr. 20).
Mr. Jackson confirmed that Mr. Cox was late for work
several times, and his policy is to allow employees who are
1ate to work rather than go home. He warned Mr. Cox about
being late. _Mr. Jackson stated that he had "kind of a feeling" that Mr. Cox was the cause of Mr. Pool's absence on
May 11, but that he did not know that they were not going to
work that day. Mr. Jackson "had some feedback" that none of
the men would work that day, and that Mr. Blankenship told
him that Mr. Cox was telling the men that since he and
Mr. Poole were not going to work, the rest of the men didn't
either (Tr. 23>~
Mr. Jackson stated that he did not give Mr. Cox permission not to work on Saturday, May 11, and that he did not ask
him for such permission. Except for one miner who had permission to be off, and who was repl_aced by someone else, all
employees except Mr. Cox and Mr. Poole reported for work. He
called Mr. Cox because he had to arrange for replacements if
he were not corning to work (Tr. 23-24). Mr. Jackson explained
further as follows (Tr. 25-26):

Q. So it's your testimony then that Cox and
Poole did not ask you for permission to be off
that Saturday but Mr. Blankenship told you
that they didn't want to work, probably
wouldn't come out to work, and they were
trying to get the other men not to come out to
work?
A. Yes. They told me that Mr. Cox said there
was no more Saturday work as far as he was
concerned. So that encouraged me to be just a
little bit strict on this.
I just thought
well, it looked like this was deliberate and
I'll just let Mr. Poole go.

Q.

If he didn't show up?

A.

Yes.

Q. And then you were going to deal with
Mr. Cox in some other manner?

470

A. Well, I was going to give him a warning.
It takes you a year, unless somebody misses a
whole lot of work, before you can go through
the steps discharging somebody for irregular
work.

Q. You had documented Mr. Poole missing work.
Is that correct?
A.

Yes_~

Q.

And that's shown in Exhibit 1 here?

A.

Yes.

Q. The point is you had decided that if
Mr. Poole didn't show up you were going to
discharge him for missing another day?
A.

Yes.

Q.

After he had been warned?

A.

Yes.

I told him so.

Q. But you did not plan on discharging
Mr. Cox if he missed work?
A.

No.

Q.

But you had given him warning?

A.

I would have.

Q.

Had you not fired him?

A.

Yes.

Mr. Jackson explained the operation of the Holmes Safety
Counsel, and confirmed that it is sponsored by the respondent
and that its purpose is to afford an opportunity to the
miners to discuss ~1arious mine safety matters. Meetings are
held once a week in the evenings, and announcements are
posted and miners are encouraged to attend. The meetings are
not held on company time, and the miners are not paid to
attend. Mr. Cox has never attended a meeting (Tr. 28-29).
Mr. Jackson confirmed that he reprimanded Mr. Nash for
going to the Brooks Run Coal Company with another miner to

471

ask about time off or pay for his birthday. Mr. Jackson
explained that Brooks Run holds the mineral rights and that
the respondent simply mines the coal and sells it to Brooks
Run. Mr. Jackson stated that he met with his miners and made
it clear to them that they were not to go to Brooks Run, and
told them that Brooks Run has no\hing to do with the management of his mine. Mr. Jackson was certain that Mr. Cox was
at this meeting since he was on the payroll. Mr. Jackson is
the only mine owner who ordinarily deals with Brooks Run
through Mr. ?leasants (Tr. 31).
Mr. Jackson stated that when he spoke with Mr~ Cox over
the telephone Saturday morning, May 11, 1985, he did not fire
him, did not intend to fire him, nor had he made any decision
to fire him. Up to that point in time Mr. Cox had never said
anything to him about speaking with MSHA Inspectors Adkins or
Tyler, or any other inspectors, and Mr. Cox said nothing to
him about going to any inspectors (Tr. 32).
Mr. Jackson confirmed that he called Mr. Pleasants from
the mine office later in the day after speaking with Mr. Cox.
Up to that point, he had not discussed Mr. Cox's and
Mr. Poole's failure to show up for work with any of his mine
co-owners (Tr~ 33). Mr. Jackson explained his telephone conversation with Mr. Pleasants as follows (Tr. 33-38):
A. Well, we called him and he said what's
going on up there. And I said nothing. And
he said how many people did you fire.
I said
I fired one. He said well, there was a fellow
called me and told me that Brooks Run had
trouble and that -- he was more or less fearing about a work stoppage. And I said well,
who was that. He said he didn't give me his
name.
I said well, what did he say. And he
started repeating what he'd said.

Q.

Well, what did he tell you had been said?

A. He said something about his son had little
league ballgame that day and he had to be home
with him to manage that little league team.
I
said well, I've fired two.
I said that was
Mr. Cox.
Q. You knew it was Mr. Cox that called
Mr. Pleasants?

472

A. We had already went over that morning when
I was talking.

Q.

About his son playing in a baseball game?

A.

Yes.

Q. So it was the only employee it possibly
could have been?
A.

Yes.

Q. And that's when you told Mr. Pleasants
well, I fired two?
A. Yes. Then, you know, he went on to tell
me -- he said do you reckon the men will
strike on you or go home, quit work. I said I
don't think so. He said well, do you reckon
he'll cause you any trouble. I said I'm sure
he will.

Q.

What did you mean by that?

A.

Well, any way that he could -- I told him
I said the Labor Board, according to him,
he's told me at least twenty times the Labor
Board wili eat me up.

MR. STONE:

Who is he?

THE WITNESS:

Mr. Cox.

BY MR. GARRETT:

Q.

Go ahead.

A. He told me that morning that the Labor
Board would eat me up.

Q. was he ever more specific with his threat
to you than the Labor Board would eat you up?
A. No. He just more or less said well, you
can't do that •. That morning he told me, that
Kit Jackson missed more work than Mike did.

Q •. And that you couldn't fire a man for
missing work on Saturdays?

473

A.

Yes.

Q.

Did he tell you that?

A.

Yes, he did.

Q.

That you couldn't make men work on
Saturdays if they didn't want to?

A.

That's right.

Q.

And in that context he said if you try it
the Labor Board will eat you up?

A.

Yes, the Labor Board would eat me up.

Q.

Do you know who he was referring to when
he used the word Labor Board?

A. No, I didn't. In fact I didn't even know
who the Labor Board was or anything.

Q.

Did you even care who the Labor Board was?

A. No, I couldn 1.t care less. I
someone was going to eat me up.

Q.

just knew

Did you take his threats then seriously?

A. I did't when I talked to him that morning.
Now he may -- I knew what he said to Neil.
MR. STONE:

You're talking about the morning

of May 11th?

THE WITNESS:

That's right.

BY MR. GARRETT:

Q. Did Mr. Pleasants also tell you he had
made threats of going to federal agencies or
going to agencies or something?
A.

Yes.

Q. Did he tell you that after you'd decided
already to fire him?

474

A. Yes. In my-mind I had fired him.
him I'd fired him before --

I told

Q. Did it make any difference if he made any
threats at all about doing anything to you?
A.

No, it didn't make any difference.

Q. Did that have any part to play in whether
you mad~ a decision to fire him or not to fire
him?

A. No. It had no -- didn't have nothing to
do with the firing.
Q. Did you care if he was going to go to MSHA
about anything that went on in that mine?
A. He told me that morning he would -- that
he would have every federal and every state -everybody up there at that mine. I said hell,
we've got them now1 you just might as well
hire you some. I said I think we've got them
all in the state up here anyway.
Q. So did that matter making that threat to
you?
A.

No, sir.

Q. It didn't have any impact at all about you
requiring the men to work on Saturday?

A.

No.

Q. Did Mr. Pleasants ask you then if he was
worried about putting out a work stoppage or
pickets or trying to pull the men out?

A. Yes. That was Mr. Pleasants' main concern
and he threatened with the union throwing up
the picket line. His brother-in-law was
president of some local down there. But
there's got to be a breaking point somewhere,
the way I felt. And I felt like no matter
what he does to me or how he does it or what
else he's got to go.

475

Q. so you were not -- you did not decide to
fire him as a retaliation or punishment for
threatening to go to the Mine Safety and
Health Administration?

A. No, that had nothing to do with it,
nothing at all.
Q. In fact if you were afraid of 1him going to
MSHA wh~t would have been your course to
follow? Would it have been not to fire him?

A. If I was afraid of it I guess I would be
afraid to fire him.
Mr. Jackson stated that he met with Mr. Cox and
Mr. Poole at the mine on Monday, May 13, 1985, and told them
that he was discharging them. Both of the termination
notices stated "unsatisfactory service" as the reason for the
discharge, and Mr. Jackson explained to Mr. Cox that he was
being fired for "trying to take over management of the mine,"
and that Mr. Poole was told he was being fired for "irregular
work." Mr. Jackson explained further that Mr. Cox was "trying to encourage the people to miss work telling people there
wasn't nothing I could do about it. There's several different
things, just like him threatening to put up a picket line"
(Tr. 39). Mr. Jackson also stated that Mr. Cox's calling
Mr. Pleasants was "the last straw" (Tr. 39). He further
explained as follows (Tr. 40-41):
Q. When you say management of the mine, that
had nothing to do with making complaints about
safety?

A. No. That's every man's right. He can
withdraw himself from the mines. They've got
a hotline they can call and get them down
there. They don't have to turn in their name
or anything else if they want a federal mine
inspector in.
Q. Well, so it's every man's right to expect
the mine to operate within the law.
A.

Yes.

Q.

Do you acknowledge that?

A.

Yes.

476

Q.

And that had nothing to do with your
decision to fire Mr. Cox?

A.

No.

Mr. Jackson confirmed that Mr. Cox never asked to review
the fire boss books, dust sampling books, or other records
kep~ in the mine office (Tr. 41).
He also confirmed that he
holds safety meetings and annual training sessions for miners
and that he has participated in the training. Mr. Jackson
stated that miners are advised of their right to talk to
Federal inspectors and he had no doubt that Mr. Cox knew his
rights at the time he was discharged (Tr. 42).
On cross-examination, Mr. Jackson confirmed that all of
his coal orders are so+d to the Brooks Run Mining company
(Tr. 44). He confirmed that he advised the men about not
going to Brooks Run with their problems either in 1980 or
1981, "when we first started the mine up," but he could not
recall the specific date (Tr. 47). Since the incident concerning Mr. Nash, no one else ever went to Brooks Run or to
Mr. Pleasants about any complaints (Tr. 50).
- The parties stipulated to the testimony of MSHA Inspector
John G. Tyler, and they agreed that if called, Mr. Tyler's
testimony would be as follows:
1. John Tyler is a surface coal mine
inspector·with the Federal Coal Mine Health
and Safety Administraton. He has· no underground experience. He has worked out of the
Summersville, west Virginia field off ice since
1982. He is not familiar with Pammlid Coal
Company.
2. Mr. Tyler became acquainted with
Mr. Cox when Mr. Cox answered an advertisement
to buy Subaru car parts from Mr. Tyler.
Mr. Cox came to Mr. Tyler's home which is
about six miles from Mr. Cox' home, inspected
the parts, and purchased them.
During the
course of conversation, they exchanged information concerning what each did for a living.
This occurred in Summer, 1984.
3. Approximately three months later,
Mr. Cox came to· Mr. Tyler's home and related
information concerning alleged conditions in

477

his workplace. Mr. Tyler could not recall the
exact nature of the complaints, but is relatively certain that Mr. Cox related information about hauling caps and powder on pieces
of equipment. He is not certain about any
other information related by Mr. Cox.
Mr. Tyler did not offer comment with respect
to the validity of any information offered by
Mr. Cox.
4. During the course of the conversation
with Mr. Cox, Mr. Tyler explained to Mr. Cox
that he is a 'surface mine inspector. Mr. Tyler
told Mr. Cox that the Summersville field office
did not have jurisdiction over the geographical
area in which the mine where Mr. Cox worked was
located. Mr. Tyler explained to Mr. Cox that
the appropriate field office was in Clarksburg,
West Virginia, or Bridgeport, West Virginia and
that the district office for the area is in
Morgantown, west Virginia. Mr. Tyler subsequently verified with his then supervisor,
Clyde Perry, that he had given Mr. Cox correct
and appropriate information and advice.
Mr. Perry agreed with Mr. Tyler. Mr. Tyler did
not contact anyone else with respect to his
conversation with Mr. Cox, including anyone
with Pammlid Coal Company or any other
inspector. Mr. Tyler did not even recall the
name of the company until he was contacted by
Mr. Cox and told sometime during the week of
October 13, 1986, that he would be subpoenaed.
5. Mr. Tyler never saw Mr. Cox again or
heard from him after the initial conversation
took place until shortly after Mr. Cox was
discharged, when Mr. Cox again came to
Mr. Tyler's home. Mr. Tyler again recommended
that Mr. Cox go to the proper district office
if he had any complaint. Mr. Tyler even
suggested that Mr. Cox go to the Mt. Hope MSHA
district office since it was near Mr. Cox's
home in Oak Hill, West Virginia.
6. Mr. Tyler took no notes during any
conversation with Mr. Cox and cannot remember
specific dates on which they occurred, nor did
he off er any opinion or have an opinion

478

whether any information Mr. Cox related had
merit.
Complainant Alfred H. Cox, testified as to his background
and experience, and he explained that by "Labor Board," he had
in mind the Mine Safety and Health Administration CTr. 5).
Mr. Cox identified exhibit C-4, as a personal notebook he kept
on certain mine conditions, and he testified as to some of the
entries he made in the book, as well as to certain entries
made on the mine fire boss records, exhibit C-8 (Tr. 5-26).
He also testlf ied about the battery explosion incident which
occurred on October 5, 1984 CTr. 26-37).
Mr. Cox stated that he made few complaints to Mr. Jackson
because "he flew off the handle", but that he did complain
many times to his section foreman Rodney Blankenship. Mr. Cox
stated that he complained about the roof in the number five
entry taking weight and pulling through the plates, and about
powder and caps kept on the drill. He also complained to
Mr. Jackson's son, Kit, and he believed that he was part of
mine management (Tr. 38). On one ocasion shortly before his
discharge, Mr. Cox said that he advised Mr. Blankenship that
he intended to talk to an MSHA inspector the next time one was
in the mine, and that Mr. Blankenship told him that while he
could not be fired for doing this, "we could always have a
layoff and never call you back" (Tr. 39). Mr. Cox stated that
he obtained an MSHA pamphlet discussing miners' rights on
May 13, 1985, from MSHA's Clarksburg Office (Tr. 41). Mr. Cox
conceded that he was aware of his right to complain to any
MSHA inspector before he obtained the pamphlet (Tr. 44-45).
In further reference to any safety complaints to mine
management, Mr. Cox stated as follows (Tr. 85-87):
JUDGE KOUTRAS: All the men sit around talking
and threatening to blow the whistle on this
mine operator and call the feds in, right?
THE WITNESS: They didn't all threaten to.
They was unsatisfied with the way things was
running, but they didn't have enough guts to
stand up and say anything to Carson Jackson
about it.

*

*

*

*

*

*

*

JUDGE KOUTRAS: What are you getting from all
that? What are they saying? What are they
trying to tell me by all that?

479

THE WITNESS: The conversations I had with
them and still have with a lot of my
co-workers is that they need their jobs.
Several of them said, well, more or less, to
get by, to have a job. They didn't directly
come out and say that -JUDGE KOUTRAS: Well, isn't it a fact that
nobody ~ver directly complained 1 to Mr. Jackson
about safety?
THE WITNESS:

I have on very rare occasions.

JUDGE KOUTRAS:

Directly to Mr. Jackson.

THE WITNESS: Directly to Mr. Jackson.
Mr. Blankenship, like I say, is the one that
was my section foreman. He was there most of
the time.
JUDGE KOUTRAS:
THE WITNESS:

And you would complain to him?
And I would complain to him.

Mr. Cox confirmed that he spoke with MSHA Inspectors
Tyler and Adkins before his termination, and he confirmed
that Mr. Adkins advised him to file a section 103(g) complaint
with MSHA's Summersville Office. Mr. Cox stated that he did
not show his notebook to Mr. Tyler or Mr. Adkins because he
intended to tell them about the violations in the mine (Tr.
51) •
Mr. Cox stated that Mr. Jackson threatened to fire him
in June, 1984, because he would not work on a Saturday when
he had to bale hay. Although he was not fired, he was taken
off the roof bolter and assigned to run the scoop. Mr. Cox
stated that he then informed Mr. Blankenship that "the mines
is going to be run in compliance with the law," and that
Mr. Blankenship replied "you know we can't run coal like
that" and "don't do something to make me have to fire you"
(Tr. 59) . Mr. 'Cox th er: had some words with Mr. Jackson about
being taken off the roof bolter, and while he did not specifically tell Mr. Jackson that he was going to turn him in for
the way he was operating the mine, Mr. Cox stated that this
was his intention (Tr. 59). Mr. Jackson then explained that
he took Mr. Cox off the roof bolter after discussing the mine
accident rate with an MSHA inspector, and Mr. cox confirmed
that he had four roof bolting related accidents (Tr. 61).

480

Although Mr. Jackson intended to "issue him a slip" for
unsatisfactory service, he changed his mind and told him to
go back to work CTr. 64).
Mr. Cox confirmed that after he was taken off the bolter,
he was assigned to build stoppings, and was then assigned to
loading coal with the scoop. He confirmed that the ventilation curtains were rolled up at that time and that he did not
roll them down because he wanted to keep his job CTr. 68).
Mr.' Cox believed that he was taken off the roof bolter because
he refused to work on Saturday, and that Mr. Jackson did this
to "spite" him. He conceded that it was possible that
Mr. Jackson took him off that job because of his discussions
with the MSHA inspector over his accidents (Tr. 71).
Mr. Cox stated that Mr. Jackson and Mr. Blankenship have
never told him that his services were unsatisfactory, and he
confirmed that Mr. Jackson admonished him for riding the belt
out of the mine. He could not recall Mr. Jackson warning him
about working under·unsupported roof {Tr. 73-74).
Mr. Cox stated that he agreed with all of the testimony
by his fellow miners with regard to the violations which they
testified to during the course of the hearing <Tr. 77). He
explained the circumstances concerning his refusal to work on
Saturday, May 11, 1985, and confirmed that he did not work
because he had to coach his son's little league baseball team
(Tr. 81-84) •
Mr. Cox confirmed that he received a telephone call at
his home from ~r. Jackson on Saturday morning, May 11, 1985,
and he explained the conversation as follows CTr. 95-96):
On May 11th at approximately three
minutes after seven, I received a phone call
from Mr. Carson Jackson. He asked me why that
I wasn't working today. I told him, I said,
well, you know, I've talked to Rodney about it
already. I said I've got a Little League game
today1 I'm the coach. And he said, where's
Mike. I said he's in bed asleep. He said,
well you tell him to come in and pick up his
time. I'm tired of him laying off. And I
said, well, Carson, you know that ain't right.
I said Kit, your own son has missed more work
than he has. And he said Kit is part owner of
the mine. He can do what the hell he wants to.
And I said, yes, anything that the comp~ny
wants to do is just fine, if it's for tneir

481

own personal -- whatever. I said, but if it's
to help the men any, if it's something that
the men need, then to heck with it. And he
said, well that's the way it is, and if you
don't like it then you can come and pick up
your time, too. And I said, well, if that's
the way you feel, or I'm sorry that's the way
you feel or something to that effect. And he
hung up the telephone.
Mr. Cox' stated that after his conversation with
Mr. Jackson, it was not clear to him whether he had been
fired, and that he first learned that he was fired when he
was handed his termination slip by Mr. Jackson on Monday,
May 13, 1985 (Tr. 97). Mr. Cox stated that Mr. Poole asked
him to call Mr. Pleasants after his Saturday morning conversation with Mr. Jackson, and that he informed Mr. Pleasants
that he had trouble at one of his mines. Mr. Cox stated that
he asked Mr. Pleasants to speak to Mr. Jackson to see whether
Mr. Poole could retain· his job. Mr. Cox stated that he also
told Mr. Pleasants that if something wasn't done "we was
going to the Mine Safety and Health Administration, to the
Department of Labor." Mr. Cox stated that he informed
Mr. Pleasants that he was planning to go to MSHA anyway
"about the way the mines was run. He knew it was run out of
compliance with the law" (Tr. 99). Mr. Cox denied that he
mentioned any picket line to Mr. Pleasants (Tr. 100).
Mr. Cox stated that it was clear to him that Mr. Jackson
fired Mr. Poole on Saturday, May 11, 1985, and when asked to
explain why he asked Mr. Jackson to change the date of the
discharges from May 13 to May 11, Mr. cox stated that "It's
immaterial as far as I'm concerned. I'm fired" (Tr. 103).
Mr. Cox stated that he went to the mine on Monday, May 13,
with the intention of going to work, and that Mr. Poole simply
rode with him and would have dropped him off and returned to
pick him up after work. However, Mr. Jackson asked to see
both of them, and handed them their termination notices.
Mr. Cox stated that when he asked Mr. Jackson to explain
"unsatisfactory service," Mr. Jackson replied "you're trying
to run the God damn mines" (Tr. 107).
On cross-examination, Mr. Cox confirmed that he understood that Mr. Jackson was the person who hired and fired
employees, and that when Mr. Jackson hired him he advised him
that there would be times when overtime Saturday work would
be required {Tr. 119-121). Mr. Cox confirmed that Mr. Jackson
allowed him to trade shifts with another employee so he could

482

keep a doctor's appointment, and that he "respected him for
it" (Tr. 122).
Mr. Cox confirmed that between January and May, 1985,
Mr. Poole was having an attendance problem at the mine, and
that because of certain marital problems, Mr. Poole moved in
with him (Tr. 123). Mr. Cox stated that early in the week of
May 11, 1985, he was told that he would have to work on
Saturday, May 11, and while he told Mr. Blankenship that he
couldn't wor~ that day, Mr. Cox conceded that it was his
intent not to work. Mr. Cox confirmed that he did not work
on other Saturdays, and that Mr. Jackson did not give him
permission to be off on May 11 (Tr. 124-125). Mr. Cox stated
that he did not ask Mr. Jackson about being off because he
believed that Mr. Blankenship led him to believe that he
could be off (Tr. 127). However, Mr. Cox later stated that
when he informed Mr. Blankenship on Friday, May 10, that he
was not going to work on Saturday, Mr. Blankenship replied
"I've done talked to you about it. I don't want to hear anything about it" (Tr. 131). When asked whether he had advised
any other employees that they did not have to work on that
Saturday, Mr. Cox replied as follows (Tr. 128-129):

Q. During the course of that week, Mr. Cox,
did you tell other men that you weren't going
to work on Saturday -- other men on your section? I'm not talking about management
employees.
A. Yes, I did tell them that I wasn't going
to be working Saturday. After I'd talked to
Rodney.

Q. Did you tell any other employees that they
didn't have to work on Saturday either?
A. Well, there was a bunch of employees complained about having to work on Saturday and
stuff, and I did tell them that you know, if
you didn't want to work, don't come in, you
know. As simple as that. You want to work or
either you don't. If you had a reason for not
coming in --

Q. Did you tell them that there wasn't anything the company could do to them about not
working on Saturday because of the labor board?

483

A.

*

No, ma'am, I did not.

*

*

*

*

*

*

JUDGE KOUTRAS: Why would you tell other
people that they didn't have to come to work
on Saturday? Why was that your concern?
I

THE WITNESS: It wasn't my -- they complain on
the section, they've got to work Saturday,
they've' got other things they want to do, and
I just simply said, well, if you've got other
things that you want to do, just don't come in
to work. You know.
Mr. Cox confirmed that he disagreed with Mr. Jackson's
decision to fire Mr. Poole, and told him so. Mr. Cox also
confirmed that he got the impression from his telephone conversation with Mr. Jackson that he (Jackson) was fed up with
Mr. Poole, but did not believe he was fed up over Mr. Poole's
absences. Mr. Cox was of the opinion that Mr. Jackson found
an opportunity to get rid of Mr. Poole because of his complaints over the conditions in the mine (Tr. 136-139).
Mr. Cox confirmed that the purpose of his call to
Mr. Pleasants on May 11, 1985, was to attempt to get
Mr. Pleasants to influence Mr. Jackson to rehire Mr. Poole.
Mr. Cox stated that he did not call Mr. Jackson because he
(Jackson) was "hot headed" and Mr. Cox believed that he would
definitely be fired if he called him (Tr. 147-148).
Mr. Cox confirmed that when he called Mr. Pleasants on
May 11, he told him that "there would be trouble in one of his
mines," and that there would be trouble at Brooks Run Mine if
Mr. Poole were discharged (Tr. 149-150). Mr. Cox stated that
he did not identify himself to Mr. Pleasants when he placed
the call because "it was still up in the air whether I had a
job or not," and he was afraid that his job would be in jeopardy for making-the call (Tr. 158-159). Mr. Cox also stated
that another reason for not identifying himself was that "if
something wasn't straightened out, I was going to go to MSHA,"
and that he told Mr. Pleasants that he w~s thinking about
going to MSHA before the telephone conversation. Mr. Cox
explained that if Mr. Poole was not given his job back, he and
Mr. Poole were going to go to MSHA. When asked whether he
would have gone to MSHA if Mr. Poole were given his job back,
Mr. Cox replied "not right at that time" (Tr. 161).

484

Mr. Cox confirmed that he also called Mr. Blankenship on
May 11, 1985, and asked him whether or not all of the mine
owners had collaborated to fire Mr. Poole, and that
Mr. Blankenship informed him that they had not, and that the
decision was made by Mr. Jackson alone. Mr. Cox confirmed
that he called Mr. Blankenship because he always considered
him to be a friend and was curious as to whether he had spoken
with'Mr. Jackson (Tr. 164). Mr. Cox confirmed that when he
asked Mr. Jackson for an explanation as to the meaning of his
11
unsatisfact9ry service, 11 Mr. Ja.ckson replied "You're trying
to run the God damn mines," but did not elaborate further (Tr.
166, 168).
Mr. Cox examined copies of certain roof bolting accident
report forms for January 16, and May 16, 1984, and
December 14, and August, 9, 1983, in which he was involved
(exhibit R-3, Tr. 177). Mr. Cox stated that he has no reason
to doubt that he was'taken off the roof bolter in 1984,
because an MSHA Inspector suggested to Mr. Jackson that this
be done (Tr. 178). He conceded that he was upset because
Mr. Jackson did not initially explain his decision to take
him off the roof bolter, but that he later accepted the decision (Tr. 179-180). Mr. Cox confirmed that when he was
assigned to the scoop, he informed Mr. Jackson that he would
operate it in compliance with the law CTr. 180), and he conceded that "a lot of times" he did not operate the roof-bolter
machine in c.ompl iance. with the law (Tr. 180) • Mr. Cox conceded that all times during his employment at the mine, he
never refused to operate a piece of equipment because of any
safety considerations, and that he voluntarily operated his
scoop with the ventilation curtains rolled up "like everybody
else" (Tr. 181-182).
Mr. Cox confirmed that there have been lay offs at the
mine for a week or so out of the month and for one 3-month
period, because of production quotas, and that he has been
laid off and called back to work for these reasons. He knows
of no one who was laid off and not called back because they
made safety complaints CTro 183-184).
With regard to his complaint to Mr. Blankenship about
bad roof conditions, Mr. Cox explained that Mr. Blankenship
may have told Mr. Poole that "we was going through a double
linear." Mr. Cox confirmed that he did not know what a
"double linear" was until it was explained to him by an MSHA
inspector in the Morgantown Office after he w~s terminated
(Tr. 186). He also confirmed that most of his complaints
about dust and the powder and caps on the coal drill were
made to Mr. Blankenship more than once (Tr. 187). He also
complained to Kit Jackson, and he believed that he would tell

485

his father Carson about them (Tr. 187). Mr. Cox also confirmed that he complained while riding out of the mine on the
mantrip with Kit Jackson and other miners (Tr. 191). He also
confirmed that he complained to Carson Jackson about the dust
caused by the ventilation curtains being rolled up, but that
Mr. Jackson did not respond (Tr. 192).
,
With regard to the use of the ATRS system on the roof
bolter, Mr. Cox confirmed that he would use it when he encountered loose ~ock, and there were times when he did not use it.
Any decision as to the use of the A'rRS was his, and he did
not seek Mr. Blankenship's advice in this regard. Mr. Cox
confirmed that most of the time he used a Galis 320 bolter
which was not equipped with an ATRS system (Tr. 193-194).
Mr. Cox admitted that he stored caps and powder on his
drill, and wh"ile no on.e directed him to do it, he still complained to Mr. Blankenship about the practice CTr. 197-198).
Mr. Cox also admitted that Mr. Jackson had warned him about
riding the belt out of the mine, and that he tried to ride it
out again after he was warned, but someone shut the belt off,
and he had to walk out of the mine (Tr. 198). Mr. Cox denied
that he was ever warned about operating his scoop with any
part of his body out from under the canopy, and he could not
recall being told by Mr. Jackson not to bolt off cycle. However, Mr. Cox confirmed that Mr. Blankenship told him on one
occasion not to roof bolt out of sequence, but he could not
recall whether he bolted out of sequence after that time (Tr.
200).
Mr. Cox confirmed that he made entries in his personal
notebook for approximately 2 weeks from August 18 to
September 4, 1984, and he confirmed that he never showed it
to any inspector or to anyone from mine management. He stated
that he kept the book so that he could use it as a threat to
"implicate them before the Mine Safety and Health Administration," and in the event management found out that he was
keeping the book and tried to fire him (Tr. 205). Mr. cox
confirmed that he never told Carson Jackson that he was keeping the book, but did tell his son Kit, and he thought that
he also told Mr. Blankenship. He also stated that he "might
have" intended that by telling Kit Jackson about the book, he
would inform his father about it (Tr. 205).
Mr. Cox confirmed that at no time during his employment
at the mine did he ever go to any mine inspector who inspected
the mine about his complaints <Tr. 208). He confirmed that he
was first acquainted with Inspector Tyler when he went to his
home during the summer of 1984 to buy. a car engine from him.

486

Mr. Cox also confirmed that Mr. Tyler advised him that he was
not an underground inspector, and advised him where he could
file any complaint (Tr. 209). He also understood Inspector
Adkins' instructions as to where to file any complaint (Tr.
210). Mr. Cox explained that he did not follow up on the
advice given him by the inspectors to file his complaint with
the appropriate MSHA off ice because he did not believe he
would get a "fair shake" from MSHA inspectors. He explained
further that when MSHA inspectors come to the mine, it takes
them 2 or 3 bours before they go underground, and that once
underground, they are not in the mine very long (Tr. 211-214).
Mr. Cox also believed that Mr. Tyler and Mr. Adkins would be
more concerned about his complaints and pass them on to the
appropriate MSHA office (Tr. 217-218).
Mr. Cox confirmed that when he was laid off after the
mine production was in, Mr. Jackson gave him "low earnings
slips" so that he could draw unemployment. Mr. Cox also confirmed that the respondent sponsored his daughter in a beauty
contest and donated money so that she could participate in
the pageant (Tr. 222). He also confirmed that there were
some Saturdays when he was not required to work (Tr. 223).
Michael Poole was called in rebuttal, and he stated that
_during.Mr. Cox's telephone conversation of May 11, 1985, with
Mr. Pleasants, he heard Mr. Cox tell Mr. Pleasants that since
he (Pleasants) has been in the respondent's mine and has
observed how it was run, "if something wasn't done that we
was going to the labor board" (Tr. 332). Mr. Poole stated
further that Mr. Cox stated "If something wasn't done somebody was going to get killed in that mine and my uncle and I
was going to the Department of Labor board, MSHA, or whatever
it is • • . whatever we had to do in order to get the mine
back within the specifications of the law" (Tr. 333).
Mr. Poole stated that he and Mr. Cox were going to the
Labor Board or to "governmental authority" regardless of
whether they were fired, and that he and Mr. Cox had made
plans to do so because their complaints to management were
being ignored (Tr. 333-334). In response to further questions, Mr. Poole confirmed that his initial request that
Mr. Cox call Mr. Pleasants was made in order to convince
Mr. Pleasants to tell him that Mr. Jackson was running an
unsafe mine, and that if Mr. Jackson had not called Mr. Cox
on May 11, he (Poole) would not have thought to call
Mr. Pleasants to complain about safety or to express his
concern about anyone getting killed in the mine (Tr. 336).
Mr. Poole conceded that he knew that Mr. Jackson ran his

487

mine, but thought that Mr. Pleasants had the authority to
speak to Mr. Jackson on his behalf (~r~ 338).
Respondent's Testimony and Evidence
Alva Cogar, drill operator and shot firer, confirmed
that he worked on the same shift with Mr. Cox during the last
3 years, and prior to that he worked the night shift. He
confirmed that powder and caps were stored on his equipment
during mining, and that all o~ the drillers engaged in this
practice, including Mr. Cox. Mr. Cogar stated that he would
find powder and caps on the drill machine at the end of
Mr. Cox's shift (Tr. 61-65). He engaged in the practice
because it made his job easier, and it was not done at the
respondent's direction (Tr. 71).
Mr. Cogar confirmed that he has encountered bad top in
the mine, but stated that it was worse in other mines that he
has worked. He stated that during the first 4 or 5 months of
1985, when bad top was encountered, extra long bolts and
cribs were used, and Mr. Blankenship would have the affected
areas rebolted and would instruct him to watch the roof.
Loose coal would be barred down and proper roof bolting
procedures were followed.
In addition, bad top would be
cribbed and dangered off (Tr. 66-70). The section boss would
review the roof-control plan every day before starting work
underground, and Mr. Jackson talked to the men about safety
and cautioned them to be careful of bad top (Tr. 74-76).
Mr·. Cogar stated that he has observed Mr. Cox operate
the scoop with his feet up on the canopy, and he has "heard
talk among the crew" that Mr. Cox was taken off the roof
bolter because he was bolting the wrong way and management
became concerned for his safety (Tr. 72-73). Although he has
never observed Mr. Cox walk out under unsupported roof, he
believed that Mr. Jackson caught Mr. Cox doing this, and also
cautioned him about riding the belt out of the mine (Tr.
76-78).
Mr. Cogar confirmed that when he was first hired by
Mr. Jackson he was told that Saturday work would be required.
He stated that everyone complains about Saturday work, including Mr. Cox. He has heard Mr. Cox state that he would 11 jack
Jackson's jaw" and would "whip the man fired him." Mr. Cogar
believed that Mr. Cox was kidding when he made these statements, but he could offer no other explanation as to why they
were made (Tr. 82-83, 99). Mr. Cogar stated that he is not
reluctant .to speak to mine management about mine conditions,

488

is not afraid of losing his jbb, and he never heard management state that anyone could quit if they did not like the
working conditions (Tr. 84-85). He also confirmed that he
has observed mine inspectors in the mine after roof falls
(Tr. 85).
On cross-examination, Mr. Cogar confirmed that ventilation curtains were rolled up, and that he "took shortcuts."
Alth0ugh Mr. Jackson and Mr. Blankenship did not order that
the curtains be rolled up, Mr. Cogar believed they were aware
of the practice because they were on the section all of the
time (Tr. 87). He confirmed that Mr. Blankenship did order
the curtains to be rolled up and out of the way so that they
would not be torn down by equipment, but that this was always
after an inspector had left the section (Tr. 92). Mr. Cogar
stated that he had adequate water on his machine to keep the
dust down, but that the curtains were up more often than down
during the start of his' shift (Tr. 90-91).
Mr. Cogar stated that he overheard Mr. Cox state that he
could not work on Saturday, May 11, 1985, because he had a
ball game, but does not know whether he informed management
that he could not work. Mr. Cogar believed that everyone
except Mr. Cox and Mr. Poole worked on that Saturday (Tr. 90,
9 3).

Mr. Cogar confirmed that he has shot more than one place
at a time, but did not believe that this was a violation. He
stated that he has never shot under unsupported roof, except
for a corner where the roof bolter could not reach, but he
would be no further than 30 inches from unsupported roof (Tr.
92). He confirmed that Mr. Blankenship has instructed him to
shoot three places at one time (Tr. 99). He also confirmed
that there were occasions when his hand-held methane detector
would not work, but that he would borrow another one from his
foreman {Tr. 95).
Mr. Cogar stated that he has heard Mr. Cox complain
about the lack of brakes on the mantrip they were riding, and
that Kit Jackson was present on some of these occasions. At
times, Mr. Blankenship was aware of the lack of brakes, but
they would either be repaired on a subequent shift, or another
mantrip would be used. Management always repaired his equipment when needed, but at times the brakes on the mantrip would
not be repaired on the next shift (Tr. 100-102).
Mr. Cogar stated that he never complained to Mr. Jackson
or Mr. Blankenship about safety, and did not know whether
Mr. Cox did. He confirmed that he "jawboned" with his fellow

489

miners about dust, powder and caps on equipment, and walking
under unsupported roof. Mr. Cogar stated that Mr. Cox mentioned these conditions to him, and that the miners complained
to each other about these conditions (Tr. 103-105). Mr. Cogar
stated that since Kit Jackson rode the mantrips with the men,
he believed that the complaints would be taken to Carson
Jackson by Kit Jackson and he believed the two Jacksons would
discuss them with each other (Tr. 109-110).
Donnie Crum, belt man, testified that he worked the
first shift and was primarily responsible for maintaining the
belt system. He confirmed that a roof fall occurred on the
No. 4 belt, but he did not know when. He recalled seeing
Mr. Cox operating his scoop with his legs outside of the protective canopy on more than one occasion (Tr. 228). He also
confirmed that Mr. Jackson warned the men about riding the
belt out of the mine, and that he told them he would fire
them if he caught them. Mr. Jackson shut the belt down and
became upset when he found that some of the men were not on
the mantrip coming out.of the mine. Mr. Cox had not used the
mantrip when he (Crum) rode it out of the mine (Tr. 225-229).
Mr. Crum confirmed that his foreman Blankenship or
Mr. Jackson would hold safety meetings in the lamphouse "once

or twice a week, or maybe once every two weeks" (Tr. 230).
Mr. Jackson discussed and stressed safety with the men, and
advised them that they were to keep their minds on their job.
Mr. Crum stated that he has never had any difficulty in discussing mine problems with Mr. Jackson or Mr. Blankenship,
and they were responsive to his concerns about the roof or
anything that needed to be repaired (Tr. 231).
Mr. Crum confirmed that he worked on the Saturday that
Mr. Poole and Mr. Cox did not show up for work, and that he
had been told earlier that he would have to work that day.
Mr. Crum stated that he understood that work was required on
Saturdays, and knew this when he was first hired. Mr. Crum
stated that Mr. Cox told him he was not going to work on that
particular Saturday, and that Mr. Cox told him "if they tried
to make me work Saturday, he said the labor board would take
care of it" and that "the company couldn't do anything about
it" (Tr. 233).
Mr. Crum stated that dust samples are taken on the belt,
and that Kit Jackson "sets the pump" and is in charge of that
procedure. Mr. er.um knew of "no talk among the crew" that
the dust pump does not run all day and that it is tampered
with (Tr. 234). Mr. Crum confirmed that he is the son-in-law
of Euhl Damron, a part owner of the mine CTr. 234).

490

On cross-examination, Mr. Crum stated that Mr. Cox told
him that the men did not have to work on Saturday sometime
during the week, and he assumed that Mr. Cox believed that
the Department of Labor had some sort of requirement that men
did not have to work on Saturdays (Tr. 236).
In response to further questions, Mr. Crum confirmed
that he was aware of ventilation curtains being rolled up and
that "it was.difficult to rock dust around them." With the
curtains rolled up, more dust was present, and he was aware
of powder or explosives transported and stored on drills.
However, he never complained to anyone about these conditions,
and he never heard Mr. Cox make any complaints, nor did he
ever discuss any safety concerns with him. Mr. Crum stated
that Mr. Cox "had a playful way," but "didn't act like a
bully" (Tr. 238). He confirmed that at times, Mr. Cox 11 kidded
around a lot," but that he did hear him tell Mr. Jackson's
son, Kit, that "if he ever fired him, he'd whip his ass" (Tr.
242). Mr. Crum could not say whether Mr. Cox was serious or
just "fooling around." He simply heard him make the statement
(Tr. 242).
Mr. Crum stated that Mr. Cox complained about wage
increases, and once told him that he should make the company
buy a "golf cart" for Mr. Crum to ride on while examining the
belt (Tr. 239). Mr. Crum confirmed that there are no ventilation problems on his belt system, and that it is inspected
and is in compliance (Tr. 241).
David Huffman, third shift (midnight) electrician, stated
that his shift is responsible for hanging curtains, rock dusting, moving the water line, and roof bolting. He confirmed
that he works for an excellent foreman, and that curtains are
hung and the water line is extended for the cutting machine
and drill sprayers. He confirmed that the curtain must be
kept within 10 feet of the face, but that it is rolled up.
Rock dusting is done on a regular basis every night, and it is
seldom not finished (Tr. 247).
Mr. Huffman stated that he never had any dealings with
Mr. Cox because they work on different shifts. Mr. Huffman
stated that he was in the mine office on Saturday morning,
May 11, 1985, after his shift was over, and he overheard
Mr. Jackson on the telephone. He heard Mr. Jackson tell the
person on the other end of the line to "tell Michael Poole
not to come back to work, just to come pick up his time
because he don't have a job here any more" (Tr. 249).
Mr. Jackson. was not mad or cursing, and spoke in a normal

491

tone of voice. Mr. Huffman did not know who was on the phone
with Mr. Jackson (Tr. 249).
On cross-examination, Mr. Huffman stated that the curtains were rolled up "in order to work in the places," and
that he is the only person working in the face area. However, roof bolting is also being done~ and the curtains are
moved up for the men to use at the face (Tr. 252).
Mr. Huffman believed the ventilation to be adequate and that
there was enough air, and he had no complaint with the
ventilation (Tr. 253).
Robert Massey, purchasing agent, stated that he works in
the mine office and never goes underground. He confirmed
that his duties include the maintenance of records such as
purchase orders, citations, accident reports, roof falls,
inspection reports, fire boss reports. Kit Jackson takes
care of the dust sample reports. Mr. Massey stated that at
no time has any miner or Mr. Cox asked to review any of these
reports CTr. 256).
Mr. Massey confirmed that Mr. Jackson is the "boss," and
that he made it clear to him that he was expected to work on
Saturday if it is required. Mr. Massey confirmed that he was
in the mine office on Saturday, May 11, 1985, when Mr. Poole
and Mr. Cox failed to report for work, and that Mr. Jackson
asked him to call them at their home. Mr. Massey placed the
call to Mr. Cox and handed the phone to Mr. Jackson. He
heard Mr. Jackson tell Mr. cox "to tell Mike not to come out
to work Monday, just to come out to pick up his time."
Mr. Massey stated that Mr. Cox and Mr. Jackson "crosswords
for a while," and he heard Mr. Jackson tell Mr. Cox "if you
want an order for your time, too, you can come in Monday and
pick it up. 11 Mr. Jackson then hung up the phone (Tr. 259).
Mr. Jackson then went underground, and Mr. Massey stayed in
the off ice.
Mr. Massey_stated that at approximately the noon hour on
that same Saturday, he received a telephone call from
Mr. Pleasants, and that he wanted to talk to Mr. Jackson.
Mr. Massey took the message, and gave it to Mr. Jackson when
he came out of the mine. Mr. Massey stepped out of the
office and did not hear the conversation (Tr. 261).
Mr. Massey identified exhibit C-2(e) and Cf) as MSHA
accident report forms, and he confirmed that he filled them
out and submitted them, and that the information on the forms
would normally come from Mr. Jackson. He identified the
reported incidents as roof falls, and confirmed that an MSHA

492

inspector usually comes to inspect the area where the falls
occur, and that Mr. Jackson goes wi.th him. He confirmed that
these incidents occurred before Mr. Cox was fired, and stated
that as long' as he has been employed at the mine he is not
aware of any MSHA citations being issued because of the
·reported roof falls in question CTr. 263).
Mr. Massey confirmed that he has filed MSHA accident
reports when it was not necessary to do so, and he confirmed
that MSHA had advised him that ·11 band aid" incidents need not
be reported,- and that only lost time injuries are required to
be reported {Tr. 264). He confirmed that he has filed accident reports for minor injuries, including the reported
battery incident involving Mr. Cox, and no citations ever
resulted from these reported incidents. Citations have been
issued, but not for the reported roof falls anc accidents CTr.
265-266).
Mr. Massey stated that shortly after going to work with
the respondent in June, 1984, there was a conference in the
mine office between MSHA Inspector Bob Wilmoth and Mr. Jackson
about Mr. Cox and his duties as a roof bolter. According to
the inspector, 50 percent of the reported mine accident frequency rate involved Mr. Cox. Although he did not hear it
specifically, Mr. Massey believed that the inspector recommended to Mr. Jackson that Mr. Cox be taken off the roof
bolter. Although Mr. Massey was further aware that Mr. Jackson
spoke to Mr. Cox about the matter, he left the office and did
not hear the discussion (Tr. 269).
On cross-examination, Mr. Massey confirmed that
Mr. Jackson told him that Mr. Cox was involved in 50 percent
of the reported accidents. Mr. Massey confirmed that he would
call underground to advise the crew that an inspector was
coming underground but that he has never worked in the mine
(Tr. 270). He also confirmed that MSHA inspected the reported
roof fall areas during April, 1985, and that no citations were
issued as a result of those incidents (Tr. 271). Mr. Massey
was aware of citations for unguarded belts and lack of protective rubber mats in the shop (Tr. 273). Copies of all citations are posted on the bulletin board and are kept there until
the next inspection (Tr. 277).
Bobby Carpenter, roof bolter operator, testified that he
worked with Mr. Cox on the roof-bolting machine. He stated
that Mr. Blankenship reviews the roof-control plan with the
bolters everyday, and explains the bolting sequence. He confirmed that he and Mr. Cox have bolted out of sequence, and
that on more than one occasion Mr. Jackson and Mr. Blankenship

493

have "chewed them out" about bolting out of sequence (Tr.
254-258). Mr. Carpenter also confirmed that bad top has been
encountered in the mine "off and on," but that management has
corrected the conditions by using longer bolts to make it
safe, and has never ignored the condition (Tr. 258).
Mr. Carpenter stated that he does not believe he "would
be in trouble" if he made safety complaints to management,
and confirmed that he has often discussed mine conditions
with Mr. Bla~kenship, and that "he always said correct it,
• • • make it safe for us to work" (Tr. 259). Mr. Carpenter
stated that Mr. Cox did not "have to good an attitude" toward
management, and that he has heard him say he would "whip
Carson." Mr. Carpenter believed that Mr. Cox might have been
kidding but sometimes he may have been serious.
Mr. Carpenter stated that he gets along with Mr. Jackson,
and that Mr. Jackson has never threatened or cursed him.
Mr. Carpenter never heard Mr. Cox complain to management about
safety, but has heard him talk to the crew about it (Tr. 261).
Mr. carpenter stated that Mr. Blankenship has advised the crew
that they could roll the ventilation curtains down if they
needed more air, and Mr. Carpenter did not believe he "would
be in hot water" if he did so. The roof bolter operator is
responsible for using the ATRS which is on the machine, and
Mr. Cox used it on occasion when bad top was encountered. The
ATRS has always been maintained properly (Tr. 263).
On cross-examination, Mr. Carpenter identified exhibit
C-9 as a prior statement which he gave to the MSHA investigator during the investigation of Mr. Cox's complaint, and he
confirmed that he stated that Mr. Cox "did a lot of hollering"
to Mre Blankenship and Mr. Jackson, and that Mr. Cox "complained several times." Mr. Carpenter stated that Mr. Cox
"had a lot of complaints about different things," and that he
heard him talk about air at the face and the ventilation curtains being rolled up. He also understood that Mr. Cox spoke
about powder and caps on equipment, but did not hear him make
such statements. Mr. Carpenter also confirmed his prior statement that on one occasion when Mr. Jackson threatened to fire
Mr. Cox, Mr. Cox told Mr. Jackson that "they would run the
mine according to the law." Mr. Carpenter construed this to
mean that the mine should run without any safety violations
(Tr. 264). Mr. Carpenter also confirmed his prior statement
that everyone on the day shift knew that Mr. Cox was keeping
"a book" on mine
ety violations (Tr. 265).
Mr. Carpenter stated that he heard Mr. Cox state that he
did not like Saturday work, but never heard him complain about

494

his pay. When asked what Mr. cox's complaints were about,
Mr. Carpenter stated "·odds and ends. He was always complaining about a lot of things • • • to some extent a lot of it
did have to do with health and safety." Mr. Carpenter also
confirmed that some of the complaints were about how the mine
was being managed, and management decisions not necessarily
related to safety (Tr. 268-269).
Mr. Carpenter did not know what prompted·Mr. Jackson's
prior threat to fire Mr. Cox, but he confirmed that
Mr. Jackson had warned Mr. Cox about riding the belt out of
the mine after being told by Mr. Jackson that he should not
do so CTr. 269). Mr. Carpenter confirmed that on one occasion, while riding the mantrip, he heard Mr. Blankenship tell
Mr. cox "don't do anything to make me fire you" (Tr. 271).
William J. Griffin, roof bolter, testified that he has
been off the job for a year due to a non-work related condition, but that he is still employed by the respondent. He
confirmed that sometime in June, 1984, he traded shifts with
Mr. Cox for 2 weeks, and that they were both working as roof
bolters at the time. At that time, MSHA inspectors were conducting roof control inspections of the mine, and he heard an
inspector recommend to Mr. Jackson that Mr. Cox be taken off
the roof bolter, but did not know why CTr. 275). After that
time, Mr. Cox operated a scoop, and Mr. Griffin stayed on the
bolter (Tr. 276).
Mr. Griffin confirmed that he worked on Saturday, May 11,
1985, but that Mr. Cox did not, and they had no conversation
about not working that day (Tr. 277). Mr. Griffin confirmed
that the ATRS systems sometimes does not work, but that
repairs are usually made within two shifts (Tr. 279). He has
never known the system to be down for weeks at a time.
Mr. Griffin never heard Mr. Cox complain to management about
safety, but he (Griffin) has discussed safety matters with
Mr. Jackson and Mr. Blankenship, and they always checked it
out and took corrective action (Tr. 279-280). Mr. Jackson was
"all the time saying something about safety. 11 On one occasion, Mr. Jackson told the men "to look out for their accident
rate or he was going to shut the mine down," and that he was
upset over a lot of minor injuries (Tr. 281-282). Mr. Griffin
confirmed that working on Saturdays was a condition of employment, and that he worked a lot of overtime on Saturdays, and
that Mr. Cox called him a "company suck" for doing so (Tr.
2 84).

In response to further questions, Mr. Griffin confirmed
that when he complained to Mr. Blankenship about roof cracks,

495

he would inform Mr. Jackson, and longer bolts or cribs would
then be installed (Tr. 285). Mr. Griffin confirmed that
powder and caps were kept on the drill, and that ventilation
curtains were rolled up (Tr. 288).
Johnny Stafford, outside man, testified that he is
married to the sister of Kit Jackson's wife. He stated that
he had "a run in" with Mr. Cox in the lamphouse after Mr. Cox
threw his shoes off a bench during a ~shift change. He stated
that Mr. Cox threatened "to·kick my butt," and challenged him
to a fight (Tr. 292). Nothing came of the threat, but
Mr. Stafford stated that Mr. Cox often made remarks to him
about sleeping on the job and that he was loud (Tr. 293).
Neil J. Pleasants stated that he is the senior
vice-president of the Brooks Run Coal Company. He confirmed
that his company does not mine coal, but does operate a preparation plant, and has six contractors who mine coal on lands
leased by the company. He confirmed that the respondent has
a contract to mine coal on one of the leases, and to deliver
the coal to the plant at a fixed contractual price. The
respondent is responsible for hiring and firing its miners,
and fixing wages. The Brooks Run engineering department does
fix the spads and direction of mining underground to assure
itself that mining is being conducted in accordance with the
mine plan, and does have an input as to whether mining should
be discontinued or abandoned, and does have the authority to
fix or limit mine production (Tr. 299-300). However, Brooks
Run has no control over any management decisions made by the
respondent, nor does it dictate any Saturday work.
Brooks
Run simply asks the respondent for so much coal, and "it's
left up to them how they work to do it" (Tr. 301).
Mr. Pleasants stated that he received a telephone call
on the morning of May 11, 1985, from an individual who he
later determined was Mr. Cox. He never previously met Mr. Cox
or Mr. Poole, and Mr. Cox did not give his name when he spoke
with him. Mr. Pleasants stated that Mr. Cox told him that
"there was some trouble at our mine." Mr. Cox also informed
him that Mr. Jackson was forcing the men to work on Saturday,
and that Mr. Cox did not think this was right. Mr. Cox also
informed him he was involved with little league baseball and
needed to be off on Saturdays, and that Mr. Jackson was going
to discharge someone for missing work. Mr. Pleasants believed
that Mr. Cox was concerned because
and Mr. Poole were in
trouble for not working on Saturday, and that Mr. Cox called
him to see if he could do something about it. Mr. Pleasants
informed Mr. Cox that he would call Mr. Jackson, and he was
concerned because Mr. Cox indicated that he could cause

496

Mr. Jackson some trouble if he didn't take them .back.
Mr. Pleasants was also concerned because he was not sure of
the kind of trouble Mr. Cox had in mind, and he speculated
that it may involve miners walking off the job or refusing to
work (Tr. 302~305).
Mr. Pleasants stated that Mr. Cox also informed him that
he did not believe that the labor law required him to work on
Saturday against his will, and that he also mentioned "something about :ip.aking complaints." In this regard, Mr. Pleasants
stated as follows CTr. 306-307):
Q. Did he mention anything about making complaints to anyone?
A.

That he had made them or would make them?

Q.

would make them.

A. Yes, he said something about making complaints -- he would complain to the -- well
maybe to the labor regulators to -- he talked
about maybe going to some of the enforcement
agencies and making some complaints also.
Q. Did he tell you what the nature of the
complaints would be?

A. I can't remember that he told me anything
specifically. He may have but I can't
remember.
Q. Did he say he was going to do that regardless of what Mr. Jackson did? Or did he tie
it to a threat if he didn't get a job back?

A. To me, as I remember, he didn't say either
way. I guess I kind of got the indication
that maybe he, if things didn't work out to
suit him, that he didn't get his job back,
that he would go. He didn't say either way
he'd go or wouldn't go if he didn't.
Q.

He said he might go?

A.

Yes.

497

Mr. Pleasants reviewed a copy of a memorandum of June 18,
1985, which he prepared in connection with his telephone conversation with Mr. Cox on May 11, 1985, and he indicated that
in referring to Mr. Jackson, Mr. Cox stated "that old man has
pushed me as far as I'm going to be pushed" (exhibit C-11: Tr.
308). Mr. Pleasants stated that he was not concerned about
Mr. Cox going to any "regulatory agencies" because he knew
that regular inspections of the mines are always done, and
that under the contract with the respondent, Mr. Jackson is
required to operate the mine in accordance with the law.
Mr. Pleasants stated that his primary concern was whether or
not Mr. Cox's belief that he should not be required to work on
Saturdays would escalate into a work stoppage and possibly
affect other nearby mines (Tr. 309).
Mr. Pleasants confirmed that he telephoned Mr. Jackson
after speaking with Mr. Cox, but Mr. Jackson was underground
and returned his call later in the afternoon.
In response to
questions about his conversation with Mr. Jackson,
Mr. Pleasants stated as follows (Tr. 310-314}:
Q. Do you recall that conversation with
Mr. Jackson?
A. Well, again, not word for word, but I
remember when he called me back I asked him
what was going on at the mines. Had he fired
some people? How many people had he fired
that day? Or what kind of problems he was
having at his mine.

Q.

What did he say?

A. He said that, yes, he had discharged one
man, and he may have got a little bit worried
about it. He got a little excited or a little
worried about maybe losing the work force.
And he said, tell me what the problem is. So
I told him that a man had called me. I didn't
know who the man was, but he said he was upset
about having to work on Saturday, and that I
guess maybe it was his nephew that had been
discharged and he felt maybe he was too. And
I told him about the fellow coaching little
league. And from that Carson said, well, he
knew who it was. He could tell me who it was.

Q.

What

se did he tell you?

498

A. He said then I discharged one man, but now
there will be two.

Q. When he said this was this before you had
told Carson Jackson the complaints that
Mr. Cox had made known to you?
A. I believe it was, because I think I just
now told you what I said to Carson before
then.

Q. That he said he was upset about working
Saturdays.
A.

Yes.

Q.

And he was upset about his nephew being
fired?

A.

Right.

Q. And then that's when he told you he'd
figured out who it was, and Mr. Jackson said,
well, I fired two?
A.

Right.

Q. Did you go on to tell Mr. Jackson after
that the other things that Mr. Cox had told
you?
A.
Pretty much so, yes. I told him -- well I
asked him about the other men.

*

*

*

*

*

*

*

THE WITNESS: Well I went on to ask Carson
then if the rest of his men were upset, or if
he thought because he had discharged these two
men that they would get upset, and possibly
that we'd have a work stoppage. And I did go
on to tell him that
BY MR. GARRETT:

Q.

Did you discuss that with Mr. Jackson?

A.

Yes, sir.

499

Q. And did he -- what did he tell you about
the possibility of a work stoppage?
A. well he said he didn't believe so. But he
said, I feel I have to take this action anyway.
And of course it's his mine.

Q.

It was his decision?

A.

It was his decision.

Q. Now after that what all did you all talk
about, if anything?
A. Well I'm trying to think what else he
said. I went on to tell him that Cox -- I
didn't know who it was, but the fellow that
called me had said he would try to cause him
some trouble, I thought, from the remarks that
he had made there.

Q.

If he got fired he'd cause him some
trouble?

A.

Yes.

Q.·

And did you tell him what Mr. Cox had
said, what kind of trouble he'd cause him?

A. Yes. He said he would of course cause him
trouble with the men, because he felt some of
the other people felt that way, so he'd go to
the agencies -- to the regulatory agencies and
try to cause him some trouble that way.
I
kind of got the idea anyway he'd cause some
trouble.
Mr. Pleasants stated that Mr. Jackson explained to him
that he had fired Mr. Poole because he missed work and that
he had previouisly warned him that he would be fired if he
missed the next scheduled work shift. Mr. Pleasants further
stated that Mr. Jackson advised him that he was going to fire
Mr. Cox "because he had come to me making a complaint, and he
felt by doing that he was going over his head and managing
that mine and coming to somebody else to make a complaint,
somebody that maybe he thought he could get Carson in trouble
with" (Tr. 315).

500

Mr. Pleasants confirmed that Mr. Poole and Mr. Cox came
to his office on Monday, May 13, 1985, after they had been
fired, and Mr~ Pleasants believed that they expected him to
intercede in their behalf with Mr. Jackson. Mr. Pleasants
could not recall whether Mr. Cox said anything about what he
would do if he didn't get his job back, but after reviewing
his memorandum he confirmed the accuracy of his prior statement indicating that Mr. Cox told him that "they were going
to take this matter to the Labor. Board and r~gulatory agencies." Mr. Pleasants also confirmed that on Saturday, May 11,
1985, Mr. Cox told him that if he was discharged he was going
to cause trouble by going to the agencies (Tr. 317).
On cross-examination, Mr. Pleasants confirmed that his
recollection of his telephone conversation with Mr. Cox was
better as of the dat~ of his memorandum than it was during
his hearing testimony. Mr. Pleasants testified further as to
the sequence of his conversation with Mr. Jackson vis-a-vis
his prior conversation with Mr. Cox, and he explained as
follows (Tr. 320):

Q.

Would it be perhaps the same sequence in
which you relayed this conversation from Cox
to you to Mr. Jackson? Would that be a fair
conclusion that the same sequence in which you
were told this would be the same sequence that
you relayed this to Mr. Jackson?

A. The way I -- what I related to Mr. Jackson
first was I asked him what was going on at the
mines. Then I told him that a fellow had
called me, worried about his nephew's job,
also a little worried about his own job, and
that he played little league ball and couldn't
be there on Saturday. And at that time
Mr. Jackson stopped me and told me that he was
now firing two people.
In response to further questions, Mr. Pleasants confirmed
that any adverse ruling against the respondent in this case
will not affect its coal supply to Brooks Run, but the threat
of a work stoppage would be a legitimate business concern of
his company, and that he had this concern on May 11, 1985 (Tr.
325-326). Mr. Pleasants also indicated his concern for mine
safety, and he did not believe in mining coal:using "shortcuts," and that to do so is not cost effective (Tr. 327).

501

Complainant's Arguments
In his posthearing brief, complainant's counsel asserts
that the evidence in this case establishes numerous instances
of mine safety violations on the part of the respondent, and
that they provide an ample predecate or base to support a conclusion that Mr. Cox would have justifiably reported these
v,tolations to mine management as well as to the appropriate
mine enforcement agencies. Counsel also asserts that there is
testimony by_Mr. cox and others, that Mr. Cox reported safety
violations to mine management officials, and that within a
week or two prior to his discharge on May 13, 1985, Mr. Cox
threatened to his foreman, Rodney Blankenship, to talk to the
next MSHA mine inspector to come into the mine. Counsel also
cites the November 4, 1986, deposition of respondent's president, Carson J~ckson, at transcript page 35, where counsel
claims that Mr. 'Jackson. admitted that Mr. Cox threatened at
least twenty times to go to MSHA.
Counsel points out further that prior to his discharge,
Mr. cox had "taken the steps of complaining" to two different
MSHA inspectors about certain mine safety violations, and that
the final nexus regarding his protected activity occurred on
Saturday, May 11, 1985, when Mr. Cox communicated his threat
"to go to the agencies" to Mr. Neil Pleasants, a business associate of Mr. Jackson. Counsel argues that this threat was
communicated to Mr. Jackson by Mr. Pleasants during a telephone conversation following Mr. Cox's call to Mr. Pleasants,
and that the decision by Mr. Jackson to discharge Mr. Cox was
made after Mr. Pleasants advised Mr. Jackson of Mr. Cox's
threats "to go to the agencies." Counsel rejects any notion
that Mr. Jackson decided to discharge Mr. Cox before it was
made known to him by Mr. Pleasants that Mr. Cox had threatened
"to go to the agencies," and argues that the sequence of
events as communicated by Mr. Pleasants to Mr. Jackson, and as
documented by Mr. Pleasants in his prior statement of June
1985, more accurately reflects that Mr. Jackson decided to
discharge Mr. Cox after the phone call from Mr. Pleasants,
and after Mr. Pleasant's informed Mr. Jackson of Mr. Cox's
threats to "go to the agencies."
In addition to Mr. Cox's purported safety complaints to
mine management, and his threats to "go to the agencies," as
communicated by Mr. Pleasants to Mr. Jackson, counsel asserts
that Mr. Cox was a particularly vociferous individual in
respect to voicing his views on safety matters, and that one
witness called by the respondent during the hearing, Bobby
Carpenter, testified that at one time Mr. Jackson threatened
to fire Mr. Cox, and on another occasion, he overheard

502

Mr. Blankenship tell Mr. Cox "don't do anything to make me
fire you."
Counsel asserts that even though Mr. Cox's initial motivation for his telephone call to Mr. Pleasants on Saturday,
May 11, 1985, may have been to help save his nephew's (Michael
Poole) job, Mr. Cox unequivocally told Mr. Pleasants that he
was going to complain to "MSHA, 11 the "agencies," or the "labor
board. 11 Counsel asserts that once these threats were communicated to Mr. Jackson, they formed the basis for Mr. Jackson's
decision to discharge Mr. Cox, and coupled with Mr. Cox's
prior complaints and threats to discharge him some 2 weeks
before his actual discharge, was the motivating reason for his
discharge, and that but for these threats Mr. cox would not
have been fired.
Counsel concludes that all of the foregoing
series of events, including Mr. Cox's antecedent threats to
talk to an MSHA inspector, his reporting of safety complaints
to his foreman Rodney Blankenship within the last 2 weeks of
his employment with the respondent, and the final transmission
to Mr. Jackson of Mr. cox's threats to go to the mine enforcement authorities, more than meet the threshold requirement of
"protected activity" under the Act.
Counsel does not concede that this is a "mixed motive"
case. Assuming that it is, counsel concludes that the respondent has not established that it would have discharged Mr. cox
in any event for any unprotected activities alone, and that it
has failed to meet the test enunciated by the Pasula line of
cases. Counsel concludes further that Mr. Cox has established
that he was discharged, not for the contradictory diverse
reasons advanced by the respondent, but because of protected
activity within the meaning of section 105(c) of the Act.
Respondent's Arguments
In its defense, the respondent states that while it had
no complaints concerning Mr. Cox's work as a roof bolter operator during 1984, he was involved in four accidents during
the course of the year while operating the bolter, and that
he was taken off the bolter and given a different work assignment because of these repeated accidents. Respondent asserts
that after missing a regularly scheduled Saturday work day in
June, 1984, and his removal as a roof bolt operator, Mr. Cox
became disenchanted with Mr. Jackson's management of the mine.
Respondent asserts that Mr. Cox made no secret of his belief
that the "labor board" would not condone management's Saturday
work requirement, and that he attempted to incite other miners
not to work on Saturdays, and made statements that he would
"whip" Mr. Jackson or any other member of management who

503

attempted to discharge him. As examples of Mr. Cox's resentment of authority, responde.nt states that Mr. Cox continued to
ride the belt out of the mine after being warned by Mr. Jackson
not to, and challenged management's authority to reassign him
after he was taken off the roof bolter.
The respondent points out that although Mr. Cox professed
a keen interest in alleged safety vi~lations, and went so far
as to record the believed violations in a journal for 2 weeks
commencing o~ Saturday, August 18, 1984, he never showed it to
management. Further, although Mr. Cox had two informal discussions with MSHA inspectors who advised him of his rights and
of the appropriate procedure for filing a complaint, Mr. Cox
never filed a complaint with MSHA. Mr. Cox also failed to
participate in a company sponsored safety program because he
would not be paid overtime, and by his own admission, rarely,
if ever, made any safety complaints to Mr. Jackson.
The respondent states that Saturday, May 11, 1985, was
a regularly scheduled work day, and that both Mr. Poole and
Mr. Cox were aware of this, and they were not excused from
working by management, nor did they discuss their intention
not to appear for work with Mr. Jackson. After telephoning
Mr. Cox on the morning of Saturday, May 11, 1985, to ascertain
whether he and Mr. Poole were coming to work, Mr. Jackson was
informed by Mr. Cox that Mr. Poole did not intend to work that
day. Mr. Jackson then advised Mr. Cox to inform Mr. Poole
that he was discharged because of his absenteeism and to come
to the mine on Monday, May 13, 1985, "to pick up his time."
When Mr. Cox became argumentative and challenged the propriety
of the discharge of Mr. Poole, Mr. Jackson advised Mr. Cox
that it was his decision to make, and that if Mr. Cox was not
sati ied with the decision, he should also "pick up his time."
Respondent states that despite the fact that all of its
employees, including Mr. Cox, had been advised that the management of the Brooks Run Coal Company was separate from the
management of the respondent's mine and were warned not to
discuss management decisions with officials of Brooks Run,
Mr. Cox decided on May 11, 1985, to contact Mr. Neal Pleasants,
the vice-president of Brooks Run, concerning Mr. Poole's discharge, and did so to enlist his assistance in influencing
Mr. Jackson to reconsider his decision to discharge Mr. Poole.
Realizing that Mr. Jackson would not appreciate this contact,
Mr. Cox did not identify himself to Mr. Pleasants, and he
advised Mr. "Pleasants that there would be "trouble" at his mine
if Mr. Poole was not reinstated. Mr. Cox also complained to
Mr. Pleasants about the respondent's decisions requiring
Saturday work, threatened to go to the "labor board," generally

504

discussed the dissatisfaction of the workforce at the respondent's mine, and also discussed his intention "to go to the
agencies" (presumably MSHA) about the way Mr. Jackson ran his
mine.
Respondent asserts that after receiving the call from
Mr. Cox, Mr. Pleasants became concerned about the threat to
the Brooks Run operations, and he believed that the "trouble"
referred to by Mr. Cox would be a work stoppage at Brooks
Run's contra~tors' mines which supplied coal to its preparation plant. For this reason, Mr. Pleasants called Mr. Jackson
to inquire about the matter. Upon learning of the phone call
to Mr. Pleasants, Mr. Jackson decided to discharge Mr. Cox,
and that his decision was without input from any other management officials. Thereafter, on the morning of May 13, 1985,
Mr. Jackson summoned Mr. Poole and Mr. Cox to his office and
gave them their discharge slips. Mr. Jackson explained to
Mr. Poole that he was ~ischarged for excessive absenteeism,
and he explained to,Mr. Cox that he was discharged for trying
to take over the management of the respondent's mine.
Respondent maintains that on the facts of this case,
Mr. Cox has not demonstrated a prima facie case, much less
carried his ultimate burden of proof that he was discharged
for protected activities. Even assuming that Mr. Cox has
established a prima facie case, the respondent asserts that
Mr. Cox has failed to establish that he was discharged for
protected activity rather than a legitimate business purpose,
i.e., insubordinate and offensive conduct which culminated in
his attempt to· interfere with the decision to discharge
Mr. Poole.
Respondent asserts that Mr. Cox was discharged for interferring with mine management's decisions to discharge Mr. Poole
and to schedule work on Saturday which was made a condition of
employment at the mine. Respondent also maintains that Mr. Cox
had a history of poor work attitude and resentment of authority, and that the reason for his discharge has been consistently maintained and established by the respondent.
Respondent suggests that Mr. Cox has had a difficult time
in deciding precisely what the protected activity was that he
engaged in that formed the basis of his claims of alleged
discrimination. With regard to any communicated safety complaints by Mr. Cox, a requirement enunciated by the Commission
in Simpson v. Kenta Energy, Inc., 8 FMSHRC 1034 (July 1986),
the respondent takes the position that Mr. Cox has a serious
problem with this aspect of his case. Respo:ndent points out

sos

that while Mr. Cox produced a journal of alleged safety violations maintained for a 2-week period in 1984, he failed to
establish that he ever shared the information with mine management or mine inspectors. Similarly, although Mr. Cox was
advised of his rights to file safety complaints with MSHA, he
failed to carry out his threat to do so and gave no intention
that he intended to do so. With regard to his asserted complaints to his section foreman Rodney Blankenship, concerning
a variety of alleged unsafe conditions involving roof control,
ventilation,_ and explosives, the respondent concludes that the
weight of the credible evidence establishes that Mr. Cox did
not overtly make specific complaints to Mr. Blankenship or to
Mr. Jackson, and that he himself engaged freely in the alleged
unsafe practices of which he complained.
Respondent asserts that Mr. Cox expressed many of his
safety concerns defacto, and that they cannot form a nexus
between his discharge and his alleged protected activity,
Cantrell v. Gilbert Industrial, 4 FMSHRC 1164 (June 1982).
As an example, respondent points out that Mr. Cox alleged for
the first time during the hearing that certain preshif t and
onshift reports were improperly kept and that dust records
were allegedly incorrect or altered. However, he never
reviewed these records prior to his discharge and never
reviewed the mine bulletin board for the posting of MSHA
enforcement action prior to his discharge.
Respondent asserts that it would appear that anytime a
complaint may have been raised by Mr. Cox, it was in the context of a threat resulting from his own dissatisfaction with
a management decision involving unprotected activity <i.e.,
his removal from the roof-bolting machine; the discharge-of
Mr. Poole: the requirement to work on Saturdays). Mr. Cox's
intention to expose alleged violative conditions was always
expressed in conditional terms, and respondent concludes that
Mr. Cox could be persuaded not to complain if managerial
decisions involving unprotected activity could be altered to
suit Mr. Cox. Respondent further concludes that Mr. Cox's
admitted and repeated participation in the alleged violative
conduct belies any true concern on his part for mine safety.
Respondent further concludes that an employee attempting to
demonstrate:-· a discriminatory motive must show that he at
least intended to notify appropriate authorities. Baker v.
North American Coal Company, 8 IBMA 164 (1977). Assuming
Mr. Cox had any intention, it could only be interference with
decisions concerning unprotected activity, which ultimately
led to his discharge.

506

Even assuming that Mr. Cox linked some protected activity
with his discharge, the respondent maintains that his discharge was motivated by unprotected activity and would have
taken place regardless. Certainly, the repeated demonstration
of a poor work attitude, such as the general hostility toward
management, contempt for Saturday work assignments, coupled
with the refusal to work on Saturdays, and attempts to incite
others not to work on Saturdays, are sufficient reasons alone
to discharge an employee. Klimczak v. General Crushed Stone
Company, 5 F~SHRC 684 (April 1983), aff'd sub. nom. 732 F.2d
142 (2d Cir. 1984) <miner failed to make out a prima facie
case of discrimination where the record indicated his discharge resulted from a series of unexcused absences and a poor
work attitude including refusal to work on Saturdays)~
Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 8
(January 1984), (although prima facie case was made out, the
miner's discharge was proper because it was also motivated by
the employee's insubordinate conduct and attitude problem
which resulted after his removal from the operation of a bulldozer and his reassignment to a different position).
Respondent argues that the evidence in this case establishes that Mr. Cox's attitude problem and resentment of
authority grew after his removal from the roof bolter in 1984,
and that this resentment manifested itself in a variety of
ways, which Mr. Cox maintains were related to protected activity under section 105(c) of the Act. However, respondent
points out that Mr. Cox's blatant defiance of Mr. Jackson's
specific warning that Mr. Cox's comments concerning Mr. Poole's
discharge on May 11, 1985, were not welcome, and Mr. Cox's call
to Mr. Pleasants with the sole intention of interferring with
Mr. Jackson's decision to discharge Poole for excessive absenteeism, goes beyond any form of protected activity under section 105. Mro Cox's conduct in contacting Mr. Pleasants was so
offensive and disruptive that Mr. Jackson was left with no
other course but to discharge Mr. Cox. Mr. Cox's alleged protection in undertaking this action by calling Mr. Pleasants
rests on the slim reed of the fortuitous mentioning of "going
to the agencies 11 (presumably MSHA) regarding the way
Mr. Jackson's mine was run. However, the primary gist of
Mr. Cox's conversation, as understood by Mr. Pleasants, and as
conveyed by him to Mr. Jackson, was to threaten a work stoppage
at Brooks Run's contract mines of which the respondent is one.
Respondent cites a case decided under the National Labor
Relations Act which it believes is similar to the one at bar
involving a threatening call made by an employee to a business
associate of his employer. The first Circuit held that "an

507

employee• s conduct may be so offensive., disruptive, or destructive of the employer's business as to go beyond the protection
of Section 7, [of the NLRA] even if the goals of the conduct
are within the protection of Section 7." Keosaian v. National
Labor Relations Board, 630 F.2d 36, 38 Clst Cir. 1980). In
Keosaian, an employee's conduct in unilaterally telephoning
his employer's bank, representing himself as an attorney for a
proposed credit union, telling the bank's attorney that his
employer had engaged in misrepresent~tions, and threatening
legal action_ went well beyond, the boundary of protected activity under the NLRA. In other words, the threatening call was
grounds for discharge even if less offensive conduct by the
employee in furtherance of engaging in protected activity
would have been protected.
Respondent concludes that on the facts of his case,
Mr. Cox cannot even claim that the purpose of his phone call
to Mr. Pleasants was aimed at furthering any protected activity. Rather, his conduct was disruptive, offensive, and in
contravention of a direct order, and as such, was a permissible basis for discharge, particularly when viewed in the context of his poor work attitude and contempt for authority.
Certainly the prior warnings not to engage in such conduct
provide indication of the fact that the discharge of Mr. Cox
was related to unprotected activity alone. See, Bradley v.
Belva Coal Co., 4 FMSHRC 982 (Rev. Comm. 1982). Respondent
further concludes that it is not the function of the trier of
fact to pass upon the wisdom or fairness of the basis for the
prior warning.
It is the trier of fact's responsibility only
to determine if the employee violated the warning and his
action in doing so motivated his discharge.
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 Cl> 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 1 d on other grounds sub. nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 <3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508,
2510-2511 (November 1981), rev'd on other grounds sub. nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (0.C. C~l983).
The operator may rebut the prima facie case by showing either

508

that no protected activity occurred or that the adverse action
was in no way motivated by protected activity. If an operator
cannot rebut the prima facie case in this manner it may nevertheless affirmatively defend by proving that (1) it was also
motivated by the miner'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
th~ 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), where the Supreme Court approved the
NLRB's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if
the facts support a'reasonable inference of discriminatory
intent. Secretary on behalf of Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508, 2510-11 (November 1981), rev'd on other
grounds sub. nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86
(D.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC
1391, 1398-99 (June 1984). As the Eight Circuit analogously
stated with regard to discimination cases arising under the
National Labor Relations Act in NLRB v. Melrose Processing
Co., 351 F.2d 693, 698 (8th Cir. 1965):
It would indeed be the unusual case in
which the.link between the discharge and the
(protected] activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can
be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence, circumstantial or direct, the [NLRB] is
free to draw any reasonable inferences.
Circumstantial indicia of discriminatory intent by a
mine operator against a complaining miner include the following: knowledge by the operator of the miner's protected
activities; hostility towards the miner because of his protected activity; coincidence in time between the protected
activity and the adverse action complained of; and disparate
treatment of the complaining miner by the operator.
In Bradley v. Belva Coal Company, 4 FMSijRC 982, 993
(June 1982), the Commission stated as follows:

509

As we emphasized in Pasula, and recently
re-emphasized in Chacon, the operator must
prove that it would have disciplined the miner
anyway for the unprotected activity alone.
Ordinarily, an operator can attempt to demonstrate this by showing, for example, past
discipline consistent with that meted out to
the alleged discriminatee, the miner's unsatisfactory_ past work record, prior warnings to
the miner, or personnel rules or practices
forbidding the conduct in question. Our function is not to pass on the wisdom or fairness
of such asserted business justifications, but
rather only to determine whether they are credible and, if so, whether they would have motivated the particular operator as claimed.
Mr. Cox's Protected Activity
Section 105(c)(l) prohibits a mine operator from discharging a miner, or otherwise discriminating against him for
making safety complaints to MSHA or to mine management. That
section also prohibits a mine operator from discriminating
against a miner, or otherwise interferring with any of his
statutory rights under the Act. A miner is protected against
any retaliatory action by the respondent because of any safety
complaints he may have made to MSHA or to mine management. He
is also protected against retaliation for exercising his section 103Cg) right to request an inspection of the mine by MSHA
when he has reasonable grounds to believe that violations
exist in the mine. Further, I believe that section 105(c)(l)
is broad enough to protect a miner against retaliation for
threatening to contact or inform mine enforcement agencies
about perceived safety violations in the mine.
It is clear that a miner has an absolute right to make
safety complaints about mine conditions which he believes
present a hazard to his health or well-being, and that under
the Act, these complaints are protected activities which may
not be the motivation by mine management for any adverse personnel action against him: Secretary of Labor ex rel. Fasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980),
rev'd on other grounds sub E..£!!!· Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary of
Labor ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC
803 (April 1981). Safety complaints to mine management or to
a section foreman constitutes protected activity, Baker v.
Interior Board of Mine Operations Appeals, 595 F.2d 746

510

(D.C. Cir. 1978); Chacon, supra. However, the miner's safety
complaints must be made with reasonable promptness and in
good faith, and be communicated to mine management, MSHA
ex rel. Michael J. Dunmire and James Estle v. Northern Coal
Company, 4 FMSHRC 126 (February 1982); Miller v. FMSHRC,
687 F.2d 194, 195-96 C7th Cir. 1982)~ Sammons v. Mine Services
Co., 6 FMSHRC 1391 (June 1984). The fact that a mine operator
addresses a miner's safety concerns or complaints, and which
are later determined not constitute violations, or the fact
that the complaining miner filed no safety complaints with any
governmental' enforcement agencies, does not remove the Act's
protection from any preceding complaints, Sammons v. Mine
Services Company, supra, at 6 FMSHRC 1396-97.
In this case, Mr. Cox claims that his safety complaints
to mine management, coupled with his threats to go to MSHA or
to other governmental "agencies" with his complaints, were
the motivating factors which prompted Mr. Jackson to discharge
him on May 13, 1985. While it is clear from the record that
Mr. Cox never filed any safety complaints with MSHA or any
state mining inspectors prior to his discharge, although he
was advised to do during conversations with two MSHA inspectors, and that he never disclosed the contents of a safety
journal he was keeping some 8 months before his discharge,
Mr. Cox claims that shortly before his discharge he intended
to file safety complaints with MSHA. He also claims that he
had always intended to file such complaints but simply did not
know the procedure for doing so. In order to address these
issues, a review of Mr. Cox's purported safety complaints, and
the alleged safety violations which he claims were rampant in
the mine, all of which he claims served as a basis for his
discharge, is in order.
The evidence in this case establishes that miners were
engaged in unsafe practices during the time that Mr. Cox was
employed at the mine, and that mine management may have been
aware of them. Some of these practices, if proved, would
constitute violations of MSHA's mandatory safety standards,
and possibly, state mining laws. For example, the admissions
and testimony of several miners reflects that powder and caps
were stored and kept on equipment rather than in the required
storage magazines, ventilation curtains which were required
to be in the down position to control the air flow and dust
were kept rolled up and out of the way during mining, and
respirable dust sampling devices may have been turned off or
tampered with. However, the record also establishes that
Mr. Cox himself freely engaged in some of these practices
long before he was discharged. The record establishes that
Mr. Cox operated his scoop with the ventilation curtains

511

rolled up, stored powder and caps on his roof-bolting machine,
failed to always use his ATRS system, rode the belt out of the
mine after being warned by Mr. Jackson not to do so, and was
admonished at least once by his foreman not to bolt out of
sequence or work under unsupported roof.
Although Mr. Cox alluded to certain violations concerning
the roof bolter ATRS system, no evidencp was forthcoming to
establish any violations, or that mine management was involved
in any unsafe practices concerning the ATRS. As a matter of
fact, Mr. Cox conceded that the ATRS was used at his discretion, depending on the roof conditions, and I can only conclude that any failure to use that system when roof conditions
may have warranted it was the result of Mr. Cox's personal
decision not to use it.
With regard to Mr. Cox's assertions concerning the preshift and onshift books, his allegations that they contained
erroneous entries and did not accurately reflect mine violations, made for the first time at the hearing, are unsubstantiated. As a matter of fact, although he had a right to do
so, Mr. Cox never reviewed those mine records prior to his
discharge, and during the hearing he presented no credible
evidence to support any violations for erroneous or illegal
entries.
In his original complaint, Mr. Cox asserted that
Mr. Jackson "got rid of any miners who stood up for their
safety rights." However, no evidence was forthcoming to even
suggest that any miners were ever fired or disciplined by
mine management for making safety complaints or "standing up
for their safety rights." As a matter of fact, Mr. Jackson's
testimony that Mr. Poole and Mr. Cox were the only two miners
that he has ever fired at the mine stands unrebutted.
With regard to Mr. Cox's allegations concerning unsafe
roof conditions, Mr. Poole testified that roof falls occurred
in virtually every entry during the period immediately prior
to his discharge. However, Mr. Poole could offer nothing
further to substantiate his statement, and he had no knowledge
as to whether any of the falls were reported by mine management to MSHA or to any state officials. When asked to be
specific about any unsafe roof conditions, Mr. Poole referred
to a "double linear," and to an area near a rectifier in the
No. 5 entry, which he believed had some loose rock. Mr. Cox
could offer no specific information with respect to any roof
violations, and his testimony, as well as that of Mr. Poole is
general and nonspecific, and no evidence was forthcoming with

512

respect to any roof control violations or unsafe roof conditions either immediately prior to Mr. Cox's discharge or in
the past.
Practical+y all of the witnesses who testified in this
case alluded to "bad top" or "adverse roof conditions" to one
degree or another in the mine. However, I find no evidence
of any consistently bad top or unsafe roof conditions, nor do
I find any basis for concluding that the respondent totally
ignored the roof conditions or received any violations or
citations for roof control violations. All of the witnesses
called by Mr. Cox confirmed that mine management addressed
their roof concerns by either installing longer roof bolts,
or constructing cribs and belt canopies in certain areas where
roof falls had occurred. Cutting machine operator Wayne Lee
confirmed that roof conditions were freely discussed among the
miners and Mr. Jackson apd Mr. Blankenship, and that corrective action was always taken, albeit on one occasion, 2 or
3 days passed before a roof condition was corrected. Mr. Lee
indicated that in certain instances when bad top was encountered, Mr. Jackson ordered additional roof bolting and rebolting, and also instructed that more coal pillars be left to
support the roof. Mr. Lee also confirmed that Mr. Blankenship
discussed the roof-control plan with his crew.
Roof bolter operator Ramsey confirmed that anytime he
reported bad top conditions to his foreman, the foreman would
instruct him to install longer bolts or cribs. On two occasions where there were roof falls on a belt, management took
steps to support· the area with cribs and canopies, and
instructed the men as to the proper roof control procedures.
On several occasions when he was observed bolting out of
sequence, both Mr. Jackson and foreman Blankenship instructed
him to do it the proper way.
Coal drill operator Aaron Bender testified that management never left adverse roof conditions unattended, and that
his foreman always addressed his concerns when bad top was
encountered by ordering the installation of longer bolts and
cautioning him to watch the roof, and to rebolt any adverse
roof areas.
Scoop operator Steve Mullins testified that steps were
taken to resecure any areas where falls had occurred, and
that cribs, headers, and canopies were installed in fall
areas to secure the roof.
Mr. Poole himself conceded that management took steps to
support the roof in "a lot of the areas," took extra steps to

513

insure supported roof "in a few places," and while he alleged
that some of his complaints about adverse roof conditions
were ignored, the only specific information he had to offer
was that discussed earlier.
The miners called by the respondent consistently testified that adverse roof conditions called to the attention of
mine management were always addressed and corrective action
~as taken to support the roof.
Respondent produced copies of
reported roo~ falls which occurred in the mine on April 4,
10, 19, and May 7, 1985, and none of them involved any injury
or damage to equipment (Exhibits C-2(a), (b}, (c), Cd)).
These falls were reported to MSHA, and they were investigated
(exhibits C-2(e), (f), Cg)). However, there is no evidence
that any citations or violations were ever issued, and this
fact was corroborated by Mr. Robert Massey, the responsible
company official who maintains the mine records.
The only instance· of record of any failure by management
to promptly address any adverse roof condition was supplied by
electrician Roger Groves, who testified for Mr. Cox.
Mr. Groves testified that in the 5 years he has worked in the
mine, he had one occasion to complain about bad top where the
roof had dropped in a roadway and was taking weight. After
he called the condition to Mr. Jackson's attention, Mr. Groves
stated that mining continued for about a week before corrective action was taken. However, Mr. Groves could supply no
further details about this incident, and he confirmed that the
roof was otherwise always bolted in accordance with the.
roof-control plan, and that foreman Blankenship frequently
discussed the plan with the miners. Mr. Groves also confirmed
that he saw no evidence that management ever did anything to
endanger miners under unsupported roof.
The record establishes that at no time during his employment at the mine did Mr. Cox formally complain to any mine
inspector about any purported unsafe conditions in the mine.
Although he claimed he never had an opportunity to do so
because someone from mine management was always present,
Mr. Cox never availed himself of the opportunity to use the
MSHA "hotline," even though he was aware that he could do so.
Further, although he spoke with two MSHA inspectors prior to
his discharge about his safety concerns and the manner in
which Mr. Jackson was running the mine, at no time did Mr. Cox
follow their suggestions that he file a safety complaint with
the apppropriate MSHA office.
Most of the miners who testified in this case confirmed
that they often discussed mine conditions among themselves,

514

and that Mr. Cox was included in these group discussions.
Eight miners testified that they either never heard Mr. Cox
specifically or overtly complain to mine management, or ·they
had no knowledge of, such complaints. None of them were aware
of any safety complaints by Mr. Cox to state or Federal mine
safety officials, and only one miner was aware that Mr. Cox
was keeping a journal of purported mine violations.
Although roof bolter Bobby Carpenter testified that he
never heard ~r. Cox complain to management about safety, he
acknowledged that in a prior statement given to MSHA during
its investigation of Mr. Cox's complaint, he stated that
Mr. Cox "did a lot of hollering" to Mr. Jackson and foreman
Blankenship, and that Mr. Cox "was always complaining about a
lot of things • • • to some extent a lot of it did have to do
with health and safety." Mr. Carpenter also confirmed that
Mr. Cox talked about "air at the face and the ventilation
curtains being rolled up" Mr. Carpenter also confirmed that
Mr. Cox also complained about how the mine was being managed,
questioned management decisions not necessarily related to
safety, and the fact that he did not like Saturday work.
Mr. Cox testified that while he did complain to
Mr. Jackson about his safety concerns, these complaints were
"few" and "rare." Mr. Cox stated that most of his complaints
were made to Mr. Blankenship, his foreman and part owner of
the mine, and that the complaints concerned the roof taking
weight in the No. 5 entry, and the fact that powder and caps
were kept on equipment. Mr. Blankenship declined to testify
as to whether Mr. cox or anyone else had ever made safety
complaints to him. Mr. Jackson denied that miners other than
Mr. Cox ever directly complained to him, and he confirmed
that in the event complaints were made, he probably would not
hear all of them.
After careful consideration of all of the testimony and
evidence adduced in this case, I conclude and find that
Mr. Cox has established that he made safety complaints to
mine management prior to his discharge on May 13, 1985. I
believe Mr. Cox's assertions that he complained to his section foreman Blankenship about the bad top, the ventilation
curtains being rolled up, and the practice of storing powder
and caps on the equipment. I also believe that Mr. Cox has
established that he made similar complaints when he spoke
with two MSHA inspectors prior to his discharge. All of these
complaints, albeit made informally during conversations with
mine management and the inspectors, constitutes protected
activity under section 105(c) of the Act, and the respondent

515

is prohibited from retaliating against Mr. Cox for making the
complaints.
With regard to Mr. Cox's alleged threats to go to MSHA
or to any other mine enforcement agencies with his complaints
prior to his discharge, there is a difference of opinion among
the parties as to whether those threats were safety related,
or whether they were made in connection with Mr. Jackson's
discharge of Mr. Poole and the respondeAt 1 s Saturday work
requirement policy. If Mr. Cox can establish that his threats
were safety related, they were protected activity, and the
respondent would be prohibited from retaliating against
Mr. Cox for those threats. A discussion of these issues
appears later in this decision.
Mr. Jackson's Motivation for Mr. Cox's Discharge
The evidence in this case establishes that the respondent
operates a small, non-union mine, and it is undisputed that as
its president, Mr. Jackson exercised practically autonomous
authority to hire, fire, and discipline the work force, and
that he fixed company policy with respect to work assignments
and other personnel matters. The evidence also establishes
that the only management official involved in the decision to
discharge Mr. Cox was Mr. Jackson. Mr. Cox has not rebutted
the fact that Mr. Jackson acted alone in making that decision,
nor has he rebutted the fact that all employees were aware of
the fact that notwithstanding the presence of other co-owners
who worked the mine, Mr. Jackson was "the boss."
The record establishes that both Mr. Jackson and Mr. Cox
are men of limited educational backgrounds. Further, after
viewing them on the stand during the course of the 3-days of
hearing in this case, they impressed me as strong-willed personalities who do not shy away from making their respective
points of view known to the court or to trial counsel who represented them. During the course of the hearing, Mr. Jackson
was quick to personally respond to Mr. Cox's counsel's suggestion that he may have been under the influence of tranquilizers during his testimony, or that he was not telling the
truth (Tr. 203-205). Likewise, Mr. Cox displayed a similar
temperament in responding to some questions from the court,
and during certain periods of cross-examination testing his
credibility. In short, they impressed me as two individuals,
who given the right conditions, are prone to anger, and would
not hesitate to become argumentative in their efforts to persuade each other as to the correctness of their respective

516

positions. Under the circumstances, I find credible the testimony in this case that although Mr. Cox and Mr. Jackson generally got along with each other, they were both prone to losing
their temper, and at times cursed each other and otherwise
took out their anger and frustrations on each other.
Although the record indicated some prior differences
between Mr. Cox and Mr. Jackson, I cannot conclude that there
is any evidence to support any overt hostility or animus by
mine managem~nt towards Mr. Cox, or any disparate treatment of
Mr. Cox because of his asserted safety concerns. To the contrary, I conclude that Mr. Jackson exhibited a high level of
tolerance towards Mr. Poole and Mr. Cox. Mr. Jackson hired
Mr. Cox when he was out of work, and he subsequently hired
Mr. Cox's nephew Michael Poole after Mr. Cox asked Mr. Jackson
to give him a job. The respondent advanced Mr. Poole money
when he was in need after a death in his wife's family, and
also sponsored Mr. Cox's daughter in a beauty contest with a
~onetary donation.
During a lay-off period, Mr. Jackson accommodated Mr. Cox through certain earnings statements to enable
him to draw unemployment, and took him back after the lay-off.
Mr. Jackson also allowed him to change shifts to meet a doctor's appointment. Although Saturday work was treated as a
regularly scheduled work day by management, it nonetheless
compensated miners for Saturday work by paying them premium
pay.
The record establishes that between February, 1984 and
May, 1985, Mr. Poole had an absenteeism problem, and he was
warned on several.occasions that he would be discharged if
his attendance did not improve. Although both Mr. Poole and
Mr. Cox were aware of the fact that occasional Saturday and
overtime work were conditions of employment, they nonetheless
voiced their displeasure over Saturday work, and made it
known to management and their fellow miners that they did not
like to work on Saturdays. Mr. Cox went further and advised
several of his fellow miners that they did not have to work
on Saturdays if they didn't want to.
Although Mr. Jackson considered Mr. Cox to be a good
worker, he had several encounters with him over certain work
assignments, and had to speak to him on several occasions about
certain unsafe practices. On one occasion, after warning
Mr. Cox not to ride the belt out of the mine, Mr. Cox continued
to ride the belt, and Mr. Jackson had to resort to shutting
down the belt, forcing Mr. Cox to walk out of the mine. On
other occasions, either Mr. Jackson or Mr. Blankenship warned
Mr. Cox about working under unsupported roof and bolting out of
sequence. On yet another occasion when Mr. Cox failed to show

517

up on a scheduled Saturday work day, and was taken off a roof
bolter at the suggestion of an MSHA inspector because he had
been involved in four roof bolt accidents, Mr. Cox became upset
to the point where Mr. Jackson threatened to give him an
"unsatisfactory work slip," only to recant and allowed him to
return to work. As a matter of fact, after this incident,
Mr. Cox was reassigned to work building stoppings. However,
out of consideration for his back condition, Mr. Blankenship,
whqm Mr. Cox considered his friend, interceded on his behalf
and· transferred him to work on a scoop, and Mr. Jackson agreed
to the transfer.
In his original complaint filed with MSHA, Mr. Cox
admitted that he and Mr. Jackson "had been at odds before
because of the way the mine run." Bobby Carpenter testified
that Mr. Cox "did a lot of hollering" to Mr. Jackson and to
Mr. Blankenship, and that Mr. Cox complained about how the
mine was being managed, qnd about management decisions that
were unrelated to safety (Tr. 269). Foreman Blankenship testified that he considered Mr. Cox to be "a bully," and that
Mr. Cox had at one time "threatened to whip me in front of
the other men" (Tr. 157). Johnny Stafford testified that on
one occasion, Mr. Cox "threatened to kick my butt," and
challenged him to a fight (Tr. 292). Mr. Jackson testified
that he warned Mr. Cox about his tardiness to work and his
complaints about how Mr. Jackson was managing the mine.
Mr. Jackson confirmed that Mr. Cox was the only employee who
caused him problems, and that Mr. Cox's threats "to whip his
ass" upset him. Mr. Jackson also confirmed that while he
considered Mr. Cox to be a good worker, Mr. Cox had problems
in taking orders, did things the way he wanted to, resented
authority, and that after the incident in June 1984 when he
was taken off the roof bolter, Mr. Cox resented doing what
was asked of him, and resisted any Saturday work. Yet, given
all of these prior incidents which I believe would give mine
management reasonable pause to reflect as to whether or not
Mr. Cox should continue in its employ, Mr. Jackson did not
fire Mr. Cox.
In his initial complaint filed with MSHA, Mr. Cox made a
statement that Mr. Jackson "tried to fire me on June of 1984
because of safety in the mines." Mr. Cox also asserted that
miners have been laid off because of their safety complaints.
However, during the hearing, Mr. cox admitted that
Mr. Jackson's purported attempts to fire him amounted to
Mr. Jackson's intent to give Mr. Cox an "unsatisfactory work"
slip for not working on a scheduled Saturday, and because of
Mr. Cox's protests after being taken off the roof bolter.
Mr. Cox admitted that Mr. Jackson's proposed disciplinary
action resulted from Mr. Cox's refusal ~o work on Saturday

518

because he had to bale hay. Mr. Cox further admitted during
the hearing that he knew of no miner who was ever laid off
and not called back to work because of any safety complaints
made to management (Tr. 183-184). Thus, Mr. Cox's testimony
during the hearing belies his prior complaint statements that
Mr. Jackson threatened to fire him for safety reasons, and
that miners have been laid off for making safety complaints,
and raises a serious question as to his credibility.
The afo+ementioned June 1984 incident took place approximately 8 months before Mr. Cox's discharge. It was at that
time that Mr. Cox purportedly made the statement to
Mr. Jackson that "we are going to run the mine the way the
law says," and when foreman Blankenship purportedly told
Mr. Cox "don't do anything to make me fire you." I cannot
conclude that the purported statement by Mr. Cox was a threat
to complain to MSHA, nor can I conclude that Mr. Blankenship's
purported response amounted to a threat to fire Mr. Cox for
any threats to go to MSHA. The June 1984 incident resulted
from Mr. Cox's refusal to work on a Saturday when he had other
things to do, and his removal from the roof bolter at the suggestion of an MSHA inspector because he was "accident prone."
Mr. Cox was angry because he first believed Mr. Jackson took
him off the bolter to punish him for not working on Saturday,
and Mr. Jackson was angry because Mr. Cox would not work and
because an MSHA inspector had to speak to him about his accident frequency rate involving Mr. Cox's work as a bolter.
Although Mr. Jackson assigned Mr. Cox to work on stoppings, a
job requiring much physical labor, he recanted after foreman
Blankenship interceded on his behalf, and out of consideration
for Mr. Cox's back condition, Mr. Jackson assigned him to a
scoop. Given all of these circmnstances, I conclude that the
June 1984 incident had nothing to do with Mr. Cox's safety
concerns or complaints.
After the June 1984 incident, Mr. Cox began keeping a
journal in which he made entries concerning mine conditions
which he believed were unsafe and in violation of the law.
The journal was kept for only 2 weeks, beginning in mid-August
through September 2, 1984, some 8 months before Mr. Cox's discharge. Mr. Cox testified that he kept the journal at home
and intended to use it as "insurance" in the event of any
future adverse action against him. However, Mr. Cox admitted
that he never showed the journal to anyone, including the MSHA
inspectors to whom he spoke, and there is absolutely no evidence that Mr. Jackson or anyone else in management ever knew
about the journal. Although Mr. Cox testified that he mentioned the journal to Mr. Jackson's son, Kit, and that he
"might have intended" for the son to tell his father, I doubt

519

that Mr. Cox would disclose his "insurance," which he kept at
home, at a time when his job was not in jeopardy. Given the
lack of any credible evidence or inference that Mr. Jackson
knew about the journal or Mr. Cox's visits with the i~spec
tors, I conclude and find that these events played no role in
Mr. Jackson's decision to discharge Mr. Cox.
Mr. Cox admitted that he told some of his fellow miners
that they did not have to work on Saturdays. Although he
denied telliQg them that the company could do nothing about it
because of the "labor board," Mr. Cox fulrther admitted that he
told the miners "if you've got other things that you want to
do, just don't come in to work" (Tr. 128-129). Donnie Crum
testified that Mr. Cox told him that he was not going to work
on Saturday, May 11, 1985, and that if the respondent farced
him to, "the labor board would take care of it and the co~pany
couldn't do anything about it" (Tr. 233). William Griffin
testified that he worked a lot of overtime on Saturdays, and
that Mr. cox called him a "company suck" for doing so (Tr.
284). I find all of this testimony to be credible, and it
lends credence and support to Mr. Jackson's assertions that
Mr. Cox was trying to undermine his authority with respect to
his policy concerning Saturday work requirements.
During his direct testimony, Mr. Cox confirmed that
Mr. Jackson told him on Saturday, May 11, 1985, that he was
tired of Mr. Poole "laying off" the job, and that Mr. Cox was
to inform Mr. Poole to come in and "pick up his time."
Mr. Cox also confirmed that he placed the call to Mr. Pleasants
in an attempt to get Mr. Poole's job back. At that point in
time, I am convinced that Mr. Cox knew that Mr. Jackson had
discharged Mr. Poole because of his absenteeism, and I so find.
On cross-examination, however, Mr. Cox stated that he was not
under the impression that Mr. Jackson "was fed up" with
Mr. Poole over his absences, and he believed that Mr. Jackson
found an opportunity to get rid of Mr. Poole because of his
safety complaints. I find Mr. Cox's impression of his conversations with Mr. Jackson to be contradictory, and find nothing in
the record to support Mr. cox's opinion that Mr. Poole was
fired for any reason other than an absenteeism problem for
which he was warned many times by Mr. Jackson.
Mr. Cox admitted that he disagreed with Mr. Jackson's
decision to fire his nephew, and that he told him so during
their conversation on Saturday, May 11, 1985. During that
conversation, Mr. Cox questioned Mr. Jackson's treatment of
Mr. Poole, and made some comments about the attendance record
of Mr. Jackson's son, Kit. This provoked Mr. Jackson to the
point where he informed Mr. Cox that if he were unhappy with

520

his decision to fire his nephew, he too could "pick up his
time." At that point in time, I believe one could reasonably
conclude that Mr. Jackson was ln a mood to fire Mr. Cox along
with his nephew, subject only to Mr. Cox's following through
with Mr. Jackson's comment that he could "pick up his time."
I have carefully reviewed all of Mr. Cox's statements
made to MSHA after his discharge and during the investigation
of his complaint, and nowhere do I find any statements by
Mr. Cox that.he ever threatened to go to the "Labor Board" or
any other mine enforcement agencies, that he ever intended to
do so, or that he ever told anyone in mine management about
any such purported threats. Mr. Poole's prior statements
likewise contain no such information. The only prior statement by Mr. Cox raising any inference of a threat to go to
MSHA is his assertion that "during April 1985" he told
Mr. Blankenship that he was going to speak to an MSHA inspector on his next visit to the mine about the roof conditions.
However, there is no ev~dence that Mr. Jackson knew about
this statement, and I cannot conclude that it had anything to
do with Mr. Cox's discharge.
At page four of his brief, Mr. Cox's counsel finds it
"significant" that in his deposition of November 4, 1986,
Mr. Jackson implied that Mr. Cox had threatened 20 times to
go to MSHA. I have carefully reviewed Mr. Jackson's testimony in that deposition and cannot conclude or infer that
Mr. Cox threatened to go to MSHA. Mr. Jackson testified that
Mr. Cox threatened to go to the "Labor Board" about his discharge of Mr. Poole, and that Mr. Cox told him that he could
not require anyone to work on Saturday if they did not want
to, and that he ·could not fire Mr. Poole for refusing to work
on Saturday. Mr. Jackson further testified that it was in
this context that Mr. Cox threatened that the "Labor Board
will eat me up," and Mr. Jackson further testified that he
had no idea who Mr. Cox was talking about when he used the
term "Labor Board" (Tr. 35-38). I find Mr. Jackson's testimony to be credible, and I conclude that Mr. Cox's prior
threats to go to the "Labor Board" concerned matters unrelated
to any safety concerns on his part.
I find that the respondent's policy prohibiting its
employees from contacting the Brooks Run Coal Company on managerial decisions and policies made by the respondent was well
known among the workforce, including Mr. Cox. Mr. Jackson had
previously warned the workforce that any further contacts with
Brooks Run would be viewed by him as an effort to question or
undermine his operational authority to run his own mine and
would be considered a dischargeable offense. Mr. Cox admitted

521

that at the time he placed the call to Mr. Pleasants on
May 11, 1985, he did not identify himself to Mr. Pleasants out
of fear that his job would be jeopardized for placing the call
(Tr. 159). This supports my conclusion that Mr. Cox was aware
of the policy and that he was concerned that his violation of
this policy could cost him his job.
The crux of Mr. Cox's case lies in the telephone call he
placed to Mr. Pleasants on Saturday, May 11, 1985, after a
heated telephone exchange with Mr. Jackson over the discharge
ofi.Mr. Poole: At that time, Mr. Cox said nothing to
Mr. Jackson about going to MSHA or "to the agencies" about
any of his complaints, or about Mr. Jackson's discharge of
Mr. Poole. Mr. Jackson came close to discharging Mr. Cox at
that point in time, but did not do so. However, Mr. Jackson
told Mr. Cox in no uncertain terms that if he (Cox) were not
satisfied with his decision to fire Mr. Poole, that he too
could "pick up his time." Had Mr. Cox taken up the offer and
11
picked up his ~ime," I believe one could reasonably conclude
that Mr. Jackson 'also fired Mr. Cox for questioning his decision to fire Mr. Poole, and for questioning his Saturday work
policy.
Mr. Cox's assertions that he and Mr. Poole had always
intended to go to MSHA and to other appropriate mine enforcement agencies are rejected as self-serving declarations made
by Mr. cox after he found himself out of a job. When called
in rebuttal at the hearing after testifying on direct, and
after Mr. Cox's testimony, Mr. Poole asserted that he and
Mr. Cox had always intended to go to the 11 labor board or the
governmental agencies" regardless of whether or not they were
discharged. When asked whether he would have gone to MSHA if
Mr. Poole were given his job back, Mr. Cox relied "not right
at that time" (Tr. 161). This raises serious doubts in my
mind that but for his discharge, Mr. Cox ever intended to
file any complaints with MSHA or anyone else.
Mr. Cox admitted that he placed the call to Mr. Pleasants
in order to attempt to influence him to intercede with
Mr. Jackson and save his nephew's job. Mr. Cox also admitted
that he told Mr. Pleasants that there would be trouble at his
mine if Mr. Poole were discharged (Tr. 158). Mr. Poole conceded that Mr. Cox placed the call to Mr. Pleasants in an
effort to convince Mr. Pleasants to intercede with Mr. Jackson
over his discharge. Mr. Poole confirmed that Mr. Cox told
Mr. Pleasants that there would be trouble at his mine if something was not done about getting Mr. Poole's job back (Tr.
282-283).

522

Mr. Pleasants expressed serious concerns over Mr. Cox's
threats of trouble at his mine, as well as the other mines
which supplied coal to Brooks Run, and his concerns were over
what he viewed to be threats of labor trouble by Mr. Cox over
the discharge of Mr,. Poole and the respondent's Saturday work
policy. Although Mr. Cox and Mr. Poole denied that Mr. Cox
made any statements to Mr. Pleasants whch may have led
Mr. Pleasants to conclude that Mr. Cox was threatening a
possible work stoppage at the mines supplying coal to Brooks
Run, I simply do not believe them. Given the background of
Mr. Cox's reluctance to work on Saturdays, his prior threats
to take that issue to the "labor board," and his prior corroborated statements to other miners that they did not have to
work on Saturdays and that management could do nothing to
force them to work, I find Mr. Pleasant's version of his conversation with Mr. Cox to be credible.
I conclude that Mr. Cox's telephone call to Mr. Pleasants
had nothing to do with any safety concerns on the part of
Mr. Cox or Mr. Poole. The call was clearly made in an attempt
to influence Mr. Pleasants to intercede on behalf of Mr. Poole
and to pressure Mr. Jackson to rescind his discharge of
Mr. Poole. Mr. Cox's threats of trouble at the mines which
supplied coal to Brooks Run, and his threats to "go to the
agencies" if Mr. Poole were not given his job back, were not
made by Mr. Cox out of any safety concern. I conclude and
find that Mr. Cox's telephone contact with Mr. Pleasants, and
his threats in connection with Mr. Poole's discharge and the
respondent's Saturday work policy, were clearly in violation
of Mr. Jackson's policy that no one was to contact Brooks Run
questioning managerial policy decisions made by the respondent, and constituted unprotected activity for which Mr. Cox
could be justifiably dismissed.
Mr. Pleasants testified that when he advised Mr. Jackson
of Mr. Cox's telephone call, Mr. Jackson confirmed that he had
fired Mr. Poole because of his absenteeism. When Mr. Pleasants
advised Mr. Jackson that the caller had also complained that
the respondent's Saturday work policy was interferring with his
little league coaching duties, Mr. Jackson immediately recognized that the caller had been Mr. Cox and stated to
Mr. Pleasants that "I discharged one man, but now there will be
two." Mr. Jackson explained to Mr. Pleasants that he was discharging Mr. Cox for "going over his head" with his complaints
to Mr. Pleasants. I believe that Mr. Jackson made the decision
to discharge Mr. Cox as soon as he learned that it was Mr. Cox
who had placed the call to Mr. Pleasants, and that he did so
because of that contact, and not because of any threats by
Mr. Cox to "go to the agencies" with any safety complaints. I

523

believe that Mr. Jackson was fed up wi'th Mr. Cox and Mr. Poole,
and that Mr. Cox's call to Mr. Pleasants, which came shortly
after Mr. Jackson's call to Mr. Cox in which they exchanged
heated words over Mr. Poole's discharge, and the Saturday work
policy, was simply too much for Mr. Jackson to tolerate, and he
reacted swiftly by making the decision to fire Mr. Cox.
The complainant's arguments that Mr. Jackson decided to
fire Mr. Cox only after being informed by Mr. Pleasants of
Mr. Cox's threats "to go to the agencies" with his complaints
of unsafe practices in the respondent's mine are rejected. I
have reviewed Mr. Pleasants prior memorandum of June 18, 1985,
documenting his telephone conversation with Mr. Cox, and find
nothing inconsistent with Mr. Pleasants' testimony during the
hearing. The memorandum is not a verbatim record of the conversation in question, and it was prepared over a month after
the call.
I believe the memorandum is a simply record of the
call, and I cannot conclude that it supports any inference
that Mr. Jackson decided to fire Mr. Cox after being advised
of Mr. cox's threats "to go to the agencies." Given
Mr. Jackson's frustration with Mr. Cox and Mr. Poole because
of their failure to work on Saturday, Mr. Jackson's prior
exchange with Mr. Cox over the discharge of Mr. Poole, and
Mr. Cox's telephone contact with Mr. Pleasants, I believe
Mr. Jackson's testimony that Mr. Cox's threats to go to the
agencies or to MSHA had nothing to do with his decision to
fire Mr. cox.
I find Mr. Jackson's version as to why he discharged
Mr. Cox to be credible.
I further conclude and find that
Mr. Jackson was justified in discharging Mr. Cox for
attempting to undermine and interfere with his authority with
respect to the Saturday work policy, his decision to
discharge Mr. Poole, and Mr. Cox's violation of company policy
with respect to contacts with the Brooks Run Coal Company.
I
further conclude and find that each of these occurrences,
taken as a whole, constituted "unsatisfactory service," and
support Mr. Cox's discharge.
CONCLUSION AND ORDER
In view of the foregoing findings and conclusions, and
after careful consideration of all of the credible evidence
and testimony adduced in this case, I conclude and find that
the complainant has
iled to establish a prima facie case of

524

discrimination on the part of the respondent. Accordingly,
the complaint IS DISMISSED, and the complainant's claims for
relief ARE DENIED.

/~
~

~
,d'.7
·~-

,,,.9,~~Kout
~~ 1/1' ·"
~~
as
~dministrative

Law Judge

Distribution':
Paul R. Stone, Esq., 239 Peoples Building, P.O. Box 2828,
Charleston, WV 25330 (Certified Mail)
William C. Garrett, Esq., Garrett, Garrett & Van Nostrand,
P.O. Box 786, Webster Springs, WV 26288 {Certified Mail)
Laura E. Beverage, Esq., Jackson, Kelly, Holt & O'Farrell,
P.O. Box 553, Charleston, WV 25322 (Certified Mail}

/fb

525

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

22041

MAR 9 1987
HARLAN L. THURMAN,
Complainant

v.

.

QUEEN ANNE COAL COMPANY,
Respondent

DISCRIMINATION PROCEEDING
Docket No. SE 86-121-D
BARB CE 86-51

CORRECTED DECISION
Appearances:

James c. Shastid, Esq., K.noxville, Tennessee, for
Complainant1
Charles A. Wagner, Esq., Knoxville, Tennessee, for
Respondent

Before:

Judge Weisberger
Statement of the Case

Complainant filed a complaint with the Commission under
Section 105(c) of the Federal Mine Safety and Health Act of 1977
30 u.s.c. § 815Cc> (the Act) alleging that he was illegally discriminated against in that, in essence, he was forced to quit his
job with Respondent due to the danger to him as a consequence of
harassment from co-workers and his foreman.
Pursuant to notice of September 16, 1986, the case was set
for hearing in Knoxville, Tennessee on November 4, 1986. On
October 22, 1986, Respondent filed a Motion for Continuance. on
October 29, 1986, a Order was issued granting the Motion for
Continuance and scheduling the case for hearing on December 2,
1986. On November 24, 1986, Respondent filed a Motion to Dismiss
on the ground that Cl) the Complaint was not timely filed, and
(2) the Complaint failed to state a violation of 30 u.s.c.
§ 815(c)(l)o
At the hearing on December 2, 1986 an oral argument
was presented by the Parties as to Respondent's Motion. After
listening to the arguments, I denied the Motion to Dismiss that
was based upon the ground that the complaint was not timely filed.
I reserved decision on the Motion to Dismiss which was made on
the grounds that the complaint failed to.state a violation of
Section 815(c)(l), supra.

526

The case was subsequently heard in Knoxville, Tennessee on
December 2, 1986. At the hearing complainant was represented by
James c. Shastid, and Respondent was represented by Charles A.
Wagner, III. Harlan Thurman and Deborah Thurman testified for
Complainant. Robert Swisher, Dempsey Lindsey, Crawford Harness,
Jeffry Mason, and Dewayne Mason testified for Respondent. On
December 9, 1986, a letter was received from Complainant in which
he advised that·Attorney James Shastid was no longer representing
him. This was confirmed in a letter from Mr. Shastid received on
December 12, 1986. Subsequent to the hearing, the Parties, on
February 2, 1987 filed posthearing briefs. On February 17, 1987,
a reply brief was filed by Complainant. On the same date a
letter was received from Counsel for Respondent who, in essence,
waived his right to file a Reply Brief.
Findings of Fact
The Complainant, Harlan L. Thurman, had been employed as a
miner by the Respondent, Queen Anne Coal Company, for 3 years
prior to March 1986. During that time, he worked the night shift
with the same personnel.
·
The Complainant testified that in the 3 years that he worked
for the Respondent there was no outside man. Robert Swisher, the
President, and one of the owners of Respondent testified that
there has not been any outside man at Respondent's mine for
approximately 9 or 10 years. Thurman, in essence, testified that
during the 3 years he worked for Respondent, his co-workers and
foreman continuously harassed him. He said that they put urine
in his tea, that his clothes were tied up, that dishwashing
liquid was poured over his clothes, that there was grease placed
on the seat of his vehicle, there were logs placed under the
vehicle's wheels, and a headlight was broken on his vehicle. He
also said that in the summer of 1985 he was sent to work alone by
his foreman Crawford Harness. It also was Thurman's testimony
that when he started to work for Respondent there was an incident
when only four men were on the shift and a miner was being
operated.
In the summer of 1985 Complainant made a complaint to
Dempsey Lindsey, the Respondent's superintendent, that Crawford
had cursed him over a mistake in transporting certain supplies.
Complainant also made a complaint to Lindsey, in the summer of
1985, that the men had left him alone when he had to get a scoop
cart out of the mud.
Complainant's work shift usually commenced at 4:00 p.m. and
concluded at 1:30 a.m. On March 6, 1986, the Complainant started
to work on the shift at 4:30 p.m. and left early at 10:30 p.m.,
in essence, because he felt that the harassment from his foreman
and co-worker, coupled with the lack of an outside man, created a

527

dangerous condition to him underground. Prior to March 6, 1986,
the Complainant had not made any safety complaints to MSHA
Officials, or company management officials.
On March 7, 1986, the Complainant went to see Emroy Haggard,
the bookkeeper and part-owner of the Respondent, and told him, in
essence, that Respondent's employees were taking coal. He also
"explained to him what had been going on and some of the stuff that
had been happening". (Tr. 32). Haggard theq set up a meeting for
the Complainant with Swisher the f 01·1owing Monday. At that meeting
Complainant indicated that the men on the shift were harassing him.
Thurman had told him that at one time that Crawford stuck his fist
in his face and threatened to whip him. Swisher also said that
Thurman told him that the men on the shift were: stealing company
coal, had broken the headlight on his truck while it was on
Respondent's site, had urinated in his food, and had locked him
inside the gate. Thurman also told Swisher that there was no
outside man. He also told Swisher that Harness does not have any
education. Thurman had also told hi~ that when he first started to
work for Respondent his shift ran a miner with only four people on
the shift.
Swisher than convened a meeting the following Thursday with
himself, Thurman and the men on the shift along with Foreman
Dempsey. At that meeting, in essence, Complainant's complaints
were reiterated, then Swisher told the men on the shift that he
would not tolerate any horseplay. According to Thurman, Swisher
told him then to go back to work. Swisher also asked Lindsey to
find Thurman ·a job on the day shift.
After the meeting Thurman intended to return to work. However, shortly after he left, Thurman returned to the office and
told Dempsey and Swisher that, in essence, that he could no
longer work underground with the men on the shift. Thurman gave
his reason that he feared for his safety because Dempsey and
Harness were "like they were a clique".
(Tr. 107). Swisher told
Lindsey to try to get Thurman a job on the day shift. However,
Lindsey has testified that in general it is difficult to get men
from the day shift to transfer to the night shift, and that in
this case none of the day shift men wanted to trade with Thurman
and work on the nigh~ shift. Lindsey also talked to the president and manager of another mining company, where Thurman had
previously worked, with regard to obtaining a job for Thurman.
Thurman did not return to work after he left early on March 6,
and subsequently obtained other nonmining employment.
Issues
1. Whether the Complainant has established that he was
engaged in an activity protected by the Act.

528

2.
If so, whether the Complainant suffered adverse action
as the result of the protected activity.
3.

If

so~

to what relief is he entitled.
Conclusions of Law

Complainant and Respondent are protected by and subject to
the provisions of the Act, Complainant as a miner and the
Repondent as the operator.
The Commission, in a recent decision, Goff v. Youghiogheny
& Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated
the legal standards to be applied in a case where a miner has
alleged acts of discrimination. The Commission, Goff, supra, at
1863, stated as follows:
~~
A complaining miner establishes ,a prima facie case of
prohibited discrimination under the Mine Act by proving
that he engaged in protected activity and that the
adverse action complained of was motivated in any part
by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United Castle Coal
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 not motivated in any part by protected activity. Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. S·tafford Constr. Co., 732 F.2d 954, 958-59
(D.C. Cir 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (specifically approving the
Commission's Pasula-Robinette test).
Protected Activity
Thurman's complaints to Swisher on or about March 10, 1986,
with regard to the lack of an outside man, and complaints the
following Thursday that there was an incident whereby a miner was
operated with only four men in the section, both contained allegations of safety violations and as such are considered protected
activities. The balance of the complaints made to Swisher,
Haggard, and Lindsey, all had to do with allegations of harassment by Thurman's co-employees, were not protected activities
(see Jimmy Sizemore and David Rife v. Dollar Branch Coal Company,
5 FMSHRC 1251 (July 1983)).
In the same way, complaints to
Swisher and Haggard with regard to co-workers taking Respondent's
coal, are not safety related and thus are not protected
activities.

529

Adverse Action
Complainant, in essence, complains of four adverse actions
by Respondent:
1. Swisher told Thurman to go back to work on about
March 13, 1986, after Swisher had heard Thurman's various complaints.

1. The fact that Respondent had not found a job for Thurman
on its day shift.
3. The fact that the Respondent had not cured its alleged
violation of not having an outside man.
4. Swisher threatened Thurman by telling him about a former
employee of Respondent who was killed when a tank that he had put
a torch to had blown up.
There is no evidence that Respondent took any adverse action
against Thurman which was motivated in any part by safety complaints.
Indeed, I find that although Thurman at the hearing
complained of unsafe practices such as not having an outside man
and operating a miner with only four men, there is no evidence
that Thurman made any complaint about these conditions to any
government official, or agent of Respondent prior to the date
that he left work, i.e., March 6, 1986. Thurman alleges that
after he made various complaints to Swisher on or about March 10
and March 13, 1986, Swisher told him to go back to work.
I hold
that Swisher's comments to Complainant, in indicating on or about
March 10, 1986, that Thurman should go back to work, did not constitute any adverse action. Surely, having Thurman return to his
usual job can not be found to be an adverse action. Similarly,
although Thurman might reasonably have felt that for him to
return to his section, where he was subject to harassment, would
be a danger to him,, this can not constitute any type of constructive discharge.
In this connection, it is manifest that the Act
does not contemplate protecting a miner from harassment from a
co-worker, when that harassment is not motivated by the miner's
safety complaints.
In this case, there is no evidence that
harassments from Thurman's co-workers were motivated in any part
by Thurman's complaints about not having an outside man.
Indeed,
all evidence indicates that Thurman's complaints in this regard
occurred subsequent to the date that he left work. Also there is
no evidence that the harassment from co-workers were abetted or
encourged by management. Indeed, Swisher's uncontradicted testimony was to the effect that at the meeting with Thurman's
co-workers on March 6, 1986, after Thurman had complained of
harassment, he (Swisher) told them to stop engaging in horseplay.

530

Also, it is clear that Respondent did not commit any adverse
action in not finding Thurman a job on the day shift. Not only
is there no evidence that this was not in any way motivated by
Thurman's protected activities but to the contrary, the only
evidence in record, testimony by Dempsey, is that none of the day
shift wanted to switch shifts with Thurman. To require Respondent
to create a position for Thurman on the day shift, would unduely
interfere with its business decision in managing its mine.
Thurman might have felt threatened by hearing Swisher
telling him of· a former miner, who had some type of emotional
problem, who was killed in an accident at the mine. However,
there was not evidence that Swisher, in telling of this incident,
had any intent to threaten Thurman. " Nor is there any evidence
that his telling of this incident in ~ny way was motivated by
Thurman's protected activities. Indeed, Swisher testified that
he told of the incident in order t9 relate his care for his
employeeso
Complainant appears to· be arguing that inasmuch as
Respondent continues to operate without an outside man at the
mine, that this is an adverse action against him. It is clear
that although failure to provide a miner with a safe work place
might be a violation under the Act but that "such a failure does
not without more consititute discrimination." (Lund v. Anamax
Mining Company 4 FMSHRC 249, 251 (February 1982)-)-.~
Therefore, based upon the above I conclude that Thurman
failed to establish the second element of a prima facie case
i.e., that he did not show that there was an adverse action by
Respondent motivated by in any part by safety complaints. I
conclude that accordingly Complainant has not established that he
was discriminated against under Section 105{c) of the Act.
Order
Based upon the above Findings of Fact and Conclusions of
Law, it is ORDERED that this proceeding be DISMISSED. As such,
Respondent's Motion to Dismiss is GRANTED.

~is be~

Administrative Law Judge

531

Distribution:
Mr. Harlan L. Thurman, P. O. Box 561, Norris, TN 37828 (Certified
Mail)
Charles A. Wagner, Esq., 1801 Plaza Tower, P.
Knoxville, TN 37901-1308 (Certified Mail)

'

o. Box 1308,

Robert Swisher, Queen Anne Coal Company, P. O. Box 498,
Lake City, TN 37769 (Certified Mail)
dcp

532

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

MAR 111987
JIM WALTER RESOURCES, INC.,
... CONTEST PROCEEDING
Contestant
v.

Docket No. SE 86-139-R
Citation No. 2810267; 9/22/86

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

No. 5 Mine

DECISION
Appearances:

R. Stanley Morrow, Esq., Birmingham, Alabama,
for Contestant~
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Respondent.

Before:

Judge Melick

This case is before me under section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et. ~, the 11 Act 11 to challenge Citation No. 2810267 issued
to Jim Walter Resources Inc. (Jim Walter) by the Secretary of
Labor on September 22, 1986.
The citation as amended at hearing charges a 11 signi
icant and substantial" violation of the standard at 30 C.F.R.
§ 75.309(a) and reads as follows:~/
Methane from 1.1% to 1.2% was detected with a G-70
methane detector, in the main return aircourse of
the No. 3, 5, 6 and 7 sections from spad No. 2821
outby to spad No. 2174, the overcast of No. 5 and
No. 7 section track. Also the main return aircourses from spad No. 2242 extending inby to spad
No. 2827 where the No. 5 section
t return joins
the left return of the No. 7 section. Also extending up the No. 5 section
t return from spad
No. 2827 to the working face.
Bottle samples were
taken to substantiate this citation.
l/As further amended at hearing without objection, the citation also charges a violation of the regulatory standard at
30 C.F.R. § 75.316.

533

The regulatory standard at 30 C.F.R. § 75.309(a)
reads,as relevant hereto, as follows:
"if, when tested, a
split of air returning from any working section contains 1.0
volume per centum or more of methane, changes or adjustments
shall be made at once in the ventilation in the mine so that
such returning air shall contain less than 1.0 volume per
centum of methane."
The mere discovery of l~O volume per centum or more of
methane in a split of air returning from a working section is
clearly not sufficient to constitute a violation of this part
of the standard. See Secretary v. Mid Continent Coal and
Coke Company, 1 IBMA 250 (1972). The essence of the violation is the failure to make "changes or adjustments • • • at
once in the ventilation in the mine so that such returning
air shall contain less than 1.0 volume per centum of methane."
In this case it is not disputed that methane gas in
excess of 1.0 volume per centum was found by Carl Early, an
inspector for the Federal Mine Safety and Health Administration (MSHA) on September 22, 1986. While the citation shows
on its face that it was issued by Inspector Early at
7:00 a.m. on September 22, 1986, there is no statement or
evidence as to the time lapse between the discovery of the
cited methane readings and the issuance of the citation or
regarding what, if any, efforts were made to correct the
problem. Indeed Inspector Early testified that he did not
know when the operator began action to correct the cited
condition but conceded that he was told by Ray Hutchins, the
Mine Foreman upon notification that the methane readings were
in excess of 1% and the citation at bar was being issued,
that he "would start immediate action to improve ventilation."
Early also acknowleged that "mine management" told him that
they had idled another section and erected an equalizing
overcast.~/
MSHA Supervisory Inspector Donald Mize accompanied Early
on his September 22, inspection. Mize could not recall
whether he had asked the foreman whether or not he was
planning on taking any other action to improve the ventilation. Mize told Early to issue the subject citation because
he "thought" mine management was not making progress toward
correcting the problem.
~I Although the Secretary alleged at hearing that the mine
operator also failed to make "changes or adjustments • • • at
once 11 following the discovery of methane in excess of 1% on
the Thursday, Friday and Sunday preceding the issuance of the
citation at bar those alleged violations were not set forth
in the citation and accordingly are not before me.
In any
event the Secretary produced no evidence to show that the
methane had not been reduced to below 1% subsequent to those
excess readings on the preceding Thursday, Friday and Sunday.

534

According to both Thomas McNider, Deputy Manager for
ventilation, and Ronny Ganey, a ventilation engineer, work to
improve ventilation had been ongoing before and after the
instant citation was issued. More specifically Ganey
testified that when he arrived at the mine at 7:00 a.m. on
September 22, 1986, he found that Foreman Jerald Thomas had
been working to correct the ventilation for that entire night.
The problem was eventually corrected by placing overcasts in
service, correcting leaky line curtains, erecting a check
curtain and patching brattices.
Within this framework of evidence I cannot find that the
Secretary has sustained his burden of proving that the
operator failed to make "changes or adjustments • • • at once
in the ventilation in the mine so that such returning air
shall contain less than 1.0% volume per centum of methane,"
upon the discovery of methane at 7:00 a.m. on September 22,
1986 in excess of that concentration. The credible evidence
shows that the citation was issued immediately upon the
discovery of the violative methane and Respondent was given
no opportunity to make the requisite changes or adjustments.
Accordingly the citation was issued prematurely and cannot be
sustained for the alleged violation of the standard at 30
C.F.R. § 309Ca).
The Secretary also maintains in its amended citation
however that the facts alleged in the original citation also
constitute a separate violation of the operator's Ventilation
System and Dust Control Plan (Ventilation Plan) under the
standard at 30 C.F.R § 75.316. It is not disputed that the
alleged violation is based upon the last paragraph of page 2
of the Secretary's cover letter approving the operator's
Ventilation Plan. Those provision require that "when methane
content in a main return exceeds 1.0 volume per centum of
methane, mine management shall submit a plan detailing
additional evaluation procedures and safeguards which will
be utilized to insure safety."
Based on the factual allegations in the citation that
the methane content in the main return air course exceeded
1.0 volume per centum of methane and the notation that the
citation was issued at 7:00 p.m. on September 22, 1986, it is
apparent that under the noted provisions mine management was
then required to "submit a plan detailing additional evaluation procedures and safeguards which will be utilized to
insure safety."
The evidence in this case shows that a plan was indeed
submitted to MSHA on the following day i-0e., Septmeber 23,
1986. That plan was returned to the mine-operator for

535

"necessary correction(s)" by letter da~ed September 24, 1986
(Exhibit G-8).
In an attachment to that letter MSHA specified
the "corrections" that the operator should address in any
further submissions. By letter dated September 26, 1986, and
received by MSHA on September 30, 1986, the operator again
submitted a "plan" but, it appears did not specifically
address the corrections deemed "necessary" by MSHA.
There is no evidence however that at the time the mine
operator wrote its letter of September 3b, that it then had
received the MSHA letter dated September 24. The amended
citation charging the instant violation was issued October 7,
1986. The record shows that on October 15, 1986, after the
issuance of that amended citation, MSHA responded to the mine
operator specifying, for the first time, certain detailed.
requirements that the operator "shall include, [in its plan]
but [was] not necessarily limited to."
Since no time is specified within which "mine management
shall submit a plan" that time must been deemed to be a
"reasonable time." Under the circumstances of this case I do
not find that a reasonable time was provided by the Secretary
between the notification to mine management by the issuance
of the citation on September 22, 1986, of methane in excess
of 1%, and the failure to submit a.plan meeting the Secretary's approval.
The evidence shows that mine management submitted what
may be copstrued to be a "plan" on September 23, 1986, the
day after the citation was issued. It followed with another
submission on September 26, 1986. Although these submissions
were not "approved" by MSHA it is apparent that the specific
reasons for disapproval (or the specific changes needed in
these submissions to obtain MSHA approval) were not communicated to the mine operator until MSHA sent its letter dated
October 15, 1986, some 8 days after it had issued its amended
citation. Under these circumstances I do not believe the
mine operator was given a reasonable time to have its plan
approved. The operator must be given reasonable time to
develop and submit a plan acceptable to the Secretary before
a citation can properly be issued under the cited provisions"
Accordingly the violation is not proven and the allegations
in this regard must be dismissed.
Since I have found no violation in regard to matters
alleged by the Secretary in the citation at bar there is no
need to decide whether or not the Secretary had the legal
authority in the first instance to require the mine operator
to comply with the provisions set forth in the last paragraph
of page 2 of his cover letter approving the operator's Ventilation Plan.
It is clear however that the Secretary has the
authority to require the inclusion of reasonable requirements
in such a Ventilation Plan pursuant to section 303(0) of the

536

Act and that those requiremertts are enforceable under the Act
as a mandatory standard. See Ziegler Coal Company v. Kleppe,
536 F.2d 398 CD.C.C.A. 1976). See also Secretary v. Jim
Walter Resources, Inc., Docket No. SE 86-83, Judge Broderick,
January 21, 1987, petition for review granted February 25,
1987.
Under all the circumstances, Citation N • 2810267 (and
the amendments thereto) is dismissed and th
herein
is granted.
I

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Adininistirtive

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Distribution:

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R. Stanley Morrow, Esq., Jim Walter/Resources, Inc., P.O. Box
C-79, Birmingham, AL 35283 {Certified Mail)
William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 201, 2015 2nd Avenue, North, Birmingham,
AL 35203 (Certified Mail)
rbg

537.

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

MAR 111987
CONTEST PROCEEDINGS

JIM'WALTER RESOURCES, INC.,
Contestant
v.

Docket No. SE 86-141-R
Order No. 2811695; 9/22/86

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

Docket No. SE 86-142-R
Order No. 2811621; 6/23/86
No. 5 Mine
DECISION

Appearances:

R. Stanley Morrow, Esq., Birmingham, Alabama,
for Contestant;
William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Respondent.

Before:

Judge Melick

These consolidated cases are before me upon the applications for review filed by Jim Walter Resources Inc., (Jim
Walter) pursuant to section 107Ce)(l) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et. ~, the
"Act," to challenge the issuance by the Secretary of Labor of
two 11 imminent danger" withdrawal orders under section 107(a)
of the Act.l/ At hearing the parties elected to proceed on
stipulations of fact. The issue before me is whether an
"imminent danger" existed as alleged and within the framework
of the stipulated evidence.
~/

Section 107(a) of the Act provides as follows:
If, upon any inspection or investigation of a coal or
other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger
exists, such representative shall determine the extent of the
area of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to cause
all persons, .except those referred to in section 104(c), to
be withdrawn from, and to be prohibited from entering, such
area until an authorized representative of the Secretary
determines that such imminent danger and the conditions or
practices which caused such imminent danger no longer exist.
The issuance of an order under this subsection shall not
preclude the issuance of a citation under section 104 or the
proposing of a penalty under section 110.

538

DOCKET NO. SE 86-141-R
The order in this case, No. 2811695, issued September 22,
1986, reads as follows:
Methane in excess of 1.5 per centum was detected
not less than 12 inches from the roof face and ribs
in the face of the No. 4 entry in the 005 section.
A G 70 methane detector with a probe was used7
however a bottle sample could not be taken due to
the face being cut beyond the last row of roof
bolts and the area was not supported with roof
bolts.
The agreed stipulations of fact are as follows:
In the face area in the No. 4 entry, inby the last
open crosscut, 3 measurements of methane were taken.
Those 3 measurements in the face area were 1.7%
methane, 1.8% methane and 2.0% methane, and that
the miners had not been withdrawn from this
area • • • . the readings were taken with a
hand-held methanometer; they were not bottle
samples."
(Tr. 71) .
It was subsequently also stipulated that "the air was
tested in a working place."
Section 3(j) of the Act defines "imminent danger" as
"the existence of any condition or practice in a coal or
other mine which could reasonably be expected to cause death
or serious physical harm before such condition or practice
can be abated." The Secretary argues in his post-hearing
brief that the presence of 1.5 volume per centum or more of
methane in the air at any working place constitutes such an
"imminent danger" per se. According to the Secretary an
"imminent danger" is thereby established and warrants the
issuance of a section 107(a) withdrawal order under the
authority of section 303(h)(2) of the Act.~/

2/ Under section 303(h)(2) of the Act when the air at any
working place contains 1.5 volume per centum or more of
methane "all persons, except those referred to in section
104(d) of [the] Act, shall be withdrawn from the area of the
mine endangered thereby to a safe area, and all electric
power shall be cut off from the endangered area of the mine,
until the air in such working place shall contain less than
1.0 volume per centum of methane."

539

The Secretary argues that the former Department of
Interior Board of Mine Operations Appeals (the Board) found
in Pittsburgh Coal Co., 2 IBMA 277 (1973), that the issuance
of an "imminent danger" withdrawal order under section 104(a)
of the Federal Coal Mine Health and Safety Act of 1969 (the
virtually identical predecessor to section 107(a) of the Act)
was mandated by the presence of the factors set forth in
section 303(h)(2). In the Pittsburgh Co~l Co. decision the
Board adopted the analysis in the decision of the judge below
concerning the relationship between an "imminent danger"
withdrawal order and section 303Ch)(2) (of the 1969 Act).
The judge's analysis was as follows:
Under section 104(a) an inspector "shall
issue" a withdrawal order to clear designated mine
areas if upon inspection a condition of imminent
danger is found to exist. In similar language the
latter part of section 303(h)(2) provides for a
withdrawal of miners, though it does not express
itself in terms of imminent danger. By requiring a
withdrawal of miners upon the detection of a 1.5
volume per centum the Act seems to be recognizing a
condition of imminent danger.
As defined in section 3(j) of the Act,
"imminent danger includes a condition which could
reasonably be expected to cause death or serious
physical harm before such condition * * * can be
abated." If Congress has determined by statute
that a 1.5 volume per centum reading is sufficient
to require the drastic action of withdrawal, then
it must be because the situation was viewed as one
of imminent danger. Congress in 303(h)(2) has
intentionally left no room for doubt or discretion
in what it viewed as an imminent danger. Considering the nature of the gas, the perilous conditions created by it, and insignificant quantum of
energy necessary to cause an ignition - there is a
sufficient b~sis to characterize a 1.5 percent
concentration as one of imminent danger.
The seriousness with which congress viewed the
methane problem can be seen by the 303(h)(l)
requirement of an initial preshift examination for
the gas to be repeated at twenty minute intervals
thereaftero The deadly history of the gas in the
last thirty years bears ample witness to the intent
of Congress to reduce this major cause of death.
[footnote omitted] It can reasonably be inferred
that the withdrawal requirement of 303(h)(2)
presumes the existence of a condition of imminent
danger. This being the case, the issuance of an
104(a) order would appear to be the appropriate

540

method of notifying an operator of what is required
of him under the Act, where he has not upon his own
initiative withdrawn the miners from the area
affected·by the methane.
In addition the Board observed in its decision that:
'

[I]n the section-by-section analysis of section
204{h){2), subsequently enacted as section
303Ch)C2) of the Federal Coal Mine Health and
Safety Act of 1969, the report of the Senate
Committee [footnote omitted] states as follows:
11

* * * If the air contains 1.5 percent of methane,
withdrawal of the miners by the operator or
inspector, if he is present, is required * * * Long
experience has shown that the methane, when present
is dangerous. ~he explosion range is between 5 and
15 percent. Once it reaches 1.5 percent it can
accumulate rapidly. Thus, action must be taken
promptly before it reaches 1.5. percent.
(Emphasis
added)
In our view this expression of Congressional
intent is sufficient to override the arguments
advanced by the appellant and to sustain the
Judge's decision on this point."
While this.Commission has stated in Secretary v.
Pittsburgh and Midway Coal Mining Company, 2 FMSHRC 787
(1980) that it would examine anew the question of what
conditions and practices constitute an "imminent danger" the
legal analysis of the Board concerning the issuance of
"imminent danger" withdrawal orders under the conditions set
forth in section 303(h)(2) is persuasive and I accordingly
apply that analysis to this case.

It is not disputed in this case that there was at least
105 volume per centum of methane in the air in the face area
in the No. 4 entry inby the last open crosscut and that the
miners therein had not been withdrawn. Within the above
framework of law an nimminent danger" therefore existed and
the withdrawal order was properly issued in this case
pursuant to sections 303(h)(2) and 107(a) of the Act. See
also Consolidation Coal Company v. Secretary of Labor, -4~
FMSHRC 1960 (Judge Kennedy, 1982).
DOCKET NO. SE 86-142-R
The order in this case, No. 2811621, also issued under
section 107(a) of the Act reads as follows:

541

The methane content when tested not less than 12
inches from the roof face or ribs was in excess of
1.5 volume per centum in the No. 1 entry 1.5%, No.
2 entry 1.3%, No. 3 entry 1.5% and No. 4 entry 1.8%
on the Noc 3 section. Air sample was collected.
The order was modified on June 24, 1986, the date
fo1i9wing its issuance, to identify the area affected as the
"No. 3 entry inby spad No. 4386 crosscut right and face of
No. 4 entry inby No. 4386 spad."
The parties again stipulated the facts at issue and
those stipulations are as follows:
Methane concentrations in the No. 1 entry was 1.5%;
in the No. 2. entry 1.3%; in the No. 3 entry 1.5%;
in the No. 4 entry 1 •. 8%. • • • the section was not
producing coal at the time of the inspection; that
power was energized on the battery charger, • • •
that the crew of miners was inby the last open
crosscut working on a rock fall which occurred in
the face of No. 4 entry. No. 5 mine is subject to
the 5-day spot inspections pursuant to section
103(i) of the Act and Mr. Gaither was inspecting
the mine subject to spot inspection."
(Tr. 60, 61,
6 7)

0

It was later further stipulated that the "air was tested
in • • • working place[s]. 11
Within the framework of these stipulations and the
applicable law previously noted it is clear that an "imminent
danger~ existed in those entries cited in Order No. 2811621
on June 23v 1986. Accordingly this order was also properly
issued under section 107(a) of the Act.
Order No. 2811621 was again modified on September 22,
1986, and that modification (No. 2811621-2) reads as follows:
Methane in excess of 1.5 per centum was detected in
the left and right split of air current returning
off the No. 3 section beginning at spad No. 2856 on
left side in No. 1 entry and spad No. 3855 on right
side in No. 4 entry and extending inby to the Nos.
1, 2, 3, and 4 faces in No. 3 section.
Bottle
samples were taken to substantiate the findings.
Order No. 2811621 dated 6-26-86 is hereby modified
to show area or equipment to be closed. Nos.
1, 2, 3, and 4 entries beginning at %Pad No. 2856
in No. 1 entry across to spad No. 3855 in No. 4
entry and extending inby to the Nos. 1, 2, 3, and
4, faces in No. 3 section.

542

The parties stipulated the essential facts as follows:
[A]t Spad Number 3713, bottle sample revealed 1.65
percent methane. At Spad Number 3897, bottle
sample revealed 1.67 percent methane. At the left
regulator, Number 3 section, bottle sample revealed
lo7 percent methane. At Spad Number 4238, bottle
sample revealed 1.76 percent methane. Power was on
power center located at intake air. Power center
was energized running a drill for degasification
under an MSHA approved supplement to the ventilation plan, which was approved on 8-18-86. At the
time methane content was less than 1.0 percent in
the area where the drill was placed, and the aforementioned areas where all within the areas closed
by the modification dated 9-22-86 (Tr. 69).
It was subsequently further stipulated that the air was
tested "in a split of air returning from a working section."
The Secretary here argues that section 303(i)(2) of the
Act requires the issuance of an "imminent danger" withdrawal
order when the factors cited therein are found to exist, just
as section 303Ch)(2) has been found to require the issuance
of such an ,order.
Section 303Ci)(2) provides as follows:
If, when tested, a split of air returning from any
working section contains 1.5 volume per centum or
more of methane, all persons, except those persons
referred to in section 104(d) of this Act, shall be
withdrawn from the area of the mine endangered
thereby to a safe area and all electric power shall
be cut off from the endangered area of the mine,
until the air in such split shall contain less than
1.0 volume per centum of methane.
I agree with the Secretary.
Section 303(i)(2) sets
forth criteria under which miners are to be withdrawn under
conditions of "imminent danger" equivalent to those set forth
in section 303(h)(2). The rationale of the Pittsburgh Coal
Co. case in issuing "imminent danger" withdrawal orders under
the authority of section 303Ch)(2) is accordingly applicable
here as well. Thus when the conditions set forth in section
303(i)(2) are found to exist an "imminent danger" also exists
and a withdrawal order pursuant to section 107(a) may
properly be issued.

Accordingly order of withdrawal No. 2811621 and its
modification dated September 22, 1986, were both properly
issued under section 107(a) of the Act and are hereby
affirmed.

543

ORDER
Orders of withdrawal No. 2811698 and No. 2811621 (and
the modification thereto dated Septemb~r 22, 1986) 1are hereby
aff ~rmed. The contests of those order~'
are accord ngly
denied.
\
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Gary elick
Adm~n1· trati

Judge

Distribution:

.

\

'

R. Stanley Morrow, Esq., Jim W~l r Resou .ces, Inc., P.O. Box
C-79, Birmingham, AL 35283 (Certified Maii}>
William Lawson, Esq., Office of the Solicitor, U.S. Department of Labor, Suite 201, 2015 2nd Avenue, North, Birmingham,
AL 35203 (Certified Mail)
rbg

544

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

MAR 111987
CIVIL PENALTY PROCEEDING

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

.

Docket No. WEVA 86-386
A.C. No. 46-01455-03630

v.
CONSOLIDATION COAL COMPANY,
Respondent
CONSOLIDATION COAL COMPANY,
Contes.tant

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

.:
.
.
..
..
.

CONTEST PROCEEDING
Docket No. WEVA 86-339-R
Order No. 27132221 4/22/86
Osage No. 3

DECISION
Appearances:

Therese I. Salus, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for Secretary of Labor1
Michael R. Peelish, Esq~, Pittsburgh,
Pennsylvania, for Consolidation Coal Company.

Before:

Judg~

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~, the "Act", to challenge a withdrawal
order issued by the Secretary of Labor under section 104(d)(l)
of the Act, and for review of civil penalties proposed by the
Secretary for the violation alleged therein. For the reasons
that follow I find that Consolidation Coal Company (Consol)
did not violate the cited standard and accordingly that the
withdrawal order and the civil penalty proceedings herein
must be dismissed.
The order at bar~ No. 2713222, alleges a1violation of
the standard at 30 C.F.R. § 75.305 and charges as follows:
A weekly examination of the abandoned areas of 11
North inby the 1 West Junction; which, insofar as
safety considerations permit are safe to be traveled
by the weekly examiner are not being examined by a
certified person as required by 30 C.F.R. 75.305 in

545

that, the intake and return airways which were safe
to travel when inspected 4/21/86 showed no evidence
that examinations have been being [sic] made. Last
date observed in the return airways was September 1985.
The cited standard, as relevant hereto, provides as
follows:
• examinations for hazardous conditions,
including tests for methane, and for compliance
with the mandatory health or safety standards,
should be made at least once each week by a certified person designated by the operator • • • insofar
as safety considerations permit, abandoned
areas • • • • The person making such examinations
and tests shall place his initials and the date and
time at the places examined, and if any hazardous
condition is found, such condition shall be
reported to the operator promptly. Any haz.ardous
condition shall be corrected immediately • • • The
record of these examinations, tests and actions
taken shall be recorded in ink or indelible pencil
in a book approved by the Secretary kept for such
purpose in an area on the surface of the mine
chosen to minimize the danger of destruction by
fire or other hazard, and the record shall be open
for inspection by interested persons.
It is undisputed in this case that the cited areas were
indeed "abandoned areas" within the meaning of the cited
standard. The parties disagree however concerning whether
"safety considerations-permit[ed]" the examinations in the
abandoned areas at issue. The Secretary argues that safety
considerations did in fact permit such examinations and
Consol argues that safety considerations did not permit such
examinations.
The testimony of Inspector Lynn Workley of the Federal
Mine Safety and Health Administration CMSHA) is inconsistent.
On the one hand Workley testified that he walked, along with
a representative of the mine operator, Don Morrison and a
union representative, some 2 thousand feet into the abandoned
area, and that it was not unsafe. On the other hand Workley
maintained that it was hazardous for anyone to proceed in
that area because of the likelihood of fatal roof falls from
"bad roof" and the possiblity of a trolly wire in the
abandoned area becoming energized and causing a fire.
Mine Superintendant Joseph Pride agreed that the
abandoned area was unsafe. According to P'ride the cited area
had been abandoned 5 years before and had not been inspected
under the provisions of the cited regulation because it was
deemed to be an unsafe area.
546

John Morrison, Consol's mine safety escort who
accompanied Workley on April 21, 1986, considered the
abandoned area to be "highly unsafe." He observed that in
many locations the bottom had "humped up" and that the roof
and rib conditions were "bad." In some places rock had
already fallen from the roof and ribs. Indeed, in order to
penetrate the abandoned area it was necessary for the inspection party to "zig-zag" and "backtrack" around the most
dangerous conditions.
Joseph Jimmie, a union safety escort accompanying
Workley when he abated the order on April 26, 1986, also
considered/ the abandoned area to be a serious hazard. He
also found the "top" to be "bad" with evidence of roof falls
in many of the headings. Jimmy recalled that the inspection
party therefore had to "zig-zag" back-and-forth around the
entries in order to penetrate the abandoned area.
Within this framework of evidence it is quite clear that
the mine operator could reasonably have found that "safety
considerations" did not permit the examinations set forth in
section 75.305 to be conducted in the cited area. In reaching
this conclusion I have not disregarded the Secretary's argument that one could infer from the fact that the operator did
not "danger off" the cited area that it considered to be
abandoned and not safe to inspect (under section 75.305),
that it did not in fact consider that area unsafe. It is
readily apparent however that the inspector himself did not
deem it necessary that such abandoned·area be "dangered off"
since no such violation was cited and no such requirement was
made a condition of abatement. Under the circumstances I
find no violation and the order must therefore be vacated.
ORDER

I

Order No. 2713222 is vacated, Civil Pe~alty Proceeding
Docket No. WEVA 86-386 is dism'ssed, and c;htest Proceedin<i.
/,
Docket No. WEVA 86-339-R icy
1 gr nted.
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4ary .Melick

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Admin'~strative
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Judge
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547

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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)
Michael R. Peelish, Esq., Consolidation C~al Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
rbg

548

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

MAR 12 1987
DISCRIMINATION PROCEEDING

JAMES H. HARMON,
Complainant

v.
:
CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 86-375-D
MSHA Case No. MORG CD 85-9
Humphrey No. 7 Mine

DECISION
Appearances:

Jeff Harris, Esq., Morgantown, West Virginia,
for the Complainant;
Thomas N. McJunkin, Esq., Jackson, Kelly, Holt
& O'Farrell, Charleston, West Virginia, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed
by the complainant James H. Harmon against the respondent pursuant to section 105(c) of the Federal Mine Safety and Health
Act
1977, 30 u.s.c. § 801 et seq. Mr. Harmon filed his
initial complaint with the Secretary of Labor, Mine Safety and
Health Administration (MSHA). Following an investigation of
his complaint, MSHA determined that a violation of section
105(c) had not occurred, and so advised Mr. Harmon by letter
dated May 12, 1986. Mr. Harmon then filed a pro se complaint
with this Commission, and he subsequently obtained counsel to
represent him in this matter. A hearing on the merits of the
complaint was held in Morgantown, west Virginia, and the parties appeared and participated fully therein. The respondent
filed a posthearing brief. Mr. Harmon's counsel withdrew from
the case after the hearing, and did not file a brief. However, I have considered the oral arguments made by Mr. Harmon's
counsel during the course of the hearing, as:well as the respondent's arguments.
The complainant alleges that he was removed as a member
of the mine safety committee by mine management because of
his safety concerns and activities as a member of the safety

549

committee, and that his removal constitutes discrimination
under the Act. The respondent asserts that the complainant
was removed from the safety committee because he and the other
members "arbitrarily and capriciously" shut down a track haulage area of the mine, and that his removal from the safety
committee was in full compliance with the terms of the applicable National Bituminous Coal Wage Agreement of 1984. The
respondent states that the complainant's removal from the
safety committee was also challenged pursuant to the applicable contractual binding arbitration procedures, and that his
removal was upheld.
In addition, respondent states that the
complainant's state discrimination complaint challenging his
removal from the safety committee was rejected after protracted hearings before the West Virginia Coal Mine Safety
Board of Appeals.
Issues
The principal issue in this case is whether or not the
complainant's removal from the mine safety committee by the
respondent was discriminatory under section lOSCc) of the Act.
Additional issues raised by the parties are disposed of in
the course of this decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 301 et seq.
2. Sections 105(c)(l), (2) and (3) and llO(a) and (d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§§ 815Cc)(l), (2) and (3).
3o

Commission Rules, 29 C.F.R. § 2700.l et seq.
Factual Background

Mr. Harmon has been a member of the United Mine Workers
of America and an employee of the respondent for approximately
10 years.
In May of 1984, he was elected by the local union
at the mine to serve on the Mine Health and Safety Committee,
an entity which exists at mines covered by the National
Bituminous Coal Wage Agreement of 1984 (Wage Agreement) by
virtue of Article·III(d)(l) of that contract which provides in
pertinent part as follows (exhibit R-1):
ARTICLE III- HEALTH AND SAFETY
Section (d) Mine Health and Safety Committee

550

(1) At each mine there shall be a Mine Health
and Safety Committee made up of miners
employed at the mine who are qualified by mining experience or training and selected by the
local union • • • •

*

*

*

*

*

*

*

(3) The Mine Health and Safety Committee may
inspect any portion of a mine • • . if the
Committee believes conditions found endanger
the lives and bodies of the Employees, it
shall report its findings and recommendations
to the Employer.
In those special instances
where the Committee believes that an imminent
danger exists and the Committee recommends
that the Employer remove all Employees from
the involved area, the Employer is required to
follow the Committee's recommendations and
remove the Employees from the involved area
irnmedia tely • •

*

*

*

*

*

*

*

(5) If the Mine Health and Safety Committee
in closing down an area of the mine acts
arbitrarily and capriciously, a member or
members of such Committee may be removed from
the Committee. An Employer seeking to remove
a CoTIUnittee member shall so notify the
affected Committeeman and the other members of
the Mine Health and Safety Committee. If the
Committee objects to such removal, the matter
shall be submitted to and decided by the appropriate panel arbitrator. If the Employer
requests removal of the entire Committee, the
matter automatically shall be submitted to
arbitration and the Committee will continue to
serve until the case is submitted to and
decided by the arbitrator. A Committee member
shall not be suspended or discharged for his
official action as a Committee member.
(Emphasis added.)
On the morning of December 12, 1984, Mr. Harmon and two
other safety committeemen, Mr. Thomas Turpin and Mr. David
Laurie, acting in their capacities as safety committeemen,
closed a section of the mine's main haulage track line under

551

the purported authority of Article ITICd)(3) of the Wage
Agreement. The area affected was the location of a derailment
which had occurred the previous day. On December 14, 1984,
mine management exercised its rights under Article IIICd)(5)
of the wage Agreement to remove the three committeemen from
the safety committee for acting arbitrarily and capriciously
in shutting down the track haulage 2 days earlier.
The removal of the safety.committeemen was challenged
and submitted to binding arbitration pursuant to the terms of
the Wage Agreement. On January 28, 1985, Arbitrator Thomas M.
Phalen rendered a decision upholding the removal of Mr. Harmon
and his co-committeemen from the safety committee.
By a letter dated January 7, 1985 to Mr. Richard Bassick
of the Mine Health and Safety Administration, Mr. Harmon,
Mr. Turpin, and Mr. Laurie filed a complaint in connection
with the incident alleging discrimination under section 105(c)
of the Act.
By letter of May 12, 1985, MSHA advised the complainants that review of the matter revealed no basis for
their complaint.
On January 21, 1985, the three aggrieved committeemen
filed another complaint challenging their removal from the
safety committee, this time alleging discrimination under
state law. After hearings, the West Virginia Board of Mine
Safety Appeals rejected the complaint in a decision dated
June 17, 1986.
This matter is presently before me on the complaint of
Mr. Harmon that his removal from the safety committee constitutes discrimination under section 105(c) of the Act. The
two other individuals who were removed from the safety committee with Mr. Harmon have not joined in this complaint.
Complainant's Testimony and Evidence
James H. Harmon, the complainant in this case, stated
that he has been employed by the respondent for over 10 years,
and that he works at the Bowers Portal of the Humphrey No. 7
Mine. He confirmed that he was working the day shift on
December 11, 1984, as a pumper, and that he was a member of
the mine safety committee, and had been a member since May,
1984. On that day he learned that a derailment accident had
occurred, with possible serious injuries to a miner. He
learned about the accident by overhearing the mine dispatcher
on the radio calling supervisors to make them aware of the
accident. Since he was a member of the
ety committee,
Mr. Harmon wanted to go to the scene of the accident, but

552

before doing so, he had to have the permission of his shift
foreman so that he could be relieved from his regular duties.
He travelled the main track trying to locate his immediate
supervisor to. excuse him from work to go to the accident
scene, and after doing so, he eventually arrived at the scene
of the accident approximately and hour and a half later (Tr.
15-23).
Mr. Harmon confirmed that during his tenure as a safety
committeeman, he was never refused permission to be excused
from work to perform his safety·committeeman's duties (Tr.
23). Mr. Harmon conceded that he was not refused permission
on December 11, 1984, but questioned why he had to be "passed
around," and had to go through so many supervisors to obtain
permission to be excused from work to go to the scene of the
accident (Tr. 24).
Mr. Harmon stated that when he arrived at the scene of
the accident at the Sandstone Portal, he learned that the
injured man had been taken out of the mine, and that after
walking some distance, he was taken out by jeep and taken to
the hospital by ambulance for treatment of his injuries.
Mr. Harmon identified the injured miner as Dennis Van Kirk,
and he stated that Bowers Portal Superintendent Blaine Myers
informed him that Mr. van Kirk had a hand injury and had been
struck by a piece of rock (Tr. 26). Mr. Harmon stated that
he observed rock which was about to fall, and some rock falling in the area where the cars had left the track, and clean
up work was in'progress. Mr. Harmon stated that "everything
seemed to be going in order, just some minor things, but they
were taken care of" {Tr. 30).
Mr. Harmon stated that he observed four roof arches that
were badly damaged in the accident, observed some bad roof,
and he described the conditions which he observed. He confirmed that he was concerned about the exposed roof top conditions, gob which had fallen on the track, and he believed
that another derailment could occur as equipment was allowed
to run through the area. He believed that the bad top conditions had existed prior to the accident, and that the roof
had been exposed when the derailment damaged the arches and
knocked out the roof cribs and planks (Tr. 32-34). Mr. Harmon
stated that the derailed empty cars had been removed, but he
was concerned that people were working around the bad top conditions. The gob had been cleaned off the track "pretty
fair," but one of tne laborers, Joe Pattotta, complained to
him that "they're gciing to try and bring another trip up
through." Mr. Harmon was concerned that another trip of cars
would be brought through the area, and since cleanup had not

553

been finished, and the top was still exposed, and he had no
doubt that attempting to bring another trip of cars through
would cause another derailment (Tr. 35).
Mr. Harmon stated that Mr. Turpin complained to him that
there was a lack of adequate self rescuers available, and not
enough transportation to take the men working on the shift
out of the mine. Mr. Harmon confirmed that he ascertained
that there were sufficient self-rescuers and adequate transportation available, and that Mr. Turpin's complaints were
not valid. Mr. Harmon stated that Mr. Turpin was concerned
that there was not enough transportation available for the
men to leave the mine since it was quitting time and the men
wanted to go home (Tr. 37).
Mr. Harmon stated that "Everything was going smooth" and
that "they was making an honest attempt to correct the situation. I had ho problem with that" (Tr. 38). However,
Mr. Harmon said that he was upset when he heard general mine
foreman Clarence Amick order Sandstone Portal superintendent
George Krynicki to clear the area so that a trip of coal cars
could be brought through. Mr. Harmon explained his efforts
to prevent additional coal car trips from coming through the
accident area as follows (Tr. 39-43):
I requested Blaine to not run no equipment through this area. He asked me if it was
dangerous. I repeated back to him, "I request
no equipment through this area." He said,
"Well, do you feel it is dangerous?" I said,
"Yes, I feel it's dangerous." He refused. He
said, "Jim, we want to run this trip through
here." I said, "No." For the third time I
said, "I request that you not run no equipment
in here until you get the boards up and arches
tied together, so that there ain't going to be
anymore accidents. If I have to, I'll use the
threat of hanging a danger board." I use that
expression of hanging a danger board as a bluff
in my mind, because I am not allowed, even as a
safety committeeman, to hang a danger board,
according to the state law. The only person
that can do so is a certified person of the
state. Knowing that, I used the threat. I
wanted to make my point clear that I wanted the
area closed down. He still refused, he said,

554

"Jimmy, you get out of the area because we're
bringing a trip up right now."

*

*

*

*

*

*

*

THE WITNESS: Well, I asked him three times.
As you have stated, I have been on the Safety
Committee, at that point, seven or eight
months. We've been on safety runs, estimated
ten or twelve safety runs up until that point,
that I had participated on. We had shut the
areas down throughout the mines for different
reasons. Rather, Dave Laurie has, as he is
spokesman. He is the chairman of the Safety
Committee, and I am under him. We had no problem. He asked to shut this area down long
enough to have the problem taken care of. I
had to ask him three times. After the first
time I was shocked. It just seemed after
Mr. Amick gave the orders, something just
snapped in Mr. Krynicki and Blaine. They were
taking care of the area, I had no problem with
that. Then, I was shocked after I asked them
the first time, and I was shocked after I
asked them the second time, and I asked them
the third time, and even using the threat of
hanging the danger board.
JUDGE KOUTRAS: Let me ask you this now. If
they were taking care of the problem, if it
were taken care of there, you had no problem.
What was the problem? That you felt that they
should have--?
THE WITNESS: The top was exposed, sir.
was no roof support over that top.
JUDGE KOUTRAS:
THE WITNESS:

There

were they aware of that?
Yes.

JUDGE KOUTRAS: Did they have some difference
of opinion with you as to the condition of the
top?
THE WITNESS: They apparently, after the order
of Mr. Amick, was going to do what Mr. Amick
said.

555

JUDGE KOUTRAS:

was Mr. Amick th·ere?

THE WITNESS: He was outside using the phone
for communications.
JUDGE KOUTRAS: So, Mr. Amick was outside telling them where to run the trip through. Was
he aware of the situation and what the conditions were?
THE WITNESS: I don't know if George or Blaine
made him aware of the situation.
JUDGE KOUTRAS:

Let us assume that they did.

THE WITNESS: If they made him aware of the
situation, of the bad top, and he run the coal
through anyways--.
JUDGE KOUTRAS: No. Let us assume that they
told Mr. Amick that the top is not that bad,
or whatever. Let us assume that Mr. Krynicki
and Mr. Myers felt that the top was all right,
contrary to what you felt. And they communicated that to Mr. Amick. Do you think that
when Mr. Amick said to run coal, that he took
them at their word?
THE WITNESS:

I could agree with that, yes.

Mr. Harmon confirmed that on prior occasions when
Mr. Laurie requested mine management to shut down an area of
the mine until it could be cleaned up, management agreed and
had no problem. In the case at hand, Mr. Harmon agreed that
there was a difference of opinion as to whether or not the
prevailing conditions after the accident warranted the closing of the area (Tr. 44). Mr. Harmon confirmed that after
his unsuccessful efforts to have the area closed, he advised
Mr. Myers that he was going to call in the Federal and state
agencies, and on his way out of the area, he went to the
track spur and attempted to contact the motorman who was
bringing in a trip at slow speed by radio to make him aware
of the situation, and to possibly convince him to invoke his
own miner's rights and not bring in the trip (Tr. 45). However, he could not contact the motorman by radio, and by that
time the coal trip had gone through the area (Tr. 45).
Mr. Harmon stated that after the coal trip passed through
the area, Mr. Turpin, who was the union president, advised him

556

that he would contact safety ·committee chairman David Laurie
at his home to advise him of the situation. Mr. Turpin had no
authority to act as a safety committeeman at that time on the
day shift because he was filling in as the safety committeeman
on the midnight shift (Tr. 46). Mr. Laurie could not be
located, and Mr. Harmon left the mine and went home to await a
call from Mr. Laurie, but he did not call him that day (Tr.
47). Mr. Harmon confirmed that he did not initially call any
Fede~al or state mine officials because he wanted to clear it
first with Mr. Laurie. Mr. Harmon also confirmed that he was
aware of the fact that he could have called in the mine inspectors on his own, but opted not to do so without first consulting Mr. Laurie (Tr. 49).
Mr. Harmon stated that before leaving the mine, he heard
Mr. Krynicki give orders for the oncoming shift to continue
doing cleanup work at the accident scene, and Mr. Harmon
assumed that additional coal trips would continue to travel
through the area (Tr. 50). Although he could have returned
to the area on the mldnight shift to talk to the miners about
any dangerous conditions, and possibly advise them of their
individual rights not to work in the area that he considered
to be dangerous, Mr. Harmon stated that "that thought never
entered my mind." Mr. Harmon stated that his intent was to
contact Mr. Laurie so that they could both visit the area to
decide what to do. Mr. Harmon confirmed that he did not
return to the mine during the next intervening afternoon
shift, and was still trying to contact Mr. Laurie. He
returned to the mine on the next midnight shift, which was
his next sheduled "safety run," and encountered Mr. Laurie at
that time (Tr. 53).
Mr. Harmon stated that after making Mr. Laurie aware of
the situation, they went to the accident area and observed
the work that had been done. Several men were still working
in the area, and safety precaution lights had been installed.
Most of the arches were not strapped, and Mr. Laurie climbed
up and looked at the roof conditions, and agreed with
Mr. Harmon's assessment that the roof over the arches was
still bad. Mr. Harmon stated that he was concerned that the
arches were not completely installed, and since the bad top
was still there, he was afraid that if it fell, it would
affect the arches. Mr. Laurie was of the opinion that the
work could have been completed within an hour or so, and he
wanted to close the area down until the work was finished.
Company safety escort Ben Strahin advised Mr. Laurie that a
coal trip was coming, and it passed through the area. At
that point in time, Mr. Turpin and Mr. Harmop advised
Mr. Laurie that they would back him up in any decision to

557

close the area down, and Mr. Laurie advised Mr. Strahin that
"we want to shut this area down until we get the arch work
finished." Mr. Strahin replied that he did not have the
authority to close the area down, and Mr. Harmon stated that
their intent was to request mine management to stop production and shut the area down until the work on the arches
could be completed (Tr. 59-60). Mr. Harmon explained the
procedure for requesting management to close an area down as
f,qllows (Tr. 61-62) :
THE WITNESS: * * * Up until that point we
never had a problem. They disputed whether
it's a violation, or if it needed to be
corrected. But, they always took care of the
situation. Because a copy of the safety runs
is sent to the district of the union, and one
to MSHA, and if necessary, to the state. If a
serious sl.tuation .still exists after we make a
request to the company, we inform MSHA or the
state that the situation exists, and they come
in.
We asked then to close the area down.
Ben said, "I don't have the power to do so."
He asked him again, in good faith, he wanted
the area shut down so that the work could be
done and nobody would get hurt. That was what
our main concern was, that nobody get hurt.
Or a fatality.
Ben again said, "I don't have
the power to do so." * * *
Mr. Harmon stated that after Mr. Strahin declined to
shut the area down, Mr. Laurie requested that foreman Rusty
Tingler do so. Mr. Tingler also declined, and after requesting Mr. Strahin to contact Mr. Amick at his home, Mr. Strahin
advised them that they would have to go outside to telephone
Mr. Amick. Before leaving the area, Mr. Laurie told
Mr. Strahin "I want the area shut down, call Amick on the
Phone." Mr. Strahin again declined and replied to Mr. Laurie
"
you want me to shut that area down you are going to have
to put it down on paper." Mr. Laurie then wrote out a statement which he signed along with Mr. Harmon and Mr. Turpin
(Tr. 63, exhibit R-2), and the statement reads as follows:
I fill (sic) this safety committee is acting
in good faith.
In that where they had the
wreck on day shift they put in four new arches
and did not tie them together. We fill (sic)
they could vibrate loose and fall since they

558

are not tied together. Also we fill (sic)
that additional support should be put on top
of the arches. Once the arches are tied
together we will allow them to start running
coal again.
After executing the statement, Mr. Laurie asked
Mr. Strahin to call the dispatcher to stop all trips from
coming through the area, but Mr. Strahin declined. Mr. Laurie
then called the dispatcher himself and requested him to stop
all traffic. One trip which was on the way was allowed to
pass through, and after it passed through, the dispatcher shut
the area down as requested by Mr. Laurie (Tr. 64). Mr. Laurie
then called the state and federal mine inspectors. When they
arrived, Mr. Harmon, Mr. Laurie, and Mr. Turpin went back to
the area with the inspectors, and the conditions had been
corrected. Mr. Harmon estimated that it took an hour and a
half to perform the work, and he stated that "they called a
lot of people up there to correct the situation" (Tr. 68, 73).
Mr. Harmon stated that a safety committeeman had the
authority to request management to shut an area of the mine
down, and he was of the opinion that as a certified person,
Mr. Laurie had the authority to shut an area down under state
law (Tr. 70). Mr. Harmon confirmed that management had not
given Mr. Laurie permission to shut the area down, nor did
management agree that the area should be shut down. He also
confirmed that Mr. Laurie called the dispatcher and shut the
area down (Tr. 71).
Mr. Harmon stated that while the majority of the corrective work was finished when the inspectors arrived, MSHA
Inspector Boleck issued a citation 11 on strap and some guarding," and the state inspector also issued a citation for a
welding violation (Tr. 72-73). The inspectors did not look
over the arches to examine the roof conditions as Mr. Laurie
had done because the arches wera all in place and the inspectors accepted them as roof support and issued no roof violations (Tr. 74). Inspector Boleck asked Mr. Laurie if he was
satisfied with the condition of the roof arches, and
Mr. Laurie stated that he was. The inspector also agreed,
and he permitted the area to be reopened, and everything went
back to normal (Tr 75-76}.
Mr. Harmon stated that on December 14, 1984, at a regular
safety meeting between management and the safety committee,
Mr. Amick gave him and Mr. Turpin a letter stating that they
acted "arbitrary and conspicuously" and that he wanted them
removed from the safety committee (Tr. 75}. Mr. Harmon

559

asserted that after his removal from the safety committee, he
felt that management, through Mr. Krynicki did not like him,
assigned him certain uncomfortable job tasks, made disparaging
remarks about him, and that the company safety escort would
"dog him" during the inspection rounds with inspectors (Tr.
86-90). Prior to his removal from the safety committee,
Mr. Harmon had disagreements with management, and he asserted
that his shift foreman cursed him se~eral times because he
complained to him about certain safety violations and upset
him (Tr. 91). Mr. Harmon also stated that Mr. Myers remarked
that he spent a lot of time in his office complaining (Tr. 92).
Mr. Harmon stated that he felt intimidated by Mr. Myers' statement that he made more complaints than the other safety committeemen, and that Mr. Myers "frowns when I go back to see him
about a safety complaint" (Tr. 93). Mr. Harmon confirmed that
he could think of no incidents of intimidation prior to his
removal from the safety committee (Tr. 94).
When asked by the Court to explain his reasons for filing
his complaint, Mr. Harmon responded as follows (Tr. 94-95):
THE WITNESS: I felt like I'm innocent of the
situation and that I have been discriminated
against though. The main reason why I was
removed was because I fought for the miner's
rights and stood up, and was back in Blaine's
office more, probably, than anybody else. I
feel that they, I don't know the right word to
say. I filed that because I felt that was the
proper way to do things.
JUDGE KOUTRAS: No, but the point is, do you
understand the company's theory, and why they
removed you and the other two safety
committeemen.
THE WITNESS: They said that I am acting arbitrary and conspicuously. I don't
JUDGE KOUTRAS:
THE WITNESS:

Capriciously, all right.
Yes.

JUDGE KOUTRAS: That is conspicuous too, in
that context, but go ahead.
THE WITNESS: But, there was no underhandedness, there was no sneaking around, nothing
like that.
I just wanted to get the situation

560

corrected, and by trying to correct the situation over a safety matter, they removed me off
the Safety Committee. Now, we have shut areas
down before, and they never tried anything,
had us removed over situations of that nature.
Even, as I mentioned, when we had to call the
federal inspector, Mitchell, up that one time,
they never said nothing to us.
JUDGE KOUTRAS:

They never said anything?

THE WITNESS:
They never tried removing us or
nothing like that. What's the difference now?
JUDGE KOUTRAS: On these past incidents, did
they ever do things that you felt were harassing or intimidating?
THE WITNESS:
so.

No, not really.

I don't think

And, at (Tr. 97-98):
JUDGE KOUTRAS:
Do you think that the company,
in this case, that Consolidation removed the
three safety committeemen because they called
the state. and federal people in? Or do you
think they removed you for some other reason?
THE WITNESS:
I believe they removed us
because we shut the area down, as Mr. Amick
has stated, that that is the bottleneck of the
mines, and by shutting that down, in a sense,
close the whole mines down.
Even though they
can remain working back there.
JUDGE KOUTRAS:
I understand that.
But, the
company took the position that you had no
authority to shut it down.
That you acted
contrary to the wage agreement, and the arbitrator found the company was right on that
score.
So did the State of West Virginia
Board of Appeals, when they reviewed the case.
Did they not sustain the company's position
that they felt that the committeemen acted
outside their authority, by shutting the mine
down?
THE WITNESS:

That's what they say.

561

JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:

You do not-I don't agree with it.
Why do you not agree with it?

THE WITNESS: Because, we done everything
legal, and normal. Just like the past safety
runs, and shut areas down, we done everything.
JUDGE KOUTRAS: But, you never shut them down
in the past, have you?
THE WITNESS:

Yes, we have.

Yes.

JUDGE KOUTRAS: How did you shut it? You mean
Mr. Laurie has called up somebody and shut an
area down?
THE WITNESS: Yes.
down, yes sir.

We've had other areas shut

JUDGE KOUTRAS: But, is this with the agreement of management? Did you request management to shut it down, and then they shut it
down?
THE WITNESS:

Yes.

JUDGE KOUTRAS: Give me an incident where you
requested management to shut it down, they did
not, and the safety committeemen shut it down
anyway.
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

I canvt.

I don't know of any.

Never been any, have there?
No.
This is the first one?
Yes.

In response to questions from the respondent's counsel,
Mr. Harmon stated as follows (Tr. 104-106):

562

Q. I was wondering, Mr. Harmon, if it is
correct; the discrimination that you are seeking here is the removal from the Safety
Committee?

A.

Yes.

Q. What, in your view, was the reason that
you were removed from the Safety Committee?
What conduct did you engage in that resulted
in that conduct, that response by management,
which you believe is discriminatory?
A. I tried to get the situation corrected on
dayshift. I even approached, in a sense, used
the danger board type threat, to have the situation corrected. And, it was not. We have
always asked management in the past to correct
things, and they went ahead. But, it seemed
that after they got an order. Mr. Blaine Myers
and Mr. Krynicki, got the order from Amick to
run coal through there anyway, they just went
from safe to being unsafe. My next response
was to get ahold of Dave Laurie, and have him
act upon it.

Q. Excuse me. I probably did not ask the
question very clearly. You went through that
very well before. Do you believe that you
have been removed from the safety committee if
the mine had not been shut down by the safety
committee?
A. We never had any action brought before us
before by shutting the haulage down for other
situations.

Q. The question was, do you believe, you
alleged you would have not been removed from
the Safety Committee, if the mine had not been
shut down. The Safety Committee had not
closed the mine, would you have been removed
from the safety committee, in your view?
A.

I don't know.

Q. It is your view that the action that was
taken, the removal from the Safety Committee,

563

was related to your action in closing the mine
down, is that correct?
A.

Yes.

Q. Have there been other occasions on which
you have notified federal or state officials,
pursuant to your state or federal mine rights?

A. Like I said, notified Mr. Mitchell one
time, on that particular track on the Seven
North country.
Q. In those occasions, was anyone removed
from the Safety Committee?

A.

No.

Q. The major difference here, was that the
safety committee acted under Article Three of
the contract, to close the mine down?

A. That's what Dave stated, and that's the
first time I ever heard him use that phrase,
so to speak. He never used that phrase in
other situations.
You are aware in the testimony to the
state that Mr. Laurie testified that his statement was, it was under Article Three?

Q.

~.

Yes.

Q. So, is that a fair statement? Under
Article Three you were acting to close the
mine down?

A.

That's what Dave said to Ben Strahin.

Q. What I am trying to get to, that it was
your exerci'se of your rights under the contract, to close the mine down, that resulted
in the management's response, which was to
remove you from the safety Committee. Is that
correct?
A.

Yes.

564

Mr. Harmon confirmed that as a safety committeeman, he
made more safety complaints to mine management than did
Mr. Laurie or Mr. Turpin, and he estimated that he brought 50
safety violations or complaints to management's attention,
and wrote up.about 20 section 103(g) inspection requests (Tr.
124). He confirmed that the remedy he is seeking is his reinstatement as a safety committeeman (Tr. 126).
Mr. Harmon confirmed that on one occasion when he had a
mine inspector close a track area for an hour or two and
issued citations, no action was taken against any of the
safety committeemen by management (Tr. 127). On another occasion when he threatened to shutdown the parking lot because
of pot holes, management corrected the conditions CTr. 125).
Mr. Harmon stated that while he considered the conditions
at the accident scene ;to be an imminent danger, "something
that could cause a fatality right away," he did not use the
phrase· "imminent danger" but used "dangerous or hazardous"
(Tr. 129). Even so, he conceded that he then went home to
await a call from Mr. Laurie, and that 8 hours had passed
since he initially viewed the conditions and men were still
working there (Tr. 130-131). He also conceded that he
travelled through the area and did not warn anyone about any
"imminently dangerous" conditions (Tr. 134), and that
Mr. Laurie permitted a trip of cars to pass through the area
{Tr. 162).
Although Mr. Harmon was of the opinion that under section 103(g) of· the Act, a safety committeeman has the authority to shutdown any mine area, he conceded that under that
section of the law, he is only authorized to request an immediate inspection of the area by an MSHA inspector, as opposed
to shutting the area down himself (Tr. 137-138). When asked
why he did not exercise his section 103Cg) rights on
December 11, Mr. Harmon responded "we were trying to get the
work done within the mines, instead of having to go as far as
calling a state or federal inspector in there" (Tr. 139).
Mr. Harmon acknowledged that at the time he requested
Mr. Myers to shut the area down, he did not refer to Article
Three of the Wage Agreement, nor did he use the phrase
" imminent danger" (Tr. 14 6) •
Mr. Harmon confirmed that other than being removed from
the safety committee, he was not removed from his normal job
classification, was not discharged, and was not otherwise
disciplined (Tr. 163). He also confirmed that his removal
from the safety cominittee was made pursuantito the terms of

565

the contract, and that on past occasions when state inspectors were called to the mine by safety committeemen, no
action was taken against them by management (Tr. 163-164).
Mr. Harmon conceded that in all of the prior instances when
he made safety complaints or requested section 103(g) inspections, management reacted favorably to his complaint and took
corrective action to his satisfaction and did not harass or
intimidate him (Tr. 173-174).
Respondent's Testimony and Evidence
Clarence Amick, General Mine Superintendent, testified
as to his background and responsibilities. He stated that
under the Wage Agreement the mine safety committee has the
right to request mine management to shutdown an area of the
mine if they determine that an imminent danger exists, and
management is obligated to do so (Tr. 184). In the instant
case, Mr. Amie~ stated that any imminent danger which may
have existed at the time of the accident at 11:00 a.m.,
certainly did not exist at 4:00 p.m. when Mr. Myers and
Mr. Krynicki spoke with him. Corrective action had been
taking place since the accident, and it was safe to proceed
with caution through the area at the time the committeemen
shut the area down (Tr. 186).
Mr. Amick confirmed that Mr. Harmon and the other safety
committeemen were removed pursuant to contract provision
Article Three, Section (d)(5) for arbitrarily and capriciously
shutting down the area in question. He denied that the
removal was in any way connected with the committee calling in
the state and federal inspectors, and he confirmed that they
had done this in the past on many occasions and were not
removed. He stated that in all of his years in mining, he has
never before had to remove any members of a mine safety committee (Tr. 187). He was aware of no state or federal law that
gives the safety committee the right to close an area of the
mine (Tr. 188).
Mr. Amick stated that mine management has never taken
any action against any committeemen for bringing safety
matters which need to be corrected to its attention, and he
confirmed that the committeemen in question did not lose their
jobs 1 and their job classifications were not changed in any
way. Once the committeemen were removed, they were allowed to
stay on until the arbitrator ruled on their case (Tr. 188-189).
On cross-examination, Mr. Amick confirmed that he sent
letters to the safety committeemen in question advising them
of their removal, and informing them of the reasons for his

566

action (Tr. 190). Mr. Amick believed that Mr. Harmon and the
other committeemen used bad judgment, and they had no right
to close the area. Mr. Amick stated that he relied on the
judgment of Mr. Myers and Mr. Krynicki, who have many years
of mining experience, in assessing any hazard or danger which
may have existed in the area at the time it was closed down
by the safety committee (Tr. 191).
Mr. Amick stated that he treated all three committeemen
equally, and since they all signed the statement at the time
they closed the area, he believed that it was a collective
decision and that they should all be removed from the safety
committee (Tr. 193). Mr. Amick stated that he has always
encouraged the safety committee to bring things that are
wrong to his attention so that corrective action may be taken.
However, by shutting down the mine area, the safety committee
took charge of directing the work force, which is solely
management's prerogative (Tr. 195). At the time the area was
closed, no one mentioned any "imminent danger," and since the
mine was closed as a result of the accident, and it was physically impossible to move any equipment through the area. It
remained closed until his superintendents, Mr. Myers and
Mr. Krynicki, "gave me the O.K. that it was safe to proceed
through at that time" (Tr. 197). The superintendents are
competent, and he relied on their judgment that the area was
safe, and no one informed him that Mr. Harmon felt differently
until sometime later (Tr. 199).
Mr. Amick confirmed that he made the decision to remove
Mr. Harmon and the other committeemen from the safety committee (Tr. 201-202). Although other options were discussed
with his staff, it was decided to remove them pursuant to the
contract provision in question (Tr. 203). He did not discuss
the matter with the affected committeemen because he didn't
believe it was necessaryu and he believed that their position
was clear by the statement which they signed at the time they
acted to close the area (Tr. 204).
In response to further questionsv Mro Amick confirmed
that the area in question was closed for approximately an
hour and forty-five minutes as a result of the action of the
committeemenu and the committee had no right to order the
dispatcher not to permit further trips through the area (Tr.
207). Mr. Amick stated that he has never faulted Mr. Harmon
for any actions he has taken as a safety committeeman, and he
confirmed that he has spoken to his staff about some of the
incidents of alleged harassment alluded to by Mr. Harmon, and
that he do.es not condone it (Tr. 209) •

567

Mr. Amick stated that his decisio·n to remove Mr. Harmon
from the safety committee was not influenced by his prior
activities as a member of the committee, and that "the main
crux of the problem, was, what happened that night" CTr. 213).
He stated that he has always worked with the safety committees, but could not tolerate the committee's action in
shutting down the haulage on the evening in question, and
that this is the first time this had ever happened (Tr. 215).
He stated further as follows (T~. 216>:'
A. They shut the mine down. They did it by
directing the work force, and they had no
authority to do either one. Even Section
Three, that gives him the authority to request
that management shut the mine down, and management has to do it, even then they don't
shut the mine down. Even when they exercise
Article Three, if you'll read it.

Q. That was your consideration then, in terms
of removal?
A.

Yes.

Q.

That was your only consideration?

A.

That was my consideration at the time.

Mr.'Amick stated that had the committee declared the
area to be an imminent danger, the superintendents on the
scene, after consultation with him, would have been obligated
to close the area.
In addition, any individual miner could
have exercised his individual rights not to work in the area
if he believed he was in danger.
If the committee had not
acted arbitrarily and capriciously in shutting down the area,
he would not have removed them from the safety committee.
The committeemen did not declare the area in question an imminent danger. On a prior occasion when the committee called
in a federal inspector on the Seven North haulage area, they
did not consider .it an imminent danger, but no action was
taken against them for contacting the inspector (Tr. 219).
Mr. Amick stated that the men who were delayed coming out of
mine at the time of the accident were paid time and a
half for having to stay over their regular shift (Tr. 220).
Blaine K. Myers, Bowers Portal Superintendent, explained
his contacts and discussions with Mr. Harmon at the time of
the derailment on December 11, 1984. Mr. Myers confirmed
that the individual who was injured did not suffer any lost

568

time, and he worked the next day (Tr. 221-222). Mr. Myers
stated that he and Mr. Krynicki were at the scene of the
derailment looking over the situation and directing the rehabilitation of the area, and the area had been closed until
shortly after 4:00 when the first trip was allowed through
(Tr. 223). Mr. Harmon was concerned about s9me spillage, and
mentioned no other conditions which he believed to be hazardous.• Mr. Myers stated that he asked Mr. Harmon whether he
considered the situation to be an imminent danger, and that
Mr. Harmon replied, "Well, I' 11 have the state and federal
inspectors here in the morning and we'll see" and left the
area (Tr. 225). At that point in time, Mr. Myers stated that
the top was not exposed, and that work had been done on the
arches, and he climbed up on the arches and he observed no
top areas which were not covered with wood (Tr. 226).
Mr. Myers further expl~ined as follows (Tr. 227-229):

Q;

Now, he testified earlier, that he demanded
three times that the area be closed down,
because of conditions of the roof which he says
was exposed. How do you respond to that?
A. I've got two responses. Number one, it's
absolutely untrue. He made no mention of any
bad top to me, throughout the day. Number
two, when the roof was exposed, the area was
shut down. We were in the process of rehabilitating the area, it was shut down. There was
nothing done in that area except the rehabilitation work. It's beyond me, to understand
where that comment came from.
After he turned and walked away, after you
had asked him whether or not there was an imminent danger, what happened?

Qo

A. we moved the supply cars into the side
track, called the dispatcher and told him that
the area was open, and ready for traffic.

Q.

Had Mr. Turpin been in the area during the

day?
Ao
Mr. Turpin worked on the rehabilitation
work the entire day, yes"

Q. would he have seen the top during the time
it was exposed?

569

A.

Yes, he would have.

Q. Did he, you testified that Mr. Harmon did
not, did Mr. Turpin express to you, on the
afternoon of the 11th, concerns that there was
a dangerous condition, as a result of the condition of the roof?
A.

No.

Q. Did that area have to be fire bossed
before it was reopened?
A.

Yes, it did.

Q.

was it fire bossed?

A.

Yes, it was.

Q.

Who was the fire boss?

A. Dill Kendall. He's the rank and file
pumper who portals at Mt. Morris, who fire
bossed that area that day.
Q. Did anybody, during the rehabilitation
work, or afterwards, during the haulage, once
it was recommenced, suggest that the conditions were unsafe and invoke the rights not to
work in the area?
A.

No.

Q. Let us go back. After the haulage was
started .back up, about what time was that?
A. Right at the four o'clock area, a few
minutes before, a few minutes after.

Q.

Where was Mr. Harmon at this time?

A. At this time he was at Three North
Junction waiting for the trip to pass so he
could proceed on to Bowers Portal.

Q.

Did traffic continue through the evening
shift, to your knowledge?

A.

Y~s,

it did.

570

Q. Throughout that time, were there any complaints regarding the safety of the haulage
area?
A.

Not to my knowledge.

Mr. Myers confirmed that on December 12, he was aware of
the fact that Mr. Amick was going to send Mr. Harmon and the
other committeemen letters removing them from the safety
committee. Mr. Myers was also aware that Mr. Harmon has contacted federal and state mine officials, and no disciplinary
action was taken against him. He confirmed that the action
taken against him to remove him from the committee was solely
pursuant to the contract (Tr. 230).
On cross-examination, Mr. Myers reiterated that
Mr. Harmon made no mention of any bad top, and although the
top was exposed at the time of the accident for 3 or 4 hours,
repairs were made and the area was rehabilitated. During the
rehabilitation work where there was some unsupported roof,
the men doing the work were cautioned not to work in those
areas or the top was supported. He stated that "we didn't
ignore the top. We paid attention to it, and took care of
what needed to be taken care of in order to safely rehabilitate the area" (Tr. 233).
Mr. Myers stated that Mr. Harmon works out of his portal,
and he was aware of the fact that he was an active committeeman and had made numerous complaints. Mr. Myers confirmed
that most of the complaints were made to him, and that the
inspectors to whom complaints were made were at his portal.
Mr. Myers did not believe that Mr. Harmon was taking his job
"too seriously, 11 and he stated that he encouraged him to bring
any safety problems to his attention so that they could be
taken care of. He stated that he had no bad feelings or
resentment towards Mr. Harmon, and that he was not the only
one who complained (Tr. 236). Mr. Myers believed that
Mr. Harmon was sincere in carrying out his safety committee
duties, but believed that he 11 over-reacted 11 when he demanded
that "we clean up this little pile of spillage there, beside
the track 11 (Tr. 238). He further explained as follows (Tr.
2 39):

Q. Do you think, in joining as a member of
the safety committee, in the closure of that
area of the mine after it had already been
reopened, was a case of his being mistaken,
going overboard, if you will?

571

A. Well, when he agreed that that area should
be shut down, yes, that's going overboard.
That's going out of bounds.

Q. You would agree that the committee exercised their Article Three rights,1and management's response under the' Article was
appropriate?
A.

Absolutely.

Q.

Would that response, in your view, be
appropriate regardless of who the individuals
involved were?

A.

Yes.
Findings and Conclusions

In order to establish a prima facie case of discrimination
under section 105Cc) 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~·
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 801 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Doge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no
way motivated by protected activity. If an operator canpot
rebut the prima facie case in this manner, it may nevertheless
affirmatively defend by proving that it was also motivated by
the miner's unprotected activities alone. The operator bears
the burden of proof with regard to the affirmative defense.
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 Fasula-Robinette test). See also NLRB v.
Transportation Management Corporation, ~- U.S.
-;-76 L.Ed.2d

572

667 (1983), where the Supreme Court approved the NLRB's virtually identical analysis for discrimination cases arising under
the National' Labor Relations Act.
The crux of Mr. Harmon's complaint lies in his belief
the respondent removed him from the mine safety committee
in retaliation for his vigorous activities as a member of the
safety committee. With regard to the safety committee's
unilateral closing down of the.haulage section in question on
December 12, 1984, the incident which precipitated his removal
from the safety committee, Mr. Harmon asserted that the committee had closed down areas of the mine in the past and no
action was taken by management to remove them from the safety
committee. Under the circumstances, Mr. Harmon concludes that
the respondent discriminated against him by removing him from
the safety committe~, and he implies that he was removed
because of his overall safety concerns and activities as a
member of the safety committee. Further, although stated in
general and nonspecific terms, Mr. Harmon also alleged that
the respondent sought to intimidate or harass him prior to his
removal because of his activities as a member of the safety
committee, and he views his removal from the safety committee
as yet another incident of intimidation by mine management.
tha~

Mr. Harmon's counsel conceded that Mr. Harmon's allegations of intimidation and harassment prior to his removal
from the safety committee, made for the first time during the
hearing, were not included as part of his original discrimination complaint (Tr. 113). When asked how Mr. Harmon intended
to substantiate these allegations, counsel responded "he has
no direct testimony, or anything like that. I guess, he is
more, seemingly to me, indicated that it was more of an attitude of just expressions that were made to him, that kind of
thing, that indicated to him at the time" (Tr. 144).
The record establishes that Mr. Harmon was an aggressive
and active member of the mine safety committee. He alluded
to some fifty safety complaints which he filed with mine management, and to the initiation of some 20 section 103(g)
inspections which resulted in at least 15 inspection visits
to the mine by MSHA inspectors (Tr. 173-174). However,
Mr. Harmon conceded that mine management always attended to,
and took care of his complaints, and in those instances where
he and mine management had differences of opinions as to the
existence of any vi0lative conditions, he f~eely requested
section 103Cg) inspections by MSHA with no interference by
mine management (Tr. 173-174).

573

Mr. Harmon conceded that prior to his removal from the
safety committee, mine management addressed his safety complaints in a manner that was to his satisfaction. He also
conceded that he performed his safety committeeman's job
unimpeded by mine management, and that he did so with no
harassment or intimidation by management (Tr. 174). Although
he alluded to certain cursing by a shift foreman, and certain
'temarks and "frowns" by superintendent Myers over his safety
committeeman's duties, Mr. Harmon confirmed that he could
think of no incidents of intimidation by mine management
prior to his removal from the safety committee (Tr. 94).
Mr. Harmon conceded that in his capacity as a safety
committeeman he had occasions to call in state and federal
inspectors, and that mine management did nothing to harass or
intimidate him .(Tr. 94). Mr. Harmon also conceded that management never attempted to remove him from the safety committee as a result of these past incidents (Tr. 95, 105). He
also conceded that when past requests for shutting down any
mine area were made to mine management, management reacted
favorably to the requests and never attempted to remove the
safety committeemen for making the requests (Tr. 97-98).
Mr. Harmon also confirmed that during his tenure as a committeeman, he was never refused permission to be excused from
work to perform his safety committeeman's duties (Tr. 23).
After careful review of the record as a whole, I find no
credible testimony or evidence to support any conclusion that
Mr. Harmon was harassed, intimidated, or otherwise impeded by
mine management in the exercise of his duties as a member of
the mine safety committee prior to the time that he was
removed from that committee, and his allegations in this
regard are rejected.
I conclude and find that Mr. Harmon has
failed to make out a prima facie case on this aspect of his
complainto
With regard to the concerted action by the safety committee in shutting down the track haulageway, although the record
reflects that committee chairman David Laurie actually gave
the order to the dispatcher to shutdown the track haulage, and
then called in the state and federal mine inspectors,
Mr. Harmon and the other member of the safety committee were
at the scene, concurred and agreed with the decision to close
the area, signed the statement reflecting their joint responsibility for their action, and they all waited for and accompanied the inspectors back to the area after it was closed.

574

Under the circumstances, I conclude that each of the committeemen, including Mr. Harmon, bear equal individual responsibility and accountability for their collective action in shutting
down the area in question.
It is clear that Mr. Harmon had a protected right to
serve on the safety committee, and the respondent may not discriminate against him because of his duties as a committeeman.
Mr. Harmon had a right to file complaints, request section
103(g) inspections, and inform mine inspectors of conditions
which he believed were unsafe, and management is prohibited
from interferring with these activities, and may not harass,
intimidate, or otherwise unduly impede Mr. Harmon's participation in those activities. However, Mr. Harmon's service as a
member of the safety committee does not insulate him from nondiscriminatory personnel actions, UMWA ex rel Billy Dale Wise
v. Consolidation Coal Company, 4 FMSHRC 1307 (July 1982),
aff'd by the Commission at 6 FMSHRC 1447 (June 1984); Ronnie
R. Ross, et. al v. Monterey coal Company, et. al., 3 FMSHRC
1171 (May 1981).
The facts in this case do not suggest a situation in
which Mr. Harmon sought to exercise his own personal right to
refuse to work or to walk away from a condition which he
believed to be unsafe. Acting in concert with the other two
members of the safety committee, Mr. Harmon effectively closed
the mine. Mr. Harmon believes that he acted within his committeeman's authority in shutting down the track haulage area,
and he disagrees with the two prior determinations which are
adverse to his position. Mr. Harmon's belief that he acted
properly is based on his assertion that the safety committee
had closed the mine before with no adverse reaction from mine
management. However, Mr. Harmon could cite no prior instances
where the safety committee closed any area of the mine, and he
conceded that this had not been done, and admitted that the
incident which prompted his removal from the safety committee
was the first one (Tr. 97-98).
The respondent's assertion that the Commission lacks
jurisdiction with respect to any contractual matters under
the Wage Agreement, and has no jurisdiction to restore
Mr. Harmon to the safety committee are not well taken. If it
can be established that Mr. Harmon's removal from the safety
committee was discriminatory, the Commission and its Judges
have broad authority under section 105(c) of the Act to order
an "appropriate" remedy to abate any violation of that section, Brock v. Metric Constructors, Inc., 766 F.2d 469, 472-73
Cllth Cir. 1985).

575

It seems clear to me from the record in this case that
Mr. Harmon's removal from the safety committee was prompted
by his actions which resulted in the shutting down of the
track haulage area in question.
It is also clear that the
committee's action in calling in state and federal inspectors
to inspect the area after they had shut it down had nothing
to do with Mr. Harmon's removal from the committee.
Mr. Harmon conceded that the respondent removed him from the
safety committee because he and the other members closed the
track haulage area (Tr. 97). This action by the committee
effectively closed the mine and interrupted production.
Mr. Harmon also conceded that his removal from the safety
committee was made pursuant to the terms of the Wage
Agreement, and that he was not otherwise disciplined, and
suffered no change in his normal job classification.(Tr. 163).
Under the circumstances, the critical issue presented is
whether or not Mr. Harmon had a protected right to close the
track haulageway.
Although Mr. Harmon voiced his displeasure over being
"passed around" so many layers of supervisors before finally
being permitted to go to the scene of the derailment, I find
nothing to suggest that management was deliberately or unduly
trying to prevent Mr. Harmon from going there, and he was
ultimately allowed to go, and arrived there later than he
would have liked. Mr. Harmon confirmed that during his
tenure as a committeeman, he was never refused permission to
be excused from work to attend to his safety committeeman's
duties (Tr. 23).
In this regard, I take note of the fact
that a safety committeeman may not necessarily need management's permission to absent himself from work to attend to
his mine safety committee duties, Local Union 1110 and
Robert L. Carney v. Consolidation Coal Company, 1 FMSHRC 338
(May 1979).
It is obvious that Mr. Harmon disagrees with the result
of the two prior adverse determinations affirming mine management's action in removing him from the safety committee.
Mr. Harmon's disagreement with those decisions lies in his
apparent lack of understanding or failure to comprehend why
he was not removed from the committee in the past when the
safety committee closed certain areas of the mine. However,
under the applicable Wage Agreement provision in question, it
is clear that the safety committee has no authority to unilaterally close any area of the mine. The committee's authority
is limited to making recommendations to mine management that
miners be withdrawn in those special instances where the
committee believes that an imminent danger exists. Once the
committee communicates its belief to mine management that an

576

imminently dangerous condition exists in any area of the mine,
management i~ obligated and required to follow the committee's
recommendations and remove the miners.
The respondent asserts that it was acting entirely within
its•rights under the Wage Agreement in removing Mr. Harmon
from the safety committee, and that its action was an appropriate and legitimate exercise of its contractual authority
and discretion to remove a safety committeeman who exceeded
his authority in shutting down an area of the mine, conduct
which the respondent views as clearly neither authorized nor
protected by section 105 of the Mine Act. In support of its
conclusions, the respondent relies on the January 28, 1985,
decision of Arbitrator, Thomas M. Phelan, and the June 17,
1986, decision of the West Virginia Coal Mine Safety Board of
Appeal·, denying Mr •. Harmon's discrimination complaint under
state law (Exhibits R-5 and R-11).
In the arbitration proceeding, the arbitrator concluded
as follows at page 17 of his decision:
For the reasons stated in the above
analysis, I find that there was no imminent
danger in the area closed down by the Safety
Committee and there was no reasonably based
belief on the part of the Committeemen that an
imminent danger existed there. The action of
the Committeemen was therefore arbitrary and
capricious and warrants their removal from the
Safety Committee. They shall be removed for
the duration of the 1984 National Agreement.
In its decision dismissing Mr. Harmon's state discrimination complaint, the state board concluded in pertinent part
as follows in its order dismissing his complaint:
Mr. Kelleman and Mr. Snyder find, by a
preponderance of the evidence, that the case
presented by the Petitioners did not demonstrate that there was an "imminent danger"
under the law which would allow the removal of
the men and therefore there was no discrimination involving any Petitioner in this case and
deny Petitioner Robert Harmon and Petitioner
John David Laurie their request to be placed
back on the Mine Safety Committee at the
Humphrey Number Seven Mine.

577

Although I am not bound by the prior decisions of the
arbitrator or the state board of appeals, I may nonethele~s
give deference to an arbitrator's "specialized competence" in
interpreting a provision of the controlling Wage Agreement,
Chadrick Casebolt v. Falcon Coal Company, Inc., 6 FMSHRC 485,
495 (February 1984)1 David Hollis v. Consolidation Coal
Company, 6 FMSHRC 21, 26-27 (January 1984)1 Secretary on
behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co., v. Marshall, 663 F.2d 1211 (3d Cir. 1981).
The issue with respect to the existence of any "imminent
danger" at the scene of the derailment, and the asserted justification for the safety committee's action in shutting down
the haulage area, was painstakingly considered during the two
prior proceedings concerning Mr. Harmon's complaints. I have
carefully reviewed the·voluminous record of those prior proceedings, and I am favorably persuaded as to the correctness
of these decisions, particularly with respect to the issue of
the existence of any imminent danger.
As pointed out by the respondent at pages 7-8, of its
posthearing brief, although Mr. Harmon asserted that the conditions he observed on the afternoon of December 11, 1984,
constituted an "imminent danger," he showered, went home,
permitted 8 hours to pass, and was aware of the fact that men
were working in and travelling through the area, before taking
action to close it down. Mr. Harmon himself travelled through
the area, the area had been firebossed by the UMWA before haulage was reestablished, and no miners, including Mr. Harmon or
the other members of the safety committee, exercised their
individual right not to work in the area (Tr. 132-136). Further, the record establishes that traffic was moving through
the area while Mr. Harmon was at home, men were working to
correct the conditions, and in fact, after the area was
ordered closed down by Mr. Laurie, he permitted a trip of coal
cars to pass through the area.
Mr. Harmon conceded that he never used the term "imminent
danger" during his discussions with Mr. Myers, nor did he use
that term in his discussion of the contractual provision with
Mr. Myers (Tr. 139, 146). Mr. Amick and Mr. Myers corroborated that neither Mr. Harmon or any other members of the
safety committee mentioned anything about any "imminent danger" at the time the committee shut the haulage area down, and
I take note of the fact that the joint statement signed by
Mr. Harmon and the other two committeemen (exhibit R-2), justifying their action, makes no mention of any "imminent danger."

578

Under all of the aforementioned circumstances, and on the
basis of the entire record as a whole, I conclude and find
that it does not support any conclusion of the existence of
any imminent danger at the time of the closing of the track
haulage area by the safety committee. Since no imminent danger existed, I further conclude and find that the action by
the safety committee was unauthorized and contrary to the
clear terms of the applicable Wage Agreement provision relied
on by the respondent to remove Mr. Harmon from the safety
committee, and that Mr. Harmon's participation in that decision was not protected activity. I further find no credible
evidence to support any conclusion that the respondent's
action in removing Mr. Harmon from the safety committee was
motivated in any way by management's desire to punish him, or
to otherwise retaliate against him, for his vigorous enforcement activities as a member of the safety committee. I also
conclude that the respondent's removal of Mr. Harmon from the
safety committee was well within its discretionary managerial
rights to direct the workforce and manage its own mine.
CONCLUSION AND ORDER
In view of the foregoing findings and conclusions, and
after careful consideration of all of the credible evidence
and testimony adduced in this case, I conclude and find that
the complainant has failed to establish a prima facie case of
discrimination by the respondent. Accordingly, the complaint
IS DISMISSED, and the complainant's claims for relief ARE
DENIED.

d~d·~.u::~

,, Ge'Orgt¥ A. /Koutras
Adminitrative Law Judge
Distribution:

Jeff Harris, Esq., 436 Melrose Street, Morgantown, WV 26505
(Certified Mail)
Thomas N. McJunkin, Esq., Jackson, Kelly, Holt & O'Farrell,
1600 Laidley Tower, P.O. Box 553, Charleston, WV 25322
(Certified Mail)
Mr. James H. Harmon, Jr., Rt. 2, Box 145, Rivesville, WV
26588 (Certified Mail>
/f b

579

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

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

MAR 161987
RONALD TOLBERT,
Complainant

..

DISCRI¥INATION PROCEEDING

v.

Docket No. KENT 86-123-D
Dollar Branch Mine

CHANEY CREEK COAL CORP.,
Respondent
DECISION
Appearances:

Tony Oppegard, Esq., Appalachian Research &
Defense Fund of Kentucky, Inc., Hazard,
Kentucky, for Complainant~
Thomas w. Miller, Esq., Miller, Griffin &
Marks, Lexington, Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon the Complaint by Ronald
Tolbert under section 105(c)C3) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act"
alleging ~hat Chaney Creek Coal Corporation (Chaney Creek)
failed to hire him (or rescinded its February 25, 1986,
hiring of him) in violation of section 105(c)(l) of the Act
because he testified in a discrimination proceeding against
Chaney Creek on behalf of another coal miner.~/

!7 Section 105Cc)(l) of the Act provides in part as follows:

"No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the statutory rights of any miner • • • or applicant for employment in
any coal or other mine subject to this Act because such miner
• • • or applicant for employment • • • has instituted or
caused to be instituted any proceedings under or related to
this Act or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner, representative of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by this
Act."

580

In order for the Complainant to establish a prima facie
violation of section 105(c)(l) of the Act he must prove by a
preponderance.of the evidence that he engaged in an activity
protected by that section and that the discriminatory action
taken against him was motivated in any part by that protected
activity. Secretary on behalf of Pasula v. Consolidation
Coal'Company, 2 FMSHRC 2786 (1980), rev'd on other grounds
sub nom. Consolidation Coal Company v. Marshall, 663 F.2d
1211 (3rd Cir. 1981). The Respondent may rebut the prima
showing either that no protected activity
-ie
- caseor bythat
occurred
the adverse action was not motivated in any
part by protected activity. Secretary on behalf of Robinette
v. United Castle Coal Co., 3 FMSHRC 803 (1981).
If the Respondent cannot rebut the prima facie case in
this manner it nevertheless may defend affirmatively by
proving· that Cl> it was also motivated by the miner's unprotected activities, and (2) it would have taken the adverse
action in any event for the unprotected activities alone.
The Respondent bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC
1935 Cl982). The ultimate burden of persuasion does not
shift from the Complainant. Donovan v. Stafford Construction
Company, 732 F.2d 954 CD.C. Cir. 1984); Boich v. FMSHRC, 719
F.2d 194 (6th Cir. 1983). The Supreme Court has approved the
National Laoor Relation's Boards virtually identical analysis
for discrimination cases arising under the National Labor
Relation's Act.· NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
The Complainant herein was laid off from his underground
mining job with Chaney Creek in February, 1985. On January 15,
1986, while still on layoff status, Tolbert testified on behalf of former co-worker Odell Maggard in a section 105Cc}
case against Chaney Creek.
(See Maggard v. Chaney Creek Coal
Corp., 8 FMSHRC 806 (1986)). Tolbert testified in that case
that he had been shocked in Chaney creek's White Oak mine by
the same electrical trailing cable which Maggard claimed had
shocked him and which led to Maggard's protected work refusal.
Tolbert 1 s testimony therefore provided important corroboration for Maggard who subsequently prevailed in his case
against Chaney Creek. It is not disputed that Tolbert, by
testifying in Maggard's 105(c) case, thereby engaged in
protected activity.
The issue then
whether Chaney Creek was motivated in
any part by this protected activity. Pasula, supra. The
evidence in this regard is circumstantial. Tolbert maintains
that he was hired by Superintendent Clyde Collins at the mine
site and told to report for work later that day after

581

completing some administrative paperwork at Chaney Creek's
off ice in London, Kentucky. He further maintains that it was
the standard practice for Collins to hire the men he wanted
before sending them over to complete the paperwork. According
to Tolbert it was only after Chaney Creek personnel director
Steve Shell was told of Talbert's participation in the
earlier 105(c) trial against Chaney creek that he was
sutldenly denied employment. Chaney Creek on the other hand
has advanced several different reasons for its failure to
hire (or its discharge of) Tolbert but in any event denies
that it relied in any part on Talbert's protected activity.
For the reasons set forth in this decision I find Talbert's
allegations to be credible. At the same time I find Chaney
Creek's purported defenses to be without credible evidentiary
support.
It is essentially undisputed that on February 25, 1986,
approximately six weeks after his testimony in Maggard's
case, Tolbert went to the White Oak mine seeking employment.
He arrived around 9:30 or 10:00 a.m., and asked Richard
Woodard the "outside man" if Chaney Creek was hiring.
Woodard told Tolbert that he would have to talk to Clyde
Collins, the mine superintendent who was then underground.
While Tolbert was waiting for Collins he helped Woodard
shovel around the outside beltline. When some rocks from the
moving beltline fell onto the head drive, Woodard climbed
onto the hopper to remove them. In doing so, Woodard fell
into and became wedged in the hopper. Unable to get out and
afraid he would be carried over the top of the stacker,
Woodard hollered for help. Tolbert heard Woodard's cries for
help, cut off the power to the beltline and helped him get
out.
Because Tolbert had come to Woodard's rescue, Woodard
said he would talk to Collins about hiring Tolbert. When
Collins later came out of the mine, Woodard reported what
Tolbert had done, and told Collins that he would be appreciative if Collins would give Tolbert a job.
The evidence about subsequent events is in dispute.
According to Tolbert, he waited in the parts shed while
Collins, Woodard and Terry Wilson, the "outside foreman", met
in the adjoining mine off ice. After a few minutes, Wilson
motioned for Tolbert to come to the off ice. According to
Tolbert, Woodard then told him that he had a job servicing
equipment and helping with the roof bolting on the third
shift. Woodard gave Tolbert directions to Chaney Creek's
office in London, Kentucky, and told Tolbert to report there

582

to have his "paperwork filled out." Tolbert says that he
then asked Collins what time he should report to work that
night, and Collins allegedly told him to "be sure and be here
no later than 20 'til eleven" with his work gear "to start
work. 11
I find that the credible evidence supports Talbert's
testimony that Clyde Collins indeed told him on February 25th
to report to work that night on the 3rd shift.
In this
regard Terry Wilson confirmed that "Clyde Collins told
[Tolbert] to go to London [the location of Chaney Creek's
offices] to sign up and come out on 3rd shift that night."
Woodard also tends to corroborate Tolbert. Although Woodard
claims he did not hear Collins tell Tolbert to report to work
that night, he nevertheless testifed that he had the
impression on February 25th, that Tolbert "had a job if
everything was approved and he went over [to the Chaney Creek
offices] and done the paper work." In addition Woodard
acknowledged that he stated at his deposition that Collins
"indicated that he would hire [Tolbert] if he went over there
and everything was approved. 11 ~/

The evidence also shows that Collins had good reason to
hire Tolbert that day.
It is not disputed that Tolbert had
just saved Woodard from possible serious injuries and Woodard
had asked Collins to reward him with a job. Woodard acknowledged that Tolbert 11 really helped me out" and testified that
he told Collins he would appreciate it if Collins gave
Tolbert a job.
While Collins denied at hearing that he had hired
Tolbert I do not find Collins' testimony to be credible in
critical respectso
It is significant to note that on
February 25th the date Tolbert maintains he was hired by
Collins, Collins did not know that Tolbert had testified

2/ Woodard testified at his deposition that Collins said he
;ould hire Tolbert "if he went over there and everything was
approved"o
He testified at hearing on the other hand that
Collins said he would hire Tolbert after he filled out an
application at Chaney Creek office but only "if he needed
him." If Collins did not know whether he needed Tolbert at
that time it is unlikely under the procedure then followed by
Chaney Creek that Collins would have bothered to send Tolbert
to the mine off ices to fill out an application. Under the
circumstances I g
but little credence to Woodard's testimony that Talbert's hiring was subject to essentially a
second determination by Collins of whether he was 11 needed 11 •

583

against the interests of Chaney Creek in Maggard's section
105(c) case. Collins' motivation for his testimony at
hearing arose only after Chaney Creek officials had failed to
hire Tolbert because of his prior testimony.
A number of inconsistancies between Collins' testimony
and the testimony of other witnesses called on behalf of
Chaney Creek also shed doubt on Collins credibility. Thus,
contrary to Woodard's admission, Collins ~enied that Woodard
had even asked him to give Tolbert a job. Collins testified
that he "never discuss~d hiring [Tolbert]" with Woodard.
Collins also testified that Steve Shell, Chaney Creek's
Personnel Director, had informed him that Tolbert's miner
identification card was not up to date, while Shell testified
that had never discussed the matter with Collins. In
·
addition the· evidence shows that Collins told the special
investigator for the Federal Mine Safety and Health Administration (MSHA) that he did not even know if Tolbert had gone
to the London off ice to fill out an application after he left
the mine on February 25, whereas Collins admitted at hearing
that Tolbert had called him from Chaney Creek's London office
that same afternoon. Collins' testimony that he simply told
Tolbert to fill out an application at the London off ice
because he might hire him in a day or two is also not
consistent with Talbert's failure to have checked back with
Collins as Collins alleges.
Moreqver the credible evidence in this case clearly
demonstrates that Clyde Collins regularly told prospective
employees that they were hired and that they were hired
before he told them to fill out a job application at Chaney
Creek's London offices. Indeed six miners who began work at
the White Oak mine from the beginning of January through the
beginning of March 1986 all testified that they were not
instructed to fill out a job application until after Collins
told them they were hired.3/ Before the date these miners
were hired and instructed to report to the London off ice all
had previously asked Collins for a job and were simply told
to check with Collins again. None were told to submit a job
application on the occasion or occasions they were not hired.
Thusv for example, Bobby Hensley had asked Collins for a job
5 or 6 times before being hired and was not told on those
occasions to fill out a job application.
In addition Matt
Gross had spoken with Collins 20 to 25 times before the date
3/ See the testimony of James Miracle, Elmer Davis, Robert
Hensley, Lawrence Shepherd, Gleniss Nelson, and Matt Gross.

584

he was hired without being told to report to the London
off ice.
The record also shows that 19 of the 30 miners hired
during the weeks ending January 5, 1986 through March 9,
1986, began work on the same date they filled out their job
application. The record further shows that another 7 miners
started work the next workday after their application was
completed. Thus 26 out of the 30 miners who were hired
during the relevant period begarr work either the same day or
the next work day after their employment application was
completed. Of the 4 remaining miners, 3 began 2 workdays
after submitting their job application, and 1 began 6 days
thereafter.~/

Consistent with this pattern or practice at Chaney
Creek, ·outside Foreman Terry Wilson, who is familiar with
Collins' hiring procedures, testified that when Collins
"decided to hire [new employees] he would tell them to go to
London and fill out an application." Thus it may reasonably
be inf erred that Tolbert had indeed already been hired by
Collins before he went to the London off ice. Within this
framework of evidence I conclude that Collins had indeed
offered Tolbert a job on February 25th subject only to
Talbert's completing the formalities of filling out a job
application.form at Chaney Creek's offices in London, and to
a rarely exercised disapproval by that off ice.
In any event after Tolbert left the White Oak Mine after
being told to report to work that night, he stopped at his
home, then drove to Chaney Creek's London office. Tolbert
says that he told Personnel Director, Steve Shell at Chaney
Creek's office that he had been hired to begin work on the
third shift that night at White Oak mine. Shell told Tolbert
to come into his off ice to complete his paperwork. Shell
filled out Talbert's employment application in his office,
and then gave Tolbert a Chaney Creek Coal Corporation
employee handbook.~/ Shell than asked Tolbert for a copy of
4; Although there were actually 33 miners hired at the White
Oak mine during this period, the record shows that employment
applications for 3 of the miners could not be located by
Chaney Creek.
5/ It is stated in the introduction to the mandbook that
"[t]his handbook is to familiarize the employee of Chaney
Creek Coal Corporation with the company policies in mining
practices, personnel management and safety rules." (emphasis
added).
·

585

his Kentucky miner identification card.6/ Tolbert, apparently
gave Shell an out-of-date 1984 card. Shell then told Tolbert
that he would be back in a few minutes, and left his office.
While Shell was completing Tolbert's application, but
before leaving his office, Daryl Napier walked by Shell's
office and saw Tolbert. Napier was Chaney Creek's representative.at the Odell Maggard discrimination hearing and was
present during Tolbert's testimony at that proceeding. Shell
was gone from his office, out of Talbert's sight, for about 5
minutes. When he returned, Shell reviewed the employee
handbook with Tolbert for 5 or 10 minutes. After reading
through the handbook with Tolbert, Shell told Tolbert that he
could not hire him "because he'd hired too many men that day."
When Tolbert told him that Collins had already given him a
job on the third shift, Shell repeated that he could not hire
Tolbert because he had hired too many men that day.
As Tolbert was leaving to return home he saw Daryl
Napier loading supplies. Tolbert approached Napier and told
him that Collins had hired him for the third shift and had
instructed him to come to London to get his paperwork filled
out, but now the company would not hire him. Tolbert asked
Napier if the fact that he had testified against the company
was being held against him, and Napier purportedly replied,
"I wouldn't think so, that would be hard to say."
Napier suggested that Tolbert call Clyde Collins at the
White Oak mine to be sure he had been hired. When Tolbert
told Napier that there was no point in calling Collins
because Collins had already told Tolbert he'd been hired
Napier insisted that Tolbert call. Napier and Tolbert then
went back into Chaney Creek's office, where Napier dialed the
White Oak mine from a telephone on the receptionist's desk by

6; This card is issued annually by the Kentucky Department
of Mines & Minerals to miners who have completed their annual
retraining. The card lists the miner's name, identification
number, qualified occupations, and an expiration date. The
card expires on the last day of the given calendar year.

586

the front door.7/ Tolbert says that he then explained to
Collins that Shell had said Chaney Creek could not hire him,
and he asked Collins "what was going on." Collins then told
Tolbert that he could not hire him because the continuous
miner had broken down and he was going to have to lay some
men off. Tolbert then left the Chaney Creek office and
returned home.
The following day, February 26, 1986, Tolbert returned
to the White Oak mine to talk again with Clyde Collins.
Tolbert again asked Collins "what was going on," and he asked
the superintendent if the company had decided not to hire him
because of his prior testimony. Collins purportedly told
Tolbert that he did not know. Although Collins had told
Tolbert the previous afternoon that the continuous miner had
broken down, the mine was producing coal on the 26th.
Indeed, Chaney Creek's production reports for February 25 and
26, 1986 suggest the continuous miner did not require any
major repairs on those dates.
Although Tolbert had given Shell his expired 1984 miner
identification card at Chaney Creek's office on February 25,
1986, Shell failed to notice that the card was out-of-date
and did not discuss the matter with Tolbert. Indeed Shell
readily acknowledged at hearing that the fact that Talbert's
miner identification card was expired had nothing to do with
the decision not to hire him.
According to Terry Wilson, on February 26th he asked
Collins if Tolbert had reported to work the night before.
Collins purportedly told Wilson that the company had called
him "from the office" and told him not to put Tolbert to work
because Tolbert "had testified in a case against them."V
~/

While Shell testified that he, not Napier, suggested that
Tolbert call Collins, he was vague and equivocal as to why he
wanted Tolbert to make the call. Shell testified at one
point that it was because he wanted to save Tolbert the trip
of driving back to the mine so Tolbert could find out "when
he might be hired or something along that line" and at
another point testified that it was because he (Shell) was
just "curious [about] what was going on."
~/

Even assuming, arguendo, that Wilson had been subsequently fired from Chaney Creek for allegedly stealing gas
and thereby may have been motivated by ill will, I nevertheless find his testimony internally consistent, forthcoming
and credible.

587

Although Chaney Creek hired approximately 47 new miners from
February 25, 1986, through July 7, 1986, Tolbert was not
among those hired. In fact, although given opportunity to do
so Chaney Creek had still not hired Tolbert as of the date of
the hearing.
In defense Chaney Creek argues in i~s post hearing brief
that Tolbert was not hired for two independent and unprotected reasons i.e., that there was a temporary hiring freeze
in effect on February 25, 1986, and that Tolbert did not have
a current miner's card. The former reason was advanced only
after Tolbert had been given an employee handbook on
February 25th, when Shell purportedly told Tolbert that
Chaney Cree~ could not hire him because it had hired too many
men that day. However, when Tolbert called Collins at the
White oak mine shortly therafter, Collins said that he could
not hire him because the continuous miner had broken down and
he would have to lay some miners off.
Shell testified that he told Tolbert on February 25th
that there was a "hiring freeze" at the White Oak mine.
However in Shell's sworn statement to an MSHA investigator on
May 1, 1986, he failed to even mention any such hiring freeze
as a reason Tolbert was not hired. Rather, Shell stated that
he told Tolbert to call Collins in order to get a starting
date, but that Collins did not give him a date. Shell's
complete ~tatement to MSHA is as follows:
"On February 25, 1986, Ronald Tolbert came into the
office and said they told me to come in and fill
out an application. I asked Tolbert if they
(whoever sent him to fill out an application1 I
don't remember who he said sent him) told him when
he was to report for work. Tolbert said that they
did not give him a date.
I filled out Talbert's application, then I gave him
the telephone to call the mine and talk to Clyde
Collins, Supe~intendent, to get a starting date as
to when he would start to work. After Tolbert
talked to Collins, he said Collins told him that he
would not be starting to work at Chaney Creek. No
date was given as to when he would start to work.
During the week of February 11, 1986, there had
been five employees laid off at [Chaney Creek].
Tolbert then went outside of the off ice and talked
to Daryl Napier, Production Manager. I did not
talk to Tolbert anymore.

588

It is the policy of this company for anyone to fill
out an application before they are hired."
Collins, on the other hand, testified that when Tolbert
called him on February 25th from the London off ice, Tolbert
"asked me about a job and I told him to check back with me."
However, this assertion likewise contradicts the sworn statement that Collins gave to the MSHA investigator on April 30,
1986. That statement is as follows:
"On February 25, 1986, Ronald Tolbert came to the
mine and asked me for a job. I told Tolbert that I
was not hiring at the time, but maybe later.
I
told him if he wanted to he could go to the main
of~ice in London, Kentucky, and fill out an application.
I did not tell Tolbert he was hired.
Tolbert then left the mine.
I don't know if he
went to the main off ice and filled out an application or not.
This is all I know about Tolbert."
Although neither Shell or Collins mentioned a hiring
freeze when .they gave their sworn statements to the MSHA
investigator, Chaney Creek raised this defense in its
October 8, 1986, response to the prehearing order issued by
the undersigned.in this proceeding. In that part of its
response entitled "Statement of Issues," Chaney Creek stated
that when Tolbert filled out his job application on February
25th, "Chaney Creek was not hiring any new miners, but rather
was in the process of laying off several miners."
·
It may reasonably be inf erred from this failure of the
two principal members of Chaney Creek's management involved
in this case to even mention a hiring freeze when questioned
about the case approximately two months after Tolbert was
denied employment, that the purported excuse was nothing more
than a pretextual afterthought. In addition the underlying
evidence refutes Chaney Creek's claim that there was a hiring
freeze in effect on February 25th.
Shell testified that the freeze began "less than a week"
before February 25th and lasted "approximately a week after
February 25th." Kenneth Gilliam, Chaney Creek's safety
director, testified that the hiring freeze had been in effect
for "about a week" prior to February 25th and that Chaney
Creek had not hired any employees or taken any job applications during that week. Chaney Creek's answers to Talbert's
requests for admissions reveal however that 13 miners were

589

hired at the White Oak mine between February 24th and March
4th, all during the alleged freeze.
Indeed, three miners
(Glennis Nelson, Lawrence Shepherd, and Tony A. Smith) were
hired on February 24th, and one miner (Bobby Howard) was
hired on February 25th, the same day that Tolbert was turned
away. Two more miners (Alvin Caldwell and Gerald Lawson)
were hired on February 28th, and 7 additional miners were
hired the following week. Although Shell stated that it was
their practice for Collins to call him when he hired a miner
to replace another miner Cwho had quit, been discharged, or
injured), and that he (Shell) would receive this information
before the miner reported to the Chaney Creek off ice, Shell
did not know whether any of the 13 miners hired between
February 24th and March 4th had in fact replaced other
miners.
It is also significant that Chaney Creek's prehearing
assertion that it was "in the process of laying off several
miners" on February 25th is contrary to the evidence of
record.
The evidence shows that not only were 13 miners
hired during the alleged hiring freeze, but that no miners
were laid off at the White Oak mine from mid-February to
mid-April, 1986.
If there had been a hiring freeze at the White Oak mine
on February 25th, as Respondent now alleges and if Shell had
told Collins about the freeze as Shell testified, it is not
reasonable to believe that Collins would have failed to tell
Tolbert about the hiring freeze either when Tolbert was at
the mine on the morning of February 25th, or when Tolbert
called Collins later that day from the London off ice. Moreover, if there had been a hiring freeze, it is not reasonable
to believe that Shell would then have told Tolbert to call
Collins to get a starting date.
Collins testified that when Tolbert called him from the
London off ice, Tolbert "asked about a job" and Collins told
Tolbert to check back with him.
Howeverv if Collins had told
Tolbert that morning to submit an application and then to
check back with him in a couple
daysr as Collins claims,
it is not reasonable that Tolbert would have called Collins
again a few hours later to ask about a job.
It is also noted that when Shell was first asked at
hearing why Tolbert was not hired by Chaney Creek, Shell
replied, "[a]t that period of time there was a • • • temporary hiring freeze." However, after it was established at
hearing that many miners had been hired after February 25,
1986, Shell advanced another explanation. Thus when asked
why Tolbert was not hired when the freeze was lifted, Shell

590

replied, 11 [h]e didn't go back to the mine is the only thing I
can tell you."
The argument that Tolbert was not hired because he did
not report back to the White Oak mine is not however reasonable under the circumstances. Although he denied hiring
Tolbert, Collins testified that he did tell Tolbert on
February 25th that he might hire him 11 in a day or two," and
that Tolbert should check back with him. Shell testified
that he told Tolbert on February 25th that Chaney Creek would
not be hiring for only 11 a short period of time." Under the
circumstances, it is not reasonable to believe that Tolbert,
who was looking for a job, would not have reported back to
the White Oak mine and/or to the London office in the next
few days.
It defies common sense to believe that a miner who
is seemingly on the verge of obtaining a needed job would
ignore instructions to contact his prospective employer again
in a couple of days, b~t rather would opt for filing a discrimination complaint against that company.
Finally even assuming, arguendo, that there was a temporary hiring freeze at the White Oak mine in effect on
February 25th, as Chaney Creek alleges, the fact remains that
Tolbert was not hired when the freeze was admittedly lifted
approximately one week later. Chaney Creek had hired approximately 47 new miners other than Tolbert between February
25th and July 7th. Moreover, 14 of these new employees were
hired as either servicemen or roofbolters, the two jobs which
Tolbert said he was told on February 25th that he would be
performing. In addition, another 12 miners were hired during
this period to perform unskilled work watching (and shovelling)
either the belt drive or the beltline. These are jobs for
which Tolbertu or any miner with 6 years experience would be
well qualified.
Under the circumstances I find the Respondent's argument
herein that it did not hire Tolbert because of a "hiring
freeze 11 , to be without credibility and a pretext.
Chaney Creek also argues in its posthearing brief that
Tolbert was not hired because he did not have a current
miner's card. Chaney Creek explains that it has had a policy
that miners must be eligible to go underground i.e., they
must ~ave an up-to-date Kentucky miners identif 1cation card,
showing that the miner has received his annual retraining
sometime during the previous calendar year, before the
company will hire them. However, the question of whether
Tolbert had an up-to-date miner identification card when he
went to the Chaney Creek office on February 25, 1986, is not
material to this proceeding because the question of Talbert's

591

training admittedly did not enter into Chaney Creek's
decision not to hire him. See Pasula, supra.~/
Shell, Chaney Creek's personnel director, admitted at
hearing that the fact that Talbert's miner identification
card was not up-to-date on February 25, !1986, had nothing to
do with why Tolbert was not hired. Indeed, Shell admitted
that he did not even notice at that time that Talbert's card
was expired, and that he did not discuss the matter with
Tolbert.
Moreover neither Shell nor Collins even mentioned
Talbert's eligibility to go underground as a basis for not
hiring him in their statements to the MSHA investigator. It
may reasonably be inferred therefore that this issue was not
considered by Chaney Creek as a factor in not hiring Tolbert.
Indeed, Chaney Creek did not even raise the issue of
Talbert's eligibility to go underground as a defense in its
Answer filed June 30, 1986; nor did the company raise the
question in its "Statement of the Issues" in its October 8th
response to the Prehearing Order. At that time, one week
before the scheduled hearing, Chaney Creek's sole defense to
Talbert's claim was that it simply was not hiring on
February 25th, but rather was "was in the process of laying
off several miners." It is plainly apparent that this new
defense arose for the first time at hearing only after it was
discovered that the evidence would not support the earlier
alleged defense.lo;
9;

The Commission stated in Fasula that:
It is not sufficient for the employer to show that
the miner deserved to have been fired for engaging
in the unprotected activity; if the unprotected
conduct did not originally concern the employer
enough to have resulted in the same adverse action,
we will not consider it. The employer must show
that he did 'in fact consider the employee deserving
of discipline for engaging in the unprotected
activi
alone and that he would have disciplined
him in any event.

10/ It is not disputed in this case that Chaney Creek
ordinarily did require its new employees to be current in
their training" The application forms submitted into
evidence show that Chaney Creek customarily did verify
whether its new employees had received their annual
retraining.
However, in this case, it is clear that Chaney
Creek did not consider the matter and it is accordingly not
relevant.

592

It is apparent moreover, that even if Chaney Creek
officials had noticed that Talbert's miner identification
card was expired, it would have, according to prior
prac~ices, simply instructed Tolbert to obtain his annual
retraining so that he could begin work. Both Shell and
Collins admitted that Shell had never vetoed or rejected for
employment any miner who Collins, had sent to the London
off ice to be formally hired. In fact, in only one instance
did Shell not formally approve Collins' hiring decision.
That instance involved two brothers, Elmer and Kermit
Sizemore, whom Collins hired at the same time, but whose
training was not up-to-date when Collins sent them to the
London off ice. When Shell noticed that their training was
not up-to-date, he simply instructed the miners to obtain
their training. Botn men then received their training within
a few days and started to work immediately thereafter.
Under all the circumstances it is clear that the
profferred defense, first proposed at the hearings in this
case, that Tolbert was not qualified to be hired on
February 25, 1986, because he did not then have an up-to-date
miner's card is nothing more than another afterthought and
pretext. Accordingly I find that Chaney Creek did indeed
ref use to hire Tolbert solely because of his protected
activity and th~t it was therefore in violation of section
105(c) (1) of the Act.
ORDER

Chaney Creek Coal Corp. is hereby directed to offer
employment to Ronald Tolbert at no less than the current rate
of pay in effect for the position of serviceman. The parties
are further directed to confer to attempt to reach stipulations as to costsu damages, and attorney's fees in this case.
If they are unable to reach stipulations as to all such
matters on or before March 20, 1987, f~th.er hearing. will be
held on such matters on April 1, 1986, t 2:00 p.m. i-n
London, Kentucky.
.
,
'

~.

p.. / '
I'\:..,~

J

j \,_)H \_./'

• I

Gary Meli k
Administrative La~

\\

\.'\ .

593

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., P.O. Box 360, Hazard, KY 41701 (Certified
Mail)
Thomas w. Miller, Esq., Miller, Griffin & Marks, 700 Security
Trust Building, Lexington, KY 40507 (Certified Mail)
rbg

594

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

MAR 161987
EMERY MINING CORPORATION,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 86-101-R
Order No. 2835373; 3/20/86

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

Docket No. WEST 86-102-R
Order No. 2835374; 3/20/86
Deer Creek Mine
DECISION

Appearances:

Timothy Biddle, Esq. and Susan Chetlin, Esq.,
Crowell & Moring, Washington, D.C.,
for Contestant;
Edward J. Fitch, IV, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent.

Before:

Judge Morris

This is a consolidated contest proceeding initiated by
contestant pursuant to Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq., (the Act).
In WEST 86-101-R Emery contested a 104(d) (1) order. The
order, number 2835373, charges respondent with violating 30 C.F.R.
§ 75.1003(a)o
The order reads as follows:
The trolley cut-out switches in 3rd West
at the following locations were not guarded where
persons normally work or are required to cross
under to throw the switch handles: 3rd West
switch, bottom of 3rd West hill, top of 3rd
West hill, underground shop switch, "B" North,
between 30 & 31 crosscut, "C" North, 3rd South
switch, 3rd West North drive. There are some
cut-out switches that are guarded in this entry.
This condition was known by the company.

595

In WEST 86-102-R Emery similarly contested a Section 104(d) (1)
order, number 2835374, which reads as follows:
The energized trolley line was not guarded
at the cut-out switches where men normally work
or are required to cross under to work or throw
the switch handles at the following locations in
1st South; numbers 53, 63, 69, 74, and 78 crosscuts. This condition was known by the company
to exist.
The standard allegedly violated,
provides as follows:

§

75.1003, in its entirety,

Trolley wires, trolley feeder wires, and
bare signal wires shall be insulated adequately where they pass through doors and
stoppings, and where they cross other power
wires and cables. Trolley wires and trolley
feeder wires shall be guarded adequately:
(a) At all points where men are required to work or pass regularly under the
wires;
(b) On both sides of all doors and stoppings; and
(c)

At man-trip stations.

The Secretary or his authorized representatives
shall specify other conditions where trolley wires
and trolley feeder wires shall be adequately protected to prevent contact by any person, or shall
require the use of improved methods to prevent
such contact. Temporary guards shall be provided
where trackmen and other persons work in proximity
to trolley wires and trolley feeder wires.
After notice to the parties, a hearing on the merits took
place in Denver, Co~orado on July 29, 1986.
Stipulation
The parties stipulated that if the Secretary prevails on
the issue of whether a violation occurred and on the issue of
unwarrantability then the citation as issued is procedurally
correct. Further, it was stipulated that exhibits of each party
were authentic (Tr. 6, 7). It was also agreed that the handles
on all of the switches 1/ were insulated (Tr. 57).

1/ The switches are sometimes referred to as blade switches, line
switches or cut-off switches.
596

Issue
The issue focuses on the applicability of the regulation
to blade switches on trolley wires.
Summary of the Evidence
The evidence is essentially uncontroverted.
William Ponceroff, a person experienced in mining, has
been the supervisor of the MSHA Orangeville, Utah office since
January 1986 (Tr. 12-15). His experience has included six
months' dealing with trolley haulages (Tr. 15).
In February 1986 he accompanied MSHA Inspector Jones to
Emery's Deer Creek Mine. While inspecting with Jones and Gary
Christensen, the company representative, he observed a line
switch that had been thrqwn but wasn't guarded. The inspector
indicated they are regularly used because the rock dust car moves
in and out of this area (Tr. 15, 16). A miner's hand is close to
the wire when he reaches up to pull the switch. Christensen
felt the switch didn't have to be guarded (Tr. 17). On leaving
the mine into Main West, Ponceroff observed two switches. One
was guarded and one was not (Tr. 17). Track problems included
missing and loose bolts as well as gaps in the track (Tr. 18).
On February 27 Ponceroff discussed the blade switch guarding
with Dixon Peacock, the company's Deer Creek representative.
Ponceroff indicated that belt shovelers and supply people were
operating along the track without a temporary guard (Tr. 19). At
any time their vehicle could get off the track.
If this occurred
miners could only deenergize the trolley wire by throwing the
blade switches. The miners could also contact the wire with a
shovel handle or a scale bar.
In some places portions of a miner's
body could come in contact with the wire (Tr. 20). Since they
didn't provide a temporary guard, the switches would be reqularly
used because miners could only perform their duties by pulling a
line switch (Tr. 20). Ponceroff also observed miners unloading
timbers under a trolley wire without deenergizing the wire (Tr.
21) •
Dixon Peacock indicated he didn't know anything about using
an MSHA approved temporary guard (Tr. 21). Emery was not cited
when this condition was first observed in order to give the company
time to install guards. Ponceroff made it clear that MSHA would
enforce the regulation (Tr. 22).
To some extent P9nceroff's interpretation of the regulations
is stricter than that of his predecessor. The company has cooperated
with MSHA at the Wilberg and Cottonwood mines (Tr. 23 - 25).

597

Poncerof f agreed that on the February 14 inspection he
observed miners working under the trolley wire where the blade
switches were guarded (Tr. 28).
In the inspector's view some
of the line switches were installed in such a fashion that miners
would have to pass under the trolley wire to throw them. This is
because the handle was on the rib side of the switch (Tr. 29).
All of the blade switches had to be guarded because miners were
removing longwall shields and face equipment.
In addition, they
were required in areas where work was being done with scale bars
and when timbers were installed on the rib side of the wire (Tr.
29 - 31).
In the inspector's opinion it would constitute regularly working or passing under within the meaning of the regulation
if the switch had to be thrown. The regulation does not require
guards for all of the trolley lines {Tr. 30, 31).
The potential· for derailment in this mine was great (Tr. 32).
In the event of a derailment the line switch would be regularly
used. Every switch, whether facing the rib or track side, should
be covered along the main line because of the condition of the
track {Tr. 33).
Between February 27 and March 30, Ponceroff did not receive
any objections to his directive (Tr. 35).
The inspector believed that every blade switch would be used
in the course of the life of the mine {Tr. 36). Some would be
used more than others (Tr. 36). If a miner leaves an area where
there is no actual mining he would normally use the switch to cut
off the power {Tr. 36).
Photographs of an unguarded and a guarded line switch were
received in evidence (Tr. 37, 42, 43; Ex. Cl, C2, C3). If a
miner reaches for the switch a guard prevents his hand from contacting the energized trolley wire (Tr. 37 - 39). In pulling the
switch handle a miner's forearm would be above and within five or
six inches of the energized trolley wire (Tr. 39, 41). This constitutes a significant shock or electrocution risk (Tr. 42).
If the blade switch is in place, normally energy flows in
the energized line (Tr. 40). If the switch is disconnected then
normally there is power to only one side of the switch (Tr. 41).
Vern Boston is an MSHA inspector at the Orangeville, Utah
office (Tr. 46). At a staff meeting in March 1986, Boston was
advised by his supervisor, Bill Ponceroff, that the blade switches
on the trolley had to be guarded. The supervisor explained that
there was exposure to hazards because they were regularly used
(Tr. 46). Mr. Ponceroff also indicated to Boston that the company
officials were correcting the condition {Tr. 47).

598

•

•

I

On entering the mine, Inspector Boston observed that no
guards had been installed on any of the line switches on 1st
South or 3rd West.
In addition, no guards had been installed
along the trolley lines (Tr. 48).
The company indicated they
were working to install the guards but the inspector saw no evidence to support this view. The inspector decided to issue a
closure order when he counted the 14 unguarded switches.
However, some were guarded (Tr. 49).
1

Mr. Peacock, without further explanation, only stated that
the company was working to install the guards (Tr. 50). The
inspector considered the company lacked due diligence because
they were aware of the condition and permitted it to exist (Tr.
52) •
The inspector discussed the situation with Dave Lauriski, a
company safety director (Tr. 52).
In Boston's opinion blade switches would be used in the
normal course of mining activity. These activities would include
any belt maintenance, as well as greasing, shoveling spills and
installing timbers (Tr. 55).
In addition, he considered a derailment to be a regular occurrence (Tr. 68).
In the inspector's
opinion the violative condition constituted a significant hazard
with a potential for shock (Tr. 57).
Inspector Boston felt that every blade switch should be
guarded (Tr. 57). The very act of throwing the switch requires
men to pass underneath the trolley wire (Tr. 58).
Inspector Boston issued order number 2835373 (contested
in WEST 86-101-R) and order number 2835374 (contested in WEST
86-102-R) (Tr. 48; Govt. Ex. 1, 2, 3).
Dixon Peacock identified himself as the senior safety
engineer for the company (Tr. 69, 70). He assists management
in making the mine more productive as well as safe (Tr. 70).
On February 27, 1986, Peacock and Ponceroff discussed the
guarding of all switches. Peacock discussed it with his immediate
supervisor who felt no violation existed because the situation
did not constitute "regular passage" (Tr. 71, 72). No further
discussions took place with Mr. Ponceroff.
Peacock was later advised by Dick Jones and Ken Callihan
that they were going to make a concentrated effort to install
the sw~tches (Tr. 72, 73, 78). The workers corrected 13 to 18
switches.
It takes about an hour to install a guard (Tr. 74).
There are about 50 to 65 switches in the mine (Tr. 74).
Approximately 600 employees work in the mine (Tr. 75).

599

The company tries to comply with the MSHA inspectors
(Tr. 7 6) •
Dominic William Oliveto, called as a witness by Emery,
identified himself as the maintenance superintendent for the
Deer Creek Mine (Tr. 81). The 50 blade sw~tches in the mine
disconnect the power inby or outby the switch or isolate the
power at the beginning of each branch circuit (Tr. 82, 83).
A certified electrician, trained in electrical work and
wearing protective gloves, throws these switches (Tr. 83, 85).
All of the electrical equipment is inspected weekly (Tr. 83, 84).
In most cases ,the electricity flows in both directions in the
lines (Tr. 84) •
Title 30, Section 75.509 provides that only a qualified
person can work on energized equipment (Tr. 84). Other miners
are instructed not to contact the wire. However, they are instructed to handle emergency situations; in addition, they are
directed to cross under where ever the trolley is guarded (Tr.
86, 87).

Prior to March 20, 1986, the switches were guarded at the
man trip and material stations. In addition, guards were used
whenever the switch happened to be in front of a belt crossover
or in a crosscut with a mandoor through it. These are regularly
travelled areas (Tr. 94).
During the blitz electrical inspection of April 1985 no
mention was made about guarding switches unless they were
travelled under (Tr. 96).
Mr. Boston stated he wrote the citation because he had to
cross under the switch to throw it on or off. Oliveto objected
because it would prevent you from driving the trolley through
it because the pull has to ride on it from the bottom (Tr. 97}.
Oliveto described the hazards involved in connection with some
of the power guarding (Tr. 99).
One hand is used to throw an unguarded switch (Tr. 100).
Oliveto wasn't advised about the situation until after the
citations were written on March 20 (Tr. 102).
No temporary guards have been used at the mine (Tr. 102).
Section 310(d) of the Act requires temporary guards where trackmen and other persons work in proximity to trolley wires or
trolley feeder wires (Tr. 103). When working on the track,
the trolley wires are isolated by throwing one or two blade
switches (Tr. 103).

600

Blade switches are required at various locations and intervals (Tr. 103, 104).
There were two methods available. to guard the blade switches
(Tr. 106). A various number of electricians are assigned to
tracks and belt lines (Tr. 108).
The mine normally operates three shifts a day for a five-day
week (Tr. 113) •
Derailing is not uncommon but it is not a daily occurrence
(Tr. 118) •
Between February 27 and March 7 the blade switch problem was
discussed with the mine foreman (Tr. 119, 120).
Discussion
Emery asserts that Section 75.1003(a) does not apply to blade
switches because the regulation does not specifically mention
switches. In the alternative, Emery states that the Secretary has
failed to establish the applicability of the regulation in this
factual setting.
Emery's threshold contention lacks merit. The relevant
portion of the regulation requires that "trolley wires ••• shall
be guarded" under certain circumstances. The evidence establishes
the trolley wires enter the cut-off switch at each side. By
pulling the swit9h handle a miner can deenergize the trolley line
(inby or outby depending on the flow of electricity). The switch
is accordingly an integral unit of the trolley wire. In sum, the
switch is merely a conduit through which the trolley wire passes.
Accordingly, the switches are a part of the trolley wires. They
They must be guarded at those locations mandated in the regulation.
Specifically, these are the locations stated in paragraphs (a),
(b) and (c) of Section 75.1003.
Emery in this case was cited for violating paragraph (a)
which requires guarding "where men are required to work or pass
regularly under the wires."
The Secretary has failed to offer any evidence to establish
the violation.
In WEST 86-101-R the Secretary's order encompassed
nine specific locations.
In WEST 86-102-R the order encompassed
five specific locations.
There is no persuasive evidence that min,ers either worked
or were required to pass regularly under the trolley wires at
the locations cited in the orders. Inspector Boston testified
there were no guards on any of the line switches on 1st South or
3rd West. But a mere lack of guards does not constitute a violation of the regulation.

601

Inspector Boston also described circumstances where the
normal course of mining would require the use of switches. However, the regulation requires evidence of where miners either
worked under or passed regularly under the trolley wires. The
Secretary also contends that merely throwing the blade switch
constitutes regularly passing under.
In addition, the Secretary's
representatives believe each switch would at some time or other
be thrown. The Secretary seeks to stretch the regulation beyond
its plain meaning. To support the Secretary's view would mean
that "pass regularly" includes circumstances where miners merely
occasionally cross under a trolley wire.
If this were so the
regulation would require that every trolley wire be insulated
its entire length. There is no such requirement.
There is no allegation here that Emery left its trolley
wires unguarded at critical locations and there is no evidence
that Emery's miners worked around or regularly passed under the
switches cited in these cases. To like effect see Southern Ohio
Coal Co., 1 FMSHRC 1642 (1979) (Koutras, J.).
I agree with the case law cited in the Secretary's brief
that the Act and its regulations should be liberally construed to
achieve its purposes. But I cannot rewrite this regulation to
read that "all trolley wires must be guarded adequately at all
cut-out switches".
Briefs
Counsel have filed detailed briefs which have been most
helpful in analyzing the record and defining the issues. I have
reviewed and considered these excellent briefs. However, to the
extent they are inconsistent with this decision, they are rejected.
Conclusions of Law
Based on the entire record and the factual findings made
in the narrative portion of this decision, the following conclusions of law are entered:
1.

The Conunission has jurisdiction to decide this case.

2.

Respondent did not violate 30 C.F.R. § 75.1003(a).

602

Based on the foregoing findings of fact and conclusions of
law I enter the following·:
ORDER
1.

In WEST 86-101-R: Order number 2835373 is vacated.

2.

In WEST 86-102-R: Order number 2835374 is vacated.

Law Judge
Distribution:
Timothy Biddle, Esq. and Susan E. Chetlin, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, D.C.
20004
{Certified
Mail)
Edward J. Fitch, IV, Esq, Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Certified Mail)

603

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

March 17, 1987
JIM WALTBR RESOURCFS, INC.,
Contestant

v.

CONTFST PROCEEDING

..

SECRETARY OF LABOR,
MINB SAFETY AND HF.ALTH
ADMINISTRATION (MSHA),
Respondent

.

Docket No. SF 86-125-R
Order No. 2811604; 7/21/86
No. 4 Mine

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

CIVIL PFNALTY PROCEEDING
Docket No. SE 87-5
~. C. No. 01-01247-03726

v.
No. 4 Mine

JIM WALT'FR RESOURCES, INC.,
Respondent
SECRFTARY QF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PRNALTY PROCEEDING
Docket No. SE 86-136
A. C. No. 01-01247-03719

v.
JIM WALTER RESOURCES, INC.,
Respondent

No. 4 Mine

JIM WALTER RESOURCES, INC.,
Contestant

CONTEST PROCEBDINGS
Docket No. SE 87-1-R
Citation No. 2810255; 9/26/86

v.
SF.CRF.TARY OF LABOR,
MINF SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. SF 87-2-R
Citation No. 2810256; 9/26/86
No. 4 Mine

SECRF:TARY OF LABOR,
MINB SAFETY AND HFALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL

PE~ALTY

PROC~~DING

Docket No. SB 87-21
A. C. No. 01-01247-03735

v.
No. 4 Mine
JIM WALTER RF'SOURCES, 1.:NC.,
Respondent

604

JIM WALTER RESOURCES, INC.,
Contestant

CONTEST PROCEEDING
Docket No. SE 87-3-R
Citation No. 2810510; 9/22/86

v.
SECRETARY OF LABOR,
MINF SAFFTY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

No. 7 Mine

SF.CRETARY OF LABOR,
MINE SAFETY AND HFALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PFNALTY PROCBEDING
Docket No. SF. 87-55
A. C. No. 01-01401-03661
No. 7 Mine

JIM WALTER RFSOURCES, INC.,
Respondent
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
P.etitioner

CIVIL PENALTY PROCEEDING
Docket No. SF 87-14
A. C. No. 01-01247-03734

v.

l'llo. 4 Mine

JIM WALTER RESOURCFS, INC.,
Respondent
SFCRFTARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS~RATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket ~o. S~ 87-18
A. C. No. 01-01247-03731

v.
JIM WALTER

l\Jo. 4 Mine

INC.,
Respondent

RFSOURC~S,

JIM WALT?R RESOURCES, INC.,
Contestant

CONTFST PROCEFDING
Docket No. SB 87-26-R
Citation No. 2811239; 11/25/86

v.
SF.CRFTARY OF LABOR,
MINR SAFETY AND. HEALTH
ADMINISTRATION (MSHA),
Respondent

No.

605

4

Mine

CIVIL PENALTY

OF LABOR,
MINE SAFF.TY AND HEAL~H
ADMINISTRA~tON (MSHA),
Petitioner

SECRF~ARY

PROCF~DING

Docket No. SF. 87-48
A. C. No. 01-01247-03747

v.

No. 4 Mine

JIM WALTER RESOURCF.S, INC.,
Respondent

.
DECISION

Appearances: William Lawson, Bsq., Office of the Solicitor,
u,.s. Department of Labor, Birmingham., Alabama,
for ·Petition~r; R. Stanley, Morrow, Esq., and
Harold D. Rice, Esq., Birmingham, Alabama, for
Respondent.
Before:

Judge Merlin

The above-captioned cases were set for hearing pursuant to
duly issued notices of hearing of various dates. When they came
on for hearing as scheduled, counsel for both parties advised
that the penalty cases had been settled and that the notices of
contest would be withdrawn subject to approval by the
Administrative Law Judge.
Other matters which also were set for
hearing on the same date and which preceded to hearing on the
merits, are contained in a separate transcript and are the
subject of a separate decision.
In these cases the parties agreed to the following
stipulations: Cl) the operator is the owner and operator of the
subject mine; (2) the operator and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health Act of 1977;
(3) the Administrative Law Judge has jurisdiction of this case;
(4) the inspectors who issued the subject citations and orders
were duly authorized representatives of the Secretary; (5) true
and correct copies of the subject citations and orders were
properly served upon the operator; (6) the operator's size is
medium; (7) imposition of penalties herein will not affect the
operator's abi~ity to continue in business; (8) the violations
were abated in good faith; and (9) the operator's history of
prior violations is average for its size.
SB 87-5 involves two citations.
Citation No. 2811709 was
issued for a violation of 30 C.F.R. § 75.SOO(a). ~he Solicitor
advised that a non-permissible switch bo~ and starter box were
used in the last open cross-cut of the No. 5 section.
~ccording
to the Solicitor, the gravity of the violation was serious and
negligence was high. ~he original assessment was $800 and the
proposed settlement was for that amount.
Operator's counsel
expressed agreement to pay the proposed settlement.
Order No.

606

2811604 was originally a section 104Cd)(2) order issued for a
violation of 30 C.F.R. § 75.200. The original assessment was
$800 and the proposed settlement was $400. The violation was for
missing ribs bolts. The Solicitor advised at the hearing that
the (d) order had been modified to an (a) citation because the
operator had already begun replacing the bolts when the violation
was cited. Accordingly, neglience was much less than originally
thought. I approved the proposed settlements from the bench.
Operator's counsel then moved to withdraw the related notice
of contest, SE 86-125-R. This motion was granted and the case
dismissed from the bench.

SB 86-136 involves five citations. All were based upon a
1981 notice of safeguard.
In accordance with a prehearing order,
the parties submitted extensive prehearing statements. Upon
further review of the matter, the operator agreed to pay $259 for
each citation, which was the original assessment. The Solicitor
accepted this proposal and recommended settlements based thereon.
At the hearing, the Solicitor advised that although sanding
devices are not always used, they are necessary on occasion and
that, therefore, the violations were serious. He further stated
that the operator was negligent. Based upon the representations
of the Solicitor and operator's counsel, I accepted the proposed
settlements.
SF 87-21 involves two citations. Citation No. 2810255 was
issued for a violation 30 C.F.~. § 75.1722(b). According to the
Solicitor, an inadequate guard was being used around the No. 4
belt conveyor drive. The violation was serious. The negligence
of the operator was mitigated because it was using a fence
enclosure as a guard. The inspector found that the fence was
inadequate, even aside from the fact that its gate was missing.
The operator promptly abated the violation by constructing
localized guards immediately around the conveyor drive's moving
parts. t accepted the Solicitor's representations that the
operator's negligence was less than originally thought because it
did, in £act, have some guarding around the belt conveyor. ~he
original assessment was $249 and the proposed assessment was $150.
I approved the proposed settlement from the bench.
Citation No.
2810256 was issued for a violation 30 C.F.R.§ 75.1403(5)(j) for a
failure to guard an area outby the ~o. 4 section belt conveyor
drive.
Tn this instance, the operator had the required crossover
which employees could have used to get from one side of the belt
to the ·other. However, the crossover was 70 feet away from the
conveyor drive and therefore, too inconvenient for its purpose.
~he operator abated the condition by constructing a crossover
guard in the immediate area of the conveyor drive. The violation
was serious; but here again, the Solicitor represented that the
operator's negligence was less than originally thought since it
did have a crossover, although not in the most suitable location.
~he original assessment was $192 and the proposed sectlement was
$150. I approved the proposed settlement from the bench.
607

Operator's counsel then moved to withdraw the related notice
of contest proceedings, SF 87-1-R and SE 87-2-R. This motion was
granted and the contest cases were dismissed from the bench.
SE 87-55 involves Citation No. 2810510 which was issued for
a violation of 30 C.F.R. § 75.400 because of accumulations of
coal dust including float coal dust deposited on rock dust
surfaces and loose coal accumulated in va~ious locations. ~he
Solicitor advised that for the most part these were not typical
accumulations, but rather resulted from horizontal drilling into
the coal seam by the operator in an attempt to liberate methane.
The operator's activities were permitted under applicable
ventilation and dust plans which at that time allowed it to inert
coal shavings left from its drilling with rock dust.
Subsequently, applicable plans were changed so that such
activities were not allowed. The original assessment was $136,
but in light of the unusual circumstances, the parties
recommended a settlement in the amount of $50, which I approved
from the bench.
Operator's counsel then moved to withdraw the related notice
of contest, SE 87-3-R. This motion was granted and the case
dismissed from the bench.
SE 87-14 involved one citation which the Solicitor advised
had been vacated since it was improperly predicated upon a prior
safeguard. The Solicitor moved to dismiss and the motion was
granted from the bench.
SE 87-18 involved Citation No. 2353478 issued for a
violation of 30 C.F.~. § 75.200 because employees went under
unsupported roof. ~he Solicitor advised that the presence of men
under unsupported roof was an instantaneous reaction to the
sudden occurrence of a methane ignition. ~he original assessment
was $500 and the proposed settlement was $200.
Tn view of the
emergency nature of the situation, 1 approved the recommended
settlement from the bench.
SE 87-48 involved Citation No. 2811239 which was issued for
a violation of 30 C.F.R. § 75.1403 when an individual operating a
personnel carrier on the track haulage, prcceeded without
obtaining the right-of-way from the dispatcher.
~he Solicitor
advised that the operator had in effect a well-established
dispatcher method of controlling underground rail traf£ic and
that all employees were familiar with this system and were aware
that they should obtain right-of-way clearance p.cior to traveling
on the rail system. In addition, the company's
ety program
required that all vehicles obtain clearance from the dispatcher.
Here the employee's actions were contrary to safety rules
enforced by the operator. In an effort to deter such behavior in
the future, the operator issued a formal reprimand to the
employee for his misconduct. Accordingly, the Solicitor
608

represented that although the·violation was serious, the
negligence of the operator was low. Operator's counsel advised
that under the contract with the union, reprimand was the
strongest action the company could take against the individual in
this instance. The original assessment was $371 and the proposed
settlement was $150. Based upon the information furnished by
counsel, the proposed settlement was approved from the bench.
Operator's counsel then moved to :withdraw SE 87-48, the
related notice of contest. This motion was granted and the case
dismissed from the bench.
In light of the foregoing, the operator is Ordered to Pay
the amounts as set forth above.
It is further Ordered that the penalty petition and notices
of contest be Dismissed as set forth above.

-Paul Merlin
Chief Administrative Law Judge
Distribution:
R. Stanley Morrow, Fsq., Harold D. Rice, Esq., Jim Walter
Resources, Inc.,. P.O. Box C-79, Birmingham, AL 35283
William Lawson, Bsq., Office of the Solicitor, U.S. Department of
Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL
35203 (Certified Mail)
H. Gerald Reynolds, Fsq., Jim Walter Corporation, 1500 North
Dale Mabry 'Highway, Tampa , Fl 33607 (Certified Mail)

/js

609

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

MAR 181987

DISCRIMINATION PROCEEDING

RICKY VERNON HEIN,
Complainant

Docket No. LAKE 87-22-DM

v.
MD 86-10
PUSKARICH LIMESTONE COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

The parties have mov~d for approval of a settlement
agreement and an order dismissing this proceeding.
FOR GOOD CAUSE SHOWN, the motion is GRANTED.
ORDER
WHEREFORE IT IS ORDERED that:
1.
The parties will fully comply with the terms of
the Settlement Agreement filed herein on March 9, 1987, and
confirmed by letter of March 5, 1987, from counsel for
Complainant.
2.
Based upon the foregoing, this proceeding is
DISMISSED.

I.,. .

~

u)~ j~V'f/'\.__.
William Fauver
Administrative Law Judge
Distribution:
Mr. Ricky Vernon Hein, 4030 Avon Road, Carrollton, OH 44615,
(Certified Mail)
Daniel M. Jonas, Esq., Black, McCuskey, Souers & Arbaugh,
1000 United Bank Plaza, 220 Market Avenue South, Canton, OH
44702 (Certified Mail)
John R. DeBonis, Corporate Director of Human Resources, Black,
McGuskey, Souers & Arbaugh, 1000 United Bank Plaza, 220 Market
Avenue South, Canton, OH 44702 (Certified Mail)
kg

610

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

MAR 191987
RUSHTON MINNING COMPANY,
Contestant

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

v.
RUSHTON MINING COMPANY,
Respondent

.

CONTEST PROCEEDING

.

Docket No. PENN 86-44~R
Order No. 24042611 11/5/85
Rushton Mine

.
CIVIL PENALTY PROCEEDING
: '

Docket No. PENN 86-92
A.C. No. 36-00856-03554

.
.

Rushton Mine

DECISION
Appearances:

Before:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor.
R. Henry Moore, Esqo, Buchanan Ingersoll Professional Corporation, Pittsburgh, Pennsylvania,
for Rushton Mining Company.

Judge Broderick

STATEMENT OF THE CASE
Rushton Mining Company (Rushton) filed a Notice of Contest
challenging the propriety of Order 2404261 issued under
§ 104(d)(l) of the Federal Mine Safety and Health Act (Act) at
its Rushton Mine. The Secretary of Labor (Secretary) has filed a
petition for the assessment of a civil penalty for the violation
alleged in the order. The penalty proceeding also involves five
other alleged violations concerning which the parties have
submitted a settlement motion which I am approving. Because the
two cases involve the same withdrawal order, they were
consolidated for the purposes of hearing and decision by order
issued May 6, 1986. Pursuant to notice, the cases were heard in

611

State College, Pennsylvania, on November 18 and 19, 1986.
Joseph E. Colton, Ralph Hamilton and Ronald J. Gossard testified
on behalf of the Secretary. Daniel J. Kerfoot, Frank Petriskie,
and Raymond G. Roeder testified on behalf of Rushton. Both
parties have filed post hearing briefs. I have considered the
entire record and the contentions of the parties and make the
following decision.
FINDINGS OF FACT
At all times pertinent to this proceeding, Rushton was the
owner and operator of an underground coal mine in Centre County,
Pennsylvania, known as the Rushton Mine. The mine has 260
employees, and produces approximately 660,000 tons of coal
annually. It is a subsidiary of the Pennsylvania Mines
Corporation. It is a large operator. During the 24 months prior
to the violations being considered here, it had a history of 257
violations. This history is not such that penalties otherwise
appropriate should be increased because of it. The alleged
violative condition was promptly abated in good faith.
On November 5, 1985 at about 9:45 a.m., Federal Mine
Inspector Joseph Colton issued a withdrawal order under
§ l04(d)(l) of the Act charging a violation of 30 C.F.R.
§ 75.1434(a)(2).
The order alleged that the wire rope attached
to a mantrip car had broken wires in one strand of one lay which
exceeded 15 percent of the total number of wires in the strand.
The rope was attached to a drum in the hoist house and was used
to lower the mantrip, containing up to 34 miners, into the
working section of the mine at the commencement of the shift, and
to remove them at the conclusion of the shift. The hoist was
operated by Frank Petriskie, an employee of Rushton for 21 years,
and a hoist operator for more than 6 years. Mr. Petriskie is
regarded as an extremely conscientious employee.
The rope runs from the drum in the hoist house to the bottom
of the slope, a distance of approximately 700 feet. The grade is
approximately 17 percent. The mantrip has electrical mechanical
brakes with sensors which set the brakes automatically in the
event of "an overspeed condition." The rope used in this
operation is 1,100 feet long, 1 inch in diameter, and has a
"breaking strength" of in excess of 50 tons. A fully loaded
mantrip puts a load of about 5 tons on the rope.
It is the
policy at Rushton to change the rope every 6 months and more
of ten if broken wires are discovered.
Prior to the issuance of the contested order on
November 5, 1985, Petriskie examined the drum, the rope, the
clamps attaching the rope to the brake car, and the other
components of the hoisting system while the mantrip was being

612

lowered into the mine. He checked the rope by draping a rag over
it to catch any. breaks in the rope and by visually examining it.
The examination was performed by Mr. Petriskie alone. He then
recorded the results of his examination in the hoist examination
record book at 8:35 a.m. The book was later countersigned by
Andy Moriarity, a surface foreman.
The evidence is very clear and not contested by Rushton that
at the time of Inspector Colton's·examination the rope had more
than the number of broken wires required to meet the "retirement
criteria." Under Rushton's procedures, it was due to be changed
November 9, 1985 (when it would have apparently been on the hoist
for 6 months).
I find as a fact that the number of broken wires in one
strand of the rope totalled seven. These were crown or surface
wires and the breaks were visible. There were five broken wires
in another area of the rope. In addition, a number of other
areas had in excess of three broken wires. There are
approximately nineteen wires to a strand and six strands in the
rope. The seven broken wires represent 36.8 percent of the total
number of wires in the strand.

Following the issuance of the order, the wire was promptly
replaced, and' the alleged violation abated. Some time after the
order, Mr. Petriskie asked if he could have assistance in
inspecting the rope. The request was granted and it is now
inspected by two miners.
Petriskie "checks it out" before
7:00 a.m. and with another person inspects it at about 7:45 a.m.
when the mantrip is lowered into the mine.
REGULATION
30 C.F.R. § 75~1434 provides in part:
Unless damage or deterioration is removed by cutoff,
wire ropes shall be removed from service when any of
the following conditions occurs:
(1) The number of broken wires within a
rope lay length, excluding filler wires,
exceeds either

*

*

*

*

*

*

*

(2) Fifteen percent of the total number of wires
within any strand:

*

*

*

*

613

*

*

*

ISSUES
1. Does the evidence show a violation of a mandatory safety
standard?
2. If a violation is established, did it result from
Rushton's unwarrantable failure to comply within the regulation?
3·. If a violation is established, was it significant and
substantial?
4. If a violation occurred, what is the appropriate
penalty?
CONCLUSIONS OF LAW
VIOLATION
Rushton contends that the standard is violated only if it is
shown that it knew or should have known of the defective
condition in the rope and failed to retire it. It thus would
require a finding of negligence before a violation could be found.
The situation is likened to cases involving methane liberation
under 30 C.F.R. § 75.308 where it has been held that the presence
of excessive methane does not constitute a violation, but rather
the failure to take appropriate steps to reduce or eliminate it.
See Mid-Continent Coal and Coke Co., 1 IBMA 250 (1972);
Youghiogheny and Ohio Coal co., 5 FMSHRC 1581 (1983), vacated
7 FMSHRC 200 (1985). The analogy is not apt. Methane is
liberated in the cutting of coal, and excess methane can suddenly
and unexpectedly appear, in spite of an operator's care in
following appropriate ventilation requirements. For this reason
constant examinations for methane are mandated by the Act. When
excess methane is detected, remedial steps must be taken
immediatelyo The violation charged here, however, involves
defects in equipment which occur through usage over time. I
conclude that the existence of defects in a wire rope sufficient
to require its retirement in itself 'constitutes a violation of
the standard if the operator continues to use the rope,
regardless of whether he knew or should have known of the
defects.
UNWARRANTABLE FAILURE
In the United States Steel Corporation case, 6 FMSHRC 1423,
1437 (1984), the Commission stated that "an unwarrantable. failure
• • . may be proved by a showing that the violative
condition • • • was not corrected or remedied, prior to the
issuance of a citation or order because of indifference, willful
lntent or a serious lack of reasonable care."

614

Because a mantrip car is involved, the hoisting equipment is
required to be examined daily. 30 C.F.R. § 75~1400Cd). This is
in addition to the requirement that the wire rope be examined at
least every 14 calendar days.
30 C.F.R. § 75.1433(a).
I have found that prior to the order issued here, Rushton
examined the rope daily.
It examined it only little more than an
hour prior to the issuance of the order on November 5, 1985. On
the basis of these findings, I conclude that the failure to
correct the violative condition here did not result from
indifference or willful intent. The question remains whether it
resulted from a serious lack of reasonable care.
I have found that Petriskie examined the rope on November 5
and failed to see the defects. I have further found that the
defects were substantial and clearly visible on careful
examination.
Petriskie was a conscientious employee.
I can
account for his failure to find the broken wires only by finding
that the method of examination was seriously inadequate:
he
examined the wire alone while lowering the mantrip car, with up
to 34 miners on board, to the working section. He was asked to
perform alone too many tasks in a limited time, and was forced to
neglect the inspection task. The inadequacy was recognized by
Rushton after the order when it assigned a person to help
Petriskie perform the rope examination. I conclude that the
evidence shows a serious lack of reasonable care on Rushton's
part.
I am not concluding that Petriskie's examination was
inadequate and that Rushton should have known this. Rather, I am
concluding that the procedure for examinining the rope was
seriously flawed and that Rushton was responsible for this. The
violation was caused by Rushton's unwarantable failure to comply
with the regulation.
SIGNIFICANT AND SUBSTANTIAL
The Commission stated in Mathies Coal Co., 6 FMSHRC l
(1984), that to establish a significant and substantial violation
the Secretary must show that the violation contributed to a
hazard, and that the hazard contributed to would, with reasonable
likelihood, result in an injury of a reasonably serious nature.
The inspector was of the opinion that the hazard contributed to
here was the failure of the rope which would subject the persons
in the mantrip to injuries from derailment of the car or from
attempts to evacuate the car. However, the evidence does not
establish that the defects found in the rope would be likely to
cause it to break. Respondent's general maintenance supervisor
testified that the rope had a "reserve strength" of 31 percent of
its original capacity, that is, if all the crown wires were worn
out, the core would have 31 percent of its original capacity.

61S

The original capacity was 50 tons, and a ~ully loaded mantrip car
was 5 tons. Therefore, I could not conclude that the failure of
the rope was reasonably likely in view of the limited number of
broken wires cited. Furthermore, the Inspector did not address
the effect the automatic braking system would have on the
likelihood of injury should the rope fail. I conclude that the
Secretary has not established that the violation was significant
and substantial.
PENALTY
Although I concluded that the violation was not significant
and substantial under the Mathies test, nevertheless, I believe
it was moderately serious: the safety of 34 people was involved
each time the mantrip was lowered. A defective rope to some.
degree put that safety at risk. The violation resulted from
Rushton's negligence. Considering the criteria in § llO(i) of
the Act, I conclude that an appropriate penalty for the violation
is $400.
ORDER
Based on the above findings of fact and conclusions of law,
and on the Secretary's motion to approve settlement, IT IS
ORDERED:
1. Order 2404261 is AFFIRMED, including the special
findings that it was caused by unwarrantable failure. The order
is MODIFIED to delete the special finding of significant and
substantial.' The Notice of Contest is thus DENIED in part and
GRANTED in part.
2.

Citation 2404251 charging a violation of 30 C.F.R.

§ 750516 is VACATEDo

§

3.

Citation 2404252 charging a violation of 30 C.F.R.
03-4(a) is VACATED.

4.

Citation 2404253 charging a violation of 30 C.F.R.

75.

§ 75.326 is VACATED.

5. Rushton shall within 30 days of the date of this
decision pay the following civil penalties:

616

CITATION/ORDER

PENALTY

2404227
2547350
2404261

$ 58.00
98.00
400.00
$556.00

Total

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James A. Broderick
Administrative Law Judge

Distribution:
R. Henry Moore, Esq., Buch?nan Ingersoll Professional
Corporation, 600 Grant Street, 58th Floor, Pittsburgh, PA 15219
(Certified Mail)
Joseph T. Kosek, Jr., P.O. Box 367, Ebensburg, PA 15931
(Certified Mail)
Covette Rooney, Esq., U.S. Department of Labor, Office of the
Solicitorf 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
slk

617

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

MAR 201987
DISCRPHNATION T)ROCF:EDING

GARY K. RATCLIFF,
Complainant

Docket No. KENT 86-159-D

v.
PIKE CD 86-18
CROCKETT COAL COMPANY, INC.,
Respondent
DECISION
Before:

Judge Melick

By order dated February 27, 1987, Respondent was held in
default as to the issue of liability in this case.
In accordance with that order the Complainant, Gary K. Ratcliff,
thereafter filed a statement of costs and damages and served
a copy of that statement upon Respondent by certified mail on
March 9, 1987. Respondent has not contested the costs and
damages asserted therein.
Accordingly, it is hereby ordered that Respondent,
Crockett Coal Company, pay within 30 days of the date of this
decision those amounts for which payment may be authorized
under section 105(c) (3) of the Federal Mine Safety and Health
Act of 1977, namely, $10,043.00 plus interest computed in
accordance with the for~ula set forth in this Commission's
decision in Secretary ex rel. Bailey v. Arkansas Carbona
Company, 5 FMSHRC 2042 (1983) (copy attached).
Th~s order
constitutes the final disposition of this proceedi,r\g be

L

this Judge.

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Gaky MEj "ick \
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Adminis rative Law ,Judge
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Distribution:

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;'

Gary K. Ratcliff, 105 Bedford Court, Summe
(Certified Mail)

,
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,
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lle, SC

29483

William Miracle, Superintendent; Jerry Davis, President,
Crockett Coal Co., Inc., P. O. Box 2880, Wise, VA 24293
(Certified Mail}

yh
618

.

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

MAR 201987
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.
.

CIVIL PENALTY PROCEEDING

.
.

Morton Mine

Docket No. WEVA 86-231
A. C. No. 46-01329-03637

v.
UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Respondent

'".

DECISION
Appearance:

Mark R. Malecki, Esq., Office of the Solictior,
u. s. Department of Labor, Arlington, Virginia, for
Petitioner;
Billy M. Tennant, Esq., Pittsburgh, Pennsylvania
and Carl Peters, Senior Mine Inspector, Chesapeake,
west Virginia, for Respondent.

Before:

Judge Weisberger
Statement of the Case

The Secretary (Petitioner) seeks a Civil Penalty for an
alleged violation by Respondent of 30 C.F.R. § 75.1106. Pursuant
to notice, the case was heard in Charleston, West Virginia on
December 9, 1986. Charles Knotts and Carl E. Jenkins testified
for Petitioner, and Theodore Cobb and Thomas Cummings testified
for the Respondent. The Parties filed Proposed Findings of Fact
and Briefs on February 17, 1986. No reply briefs were filed.
Findings of Fact
1. On October 29, 1985, at 10:00 aem., at Respondent's
Morton Mine, Charles Knotts (in his capacity as a Federal Coal
Mine Inspector for the Mine Safety and Health Administration)
arrived at the 047-0 section, and proceeded to a scoop to determine whether a citation written concerning that scoop had been
abated. , He then proceeded to an area marked "B" on Petitioner's
Exhibit 3. He paused for approximately 5 minutes at this spot
and noticed sparks from welding opertions, which were going on in

619

the second crosscut outby the face areq, some 140 feet away from
him. Knotts approached the area where the welder was working on
a continuous mining machine. Knotts testified that he observed
the welder, Theodore Cobb, from a distance of 5 or 6 feet welding
on the continuous miner for a period of 5 to 6 minutes. During
this time Cobb did not take a reading for methane with a methanometer. No other individual was observed making a methane test
either.
{Cobb testified that he had taken a methane test that
morning before he started welding, and t~is was corroborated by
the testimony of Thomas Cummings; Respondent's electrical foreman.
Cobb also testified that he made frequent and regular tests
during the welding operation. His testimony also differed from
Knotts' version concerning what occurred after Knotts approached
the area in which Cobb was working. I adopted Knotts' testimony
that when he observed Cobb for 5 to 6 minutes, from a distance of
5 to 6 feet there was no testing of methane. My conclusion, in
this regard, is based on observations of the witnesses' demeanor
while testifying about this is~ue.)
2. The Morton Mine liberated 700,000 cubic feet of methane
per day in the first quarter of the inspection year 1986, and
1,000,000 cubic feet per day in the last quarter of the inspection year 1985.
3. If the methane level accumulates to 5 percent of total
air or more and no methane checks are being made, the gas could
be ignited by welding and cause an explosion. Coal dust increases
the likelihood of explosion and would cause the ensuing explosion
to travel .beyond the section in question.
4. The ventilation system at the Respondent's Morton Mine
circulates over 1,000,000 cubic feet of air per minute. On the
date of the citation there was sufficient air in the area to keep
it clear of methane.
5. In the 047-0 section there are fans located on both
sides to keep the air free of methane gas.
6. Methane could accumulate in the mine in the event of a
failure in the ventilation control system if the lime stone
blocks get "out of kilter" (Tr. 53.), or if a fan stops working.
A failure of one fan would have only a "miniscule" effect on the
ventilation in the section.
(Tr. 146.)
7. The ventilation system could also fail if there is a
roof fall on an overcast, or there is a curtain interruption
which could occur if it is knocked down with a piece of mobile
machinery. There was no testimony presented as to whether these
occur in nor~al mining operations. A block stoppage, causing a
failure of a ventilation system, could be crushed in a "moving
action," from the mine roof or bottom.
(Tr. 186.) There is no
evidence that this is a common occurrence in the subject mine.

620

8. Knotts was asked whether it is possible that there can
be interruptions in the Respondent's ventilation system and he
stated "all things are possible, but it is not probable that
there is going to be any major ventilation change."
(Tr. 135.)
9. There was no evidence of any interruptions in the
ventilation system on the date the citation was issued.
10. On October 29, 1985, when Cobb first began to weld,
prior to the issuance of the citation, he made a gas test with a
methanometer and no methane was detected. Immediately after
Knotts determined that a violation had occurred in the welding
area, no methane was detected in a check for methane.
11. Cobb was asked in direct examination whether he conducted a search for fire during the period in question and he
answered in the affirmative " • ._ •• but it was too wet to worry
about fire."
(Tr. 241.i In essence, he further testified that
he always looks for fire and that whenever he puts a rod in and
takes his hood up he will look at the immediate area and see if
there is a fire.
(In contrast, it was the testimony of Knotts
that when he stood for 5 or 6 minutes near Cobb, who was welding,
the floor of the mine was not felt by the latter to see if there
were burning pieces of slag. I adopted Knotts' testimony due to
my observations of the witnesses' demeanor, and also because this
testimony is directed specifically to what occurred while Knotts
observed Cobb welding.)
12. Sparks falling on coal and coal dust could present a
fire hazard.
13. Knotts testified that on the day in question the mine
floor was damp to dryu but not wet. On the other hand, Cobb
testified that the area beneath where he had worked on the miner
was wet.
I adopted this testimony as it was corroborated by
Cummings, and also in light of the fact that both Cobb and
Cummings testified that before Cobb started to weld on the mining
machine it was washed off with a water hose.
14. Cobb was asked whether he saw any float coal dust and he
answered in the negative. Knotts on the other hand testified
that he saw float coal dust on the machine and that there were
"combustibles" on the floor.
(Tr. 105.) I have adopted the
testimony of Knotts with regard to "combustibles" on the floor,
as it was not contradicted. Also, Cobb and Cummings testified
that before the machine was washed off it was scraped. It is
thus conceivable that some coal dust might have been formed in
the scraping process.

621

15. The welding, performed by Cobb on October 29, was to the
head (front) of the mining machine which was located at a crosscut between two entries. I accepted Knotts' version placing the
head of the miner almost flush with the entry. Knotts testified
that, in essence, after he stopped Cobb from welding, rock dust
was brought from a distance of approximately 140 feet, and that
the fire extinguisher was 4 or 5 breaks away. On the other hand,
Cobb testified that the fire extinguisher was on a header adjacent to the power center in the next entry to the right of the
tail ~nd of the mining machine, and outby the break (crosscut) in
which 'the miner was located• His testimony placed the rock dust
in that same entry along the welding machine to the right of the
power center. I accepted Cobb's testimony, in this regard, as it
was corroborated by Cummings. Also, it is noted, that Knotts
testified that he was not in that specific area, and did not
recall where the power center was located, and even said that it
was possible that there was a fjre extinguisher and rock dust in
the area as indicated by Cobb and Cummings.
16. The blocks or pillars between entries are approximately
60 to 70 feet in length, and the entries are approximately 20

feet in length.
17. The failure to have a fire extinguisher or rock dust
immediately available during welding could reasonably have led to
an increased fire or explosion hazard since a fire would not have
been immediately put out.
18. An ignition, due to an accumulation of methane at the
site of welding, without the presence of coal dust would cause
severe burns to persons in the immediate area. If coal dust is
present, and an explosion results, it would cause serious injury
or fatalities.
19. There are generally 10 miners in a section crew, and
approximately 200 miners were at the Morton Mine the day the
citation was issued.
20. On the date the citation was issued, Cummings, the
electrical foreman, was present in the area the entire time that
Cobb was welding and was supervising him.

The Parties stuplated that:
1. The Morton Mine had an annual hours worked or tonnage of
11,130,942 in 1985 and the Respondent had an annual hours worked
or tonnage of 814,854 in 1985.

622

2. The Respondent had 783 inspection days in the period
November 1, 1983 through October 31, 1985, and was assessed 536
violations other than single penalty assessments timely paid.
3. The fine proposed by Petitioner will not adversely
effect the Respondent's ability to continue in business.
4.

The violation was timely abated.
Regulatory Provisions

30 C.F.Ro § 75.1106 provided as follows:
ee•
Welding, cutting or soldering with arc or flame in
other than a fireproof enclosure shall be done under
the supervision of a qualified person who shall make a
diligent search for fire during and after such operation and shall, immediately before and during such
operations, continuously test for methane with means
approved by the Secretary for detecting methane.
Welding, cutting, or soldering shall not be conducted
in air that contains 1.0 volume per centum or more of
methane.
Rock dust or suitable fire extinguishers
shall be immediately available during such welding,
cutting or soldering.

Issues
1. Whether Respondent made a diligent search for fire
during welding on October 29, 19850
2o Whether Respondent continuously tested for methane
during welding on October 29, 19850
3o
Whether rock dust was immediately available during
welding on October 29, 1985.

4. Whether a fire extingusher was immediately available
during welding on October 29p 1985.
5.
If a violation of § 75.1106, supra, occurred, was it of
such a nature as could have significantly and substantially contributed to the cause and effect of a safety hazard.
6.
If a violation of § 75.1106, supra, occurred, whether
such violation was caused by Respondent's unwarrantable failure
to comply with § 75.1106, supra.

623

Conclusions of Law
Jurisdiction
Respondent, as owner and operator of the Morton Mine, is
subject to the provisions of the Federal Mine Safety and Health
Act of 1977, and I have jurisdiction over the Parties and subject
matter in this proceeding.
Violation of Section 75.1106
Based on my observations of the demeanor of Knotts and Cobb,
I found Knotts' testimony credible that during the 5 or 6 minutes
that he watched Cobb welding, the latter did not test for methane.
Section 75.1106, supra, provides that during welding methane
should be tested for "continuously. 11 Webster's New Collegiate
Dictionary (1979 edition), defines continuous as "marked by
uninterrupted extension in space, time, or sequence." Inasmuch
as neither Cobb or anyone else tested for methane during the
5 minutes of welding, observed by Knotts, I conclude that the
testing was not done "continuously," and as such§ 75.1106, supra,
was violated.
I found Knotts' testimony credible that during the 5 or
6 minutes that he observed Cobb welding, the latter did not feel
the floor of the mine to see if there were burning pieces of slag.
Cobb testified that, in essence, whenever he changed the rod he
had his hood up, and he would notice whether there was a fire in
the area under him. He indicated that he always looks for fire
"but it was too wet to worry about a fire."
(Tr. 241.J Section
75.1106, supra, requires that during welding the search for fire
be "diligent." Webster's New Collegiate Dictionary, (1979
edition), defines "search" as " ••• to look into or over carefully
or thoroughly in an effort to find or discover something •••• "
[Emphasis added.] This same source defines "diligent" as
"characterized by steady, earnest, and energetic application and
effort." Based on these definitions, I conclude that although
Cobb would have noticed a fire when he removed his hood, he did
not make a diligent search for fire during the time that he was
observed by Knotts. As such, a violation of § 75.1106, supra,
has occurred.
I found credible the testimony of Cobb and Cummings that a
fire extinguisher and rock dust, on October 29, 1985, were
located at the next entry and outby the areas by which Cobb was
welding. Specifically, I adopted Knotts 1 testimony which placed
the area in which Cobb was working, one entry removed from the
areas Cummings and Cobb testified to be the location of the fire
extinguisher and rock dust. Accordingly, one would have to traverse the length of a pillar, approximately 50 feet, and then
travel some distance outby to reach the fire extinguisher and
.rock dust.

624

Webster's New Collegiate Dictionary (1979 edition), defines
immediately" as, 11 ( 1) in direct connection or relation ••• .; ( 2)
without interval of time •••• " Due to the distance involved
between the welding site where Cobb was welding, and the fire
extinguisher and rock dust on October 29, 1985, I find that the
latter two items were not "immediately available," as required in
§ 75.1106, supra, and as such that section was violated.
11

Significant and Substantial
The Petitioner has, in essence, alleged that the nature of
Respondent's violations of § 75.1106, supra, fall within the
purview of§ 104(d)(l) of the Act, as they " ••• could significantly and substantially contribute to the cause and effect of a
coal ••• mine safety or health hazard •••• "
(§ 104(d), supra)
In
Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission set
forth the elements of a hsignificant and substantial" violation
as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
(1)
the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure
of danger to safety--contributed to by the violation;
(3) a reasonable likelihood that the hazard contributed
to will ·result in an injury; and, (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
(6 FMSHRC, supra, at 3-4.)
As discussed above, infra, I have already found that a mandatory safety standard, i.e., 30 C.F.R. § 75.1106, has been violated.
Accordingly, the first element of Mathies, supra, has been
satisfied.
Knotts' testimony was not contradicted that, in essence, if
as a result of not testing for methane, undetected methane
increases to five percent of total air, a fire or explosion could
occur in the event the ventilation system fails.
Thus, it is
concluded that not testing for methane contributed to some extent
to the hazard of a fire or explosion.
It has already been found,
infra, that neither a fire extinguisher nor rock dust were "immediately available," at the site of Cobb's welding.
Accordingly, in
the event of a fire or explosion, caused by excess methane being
ignited, the hazard would be increased because, due to the placement o~ the fire extinguisher and rock dust, the fire would not
be immediately put out.

625

Cobb testified that while welding, upon lifting up his hood
he would be able to check the exact area in which he was working.
However, that there was no evidence that specifically there was
any search for fire, or welding sparks, on or about the miner.
Although Cobb and Cummings testified, in essence, that there was
not coal dust on the miner, I adopted Knotts' testimony as to the
presence of coal dust on the miner.
Inasmuch as Cobb had testified that prior to the welding he and another miner had scraped
the Jtdning machine of coal, it is likely that coal dust, to some
extent, had remained, even after it was washed down.
I concluded
that Cobb did not make a diligent search for fire. Thus, there
is a likelihood that some sparks might have remained undetected
on the floor or on the miner. I accepted Knotts' testimony that
there were combustible items on the floor, and that there was
coal dust on the miner. Thus, I conclude that the failure to
make a diligent search for sparks did, in combination with the
evidence of coal dust and combustible items, contribute to a fire
hazard.
Accordingly, I conclude that the second element of Mathies,
supra, has been established in that the violation did contribute
to a discrete safety hazard.
As interpreted by the Commission in Secretary of Labor v.
Consolidation Coal Company, 6 FMSHRC 189, at 193 (February 1984),
the third element articulated by the Commission in the Mathies,
supra, "embraces a showing of a reasonable likelihood that the
hazard will occur, because, of course, there can be no injury if
it does not."
According to the testimony of Carl E. Jenkins, Federal Coal
Mine Supervisor, the Morton Mine is considered to liberate more
methane then many other mines in the area, and, indeed, in the
last quarter of the inspection year 1985, it was found to liberate 1,000,000 cubic feet per day. Knotts has indicated that an
accumulation of methane in concentrations of more than 5 percent
of total air, could lead to an ignition or explosion. Jenkins
testified that, in essence, although the area in which Cobb was
welding is not considered to be a high liberator of methane,
there was a "possibility," that methane could accumulate between
5 and 15 percent. However, Jenkins indicated that, at the location where Cobb was working, a couple of breaks outby the face,
normally he would not expect to find methane. Furthermore,
Knotts indicated that Respondent's ventilation system, which has
the purpose of keeping the air free of methane gas, is very
effective, and that on the day that he issued the citation there

626

was sufficient air in the area to keep it free of methane. It
appears further, from Knotts' testimony, that the only way in
which methane would increase to the point to where it would constitute a fire or explosion hazard, would be in the event of a
failure of the ventilation system. In essence, it was the testimony of Knotts and Jenkins that a failure of the ventilation
system could occur: if a fan would stop working, if the check
curtains would become interruped, if the lime stone blocks would
get "out of kilter," (Tr. 53.J if the block stoppings would get
crushed, or if there would be a roof fall on an overcast. However, Knotts indicated that "it's not probable that there is
going to be any major ventilation change." (Tr. 135.) He further
stated that the failure of one fan would have only a "miniscule"
effect on the ventilation in the section. {Tr. 135-136.) Jenkins
said that usually interruptions of a block curtain could occur if
it is knocked down with a piece of mobile machinery, but he did
not offer any opinion on the likelihood of this event occurring.
Also, there was no evidence presented as to the likelihood of the
lime stone block getting "out of kilter," (Tr. 53.) the roof
falling on an overcast, or the crushing of block stoppings. In
this connection, Knotts testified that the latter condition occurs
from a "moving action 11 from the mine roof or bottom, (Tr. 186.)
but there was no evidence presented that this is a common
occurrence in the Respondent's mine.
There was evidence presented that there have been at least
12 cited violations of the Respondent's ventilation plan in the
last 2 years. However, Jenkins, in essence, testified that there
was no way that he could ascertain whether any of these violations
were specifically for any failure of the ventilation system.
Accordingly, it must be concluded that Petitioner has failed
to establish that there was any reasonable likelihood of a failure
of Respondent 1 s ventilation system to the extent that it would
cause methane to accumulate in a high enough concentration as to
constitute a hazard. Therefore, it must be concluded that it has
not been established that there was a reasonable likelihood that a
fire or explosion will occur as a result of Cobb's failure to
continuously test for methane.
I have adopted the testimony of Cobb and Cummings that on
the morning of October 25, 1985, prior to welding, the miner was
washed down. It is likely that the washing would have caused the
miner and the area around it on the floor, to be somewhat wet.
Taking this factor into account, I find that the Petitioner has
not met its burden in establishing that there was any reasonable
likelihood of combustible materials or coal dust on the floor or
on the miner, being in a dry enough state to have been ignited by
sparks caused by the welding operation. It thus is not established that as a result of the failure of Cobbs to make a diligent
search for fire, there was a reasonable likelihood of a fire.

627

Therefore, based upon on all of the above, I conclude that
it has not been est~blished that the violations herein were
"significant and substantial."
CI conclude, based upon the testimony of Jenkins, that in
the unlikely event of a fire or explosion either could have
~e~sonably been expected to result in fatalities or serious
injuries to miners in the blast or fire area.>
Unwarrantable Failure
At the date the citation was issued, Cummings, the electrical
foreman, was supervising Cobb directly and was in the area the
entire time that Cobb was welding. As such, he was in the position to observe Cobb, and thus should have known of his f ail'Ure to
continuously test for methane during the welding. He also should
have known that no one else was testing for methane. In the same
fashion, he should have known that Cobb was not making a diligent
search for fire during the welding. Further, inasmuch as he knew
the location of the fire extingusher and rock dust, he thus should
have known that it was not "immediately available," during the
welding. As such, I conclude that the violation of § 75.1106,
supra, was due to Respondent's "unwarrantable failure."
Civil Penalty
I have considered all of the criteria in § llOCi) of the Act.
All criteria have been stipulated to except the Respondent's
negligence a'nd the gravity of the violation. I conclude that
Respondent, in violating§ 75.1107, supra, acted with a high
degree of negligence. Further, since I found that the violation
was not "significant and substantial," I conclude that its
gravity was only moderately serious. I conclude that a fine of
$400 is appropriate.
ORDER
It is ORDERED that Order Number 2717216, is modified to a
104(a} Citation. It is further ORDERED that Respondent pay the
sum of $400 within 30 days of the date of this decision as a
civil penalty for the violation found herein.
·§

bsberlr;vtr
Administrative Law Judge

628

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, u. s. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203
(Certified Mail)
Billy M. Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230 (Certified Mail)
Carl Peters, Senior Mine Inspector, u. s. Steel Mining Company,
Incorporated, 13905 Mac Corkle Avenue, SE, Chesapeake, WV 25315
(Certified Mail)
dcp

629

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

MAR 251987
RUSHTON MINING COMPANY,
Contestant

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

v.

.
:
.
.
.
..:
..
.

CONTEST PROCEEDING
Docket No. PENN 85-279-R
Citation No. 2403981; 7/17/85
Rushton Mine

CIVIL PENALTY PROCEEDING
Docket No. PENN 86-113
A.C. No. 36-00856-03557
Rushton Mine

RUSHTON MINING COMPANY,
Respondent
DECISION
Appearances:

Before:

Covette Rooney, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary of Labor (Secretary);
R. Henry Moore, Esq., Buchanan Ingersoll
Pro~essional Corporation, Pittsburgh, Pennsylvania,
for Rushton Mining Company (Rushton).

Judge Broderick

STATEMENT OF THE CASE
Rushton filed a notice of contest challenging a citation
issued July 17, 1985, alleging a violation of 30 C.F.R.
§ 75.301-5.
On July 22, 1985, the citation was modified to
charge a violation of 30 C.F.R. § 75.316 rather than § 75.301-5.
After a number of extensions, an order was issued on November 13,
1985 under§ 104(b) of the Act because of Rushton's failure to
abate the alleged violative condition. The Secretary filed a
petition for the assessment of a civil penalty for the violation
charged in the contested citation. Because the two cases involve
the same citation and order, they were consolidated for the
purposes of hearing and decision.

Pursuant to notice, the case was called for hearing in State
College, Pennsylvania on November 18, 1986. Donald J. Klemick
and Alex O'Rourke testified on behalf of the Secretary.
Raymond G. Roeder and Lemuel Hollen testified on behalf of
Rushton. Both parties have filed post-hearing briefs. I have
considered the entire record and the contentions of the parties
and make the following decision.
FINDINGS OF FACT
Rushton is the owner and operator of an underground mine in
Centre County, Pennsylvania, known as the Rushton Mine. The mine
has 260 employees and an annual production of 660,000 tons of
coal. The annual dollar volume of sales in 1984 exceeded 22 and
one-half million. Rushton is a subsidiary of Pennsylvania Mines
Corporation. On the basis of the foregoing, I find that Rushton
is a large operator. Rushton had a history of 257 violations in
the two years prior to the violation involved here, 12 of which
were violations of 30 C.F.R. § 75.316. This history is not such
that a penalty otherwise appropriate should be increased because
of it.
Rushton had an approved ventilation system and methane and
dust control plan in effect for the subject mine. The basic plan
was not introduced into evidence, nor were any revisions or
Secretary-imposed additional requirements except those directly
involved in this proceeding. Rushton is required to submit
ventilation plans for MSHA's review every 6 months. Such plans
were submitted in June 1985, December 1985, and June 1986. None
of these plans contained provisions related to the installation
of a CO monitor in the intake shaft. However, it is common to
submit proposed additions or modifications to the plan between
the regular 6 month submissions. When approved they are
generally incorporated in the mine map accompanying the next
6 month submission. The CO detector, however, does not appear in
the mine map as part of the ventilation plan.
Rushton had problems during the winter months with its
intake air shaft in that the concrete lining of the shaft was
deteriorating because of acidic water dripping into the shaft and
freezing. Rushton decided in early 1985, to reline the shaft
with an insulating material to prevent the freezing and ice
buildup. Its intention was to have the work performed in July
during the miners' vacation.
On April 6, 1985, Rushton wrote to MSHA District Manager
Donald Huntley seeking approval of a proposal to reline the shaft
using a sandwich-type panel composed of a corrugated FRP sheet
against the wall, a sheet of heavy gauge polyethylene film, a

631

4 inch thick polyisocyuranate foam sheet, and a 28 gauge
corrugated steel sheet to complete the panel. The request
indicated that the work could be done only during the miners'
vacation period in July. On April 10, 1985, MSHA declined to
approve the plan on the ground that combustible material is not
permitted in an intake air shaft. This referred to the
polyisocyuranate foam sheet. The MSHA letter of disapproval was
signed by Alex O'Rourke for District Manager Huntley. On
April 24, 1985, MSHA and Rushton officials met in Pittsburgh to
discuss the problem. An MSHA Tech Support !chemical engineer
recommended using a polystyrene foam insulating material. On
May 22, 1985, Rushton submitted a revised plan, proposing the use
of a foam panel fabricated from modified polystyrene beads
instead of the polyisocyuranate. On June 4, 1985, MSHA approved
the revised plan with the additional requirements that a
continuously monitoring carbon monoxide detector be installed in
the shaft bottom area, and a plan detailing what action Rushton
will take if carbon monoxide is detected. This plan was required
prior to completion of the shaft work. On July 8, 1985, Rushton
submitted a letter enclosing a copy of its plan for installation
of the carbon monoxide monitor and a copy of the purchase order
for the monitor. The letter stated that the monitor would be
installed as soon as it is received.
On July 17, 1985, Inspector Donald Klemick issued a citation
charging a violation of 30 C.F.R. § 75.301-5 because "the
approved plan for repairing the intake shaft was not being
followed • • • • A continuously monitoring carbon monoxide
detector was not installed nor were precautions being taken to
test for carbon monoxide while work was being conducted in the
shaft and men were underground." The citation fixed the time for
abatement as August 9, 1985. It also required that Rushton test
for CO on each shift and record the results. The record is not
clear as to the dates the construction began and was completed.
The work was in progress when the citation was issued (Wednesday,
July 17), and the Inspector was under the impression that it was
to be completed by the end of the ·week (July 20). Rushton's Mine
Superintendent Raymond Roeder stated that he believed the work
was performed during the last two full weeks in July. At any
rate, it is clear that the relining was being performed on
July 17, and was completed on or before July 27, 1985. There
were miners working underground on July 17, changing a belt drive
unit near the bottom of the slope.
On July 22, 1985, after discussion with his supervisor,
Inspector Klemick modified the citation to charge a violation of
30 C.F.R. § 75.316. On the same day, MSHA wrote to Rushton "to
clarify the portions of the Law that were reviewed in approving
[the] plan submitted on May 22, 1985, and approved on June 4,
1985." The letter stated that the work and materials in the

632

shaft were covered under 30 C.F.R. § 77.1900 and the requirements
for a CO detector were covered under the mine ventilation system
and methane and dust control plans, 30 C.F.R. § 75.316. This was
the first notice to Rushton that the CO plan was required under
§ 75.316.
On July 30, 1985, MSHA approved the plan for the
installation of a CO detector with certain stipulations. On
August 16, 1985, the time for abatement was extended to
October 23, 1985, because a revised plan for the installation of
a CO monitor was submitted for approval, and the detector had
been ordered but had not arrived at the mine. On September 16,
1985, Rushton submitted a revised plan for installing the CO
monitor after discussing the prior plan with Inspector Klemick.
On October 28, 1985, MSHA wrote that the revised plan "is not
acceptable in the present form. 11 Further information concerning
the protection of the miner who will test for CO if the CO
detector becomes inoperable was required. on October 29, 1985,
the abatement time was_ further extended to November 8, 19 85,
because the CO detector had arrived and "installation procedures
are in effect."
On November 13, 1985, Inspector Klemick issued an order of
withdrawal under § 104(b) of the Act because the condition cited
had not been abated. The order stated that "the revised plan
submitted September 16, 1985, was not acceptable per the District
Manager's letter of October 28, 1985, which requested a response
from the ope~ator to complete the evaluation of the plan. Since
a response had not been submitted another extension of time
cannot be justified." The order directed that testing with an
approved CO detector be continued and the results recorded.
On November 15, 1985, a revised plan for the installation of
the CO monitor was submitted to MSHA by Rushton. On December 2,
1985, MSHA notified Rushton that the revised plan was acceptable.
On December 13, 1985u Inspector Klemick terminated the order
because the CO detector was installed and a plan was approved by
MSHA on December 2.
REGULATION
30 C.F.R. § 75.316 provides as follows:
[STATUTORY PROVISIONS]
A ventilation system and methane and dust control
plan and revisions thereof suitable to the conditions
and the mining system of the coal mine a~d approved by
the Secretary shall be adopted by the operator and set
out in printed form on or before June 28, 1970. The

633

plan shall show the type and location of mechanical
ventilation equipment installed and operated in the
mine, such additional or improved equipment as the
Secretary may require, the quantity and velocity of air
reaching each working face, and such other information
as the Secretary may require. Such plan shall be
reviewed by the operator and the Secretary at least
every 6 months.
ISSUES
1.

Does the evidence establish a violation of 30 C.F.R.

§ 75.316?

2.

If a violation is established, was it abated timely?

3. If a violation is established, was it significant and
substantial?
4. If a violation is established, what is the appropriate
penalty?
CONCLUSIONS OF LAW
JURISDICTION
Rushton was subject to the provisions of the Mine Act in the
operation of the subject mine. I have jurisdiction over the
parties and subject matter of this proceeding.
VIOLATION
A mine operator is required to adopt and have approved by
the Secretary a ventilation system and methane and dust control
plan suitable to the conditions and the mining system of the mine
in question. The Secretary may require "additional or improved
equipment" and "other information" before approving a submitted
plan. When a plan has been approved, the mine operator is
required to follow itp and failure to do so may be cited as a
violation of a mandatory standard.
Ziegler Coal Company, 4 IBMA
30 (1975)u aff 2 d sub. nom. Ziegler Coal Company v. Kleppe, 536
F.2d 398 (D.C. 1976); Mid-Continent coal and Coke Company, 3
FMSHRC 2502 (1981). Because a ventilation plan creates, in
ef
F mandatory health and safety standards, and possible
penalties, it is imperative that the scope and meaning of the
plan be clear and unambiguous. In this case, on the day the
citation was issuedp neither Rushton nor the Inspector considered
the shaft repair work to be covered under the approved
ventilation plan. Although MSHA officials apparently treated it
as a ventilation matter, none of the correspondence or

634

discussions between MSHA and Rushton prior to the date of the
citation referred to the ventilation plan. Because of these
facts, I conclude that as of July 17, 1985, the Secretary's
requirements concerning the relining of the intake air shaft and
the installation of a CO detector were not made part of the
approved ventilation plan: adequate notice was not given to the
mine operator that the requirements were imposed as part of the
ventilation plan. Therefore, the citation did not properly
charge a viola.tion of 30 C.F.R. § 75.316 and must be vacated. I
am not holding that the relining of the shaft and the
installation of the CO detector could not properly be brought
within the ventilation plan requirements, but only that notice to
the mine operator of MSHA's intention to do so is a prerequisite
to enforcement of the requirement by citation and imposition of a
penalty. Because such notice was not given in this case, the
citation was issued in error, and no penalty may be imposed.
Because I am vacating the citation, the issues with respect to
the § 104(b) order are moot.
ORDER
Based on the above findings of fact and conclusions of law,
citation 2403981 issued July 17, 1985, charging a violation of 30
C.F.R. § 75.316 is VACATED. No penalty is assessed. The
proceedings are DISMISSED.

}tln tt6
)

/udv'!!duvtj_

James A. Broderick
Administrative Law Judge

Distribution:
Covette Rooney, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional
Corporation, 57th Floor, 600 Grant Street, Pittsburgh, PA 15219
(Certified Mail)
slk

635

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

MAR 251987
CIVIL PENALTY PROCEEDING

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

.

v.

:

Docket No. SE 86-23-M
A.C. No. 09-00265-05506
Junction City Mine

BROWN BROTHERS SAND COMPANY,
Respondent
DECISION
Appearances:

Ken s. Welsch, Esq., Office of the Solicitor,
U.S. Department of Labor, Atlanta, Georgia,
for the Petitioner~
Carl Brown and Steve Brown, Brown Brothers
Sand Company, Howard, Georgia, pro se, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns proposals for assessment of
civil penalties filed by the petitioner against the respondent
pursuant to section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty
assessments in the amount of $1,940, for four alleged violations of certain mandatory safety and reporting standards
found in Parts 50 and 56, Title 30, Code of Federal Regulations. Hearings were held in Macon, Georgia, on September 15,
1986, and February 19, 1987. The petitioner filed posthearing
briefs, but the respondent did not. However, I have considered the oral arguments made by the respondent during the
course of the hearings in the adjudication of this matter.
Issues
The issues presented in this proceeding are as follows:
1. Whether the respondent violated the
cited mandatory safety and reporting standards,

636

and if so, the appropriate civil penalty to be
assessed for those violations based on the
criteria found in section llO(i) of the Act.
2. Whether the inspector's "significant
and substantial" (S&S) findings concerning the
violations are supportable.
Applicable Statutory and Regulatory Provisions
l. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 U.S.C. § 801 et seg.

u.s.c. § 820(i).

2.

Section llO(i) of the 1977 Act, 30

3.

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

Stipulations
The parties stipulated that the respondent is subject to
the Act, as well as to the jurisdiction of MSHA and the
Commission. They also agreed that the respondent is a small
sand mine operator employing 9 to 10 employees, and that the
proposed civil penalty assessments will not adversely affect
the respondent's ability to continue in business. They agreed
that the respondent's history of prior violations for the
period October 3, 1983 through October 2, 1985, is reflected
in exhibit P-1, an MSHA computer print-out listing 18 violations. They also agreed that three of the violations issued
in this proceeding were timely abated, but MSHA asserted that
Citation No. 2521411, concerning the lack of service brakes on
a welding truck was not (Tr. 16-18).
Bench Rulings
I ruled that the question concerning the alleged "unwarrantable failure" on the part of the respondent as stated in
the section 104(d)(l) and (2) orders and citations issued by
the inspector was not an issue in this civil penalty proceeding. See: MSHA v. Black Diamond Coal Mining Company, Docket
No. SE 82-48, 7 FMSHRC 1117 (August 1985) (Tr. 12-13).

MSHA's oral motion to modify section 104(d)(l) Order
No. 2007656, July 19, 1985, 30 C.F.R. § 50.30(a), to a section 104(a) non-"S&S" citation was granted (Tr. 12, 14).

637

MSHA's motion to amend its proposed civil assessment for
section 104(d)(2) Order No. 2521411, 30 C.F.R. § 56.9087,
from $400 to $150 was granted (Tr. 4, February 19, 1987).
Findings and Conclusions
History of Prior Violations
'·
Exhibit P-1 is an MSHA computer print-out summarizing
the respondent's compliance record for the period October 3,
1983 through October 2, 1985. That record reflects that the
respondent was issued 18 citations and orders, for which
civil penalties in the amount of $3,031 were assessed. The
information submitted reflects that the respondent has paid
no civil penalty assessments for the 2-year period in question, and has either contested the violations or has been
issued deliquency letters by MSHA for non-payment of some of
the violations. ·For an. operation of its size, I cannot conclude that respondent's compliance record is such as to
generally warrant any increases in the civil penalties which
I have assessed for the violations which have been affirmed
in this case.
With respect to the respondent's past non-compliance
with the reporting requirements of 30 C.F.R. § 50.30(a), I
have taken this into consideration in the civil penalty
assessment for the violation of that standard which has been
affirmed in this case.
Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties have stipulated that the respondent is a
small operator and that the civil penalty assessments proposed
by the petitioner in this case will not adversely affect the
respondent's ability to continue in business.
I adopt this
stipulation as my finding and conclusion on this issue.
Section 104(a) non-"S&S" Citation No. 2007656, issued on
July 19, 1985, cites a violation of 30 C.F.R. § 50.30(a), and
the condition or practice is described as follows:
"The operator failed to file a quarterly employment MSHA Form 7000-2
on time for the 1st and second quarter of 1985 as implemented
by Part 50.30A of title 30 C.F.R.
The operator constantly
fails to submit the man hours report to MSHA. This is an
unwarrantable failure."

638

MSHA's Testimony and Evidence
MSHA Supervisory Inspector Reino Mattson confirmed that
he issued the citation in question. Mr. Mattson produced a
blank MSHA Form 7000-2, and explained the information required
(exhibit P-4). He confirmed that the respondent filed two
signed report forms for the first two quarters of 1985, but
failed to fill in the required information, including the
employee man-hours worked during these time periods. The
forms contain the signature of Carl Brown, and the following
typewritten statements:
This report is average for and any report filed
by Reino Mattson's forced upon me and my
company (exhibit P-4).
This is an average of any and all previous
reports forced upon me and my company by Reino
Mattson Supervisor for MSHA (exhibit P-5).
Mr. Mattson explained the reasons for requiring information concerning a mine operator's working personnel, hours
worked, and production, and stated that it is required to
compile statistical reports reflecting the accident incident
rate nationwide and for the State of Georgia. The information which is compiled is used to increase enforcement
efforts and to assist mine operator's in reducing the
accident incident rate. Mr. Mattson produced copies of the
type of reports compiled by MSHA, utilizing the information
submitted by mine operator's on MSHA Form 7000-2, (exhibits
P-6 and P-7).
Mr. Mattson stated that the reporting citation which he
issued is the fifth citation issued to the respondent for
non-compliance with section 50.30(a). He cited two prior
decisions by Commission Judges who affirmed two prior citations and imposed civil penalties for these violations (Tr.
21-34).
On cross-examination, Mr. Mattson confirmed that the
respondent submitted the forms, but failed to provide the
information on the form as required by section 50.30(a). He
reiterated the necessity for providing the required information so as to enable MSHA to assist mine operators in their
safety efforts to reduce mine reportable accidents.
·Mr. Mattson confirmed that to his knowledge the respondent has had only one reportable accident incident during all
of the years it has been in operation, but he was unable to

639

provide any specific information with respect to this
incident.
Mro Mattson confirmed that he personally had nothing to
do with the "special civil penalty assessment" made by MSHA's
Office of Assessments with respect to the citation in question. He expressed his view that the 1 proposed penalty
reflected the fact that the respondent has in the past refused
to file the form with the required information, or simply
ignored the filing requirements of section 50.30(a).
Mr. Mattson denied that he has ever threatened the respondent with any criminal sanctions for its refusal to comply
with section 50.30(a). He explained that several years ago he
simply brought to the respondent's attention the printed information which appears in the first paragraph on the face of
MSHA Form 7000-2, concerning possible criminal sanctions for
non-compliance.
Mr. Mattson confirmed that he issued the citation on the
basis of information received from MSHA's Health and Safety
Analysis Center in Denver, Colorado. He explained that MSHA's
computerized compliance records confirmed that the respondent
had failed to submit the required man-hour and mine personnel
information as required for the first and second quarters of
calendar year of 1985, and that he issued the citation on the
basis of this information which reflected non-compliance. He
also inaicated that the forms were not timely filed as
reflected on the face of the submitted forms.
Mr. Mattson confirmed that due to certain personnel and
funding reductions, including a suspension of funding for the
enforcement of the Act against sand and gravel mine operators,
the respondent's mine was not inspected oy his office for a
period of 4 years. He also confirmed that the first regular
inspection of the respondent's mine during this period was
initiated in July, 1985 {Tr. 34-52).
With the court's permission, respondent operator Carl
Brown produced a 45 minutes taped conversation concerning a
conference held in Inspector Mattson's office on January 22,
1985, concerning a citation for another alleged violation of
the reporting requirements of 30 C.F.R. § 50.30(a). Excerpts
from the tape, which was played off the record, reflect that
the respondent failed to file the required reports for the
first three quarters of 1984, and that the single contested
citation was issued for this reason.

640

Fact of Violation
The respondent here is charged with a violation of mandatory reporting requirement 30 C.F.R. § 50.30(a), which states
as follows:
(a) Each operator of a mine in which an
individual worked during any day of a calendar
quarter shall complete a MSHA Form 7000-2 in
accordance with the instructions and criteria
in § 50.30-1 and submit the original to the
MSHA Health and Safety Analysis Center, P.O.
Box 25367, Denver Federal Center, Denver,
Colo. 80225, with~n 15 days after the end of
each calendar quarter. These forms may be
obtained from MSHA Metal and Nonmetallic Mine
Health and Safety Subdistrict Offices and from
MSHA Coal Mine Health and Safety Subdistrict
Offices. Each operator shall retain an
operator's copy at the mine office nearest the
mine for 5 years after the submission date.
Aside from his displeasure with the requirements of section 50.30Ca), and unsupported allegations of reprisals on
the part of· the inspector, the respondent offered no testimony in defense of the citation, nor has it rebutted MSHA's
prima facie case (Tr. 68).
The respondent has not rebutted the fact that it failed
to file the completed forms as required by section 50.30(a).
During the course of cross-examining Inspector Mattson,
respondent's representative Steve Brown, part owner of the
company, implied that since the quarterly reports were filed,
it has complied with section 50.30Ca). This defense is
rejected.
It seems clear from the evidence in this case that
the information required to be included on the form by section 50.30(a), and the instructions for completing the form
found in section 50.30-1, was not submitted by the respondent.
I conclude and find that MSHA has established a legitimate enforcement need for requiring the submission of the
information required by mandatory standard section 50.30(a),
and that the submission of such information will enable the
Secretary of Labor to prepare and disseminate statistical
analyses of mine injury frequency rates as m~ndated by the
Act.

In view of the foregoing findings and conclusions, I
conclude and find that MSHA has established a violation of

641

section 50.30(a) by a preponderance of the credible evidence
adduced in this case. Accordingly, the citation IS AFFIRMED.
Gravity
Inspector Mattson was of the view that the failure by
the respondent to file the necessary reporting information
would not result in the likelihood of an injury. He confirmed
that he did not consider the violation to be significant and
substantial. I agree with these findings by the inspector,
and I conclude and find that the violation is non-serious.
Negligence
This is not the first time this respondent has been
charged with a failure to comply with the mandatory reporting
requirements of section 50.30(a). In a prior decision issued
by me on May 1, 1981, Docket No. SE 80-124-M, 3 FMSHRC 1203
(May 1981), a violation was affirmed and a civil penalty of
$10 was assessed. In a decision rendered on December 7, 1983,
Docket No. SE 83-42-M, 5 FMSHRC 2065 (December 1983), Judge
Broderick affirmed a violation and assessed a civil penalty of
$100.
MSHA's computer print-out, exhibit P-1, includes two
section 104(a) citations issued on February 29, 1984, and
January 3, 1985, for failure by the respondent to comply with
the requirements of section 50.30(a). The first citation was
assessed at $20, and the second at $150, and the print-out
reflects that the respondent failed to pay these assessments
and was issued deliquency letters by MSHA far its failure to
pay. I assume that the January 3, 1985, citation was the
subject of the MSHA canf erence alluded to by the respondent
in the tape referred to earlier.
The tape in question also reflects Mr. Brown's displeasure with the reporting requirements of section 50.30{a), the
fact that other mine operators purportedly have not responded
to MSHA's reporting requirements, and his assertion that
Inspector Mattson "threatened" him with possible criminal
sanctions some 8 years ago when he discussed with him the
reporting requirements of section 50.30(a).
It seems clear to me that MSHA has been more than patient
with the respondent with respect to its continued refusal to
comply with the reporting requirements of section 50.30{a).
As a matter of fact, in at least two instances, including the
instant case, where the respondent has failed to file more
than one quarterly report, MSHA has issued single citations,

642

when it could have issued separate citations for each required
quarterly report which was not filed.
The respondent has not presented any mitigating excuses
for its continued failure to comply with section 50.30Ca).
As pointed out in my prior decision of May 1, 1981, Mr. Carl
Brown considers MSHA Form 7000-2 to be so much "junk mail,"
and he does not take kindly to being "coerced or forced" to
file these forms.
I find no such coercion in this case, and
Mr. Brown's claims of threats by Mr. Mattson were rejected in
my prior decision, and they are rejected here.
I believe the time has come for the respondent to realize
the serious consequences which may flow from his continued
refusal to comply. As previously stated by Judge Broderick,
the fact that the respondent believes the required reports are
onerous or unnecessary is no defense to the citations which
have been issued by MSHA for its continued non-compliance.
I conclude and find that the evidence adduced in this
case, including the respondent's history of non-compliance,
reflects a conscience and deliberate disregard and flaunting
of the requirements of section 50.30(a). Under the circumstances, I conclude and find that the respondent has exhibited
a reckless disregard for the mandatory requirements stated in
section 50.30{a), and that its failure to comply is the result
of gross negligence on its part.
Good Faith Abatement
MSHA has stipulated that the respondent exhibited good
faith in timely abating the violation after the issuance of
the order, and I adopt this as my finding.
Civil Penalty Assessment
Although MSHA has modified the original order to a section 104(a) non-"S&S" citation, I am not bound by the $20
civil penalty assessment which is normally assessed by MSHA
for such citations. MSHA's proposed civil penalty for the
violation is $250. Based on the respondent's history of
non-compliance with this standard, and my finding of gross
negligence, I conclude and find that a civil penalty of $250
is reasonable and appropriate. Accordingly, I accept and
adopt MSHA's civil penalty proposal for the violation in question,· and I assess a civil penalty of $250 for the violation
which has been affirmed.

643

Section 104(d)(2) "S&S" Order No. 2521412, issued on
September 4, 1985, cites a violation of 30 C.F.R. § 56.14006,
and the condition or practice is described as follows:
The guard for the tail pulley on the railroad car loadout belt conveyor was 1left off.
The guard was laying across the walkway and
the belt conveyor was operating. This violation is an unwarrantable failure and this
equipment shall not be operated for any purpose until inspected and released by an MSHA
inspector.
MSHA's Testimony and Evidence
MSHA Inspector Steve Manis confirmed that he issued the
order, and he described the location of the belt conveyor in
question. He stated that the conveyor runs horizontally out
of a tunnel onto an elevated conveyor belt used to load material onto railroad cars. He identified two photographs of
the cited conveyor belt, and identified the location of the
tail pulley and unguarded pinch-point, as well as a nearby
walkway. He also identified the guard which was left off the
tail pulley, and stated that it was lying to the right of the
tail section approximately 15 feet across the walkway on the
ground (exhibit P-91 Tr. 96-99). He stated that Mr. Greg
Brown confirmed that the guard was in fact the guard for the
tail pulley, but that he did not know how long it had been
· off CTr • 10 0 ) •
Mr. Manis stated that the conveyor belt was running when
he observed the cited condition, and he believed that the
failure to replace the guard presented a hazard of someone
getting caught in the pinch points between the tail pulley
and the conveyor belt. He stated that employees would have a
reason to be in the area adjusting idlers, performing welding
work, cleaning up, or greasing or servicing the moving parts
of the belt. Although there was no one exposed to the hazard
when he discovered the condition, Mr. Manis confirmed that he
observed footprints in the area, and that there was evidence
that someone had been there to clean around the conveyor that
morning or late in the afternoon (Tr. 102). He stated that
no one knew how long the guard had been off, but since it was
partially covered with sand, "it appeared to be off some
time." The guard was replaced, and while it may have been
put back that same day, he terminated the violation the next
day (Tr. 102).

644

On cross-examination, Mr. Manis stated that the walkway
was about 3 feet from the tail pulley, and that it was guarded
by a handrail. He stated that someone could get into the
unguarded pulley pinch point while cleaning up on the side of
the pulley, and that cleanup could not be done in that area
from the walkway. Upon examination of three photographs taken
by the respondent purporting to be the cited conveyor belt
area, Mr. Manis could not state whether they were in fact of
the area he cited (exhibits R-1. through R-3; Tr. 102-105).
In response to further questions, Mr. Manis identified
the steel structure across that portion of the belt tail
where the guard had been removed, and while he agreed that .it
provided some protection on the sides, the required guard
should cover the entire tail section. He agreed that the
"square box-type" guard which had been removed would be adequate for this purpose. Although he did not know the specific
procedures followed by the respondent in cleaning the area, he
stated that the correct procedure is to lock out the belt and
shutdown the power before servicing it, and then replacing the
guard after the work is completed (Tr. 113). He confirmed
that he cited a violation of section 56.14006, because the
tail pulley was guarded at one time, but was removed and not
replaced (Tr. 114). He did not consider the cited tail pulley
area to be ."guarded by location" because someone could simply
walk up to it, as he did, and it was not up in the air where
no one could g~t to it or reach it (Tr. 116).
Mr. Manis stated that anyone could walk up to the
unguarded tail pulley and stick their hand or foot into it
"if they wanted to" while cleaning or servicing it, or doing
welding work (Tr. 117). He believed someone could do this by
bending over while cleaning the belt with a shovel, and he
did not believe that one had to get on their hands and knees
to reach the pinch point. He stated that while the tail
pulley was 3 feet off the ground, the pinch point was at the
bottom "right on the ground" {Tr. 119). He stated that
clean-up would be done by a long-handled shovel, and the
removal of the guard while cleaning would depend on whether
there was any sand "runover" (Tr. 121). He confirmed that in
order for someone to reach the pinch point, he would have to
reach in over or under the steel structure of the conveyor
belt as shown in photographic exhibits P-9 (Tr. 121).
Respondent's Testimony and Evidence
Greg Brown testified that the cited area is normally
cleaned up by a water hose which sprays water up through the
tail pulley and anywhere on the walkway. A shovel is not

645

usually used unless the belt is "overloaded so much that it's
got spillover.'* In that case the clean-up man "gets as much
as he can out.with a shovel • • ·• and we use water as much as
possible" (Tr. 123). Mr. Brown identified the three photographs (exhibits R-1 through R-3) as the identical cited area
in question. He identified the location of the unguarded
pinch-point as the area at the bottom and behind the steel
belt tail structure at the approximate same location identified by Inspector Manis (Tr. 124).
Mr. Brown stated that since water is used to wash off
the tail pulley area, the only reason for removing the guard
would be to loosen or tighten the belt, and that this would
be done with the belt turned off. He stated that the pinch
point in question was an inch or two off the ground, and that
someone would·hqve to be on their hands and knees below ground
level in order to stick his hand into the tail pulley (Tr.

126).
On cross-examination, Mr. Brown stated that when the
belt is cleaned with water, it may or may not be running, but
that when shovels are used, it is turned off. When asked
whether it makes a difference to the clean-up man whether it
is turned off while cleaning it with water, he replied "I
don't reckon it does to them" (Tr. 127). He confirmed that
any accumulated material which is cleaned from the belt tail
by water goes out of a drain pipe located some 5 or 6 feet
away and out of the view of the photographs (Tr. 127). He
confirmed that the cited tail pulley area has always been
guarded during the 2 years he has been at the mine, and he
agreed that the photograph of the guard which was removed as
depicted in exhibit P-9, looks like the same guard (Tr. 128).
The only reason for the removal of the guard would be to
tighten the belt, and he confirmed that the walkway is approximately a foot or a foot and a half from the the pinch point
area. He stated that the belt is on roller wheels and is
swung away from the walkway when it is not in use. He confirmed that the belt was operating when the inspector issued
the citation (Tr. 130).
Mr. Brown stated that to reach the pinch point area from
the walkway, one would have to be kneeling on the walkway and
reaching down for a distance of 1 to 2 feet. He stated
further that any washing down of the tail section is done
from the walkway because the clean-up man can reach just about
every spot from that location, and he knows of none which
cannot be reached from the walkway. The walkway has a standard 4-foot high guardrail that extends the full length, and
it also has a mid-rail (Tr. 133).

646

Mr. Steven Brown confirmed that the tail section guard
was initially installed because MSHA required it, and he
agreed that unless it is taken off to make some adjustments
to the belt, it is required to stay on. He also agreed that
if the guard is taken off after the belt is adjusted, it
should be put back on (Tr. 135). He stated "that may have
been what he was doing that morning. I don't know" (Tr. 136).
With the Court's permission, the respondent produced a
video tape showing the cited tail pulley area in question,
and pointed out the pinch point area below the adjacent walkway. Mr. Carl Brown confirmed that he made the video the
night before the hearing, and MSHA counsel Welsch pointed out
that the video reflects that the cited tail pulley was a
"wing pulley" rather than a "smooth cylinder pulley" (Tr.
141).
MSHA's Arguments
In its posthearing brief, MSHA asserts that there is no
question that at the time of the inspection, the guard for
the tail pulley section of the railroad car loader was off
and no testing was being conducted. In fact, the conveyor
was operating and loading sand. Although the pinch point of
the tail pulley was close to floor level, MSHA states that it
is important to note that it was close to the walkway and
capable of catching loose clothing. Also, it may have been
hazardous to employees doing cleanup around the conveyor, and
without the guard, there was nothing to prevent an employee
from being caught in the pinch point.
MSHA asserts that it is relevant to note that the cited
standard only requires the guard to be securely in place, and
does not require a showing of any hazard to employees. Since
the guard had been removed and not replaced, MSHA concludes
that a violation has been established.
MSHA concludes further that in accordance with the criteria of National Gypsum co., Cement Division, 3 FMSHRC 822
(April 1981), it is clear that the lack of a guard would
likely have caused serious injury to employees who worked in
maintaining the tail pulley and to employees who regularly
used the walkway in the area. Therefore, MSHA further concludes that the violation should be considered "significant
and substantial."

647

Fact of Violation
The respondent here is charged with a violation. of mandatory safety standard 30 C.F.R. § 56.14006, which provides
that "Except when testing the machinery, guards shall be
securely in place while machinery is being operated."
After careful consideration of all of the testimony and
evidence adduced with respect to this v~olation, I conclude
and find that MSHA has established a violation by a preponderance of the credible evidence in support of its case. The
respondent has not rebutted the fact that the guard which is
normally in place at the tail pulley location was not in place
at the time the inspector observed it, and that the conveyor
belt was indeed operating loading sand. As correctly stated
by MSHA, no testing was taking place and the guard was not in
place. Accordingly, the violation IS AFFIRMED.
With regard to the "significant and substantial" finding
by the inspector, MSHA's assertion that it was likely that
someone could catch their clothing in the exposed pinch point
from the walkway, is rejected. The walkway was guarded by a
handrail, and I find it highly unlikely that anyone standing
on the walkway while hosing down the tail pulley, or simply
walking by, could inadvertently catch their clothing in the
pinch point. Such a person would have to fall through or
over the protective railing, and contort their body under the
steel framework of the conveyor to reach the pinch point.
With regard to the likelihood of anyone reaching the
pinch point while servicing or cleaning the tail pulley area
while inside the protective walkway immediately adjacent to
the unprotected tail pulley assembly, I conclude and find
that the facts here support the inspector's "significant and
substantial" finding in that respect. Although Greg Brown
testified that normal cleaning is conducted by means of a
water hose, he confirmed that the cleaning of belt spillage
or overloading is also done by means of a shovel, and that
the clean-up person "gets as much as he can with a shovel."
Any cleanup would require the person handling the shovel to
get in and behind the tail pulley apparatus beyond the steel
conveyor framework.
I am not convinced that any cleanup with a shovel would
always be done from the walkway, but would require the cleanup
person to be in close proximity of the pulley assembly itself.
Further, any belt adjustments would necessarily be made by
someone in close proximity to the tail pulley assembly rather
than from the walkway. More importantly, although Mr. Brown

648

stated that any cleanup work accomplished by means of a shovel
would normally be done with the belt turned off, he conceded
that it made no difference to the cleanup person whether the
belt was turned on or off while it was being cleaned with
water. Under these circumstances, any cleanup person who
would be indifferent as to whether the belt was shutdown or
not, would likely place himself in a hazardous situation
should he venture close to the unguarded tail pulley assembly
while attempting to hose it down or clean it up by means of a
shovel, and would reasonably likely suffer injuries if he were
to contact the unguarded tail pulley assembly. The fact that
it may require him to be on his ·hands and knees to reach the
particular pinch point in question, does not detract from the
fact that he could become entangled in the tail pulley assembly which is normally guarded by a large "box-type" steel mesh
guard which is required to be in place. Under these circumstances, the inspector'~ "significant and substantial" finding
IS AFFIRMED.
Gravity - The violation was serious in that the lack of
guarding could have contributed to an accident. The pinch
point, and more so the unguarded conveyor tail pulley assembly, were readily accessible to any cleanup or maintenance
man in the area.
Negligence - The violative condition was readily observable and should have been detected by the respondent exercising reasonable care. I conclude and find that the violation
was the result of ordinary negligence on the respondent's
part.
Good Faith Compliance
MSHA agrees that the respondent abated the violation in
good faith, and I adopt this as my finding on this issue.
Civil Penalty Assessment
Taking into account the requirements of section llO(i)
of the Act, I conclude and find that a civil penalty assessment in the amount of $175 is reasonable for the violation
which has been affirmed.
Section 104Cd)(l) "S&S", Citation No. 2521744, issued on
July 19, 1985, cites a violation of 30 C.F.R. § 56.9003, and
the condition or practice is described as follows: "The Dodge
welding truck was not provided with service brakes and the
brake pedal was missing. This welding truck Mas cited for

649

service brakes in the past and was taken out of service for
termination. This is an unwarrantable failure."
On September 4, 1985, Inspector Steve Manis issued section 104(b) Order No. 25221410, removing the truck from
service. The order reads: "No apparent effort was made by
the mine operator to repair the service brakes on the Dodge
welding truck. This equipment shall not be operated for any
purpose until inspected and released by an MSHA inspector."
MSHA's Testimony and Evidence
MSHA Inspector Ron Grabner confirmed that he inspected
the respondent's mine on July 19, 1985, and issued the citation on the welding truck. He also confirmed that during a
subsequent inspection of the truck conducted with Inspector
Manis on September 4, 1985, three photographs of the truck
were taken, and he identified them as exhibit P-11. Other
than the repair of certain axle bolts that were loose and
missing on July 19, he was aware of no other changes made to
the truck from July 19 to September 4, and the truck looked
the same on both days (Tr. 147-151).
Mr. Grabner stated that the truck was converted so that
it could be used as a "welding truck," and that it was moved
about the plant to service and repair equipment. When he
first observed it in July, it was located at the new shaker
screen which was under construction, and when he observed it
in September, it was located at the old shaker screen. He
confirmed that the service brake which normally activates the
rear wheels to stop the truck was completely removed from the
truck, and the brake pedal itself was missing {Tr. 151-154).
Mr. Grabner stated that during his inspection on July 19,
lead.man Jim Miller informed him that the truck had been driven
to the new shaker screen location (Tr. 154-166). Mr. Grabner
believed that 'the missing brake condition constituted a significant and substantial violation because it was reasonably
likely that an accident resulting in serious injuries could
occur before the condition was corrected (Tr. 155). When he
returned to the mine in September, the brakes had not been
repaired, and Mr. Manis issued an order. At that time, Greg
Brown confirmed that no effort had been made to repair the
truck (Tr. 157).
On cross-examination, Mr. Grabner confirmed that he has
never observed the cited truck moving, but that Mr. Miller
advised him that it would run. However, when he was there in
September the battery was dead, and the truck could not be

650

started. He confirmed that section 56.9003, does not specifically require a brake pedal, but does require the truck to
have "adequate brakes" that will stop the truck within a reasonably safe distance. He agreed that a truck travelling
10 miles an hour would stop quicker than one going at 40 miles
an hour CTr. 159).
In response to further questions, Mr. Grabner stated
that the truck had a hand brake which is used to hold the
truck after it is stopped, but he did not consider this to be
the service brake (Tr. 160). He believed that the loose axle
bolts which he detected on July 19, would affect the hand
brake if they came loose from the axle and the truck would
not stop (Tr. 161-163). He confirmed that no citation was
issued for the axle condition (Tr. 164).
Mr. Grabner agreed that the truck is moved from one location to another at the plant as needed for the purpose of
performing construction work that requires welding, and that
it may remain in one location for days before being moved to
another location. He confirmed that he was told the truck
was driven to the first location on July 19, and towed by
means of a front-end loader to the second location on
September 4 (Tr. 168-169). The truck did not have any doors,
windshield, and one of the headlights was broken. However,
no citations were issued for these conditions (Tr. 171). He
cited it because it had no service brakes or a brake pedal to
indicate that service brakes were indeed on the truck (Tr.
173).
Mr. Grabner stated that the truck at one time was a
four-wheel drive truck, and he identified respondent's photographs, exhibits R-4 through R-6 as the sited truck (Tr. 174).
Mr. Grabner confirmed that the axle condition was repaired
when he returned to the plant in September, but he could
recall no explanation by the respondent as to why the brakes
were not repaired. He also confirmed that during a conference
with Carl Brown, Mr. Brown took the position that the hand
brake was sufficient to stop the truck, and that it is driven
in first or second gear at low speed (Tr. 177, 181). Although
the truck was never tested, and Mr. Grabner did not ride in
it, Mr. Miller did show him in July how the hand brake was
used, and Mr. Grabner had no reason to believe that the hand
brake would not hold the truck once it was stopped (Tr. 178).
However, he would not accept the hand brake as compliance
because it was not intended to be used for stopping the truck
when i_t' s moving (Tr. 180-181) •

651

Mr. Grabner was not aware of any thorough MSHA inspection
of the truck to determine whether or 'not it was otherwise
equipped with a braking system or parts (Tr. 182) • . However,
he was not aware of anything inside the cab of the truck which
could be used to activate any service brake system, and the
respondent never informed him of any mechanism inside the
truck which could be used to activate any such brake system
(Tr. 183).
1

Inspector Reino Mattson testified that he first became
familiar with the cited truck in June, 1977, when MSHA Inspector Michael Denny cited it as an imminent danger because it
was operating without service brakes, and the brake pedal was
cut off {exhibit P-13). Since the truck was drivable,
Mr. Mattson would not permit the installation of a tow bar to
serve as abatement, and the order remained in effect.
Eighteen months later, the respondent was advised by MSHA
that the installation of the tow bar for the purpose of towing the truck would serve as compliance, but that the order
would remain in effect in case the truck were driven under
its own power. Subsequently, in November, 1978, the welding
apparatus was removed from the truck, and it was parked with
the engine frozen. Under the circumstances, since the truck
was out of service, the order was terminated (Tr. 184-187).
Mr. Mattson stated that after the order was lifted, he
met Mr. Carl Brown at a subsequent hearing sometime in 1980,
and Mr. Brown asked him about putting the truck back in service. Mr. Mattson stated that he informed Mr. Brown that if
he repai'red the brakes there would be no problem. Mr. Brown
replied "I'm not touching the brakes," and Mr. Mattson
informed him that "we're probably going to have some more
problems." Subsequently, when Mr. Mattson was at the plant
with Mr. Grabner on July 19, 1985, he discovered that the
welder and cutting torches were put back on the same truck,
and Mr. Miller and Greg Brown informed him that the truck had
been driven to the location where it was discovered and that
it had also been used around the plant. Under the circumstances, Mr. Grabner issued the citation (Tr. 187-188).
Mr. Mattson could not state when the truck was actually put
back into service (Tr. 191).
On cross-examination, Mr. Mattson confirmed that from
the time the truck was taken out of service in 1978, until
the inspection of July 19, 1985, he never observed the truck
being driven and it was parked "in the bone yard. And the
weeds were as high as the truck and it was not in operation"
(Tr. 192).

652

Respondent's Testimony and Evidence

'

Carl Brown testified that he acquired the truck in question 18 to 20 years ago as government surplus. He described
the truck as a four-wheel drive 1935 Army weapons carrier.
He exchanged scrap iron worth $50 for the truck, and when he
got it, it did not have a brake pedal or a windshield, and it
was used to transport the welder. He stated that the hand
brake was used and "it would drag the wheels in that sand."
Even without a hand brake, with four-wheel drive travelling
at 3 or 4 miles an hour, the truck would stop itself (Tr.
192-193).
Mr. Brown stated that after the truck was cited as an
imminent danger it "was parked in the weeds," and the order
was lifted when a tow bar was installed to the truck, but the
truck still "sat in the weeds." Subsequently, his grandson
Daryl, who was then 15, years old, performed some work on the
motor and got the truck running again and drove it to the
plant office area (Tr. 194). Mr. Brown did not know whether
the truck was driven to the location where it was found by
the inspectors on July 19, 1985 (Tr. 196).
MSHA's counsel Welsch stated that the truck was cited on
July 19, 1985, because it had no service brakes, and the
inspectors were led to believe that it was driven from the
weeded area to the location where they observed it, and the
tow bar had been removed (Tr. 199). MSHA was previously
under the impression that the truck was to be towed or moved
around by a front-end loader using the tow bar (Tr. 200-201).
Mr. Brown confirmed that the cited truck has never been
involved in an accident and has never run into anything (Tr.
2 08) •
Greg Brown confirmed that when the inspectors came to
the plant in September 1985, he informed them that the truck
"would not run or crank." He confirmed that the truck was
towed to the old screen location a week prior to the inspection, and it remained there until it was again towed to the
shop sometime in December and the back axle would not roll
free because the "rear end gummed up on us." He confirmed
that the truck was used to haul a welder, and when it was
moved from the shop to the plant it travelled less than a
guarter of a mile. If it were driven, the top speed was 10
to 15 miles an hour, and he never had any trouble stopping it
with the hand brake, and it never ran into anything or anybody (Tr. 211-212). If the clutch were engaged, the truck
would "roll free" depending on its speed (Tr. 213).

653

On cross-examination, Mr. Brown admitted that either he
or Mr. Miller drove the truck from the shop to the location
where it was observed by the inspectors on July 19, 1985. He
confirmed that he started working at the plant 2 years ago,
and that the truck was in operation when he got there. He
did not know how long it had been operational prior to that
time. The truck would be "towed some 11 .and depending on the
distance, it would also be driven, "if it cranked" (Tr. 217).
The truck had a hand brake, and it was driven in four-wheel
low gear drive at speeds less than 10 to 15 miles an hour
because of the muddy and sandy conditions and for traction.
Mr. Brown stated that the mine grounds do have hills,
inclines, and declines, and the main road areas consist of
hard compacted dirt. When the truck is driven, it is kept in
four-wheel drive and it is slowed down by use of the hand
brake and normal deceleration, and he does "what's necessary
to stop the vehicle 11 (Tr. 220). One of the "hired hands 11
who did the welding usually drove the truck, but if he were
not available, he and his brother, or Mr. Miller would drive
it. He confirmed that the truck had no brake pedal or service brake, and while he has never examined the truck to
determine whether it had a master cylinder or brake pads,
there was no way to engage such a system from the cab while
driving it. He confirmed that the hand brake is a system
separate from any service brake system, but that the truck
can be driven with the hand brake on, and it will stop the
truck. He never experienced any trouble travelling down an
incline using the hand brake (Tr. 221-223).
Mr. Brown confirmed that since the 104(b) order was
issued, the truck has been parked at the shop and has not
been used. The welder was removed and another portable
welder has been purchased (Tr. 224). Counsel Welsch confirmed that the order has never been terminated, and as long
as the truck is out of service, the respondent is in compliance with that. order. Mr. Welsch confirmed that he is satisfied that the truck has been taken out of service (Tr. 225).
Jim Miller testified that he has worked for the respondent for 10 years, and confirmed that he has driven the truck
in question during this period but never had any trouble stopping it with the hand brake. The truck has never run into
anything, and it can possibly travel at a speed of 15 miles
an hour. The distance from the shop to the pit area is a
quarter of a mile. The truck was towed from the new screen
area to the old screen area and remained there for a couple
of months. Since the rear end was locked up, it would not be
used for welding, and it was taken to the shop where it has

654

been parked ever since (Tr. 227). Mr. Miller stated that he
has never "demonstrated" the truck to any inspector, and has
never been asked to (Tr. 227).
Daryl Brown, testified that he is 20 years of age, and
that he was 14 or 15 when he discovered the cited truck "in
the weeds 11 in the pit during the summer. He confirmed that
he cleaned the plugs, filed the points, cleaned out the gas
tank, and installed a new battery and drove the truck to the
plant office to show his grandfather, Carl Brown. His grandfather had him drive the truck "to the edge of the hole"
where he took a picture of him in the truck. He had no trouble stopping the truck with the hand brake. Since that time,
he has driven the truck while working at the site 2 months a
year and has had no trouble stopping it (Tr. 230).
Mr. Carl Brown stated that the truck has not been used
since the order was issued in September, 1985, that it has
been taken out of service and he does not intend to use it
again. He conceded that on the basis of the testimony
adduced in this case, the truck was operated and driven prior
to the time it was inspected and cited, but he insisted that
it had an adequate hand brake (Tr. 238-239).
At the conclusion of the testimony, Mr. Carl Brown
informed the Court that the truck in question was on a
flat-bed truck parked across the street from the courtroom,
and he requested that I view it.
In the presence of the
parties and all of the witnesses, I climbed onto the flat-bed
truck and looked into the cab and the truck and observed that
it was equipped with a handbrake, but that the foot pedal for
the service brakes was missing.
I also observed that the
doors, windshield, and one headlight were missing. Mr. Steve
Brown demonstrated the hand brake, and I observed the hand
brake mechanism in place on the undercarriage of the truck
(exhibit R-6; Tr. 249).
MSHA's Arguments
During oral argument at the conclusion of his case, MSHA
counsel Welsch took the position that as long as the truck in
question is towed and not driven, and complies with mandatory
standard 30 C.F.R. § 56.9-70 (now 56.9070), with respect to
the installation of a substantially constructed tow bar, the
truck would not have to be equipped with service brakes. It
was counsel's understanding that this was precisely the compromise agreed upon by MSHA when the previously issued imminent danger order was terminated in 1978, after the truck was
taken out of service, and MSHA was under the assumption that

655

the truck would thereafter be towed and never driven (Tr.
233-237).
Mr. Welsch took the further position that even though
the truck may have been driven a short distance at low speed
and could be stopped by means of the hand brake, in order to
comply with the cited standard, the truck must be equipped
with separate service brakes, notwithstanding the fact that
the broad language of section 56.9003 requiring "adequate
brakes" does not specifically di.fferenti'ate between hand
brakes or service brakes. Mr. Welsch stated further that the
hand brake was not designed to stop the truck while it is
moving (Tr. 239-241).
In its written posthearing arguments, MSHA argues th.at
it is uncontroverted that the cited welding truck was being
operated without any service brakes, and that the brake pedal
had been removed and had not been replaced during the 20 years
the truck had been owned by the respondent. In order to stop
the truck, the driver operated the truck in the low gear and
used the clutch and hand brake. However, this should not
replace the need for service brakes as required by the standard, and as conceded by the respondent, the hand brake was
designed as an emergency brake to hold the truck once stopped.
It was not designed to be used as a service brake to stop the
truck.
MSHA maintains that the phrase "adequate brakes" as used
in the standard clearly implies that service brakes exist and
are used 'as designed by the manufacturer, and that the respondent's use of hand brakes or any other means to stop the
truck is beyond the manufacturer's design and should not be
considered compliance with the standard. The fact that
respondent's employees testified that they had no problem in
stopping the truck, using a variety of methods, should be
considered irrelevant to finding a violation.
MSHA further maintains that the purpose of the standard
is to prevent accidents. "Adequate brakes" as required by
the standard should be given its commonly used meaning which
would include service brakes on the vehicle designed for stopping, as well as hand brakes to hold the vehicle in emergencies. Section 56.9-3 prohibits operator conduct unacceptable
in light of common understanding and experience in the industry or when the operator has actual knowledge that a condition or practice is hazardous. Concrete Materials, Inc.,
2 FMSHRC 3105 (October 22, 1980). "Adequate brakes" clearly
requires at least service brakes and not the use of other
methods or the ingenuity of the employee to stop a vehicle.

656

To hold otherwise would negate the intent of the standard and
place compliance within the whimsical imagination of the operator. Medusa Cement Company, 2 FMSHRC 819 (April 8, 1980).
MSHA con9ludes that the respondent's violation of section
56.9-3, was cited as "significant and substantial" within the
meaning of section 104 of the Act and the Commission's decision in National Gypsum Co., Cement Division, 3 FMSHRC 822
(April 1981). In support of this conclusion, MSHA asserts
that clearly, the lack of any service brakes presented a "significant and substantial" hazard to the driver and employees
working in the vicinity, and, as noted by the respondent, the
plant had hard compact roads and steep inclines which would
require a good braking system. Respondent's need for service
brakes was substantial.
Fact of Violation
The respondent here is charged with a violation of mandatory safety standard 30 C.F.R. § 56.9003, which provides that
"Powered mobile equipment shall be provided with adequate
brakes."
I conclude and find that MSHA has clearly established
that the cited truck in question was not equipped with any
service brakes, and that the only means of stopping it while
it was being driven was by the use of the hand brake and low
gears and clutch. The respondent's suggestion that the hand
brake constituted an "adequate" braking system within the
meaning of section 56.9003, is rejected. As correctly argued
by MSHA, the hand brake was designed to hold the truck once
it was stopped, and it was not designed to be used as a
regular service brake to stop the truck while it was being
driven about the plant site. The fact that the respondent
used a variety of methods to stop the truck is irrelevant,
and MSHA's interpretation and application of the facts here
presented to the requirements stated in the cited standard
are correct and I adopt them as my findings and conclusions
on this issue. The violation IS AFFIRMED.
Significant and Substantial Violation
I agree with MSHA's assertion that the lack of service
brakes on the truck was a significant and substantial violation.
In view of the condition of the truck, including the
total lack of a brake pedal or service brakes, and the fact
that it was driven periodically over a long period of time
with no service brakes, I believe it is reasonably likely
that the lack of brakes could contribute to a potential

657

hazard to anyone driving it, particularly on inclines. In
the circumstances, I conclude that the cited condition would
likely contribute to the hazard. Accordingly, the inspector's "significant and substantial" finding IS AFFIR.i.\1ED.
Gravity
While it is true that the truck in question was sometimes
towed and left for several days at several construction sites
where it was used for welding and repairs, the tow bar had
been removed, and it seems clear to me from the testimony in
this case that it was also driven without a service brake by
Greg and Daryl Brown, leadman Miller, and the person who was
doing the welding work.
Although the distance from the shop to the pit area was
approximately a quarter of a mile, I am not convinced that
the use of the.truck was restricted to that particular route
as a matter of routine.· Daryl Brown testified that for the
2 years he has worked at the site, he has driven the truck
while working there during time off from school. As a matter
of fact, he admitted that his grandfather had him drive the
truck to the edge of the pit, using only the hand brake to
stop it, so that he could take his picture. Mr. Miller testified that he has driven the truck during the 10-years he has
worked at the site. Greg Brown testified that "depending on
the distance," the truck would be driven rather than towed,
and that he had no problem stopping it while driving down
inclines.
Although the respondent has established that the truck
may not have been driven faster than 10 to 15 miles an hour,
the total lack of any service brakes exposed the driver to a
potential hazard likely to cause serious injury in the event
of an accident. Having personally viewed the truck, I am of
the view that the lack of doors, no windshield, and a makeshift driver's seat were conditions that posed additional
hazards to the driver. Further, the position of the hand
brake is such that the driver would have to bend down to
reach it, rather than simply engaging a foot pedal, and in an
emergency situation, this would impact on his reaction time.
Under all of these circumstances, I conclude and find that
the violation is serious.
Negligence
I agree with MSHA's argument that the respondent
exhibited a high degree of negligence with respect to this

658

violation. The evidence clearly establishes that the respondent has for many years known that the truck should not be
operated without service brakes.
Good Faith Compliance
The evidence establishes that the respondent failed to
repair the service brakes or to otherwise abate the conditions cited on July 19, 1985, and that an order had to be
issued on September 4, 1985. Further, I believe it is clear
from the facts in this case that the respondent has exhibited
total indifference with respect to the conditions cited.
Under the circumstances, I conclude and find that the respondent has demonstrated a lack of good faith with respect to
the violation in question.
Civil Penalty Assessment
Taking into account the requirements of section llO(i)
of the Act, particularly the respondent's high degree of
negligence and lack of good faith compliance with respect to
the violation, I believe a civil penalty assessment in the
amount of $600 is reasonable and appropriate.
Section 104(d)(2) Order No. 2521411, issued on
September 4, 1985, cites a violation of 30 C.F.R. § 56.9087,
and the condition or practice is described as follows:
The automatic warning device which would
give an audible alarm when the 644 C John Deere
Front-end loader was put into reverse was not
operating. Greg Brown stated that an electrical short was causing the back-up alarm not to
work. This violation is an unwarrantable failure and this equipment shall not be operated
for any purpose until inspected and released
by an MSHA inspector. 644C John Deere
Front-end loader, Serial No. 644 CB 4033930.
MSHA's Testimony and Evidence
MSHA Inspector Ronald Grabner stated that while conducting an inspection at the mine on July 19, 1985, he observed
the front-end loader in operation that morning at the load
out bins and the back-up alarm was working. Later in the day
when the loader was inspected, the alarm was not working.
Mr. G~eg Brown determined that a fuse had burned out, and he
replaced it. However, the new fuse burned out, and Mr. Brown
surmized that there was a short circuit in the system. Since

659

the loader was parked, and since it appeared that something
had malfunctioned between the time the loader was first
observed in operation and the time it was inspected, no citation was issued. Mr. Brown stated that he would correct the
condition (Tr. 9-15).
On cross-examination, Mr. Grabner stated that the loader
was originally equipped with
backup alarm, and since there
is an obstructed view to the rear, a backup alarm is required.
When asked why he did not cite a second 644-B loader,
Mr. Grabner stated that when he observed it operating in the
stock pile area near the service tunnel, he did not believe
that the view to the rear from the driver's seat was
·
obstructed (Tr. 15, 17).

a

MSHA Inspector Steve c. Manis confirmed that during an
inspection on September 4, 1985, he observed the front-end
loader in question in operation, and he identified a photograph of the loader which he took that day (Tr. 23, exhibit
P-1). Mr. Manis stated that the loader was operating at the
surge tunnel area pushing sand into the surge pile where it
falls through the tunnel top and is carried away on conveyor
belts. Although the tunnel is not a normal travelway to get
from the front of the plant to the back, it could be used as
a travelway since it is closer than walking around the surge
pile and bins. The loader was equipped with a back-alarm,
but it· was not working. Mr. Greg Brown confirmed that the
alarm had a short, and when asked why it had not been
repaired, Mr. Brown replied that "he just hadn't had time."
Mr. Manis issued the citation, and subsequently terminated it
on September 6, 1985, when repairs were made (Tr. 28).
Mr. Manis confirmed that he got into the loader next to
the operator and looked out the rear view window and found
that the engine hood, air cleaner container, and the muffler
and tailpipe constituted an obstructed view to the rear of
the machine (Tr. 29). Mr. Manis observed no one serving as
an observer, and the machine was not equipped with rear view
mirrors. He believed the violation was "significant and substantial" because the loader was operating in an area where
there was a potential for people walking through the area,
and there is a blind spot to the rear of the machine (Tr.
31).
On cross-examination, Mr. Manis confirmed that he saw no
one around the loader while it was in operation. He also
confirmed that the photograph he took was in connection with
a broken windshield violation, and that it was not taken to
support the backup alarm violation (Tr. 32-34). Mr. Manis

660

also confirmed that he did not observe the loader at the end
of the surge tunnel, but saw it operating in the surge pile
area (Tr. 37). He also confirmed that he made a notation of
the serial number of the cited loader (Tr. 39).
Mr. Manis confirmed that he was aware of the fact that
the,loader in question had previously been inspected by
Inspector Grabner, and that Mr. Greg Brown assured Mr. Grabner
that he would repair the defective backup alarm (Tr. 51).
Respondent's Testimony and Evidence
Greg Brown confirmed that he accompanied Inspectors
Grabner and Manis during their inspections on July 19 and
September 4, 1985. He confirmed that he advised Mr. Grabner
that the 644C loader may have had a short, but that he also
advised him that he,was not sure and that "it could be anything11 (Tr. 55). Mr. Brown stated that none of the equipment
operators have ever advised him that their view to the rear
is obstructed, and he confirmed that he has operated both
loaders and has had no problem with any obstructed view to
the rear (Tr. 57). Mr. Brown conceded that if someone 5 feet
8 inches tall were to stand behind the machine "jam up to the
radiator," he would probably not be seen by the equipment
operator (Tr. 58-59). Mr. Brown could not state how far back
from the machine the person would have to stand before he
could be seen by the operator (Tr. 59). He confirmed that
when he backs up the loader, he looks to the rear because "I
don't want to hit nobody, or hit anything else. I run over a
chainsaw before, like that" (Tr. 62).
Mr. Brown confirmed that the respondent traded the 664-B
end-loader, and purchased another 644-C model which was not
equipped with a backup alarm, and no citation has been issued
for a lack of a backup alarm (Tr. 63). MSHA counsel Welsch
explained that this new 664-C end-loader has factory equipped
convex backup mirrors, and supervisory Inspector Reino Mattson
confirmed that ~SRA's district office has given verbal
approval for the use of the mirrors in lieu of a backup alarm,
as long as the visibility to the rear is good and there are no
obstructions to the rear (Tr. 65-69).
Carl Brown stated that 40 to 50 trucks are on his property every day, and they are regulated by OSHA and have no
backup alarms. Mr. Brown claimed that loaders and tractors
received by other operators regulated by OSH~ have told him
that when they receive this equipment they take the backup
alarms off "because it's a nuissance around the working place"
(Tr. 20). · For demonstration purposes, Mr. Brown played a

661

video tape of several front-end loaders, included the one
cited in this case, operating in the same area of the mine·as
the one which was cited (Tr. 75-76).
Inspector Grabner was called in rebuttal, and he confirmed that the day prior to the hearing, he and Inspector
Manis observed a John Deere front-end loader model 644-C,
similar to the one cited in this case, at another sand mining
operation. They took measurements to determine the distance
of any obstructed view to the rear in relation to any foot
traffic to the rear of the machine. Mr. Grabner stated that
he sat in the driver's seat and Mr. Manis, who is 5-feet
10-inches tall, stood at the rear of the machine, and after
taking measurements, they determined that looking over
Mr. Grabnet•s left shoulder, Mr. Manis first came into view
at a distance of. 8 feet 5 inches from the rear of the machine
to where he was standing when the measurement was taken.
Although the distance to the rear looking over his right
shoulder was not measured, Mr. Grabner believed that it would
have been considerally further back from where Mr. Manis was
standing because of the obstruction of the muffler and air
cleaner (Tr. 77-78).
On cross-examination, Mr. Grabner stated that the
front-end loader in question is used for a multitude of purposes and at different locations at the mine site and is not
used solely for one job at one particular location. He could
not state whether he observed anyone around the loader in
question when he first observed it. While it may operate in
an area with no people around it, the next day it may be operating in an area where there may be people or other equipment
working around it. Under these circumstances, he believed
that the lack of an operable backup alarm on the cited loader
constituted a "significant and substantial" violation, and he
agreed with Inspector Manis' finding in this regard (Tr.
81-87).
Fact of Violation
The respondent here is charged with a violation of mandatory safety standard 30 C.F.R. § 56.9087, which provides as
follows:
Heavy duty mobile equipment shall be provided with audible warning devices. When the
operator of such equipment has an obstructed
view to the rear, the equipment shall have
either an automatic reverse signal alarm which
is audible above the surrounding ,noise level

662

or an observer to signal when it is safe to
back up.
I conclude and find that MSHA has established by a clear
preponderance of the evidence that the cited end-loader in
question had an inoperable backup alarm at the time the
inspector cited it. I also conclude and find that MSHA has
established that the view to the rear of the cited end-loader
is obstructed, and that an operable backup alarm was required.
This conclusion is supported by the testimony of the inspectors who made measurements of a similar end-loader, and it is
corroborated as well by the photograph produced by the respondent, exhibit R-2, which shows that the air cleaner, muffler,
and tailpipe behind the operator's compartment constitute
obstructions to the operator's view to the rear of the
machine. The respondent has not rebutted this fact, and the
inspector's findings are further corroborated by the testimony of Greg Brown who testified that he ran over a chainsaw
while operating the machine in reverse because he obviously
did not see it, and that he always looks to the rear because
he does not want to run over anyone or hit any equipment
which may be operating to the rear of the machine. The violation IS AFFIRMED.
Significant and Substantial Violation
I agree with the inspector's finding that the lack of an
operable backup alarm constituted a significant and substantial violation. While it may be true that the inspector
could not recall observing anyone working the proximity of
the machine while it was operating, the respondent had not
rebutted the fact that the machine is used for a multitude of
purposes at different locations at any given time. Under
these circumstances, it is reasonably likely that tha lack of
an operable backup alarm could contribute to a potential
hazard to equipment operating in the same area on any given
day, or to mine personnel working in the area. Accordingly,
the "S&S" finding by the inspector IS AFFIRMED.
Gravity
I conclude and find that the lack of an operable backup
alarm constituted a serious violation. Although the respondent had two serviceable end-loaders, there is no evidence
that ~t only used one of them, and I believe that given the
volume of truck traffic on the site on any given day, one may
reasonably conclude that both end-loaders were regularly used
by the respondent in the course of its mining operation.
Further, since it would appear that the defective backup

663

alarm was not repaired for over a month after it was first
noted by the inspectors, one may reasonably conclude that the
hazard exposure continued during this same time frame.
Negligence
I conclude and find that the kespondedt exhibited a high
degree of negligence with respect to this violation. Respondent was put on notice on July 19, 1985, that the defective
backup alarm needed attention, and Mr. Greg Brown knew that
this was the case and assured the inspectors that it would be
taken care of. However, more than a month past before any
repairs were made, and they were made only after the inspector issued an unwarrantable failure order during his next
visit to the mine.
Good Faith Compliance
Petitioner has stipulated that the violation was abated
in good faith after the order was issued, and I accept this
as my finding on this issue.
Taking into account the requirements of section llOCi)
of the Act, particularly the respondent's high degree of negligence, I believe a civil penalty assessment in the amount
of $100 is reasonable and appropriate.
ORDER
On the basis of the forgoing findings and conclusions,
the respondent IS ORDERED to pay to the petitioner the following civil penalty assessments within thirty (30) days of the
date of this decision:
Citation
Order No.

Date

30 C.F.R.
Section

Assessment

2007656
2521412
2521744
2521411

07/19/85
09/04/85
07/19/85
09/04/85

50.30(a)
56.14006
56.9003
56.9087

$ 250
$ 175
$ 600
$ 100

LI

. f'./,)L/
'<

~;; (/., '-· -J/L
;t(;,.~{/---7~
~rge i f Koutras
Administrative Law Judge

664

Distribution:
Ken s. Welsch, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 339, 1371 Peachtree Street, N.E., Atlanta, GA
30367 (Certified Mail)
Mr. Carl Brown, Brown Brothers Sand Company, P.O. Box 82,
Howard, GA 31039 (Certified Mail)
/fb

665

666

*U, S. GOVERNMENT PRINTING OFFICE 1,e7: 181-224/63003