FEBRUARY 2000

COMMISSION DECISIONS
02-22-2000 Gilbert Ankrom v. Wolcottville Sand
& Gravel Corporation
02-22-2000 Sec. Labor on behalf of Levi Bussanich v.
Centralia Mining Company
02-29-2000 Bryce Dolan v. F & E Erection Company

LAKE 98-126-DM

Pg. 137

WEST 2000-99-D
CENT 97-24-DM

Pg. 153
Pg. 171

PENN 2000-21-R
WEST 99-137-M
CENT 99-184-M
KENT 99-90
LAKE 98-17-D
WEST 99-120-R

Pg. 189
Pg. 192
Pg. 196
Pg.202
Pg. 215
Pg.218

WEST 2000-145-DM
KENT 99-182
LAKE 99-78-RM

Pg. 233
Pg.238
Pg.246

CENT 99-266
PENN 99-137-RM
WEST 2000-24-M
Special 2000-1

Pg.255
Pg.257
Pg. 261
Pg.264

WEV A 2000-31-D
CENT 2000-71-M

Pg. 268
Pg.272

CENT 2000-96-D
D
99-1

Pg.276
Pg. 282

ADMINISTRATIVE LAW JUDGE DECISIONS
02-01-2000 Rosebud Mining Company
02-03-2000 Whitewater Building Materials Corporation
02-09-2000 Holt Company of Texas
02-09-2000 Lone Mountain Processing Inc.
02-15-2000 Gary D. Morgan v. Arch of Illinois
02-18-2000 Bowie Resources Limited
02-18-2000 Sec. Labor on behalf of Curtis Stahl v.
A & K Earth Movers Inc.
02-28-2000 Lodestar Energy, Inc.
02-28-2000 Northern Illinois Steel Supply
ADMINISTRATIVE LAW WDGE ORDERS
02-07-2000 Northwestern Resources Company
02-07-2000 Keystone Cement Company
02-11-2000 Florida Canyon Mining Inc.
02-11-2000 Sterling Ventures, LLC
02-16-2000 Sec. Labor on behalf of Michael Jenkins, et al. v.
Durbin Coal, Inc.
02-25-2000 Jerry Hudgeons employed by Ash Grove Cement
02-28-2000 Sec. Labor on behalf ofRoyal Sargent v.
The Coteau Properties Co.
02-29-2000 Connie Prater

i

FEBRUARY

2000

Review was granted in the following case during the month ofFebruazy:
Secretary of Labor, MSHA v. Douglas R. Rushford Trucking, Docket No.
YORK 99-39-M. (Judge Melick, January 19, 2000)

There were no cases filed in which Review was denied.

ii

COMMISSION DECISIONS

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

February 22, 2000
GILBERT V. ANKROM
Docket No. LAKE 98-126-DM

v.

WOLCOTTVILLE SAND
AND GRAVEL CORPORATION

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY: Riley, Verheggen, and Beatty, Commissioners

In this discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"), Administrative Law Judge Avram
Weisberger concluded that Gilbert V. Ankrom established a prima facie case that Wolcottville
Sand & Gravel Corporation ("WS&G") had taken adverse employment action against him in
violation of section 105(c) of the Mine Act, 30 U.S.C. § 815(c). 20 FMSHRC 1185 (Oct. 1998)
(ALJ). The judge determined, however, that WS&G established its affirmative defense that it
would have taken such action in any event based upon Ankrom's unprotected activity alone, and
dismissed Ankr-0m 's complaint. Id. at 1191. The Commission granted Ankrom's petition for
discretionary review of the judge's decision. For the reasons that follow, we affirm the judge's
determination.
I.
Factual and Procedural Background
WS&G operates a gravel pit in Newcomerstown, Ohio. Tr. 32. On August 18, 1997,
Ankrom began working as a front-end loader operator on the night shift at the gravel pit. 20
FMSHRC at 1185-86. Ankrom was also certified as a foreman. Tr. 73. Ankrom stated that he
made safety complaints on nearly a daily basis. Tr. 69, 210. After his first day on the job,
Ankrom complained to his supervisor, Mark McK.itrick, that the front-end loader did not have a
seat belt. 20 FMSHRC at 1186; Tr. 302.

137

Approximately 3 weeks later, Dennis Jackson began working as the night shift foreman in
place ofMcK.itrick. 20 FMSHRC at 1187; Tr. 126-27. Other members of the night shift besides
Jackson and Ankrom included Dan Gay, a front-end loader operator, and David Gay, a laborer.
20 FMSHRC at 1186; Tr. 275. Ankrom complained to Jackson that the berms were inadequate
on the road on which he operated the front-end loader. 20 FMSHRC at 1186, 1187. Jackson
testified that when he discussed Ankrom's safety concerns with Kevin Schemp, the
superintendent at the mine, Schemp changed the subject and did not address them. Id. at 1187.

In early September, Ankrom complained to Jackson about employees repairing belts
without adequate safety equipment, the lack of adequate berms, and that draglines were operated
without lights, encouraging him to contact state and/or federal authorities so that the conditions
would be corrected. Id. at 1186; Tr. 132-34. Jackson contacted an inspector with the Ohio
Department of Natural Resources ("ODNR"), Fred Kidd. 20 FMSHRC at 1186; Tr. 49-50. On
September 11, 1997, Kidd inspected the pit and issued correction orders to WS&G. 20
FMSHRC at 1186.
On October 8, 1997, Ankrom informed Glenn Freese, the day shift foreman, that the
berms were inadequate and that the previous day, he had almost rolled over his front-end loader.
Id. Ankrom also later so informed Jackson. Id. After receiving telephone numbers for the
Department of Labor's Mine Safety and Health Administration ("MSHA") from Ankrom,
Jackson contacted MSHA and the mine was inspected on October 14 and 15, 1997. Tr. 56-57,
61, 147-48. MSHA issued citations for various violations including inadequate berms. Tr. 6667; C. Exs. 2A, 2B, 2C. Schemp later spoke to the employees at the mine and stated that MSHA
had inspected the mine, and he was curious regarding the reason for that inspection. 20
FMSHRC at 1187; Tr. 61-62. Jackson made no response to Schemp's inquiry. Tr. 62.

In the middle of October, Schemp moved Ankrom and Jackson to the day shift. 20
FMSHRC at 1186 n.1. Schemp stated that he moved Ankrom and Jackson to the day shift
because the night shift was "ineffective" in terms of production, and because the mine needed to
have plant stock 1noved to the feed bin and he wanted to have WS&G employees, rather than
independent contractors, move the overburden. Id. at 1188; Tr. 277. On the day shift, Ankrom
and Jackson operated moxy trucks to haul material and remove overburden. 1 20 FMSHRC at
1188. David Gay and Dan Gay remained on the night shift and moved material from stockpiles.
Id.; Tr. 276.
On Friday, October 31, 1997, WS&G employees were asked to indicate on a form any of
their safety concerns, and to return their forms by Monday, November 3. 20 FMSHRC at 1186;
Tr. 160-61. Ankrom returned a completed form, noting his concerns regarding the lack of
inspections by foremen at the beginning of shifts, and inadequate berms. 20 FMSHRC at 1186.
The only other employee to return a completed form was David Blank, a day shift laborer, who
voiced concerns about greasing the head sections of the conveyors. Tr. 285, 287. The mine was

1

A moxy truck is a 30-ton rock truck. Tr. 28.
138

inspected again by State Inspector Kidd in early November. 20 F.MSHRC at 1186; Tr. 153.
On November 7, 1997, Schemp informed Ankrom that he would be returning to the night
shift. 20 FMSHRC at 1186; Tr. 165-66, 282-83. On November 8, Ankrom called State
Inspector Kidd regarding the lack of adequate berms. 20 FMSHRC at 1187. The November 8
entry in the foremen's log notes that the ODNR had been contacted. Tr. 176-77; R. Ex. 1.
During the morning of November 9, Schemp called Ankrom at home and asked him why
he had not gone to work. 20 FMSHRC at 1187. Ankrom replied that he was scheduled for the
night shift. Id. Schemp told Ankrom to forget about that day and just come to work on
November 10. Tr. 174. Ankrom brought up his safety concerns, including those he had
described in the form, and a heated discussion ensued. 20 FMSHRC at 11 87; Tr. 172-74.
On November 10, 1997, Schemp left a message on Ankrom's telephone answering
machine, in which he stated: "After looking at everything around here, I think I'm going to park
the moxy trucks and take them off rental and go to a straight day turn until the weather breaks
and we can do something with the roads. So you are laid off until further notice, which I'll call
you at the point that there's something to do here." Tr. 186-87. On that same day, Schemp also
laid off Jackson, stating that for safety reasons, he did not want the crew to operate the moxy
trucks in the mud. 20 FMSHRC at 1187. Approximately one day later, Schemp also laid off
Dan Gay and David Gay. Id. at 1188; Tr. 223. Schemp stated that he made the decision to lay
off the night shift "due to not being able to have any productive work being generated at that
point in time from those particular four people." Tr. 316. The season ended on approximately
December 10, 1997. 20 FMSHRC at 1188; Tr. 282.
On approximately March 12, 1998, Ankrom visited the mine and asked Schemp the status
of his job. 20 FMSHRC at 1187. According to Ankrom, Schemp stated that the job was
expected to last.only another 4 months. Id. According to Schemp, Ankrom mentioned that he
found other work, and Schemp had replied that he thought Ankrom should take it. Tr. 232, 234.
The night shift resumed on March 20, 1998, and consisted of Dan Gay, David Gay,
Dennis Williamson, Robert Ferguson, and Brett McCune. 20 FMSHRC at 1188; Tr. 225.
Williamson had worked during the day shift during the previous season. Tr. 225. McCune had
been newly hired as a laborer, and -Ferguson had been hired as a front-end loader operator in early
March. Tr. 225-26. Ankrom and Jackson were not recalled. 20 FMSHRC at 1188.
Schemp stated that his decision not to recall Ankrom was based on Ankrom' s poor work
performance, lack of ability, and unwillingness to perform.2 Tr. 229, 292-93. Schemp testified
that he reviewed operations during the winter, and found it "wanting in places, and Gilbert
Ankrom was one of the places." Tr. 227. Schemp testified that he reviewed personnel, and

2

Schemp stated that he did not recall Jackson because he found his performance worse
than Ankrom's. 20 FMSHRC at 1188; Tr. 238.
139

production figures on daily reports, the foremen's log, and cost accounting documents. Tr. 228,
253-54. In addition, he stated that Ankrom was unable to operate his equipment to maintain a
flat pit floor, or a clean floor, and to efficiently load the end-loader bucket, and that he had to
counsel him in an effort to correct his performance on approximately a weekly basis. Tr. 229-30,
291. Schemp stated that in January and February 1998, he was tending toward deciding not to
recall Ankrom, and that the final decision was made with the assistance of his supervisor, Gary
Saathoff, who found a more qualified person, Ferguson, to operate the loader. Tr. 230-31, 23637, 294.
On November 24, 1997, Ankrom filed a complaint with MSHA alleging discrimination
under section 105(c) of the Mine Act.3 C. Ex. 7A. MSHA investigated the complaint and
informed Ankrom by letter dated March 25, 1998, that the investigation had not revealed a
violation of section 105(c). By letter dated April 28, 1998, Ankrom filed a discrimination action
with the Commission pursuant to section 105(c)(3) of the Mine Act. C. Ex. 7B. The matter
proceeded to hearing before Judge Weisberger.
The judge concluded that Ankrom had proved his prima facie case of discrimination. 20
FMSHRC at 1189-90. First, the judge found that unrebutted testimony by Ankrom and Jackson
revealed that Ankrom had engaged in protected activity by making safety complaints to Jackson,
Schemp and Freese; by discussing with Jackson the need to contact government inspectors; and
by making safety complaints on November 3 and 9, 1997, as stipulated by the parties. Id. at
1189. The judge also noted that the parties stipulated that WS&G took adverse action against
Ankrom when it laid him off and failed to recall him. Id. Third, the judge concluded that the
adverse actions taken by WS&G were motivated in some part by Ankrom's protected activities
based on his findings that Schemp knew of Ankrom's safety complaints; there was a coincidence
in timing between the protected activity on November 9 and the layoff the following day; and
Schemp was hostile towards the safety complaints. Id. at 1190. In making his finding that
Schemp was hostile toward the safety complaints, the judge discredited Schemp's denial that he
told Inspector Kidd that part of the reason for downsizing was due to safety complaints. Id.
The judge determined, however, that WS&G had established its affirmative defense that
its adverse action was also motivated by unprotected activity and it would have taken the adverse
action in any event for the adverse action alone. Id. at 1191. As for the layoff, he concluded that
Ankrom would have been laid off in any event for economic and weather reasons, relying on
evidence that the entire shift had been laid off, including two members who had not made any
safety complaints. Id. As for the decision not to recall Ankrom, the judge relied upon unrebutted
evidence that Ankrom's work performance was unsatisfactory. Id. Accordingly, the judge
dismissed Ankrom's discrimination complaint. Id.
Although he was represented by counsel during the hearing and filing of post-hearing

3

Jackson also filed a complaint alleging discrimination under section 105(c) of the Mine
Act. Tr. 103. ·
140

pleadings, Ankrom filed a petition for discretionary review without benefit of counsel. In the
petition, Ankrom cites to pages of the transcript and objects to various points raised by WS&G in
its reply to Ankrom's proposed findings of fact filed before the judge. WS&G filed a statement
in opposition to Ankrom' s petition, stating that the petition does not refer to any conclusion made
by the judge or identify an issue. Opp'n at 1-2. WS&G attached to its opposition the proposed
findings of fact that it had submitted to the judge ("WS&G FOF''). The Commission granted
Ankrom's petition for discretionary review. Ankrom subsequently designated his petition as his
brief. See 29 C.F.R. § 2700.75(a).
II.

Disposition
A complainant alleging discrimination under the Mine Act establishes a prima facie case
of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Secretary of Labor on behalf of Pasula v. Consolidation Coal
Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). The operator may rebut the prima
facie case by showing either that no protected activity occurred or that the adverse action was in
no part motivated by protected activity. See Robinette, 3 FMSHRC at 818 n.20.

If the operator cannot rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it also was motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected activity alone. See id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
642-43 (4th Cir: 1987) (applying Pasula-Robinette test). An operator bears the burden of
proving an affirmative defense to a discrimination complaint. Haro v. Magma Copper Co., 4
FMSHRC 1935, 1937 (Nov. 1982). This line of defense applies in "mixed motive" cases, e.g.,
cases in which the adverse action is motivated by both protected and unprotected activity. Id.
The ultimate burden of persuasion does not shift from the complainant. Schulte v. Lizza Indus.,
Inc., 6 FMSHRC 8, 15 (Jan. 1984). An operator may attempt to prove that it would have
disciplined a miner for unprotected activity alone 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." Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). In reviewing
affirmative defenses, the judge must "determine whether they are credible and, if so, whether
they would have motivated the particular operator as claimed." Id.

141

A complainant may attempt to refute an affirmative defense by showing that he did not
engage in the unprotected activities complained of, that the unprotected activities played no part
in the operator's motivation, or that the adverse action would not have taken place in any event
for such unprotected activities alone. Robinette, 3 FMSHRC at 818 n. 20. Because the ultimate
burden of persuasion never shifts from the complainant, if a complainant who has established a
prima facie case cannot refute an operator's meritorious affirmative defense, the operator
prevails. Id.
Here, it is undisputed on review that the layoff and WS&G's failure to recall Ankrom
were in some part motivated by Ankrom's protected activity in expressing safety concerns to
WS&G supervisors and in discussing with Jackson the need to consult with government
inspectors. The issue is whether substantial evidence supports the judge's determination that
WS&G was also motivated by reasons unrelated to the protected activity and would have laid off
Ankrom and failed to recall him for those reasons alone.
A.

The Layoff

Ankrom argues that substantial evidence does not support the judge's finding that WS&G
would have laid him off based on his unprotected activity alone. 4 Ankrom contends that
Schemp' s testimony that he made the decision to lay off the night shift for economic reasons is
inconsistent with the weather-related reason that Schemp gave Ankrom for his layoff PDR at 4
ii 12; Tr. 316. Ankrom also asserts that the foremen's log does not reflect a lack of productivity
by the night shift. PDR at 3 ii 7.
We agree that the judge erred in relying upon weather-related reasons in finding that
WS&G established its affirmative defense. WS&G abandoned the weather-related reasons that
Schemp gave for the layoff during the hearing and in post-hearing pleadings. As noted by
Ankrom, at the hearing Schemp testified that he made the decision to lay off the second shift
because he could not get "any productive work" from them. Tr. 316. Likewise, in its posthearing brief, WS&G maintained that the entire night shift was laid off due to their lack of
productive work and effectiveness, including two night shift members who had not made safety
complaints. WS&G FOF at 3, 7.

4

When reviewing an administrative law judge' s factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).

142

Nonetheless, the judge's conclusion that WS&G would have laid off Ankrom anyway for
economic reasons is supported by substantial evidence. It is undisputed that Schemp laid off all
four members of the night shift, including Dan and David Gay, who had not made safety
complaints. Tr. 222-23, 283, 285, 307. In addition, Blank, the day shift laborer who had
returned a completed safety complaint form to WS&G, was not laid off. Tr. 285, 287.
Schemp testified that he laid off Ankrom as well as the entire night shift "due to not being able to
have any productive work being generated at that point in time from those particular four
people." Tr. 316. It appears that Schemp had ongoing concerns with the night shift' s
productivity, in that Schemp testified that he transferred Ankrom and Jackson in mid-October to
the day shift in part because the night shift was "ineffective" in terms of production. Tr. 277.
Moreover, contrary to Ankrom's assertion, it appears that the foremen's log generally reflects
lower productivity for the night shift than the day shift. R. Ex. 1.
The judge credited testimony that Schemp would have laid off Ankrom in any event
because he was dissatisfied with the productivity of the entire night shift. 20 FMSHRC at 1191.
A judge's credibility determinations are entitled to great weight and may not be overturned
lightly. In re: Contests ofRespirable Dust Sample Alteration Citations, 17 FMSHRC 1819,
1878 (Nov. 1995) ("Dust Cases"), aff'd sub nom. Secretary ofLabor v. Keystone Coal Mining
Corp., 151F.3d1096 (D.C. Cir. 1998); Farmer v. Island Creek Coal Co., 14 FMSHRC 1537,
1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). The
Commission has noted that "the general rule [is] that, absent exceptional circumstances,
appellate courts do not overturn findings based on credibility resolutions." Dust Cases at 1881
n.80. We do not find sufficient evidence in the record to take the "extraordinary step" of
overturning the judge's credibility determination. See Fort Scott Fertilizer-Cullar, Inc., 19
FMSHRC 1511, 1516 (Sept. 1997). Accordingly, we affirm as supported by substantial evidence
the judge's determination that WS&G would have laid off Ankrom for his unprotected activity
alone.
B.

The -Failure to Recall

Ankrom argues that substantial evidence does not support the judge's finding that WS&G
established its affirmative defense as to its decision not to return Ankrom to work. He contends
that Schemp's testimony that his review of production was part of the basis for his decision not
to recall Ankrom is inconsistent with Schemp's testimony that he laid off the entire night shift
because of their lack of productivity. PDR at 3 if 7. Ankrom also relies on Schemp's testimony
that there are no specific records in the foremen's log that reflect individually on Ankrom. Id. In
addition, Ankrom argues that there is testimony suggesting that there may not have been any
witnesses to Schemp's counseling of Ankrom, and that there are inconsistencies in Schemp's
testimony regarding the number of times that Schemp counseled Ankrom. PDR at 3 if~ 8, 9.
WS&G responds that substantial evidence supports the judge's determination that it
established its affirmative defense. WS&G Br. at 2. It argues that Ankrom would not have been
recalled to work in any event because of his poor work performance. WS&G FOF at 4, 9. Thus,

143

although WS&G does not specifically rely on Bradley factors to justify its decision not to recall
Ankrom, it appears that it effectively relies upon the factor of "the miner's unsatisfactory past
work record." Bradley, 4 FMSHRC at 993.
Schemp testified that he found after the lay-off, from approximately November 12 to
December 5, the day shift was very efficient without a night shift, which led him to believe that
he had problems with the night shift and its personnel. Tr. 228. As noted by Ankrom, Schemp
testified that there were no specific figures in the foremen's log or elsewhere that he relied upon
in his decision not to recall Ankrom, and that the production figures reflected on the entire night
shift. Tr. 241, 255. Although he could not point to any specific figures, however, Schemp
explained that Ankrom's performance would have impacted the shift he worked with just like
any employee's performance would have. Tr. 239. Schemp testified that he attributed the
negative production of the night shift to Ankrom and Jackson because when he moved Ankrom
and Jackson to day shift, and left Daniel and David Gay on night shift, he got "results." Tr. 242.
Although Schemp later transferred Ankrom from day shift to night shift, it appears that Schemp
was not fully aware of Ankrom's impact on productivity until he reviewed operations after the
close of the season. Tr. 230. Schemp explained that he was not completely sure he made the
right decision not to recall Ankrom until he reviewed production figures at the end of March and
saw improvement in production. Id.
In addition, there is unrebutted testimony in the record regarding Ankrom's unsatisfactory
work performance. Schemp testified that Ankrom could not maintain a flat pit floor, which
caused severe rutting and water run-off problems, or keep a clean floor through which vehicles
could drive. Tr. 229. In addition, he was dissatisfied with the amount of time that it took
Ankrom to fill the front-end loader's bucket. Tr. 292. Schemp also testified that Ankrom was
"mediocre on maintenance." Tr. 230. Schernp's testimony was corroborated by Dan Gay, who
testified that Ankrom always left the pit floor in an uneven state. Tr. 322. Gay testified that
Ankrom did not reach the same levels of production as Gay on the second shift, and that he
observed Ankrom fail to inspect and maintain his front-end loader. Tr. 322-23. Schemp also
testified, without rebuttal, that the miner hired to operate the loader in Ankrom' s place was more
qualified and experienced, particularly with the screening applications that were being done at
the mine. 5 Tr. 237.
Moreover, there is unrebutted testimony that Schemp counseled Ankrom more than any
other employee in an effort to improve his performance. Tr. 291-92. Schemp testified that he
counseled Ankrom on the performance of his work about every week regarding maintaining a flat
and level pit floor, keeping a clean floor when working around the stockpiles, and about the
amount of time that he took filling a bucket and the method that he used. Tr. 291. Schemp

5

Ankrom did, however, rebut Daniel Gay's testimony that Gay observed Ankrom "hang
up" his front-end loader on berms two or three times per week. Tr. 323. Ankrom testified that
he had two instances in which he hung up his loader, which occurred in foggy conditions with
inadequate berms. Tr. 208.
144

testified that Ankrom's performance did not improve after such counseling. Tr. 238. Similarly,
Dan Gay testified that he informed Schemp that Ankrom was having trouble on the loader, and
indicated that it might be due to his vision or lack of ability. Tr. 326-27. Gay stated that Schemp
had replied that he would speak to Ankrom, and that the next day, Gay observed Schemp talking
to Ankrom in Schemp's office. Tr. 329-30. Ankrom did not dispute that he was counseled about
his performance. Rather, on review Ankrom disputed the frequency with which he was
counseled, and whether there were witnesses to his counseling.6 PDR at 3 ,, 8, 9.
We note that an affirmative defense requires more than a plausible showing of business
necessity. The Commission has previously held that an operator bears the burden of proving an
affirmative defense to a discrimination complaint. Haro, 4 FMSHRC at 1937. The question
raised here is whether oral testimony alone supporting the operator's affirmative defense (alleged
unsatisfactory work performance by Ankrom) is sufficient to carry the operator's evidentiary
burden. The Commission has previously found that testimony regarding an employee's
unsatisfactory work performance, if rebutted by contrary evidence, is insufficient to establish an
operator's affirmative defense. See Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1481 (Aug.
1982) (noting that an operator who had presented such self serving testimony "failed to present
any evidence as to what its usual practices and policies were with respect to bad operators of
equipment.").
This case, however, is distinguishable from the Commission's decision in Moses because
the record here clearly establishes that no rebuttal testimony regarding the complainant's work
performance was presented. Compare Tr. 117-220 with Tr. 229, 238, 292-93. See also
Ankrom's Reply to WS&G's FOF at
9 (lacking citations to record). Consequently, the judge
correctly credited the testimony offered by the operator supporting its affirmative defense that it
would not have recalled Ankrom to work based on his unsatisfactory work performance alone. 7

2,

6

Specifically, Ankrom states that in his deposition, Schemp testified that he counseled
Ankrom five times, while at the hearing, Schemp testified that he counseled Ankrom weekly (Tr.
291). PDR at 3 , 9. Ankrom also notes that Daniel Gay testified only that he observed Ankrom
in Schemp's office, and that Gay had no personal knowledge regarding whether Ankrom was
counseled. Id. at
8. In addition, he notes that at the hearing, Schemp testified that McK.itrick
observed the counseling (Tr. 302), but that Schemp stated in his deposition that there were no
witnesses to the counseling. PDR at
8. Schemp's deposition does not appear to be included
in the official record. In any event, even accepting Ankrom's arguments, Ankrom does not
dispute that he was counseled on his performance.

3,

3,

7

We note that the judge's discrediting of Schemp's denial that he told Inspector Kidd
that part of the reason for downsizing was due to safety complaints did not require the judge to
discredit Schemp's testimony on other matters. As the Commission has previously recognized in
rejecting the "false in one, false in everything" rule of testimonial evidence, "it is not uncommon,
and certainly not reversible error, for the trier of fact to find a witness to be credible on some, but
not other, matters." Faith Coal Co., 19 FMSHRC 1357, 1372 (Aug. 1997).
145

20 FMSHRC at 1191. Because of the failure to introduce any contrary evidence to rebut
WS&G's affirmative defense, we cannot take the extraordinary step of overturning the judge's
credibility determinations in this regard. See Donovan ex rel. Chacon v. Phelps Dodge Corp.,
709 F.2d 86, 92 (D.C. Cir. 1983) (stating that the Commission's role is limited to searching for
"such relevant evidence as a reasonable mind might accept as adequate to support [the judge's]
conclusion") (quoting Consolidated Edison, 305 U.S. at 229). Thus, we affirm as supported by
substantial evidence the judge's determination that the operator proved its affirmative defense. 8

8

We reject our dissenting colleagues' conclusion that the judge failed to explain his
crediting of Schemp' s testimony that Ankrom would not have been recalled in any event based
upon his poor work performance. Slip op. at 1. The judge explained that Schemp's testimony
regarding Ankrom's poor work performance was corroborated by Daniel Gay, who worked with
Ankrom, and that Ankrom did not rebut the evidence. 20 FMSHRC at 1191. We note that
Jackson, Ankrom's supervisor, a lso did not rebut evidence that Ankrom's work performance was
poor and that he was counseled more than any other employee in an effort to improve his
performance. Overturning the judge's credibility determination absent such rebuttal testimony
would amount to substituting a competing view of the facts, which we decline to do. See Phelps
Dodge, 709 F.2d at 92 (stating that the Commission may not "substitute a competing view of the
facts for the view [an] AU reasonably reached"); see also Consolidation Coal Co., 20 FMSHRC
227, 238 (Mar. 1998) (separate opinion of Commissioners Riley, Verheggen) ("[T]he
Commission's review [is] limited to whether the ALJ's findings of fact were supported by
substantial evidence. The 'possibility of drawing two inconsistent conclusions from the evidence
does not prevent an administrative agency's finding from being supported by substantial
evidence."') (citation omitted), aff'd, No. 98-1613, 1999 WL 394191 (4th Cir. May 27, 1999).
146

ill.
Conclusion
For the reasons discussed above, we affirm the judge's determination that WS&G
established its affirmative defense.

James c. Riley, Commissioner

Robert H. Beatty, Jr., Commissio

147

-

Chairman Jordan and Commissioner Marks, dissenting:
Because we conclude that the record in this case establishes that WS&G failed to meet its
burden of establishing an affirmative defense and that it discriminated against Ankrom in
violation of the Mine Act, we write separately from our colleagues and dissent.
Once a prima facie case of discrimination has been found, as the judge did in the instant
case, the operator mu~t prove by a preponderance of the evidence that it would have taken the
adverse action in any event because of unprotected activity alone. Secretary ofLabor on behalf
ofPrice and Vacha v. Jim Walter Resources, Inc., 14 FMSHRC 1549, 1556 (Sept. 1992). The
record in this case does not support the judge's conclusion that WS&G would have failed to
recall Ankrom for reasons unrelated to protected activity.
The judge based that conclusion primarily on evidence ofWS&G's dissatisfaction with
the quality of Ankrom's work (20 FMSHRC at 1191), and the majority finds substantial evidence
to support the judge's finding on this point. Slip op. at 8-10. The analysis of the judge and the
majority only answers half of the question, however, for to establish the affirmative defense,
WS&G was required to show, by a preponderance ofthe evidence, that its dissatisfaction with
Ankrom's work was linked to the discipline it meted out to him. Donovan ex rel. Anderson v.
Stafford Const. Co., 732 F.2d 954, 961 (D.C. Cir. 1984) (rejecting affirmative defense because,
while there was record evidence supporting operator's claim that the complainant had a
personality conflict with a manager, the evidence was "entirely too meager to permit the
conclusion" that the employee was disciplined by the operator for that reason). A review of the
record demonstrates that WS&G provided only scant evidence that its dissatisfaction with
Ankrom's work was the reason it failed to recall him. We find WS&G's justification singularly
unconvmcmg.
The record evidence ofWS&G's dissatisfaction with Ankrom's performance is dubious
since WS&G never attempted to inform Ankrom that his performance could or would merit his
termination. WS&G's superintendent, Schemp, bluntly admitted that "I have never stated that
Gilbert was a lousy employee to Gilbert." Tr. 235. Indeed, WS&G never even told Ankrom that
it was terminating him because of work performance. Tr. 235. Instead, WS&G led Ankrom to
believe that he was going to be re-hired. Tr. 186-87. Furthermore, WS&G conceded that it
could point to no written documentation detailing Ankrom's alleged faulty performance, much
less documentation that it was·the reason for his termination. Tr. 237, 255. It strains credulity
that WS&G decided not to recall a miner for poor work performance but never informed the
miner of this so-called overriding reason.
The only evidence WS&G presented that its dissatisfaction with Ankrom's work was the
reason it terminated him was Schemp's testimony to that effect. However, the judge's apparent
crediting of Schemp on the issue (20 FMSHRC at 1191) lacks a required explanation. Earlier the
judge had directly discredited Schemp's testimony. See id. at 1190. The judge therefore should
have explained why he found Schemp's testimony credible in one respect, but not in another.
See Secretary of Labor on behalf of Robinette v. United Castle Coal Co.• 3 FMSHRC 803, 813
148

(Apr. 1981). 1 Absent such an explanation here, we are not prepared to accept the judge's
crediting of Schemp, especially when the testimony in question is the sole source of the
operator's evidence on an issue on which the operator has the burden of persuasion and which
has become the dispositive issue in the case.
WS&G also did not provide sufficient support for Schemp's claim that production
concerns were the reason Ankrom was not recalled. In fact, upon careful examination, WS&G's
production rationale appe.ars to be nothing more than a pretext for failing to rehire Ankrom. On
November 10 and 11, 1997, Schemp notified Ankrom and Jackson that he was going to operate
with only a day shift until the weather broke, and that they were therefore laid off until further
notice: 20 FMSHRC at 1187; Tr. 91, 186. In his testimony and written submissions, Schemp
made it very clear that he laid off the night crew when he did because he could not get "any
productive work . . . from those particular four people." Tr. 316; WS&G FOF at 3, 7.
When the night shift resumed on March 20, 1998, Ankrom and night shift foreman
Dennis Jackson were not recalled to work. 20 FMSHRC at 1188. Former night shift employees
Dan and David Gay were called back, however. Id. Although four allegedly "unproductive
miners" were laid off in November, two were recalled in March. Schemp claims that he decided
not to recall Ankrom and Jackson after he reviewed the production reports over the winter. Tr.
227-28, 253-54. On its face, this rationale appears implausible, since the two night crew miners
Schemp did rehire were, by his own testimony, not producing satisfactorily at the time he laid
them off. The assertion regarding Ankrom's low productivity is further undercut because WS&G
could point to no specific figures in the foremen's log or elsewhere in the record that would
allow one to draw any conclusions regarding any individual miner's impact, either positive or
negative, on productivity. Tr. 239, 241, 255-56. In fact, Ankrom testified that just before he was

1

In Rol)inette, the Commission stated:
[w]here it is apparent that a witness has testified untruthfully in
part, the judge should ordinarily explain how that fact affects the
credibility of the witness with respect to his remaining
testimony. . .. [F]ailure to [provide such an explanation] is not
necessarily reversible error[] [when] the remainder of a
questionable witness' testimony is corroborated by other credible
evidence, or is otherwise inherently believable . . ..

3 FMSHRC at 813 (citation omitted). Here, some of the r.e mainder of Schemp's testimony - on
his belief that Ankrom's poor performance adversely impacted the productivity of the night shift
- is not only uncorroborated, but is inconsistent with his decision to return Ankrom to the night
shift, as is discussed in further detail below. Given the judge's discrediting of some of Schemp's
testimony and that another part of that testimony was inconsistent, the judge's decision to credit
without explanation Schemp's claim that he terminated Ankrom because of his work
performance was clear reversible error.
149

laid oft, Schemp informed him that he was being transferred from the day to the night shift in
part because Schemp needed to increase productivity. Tr. 166, 168.
That Schemp's productivity justification is merely a pretext becomes all the more
apparent when one considers the fact that the two miners who were not recalled - Ankrom and
night shift foreman Dennis Jackson - were the two miners who, prior to the layoff ( 1) made
safety complaints to supervisory personnel, (2) made safety complaints to state personnel that
resulted in the issuance of correction orders (20 FMSHRC at 1186), and (3) made or assisted in
making safety complaints to MSHA that resulted in several inspections and numerous citations
being issued in the two-month period prior to the layoff. Perhaps more significantly, after the
layoff and prior to the recall, Ankrom and Jackson had filed formal complaints with MSHA
alleging discrimination in violation of section 105(c).
Schemp's asserted productivity rationale is all the more suspect because of the hostility
he showed towards safety complaints. While the judge concluded there was a "lack of significant
animus" on the part of Schemp (20 FMSHRC at 1191 ), this finding is contradicted by the
overwhelming weight of the evidence. The judge relied on the fact that another miner, David
Blank, had submitted a written safety complaint to WS&G and was not laid off or discharged.
Id. Blan.k's complaint, however, was submitted to WS&G after the operator distributed forms
and requested employees to note their concerns. Tr. 285, 287. In contrast, Ankrom made a
complaint to the state authorities, not just to WS&G, and also filed a formal discrimination
charge with MSHA claiming his layoff violated the Mine Act. Tr. 177-79; C. Ex. 7 A. Schemp
received a copy of this discrimination complaint in December 1997, prior to his decision not to
recall Ankrom. Tr. 226-27.
Schemp reacted angrily when formal safety complaints were made to MSHA. 20
FMSHRC at 1190. After several inspections ofWS&G in the 2-month period prior to Ankrom's
layoff, Schemp told Ankrom he intended to downsize the company because he was tired of all
the inspections that were taking place as a result of safety complaints. 2 Id. WS&G suspected
that Jackson was responsible for these inspections. Tr. 307.3 Jackson was Ankrom's foreman
and Ankrom assisted him in making these complaints. Tr. 61, 133. Even if Schemp may not
have suspected Ankrom of making formal safety complaints to MSHA or state mining authorities
until the time of the hearing (another highly questionable claim of Schemp's which the judge

2

Although at the hearing Schemp denied making the statement, the judge found the
denial not credible in light of similar statements Schemp had made to the federal inspector. 20
FMSHRC at 1190.
3

As with Ankrom, WS&G claims Jackson was not recalled because of the quality of his
work. 20 FMSHRC at 1188; Tr. 238.

150

appears to credit (lO FMSHRC at 1191)),4 WS&G was aware that Ankrom had filed a formal
discrimination complaint to MSHA between the time of layoff and the decision not to recall him.
Tr. 226-27.
The judge's finding that Schemp lacked sufficient animus is further undermined by his
earlier determination that Schemp was hostile towards Ankrom and hung up on him when
Ankrom complained, on November 9, 1997, that "a lot of things" do not comply with state or
federal safety standards .. See 20 FMSHRC at 1190. Ankrom was laid off the day after this
heated safety discussion (Tr. 185-86), which is itself a strong indicia of discriminatory motive.
Secretary ofLabor on behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov.
1981)~ rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983).

In sum, the justifications that WS&G offered to try to establish that it would not have
recalled Ankrom for his unprotected activity alone are inadequately substantiated and
implausible. In the absence of any valid justification for the adverse action, WS&G fails in its
attempt to defend against the prima facie case of discrimination. Accordingly, we conclude that
the record compels the conclusion that WS&G discriminated against Ankrom, and would reverse
the judge.

•
4

As the judge acknowledged, Ankrom's complaints about inadequate berms resulted in
an MSHA inspection and citations for that condition in October of 1997. 20 FMSHRC at 1186.
The judge also recognized that Schemp soon thereafter quizzed employees regarding the reason
for the inspection without success, and that on October 31, 1997, WS&G distributed forms on
which employees were asked to note any of their safety concerns. Id. Although it is undisputed
that Ankrom was the only miner to use his form to note the inadequacy of the berms (id. at 1186;
Tr. 285, 287), the judge inexplicably drew no connection between these series of events. The
only safety concern noted by a miner other than Ankrom-Blank's concern about the conveyors
- was not connected to an MSHA inspection. In these circumstances, the judge should not have
blindly accepted Schemp's contention that he did not know of Ankrom's connection to the
MSHA inspections, and the judge clearly should not have drawn an inference favorable to
WS&G based on the differing treatment between Ankrom and Blank.
151

Distribution

Mr. Gilbert Ankrom
5407 Kinsey Valley Road, S.W.
New Philadelphia, OH 44663
Patrick H. Lewis, Esq.
Belkin, Billick, Harrold & Wiencek Co., LP.A.
450 Commerce Part IV
23240 Chagrin Blvd.
Cleveland, OH 44122
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

152

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

February 22, 2000
SECRETARY OF LABOR,
MINE SAFETY AND "HEALTH
ADMINISTRATION (MSHA),
on behalf of
LEVI BUSSANICH
Docket No. WEST 2000-99-D

v.

CENTRALIA MINING COMPANY

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
DECISION
BY: Jordan, Chairman; Riley and Verheggen, Commissioners

In this discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"), the Secretary of Labor on behalf of Levi
Bussanich has filed a petition for review of Administrative Law Judge Richard Manning's
January 27, 2000 order denying temporary reinstatement issued pursuant to section 105(c)(2) of
the Mine Act;30 U.S.C. § 815(c)(2), and 29 C.F.R. § 2700.45. 22 FMSHRC 107 (Jan. 2000)
(ALJ). We grant the Secretary's petition for review and, for the reasons that follow, affirm the
judge's order denying the temporary reinstatement ofBussanich.
I.

Factual and Procedural Background
Centralia Mining Company ("Centralia") operates the Centralia Mine, a surface coal mine
in Lewis County, Washington. 22 FMSHRC at 108. Bussanich was employed at the mine for 14
years and worked as a welder for 5 years. Id. Before filing the complaint which is the subject of
this proceeding, Bussanich filed three other complaints with the Department of Labor's Mine
Safety and Health Administration ("MSHA") alleging discrimination in violation of section

153

~ 105(c) of the Mi~e Act on February 11, 1997, February 19, 19.9 9, and August 26, 1999. 1 Id. at
~ 110-11.

On October 10, 1999, Bussanich injured his back at work and was placed on workers'
compensation ("L&I leave"). Id. at 108. On November 4, 1999, after he had been absent more
than two weeks, Rachel Woolley, Centralia's Human Resources Administrator, sent Bussanich a
memorandum, pursuant to regular company policy, to determine whether he was taking leave
subject to the Federal Family and Medical Leave Act ("FMLA"), and to ask him to complete an
attached Department of Labor ("DOL'')"medical form. Id. When she did not receive a response
from Bussanich, on November 17, 1999, she sent him a letter reminding him to have his
physician complete the DOL medical form. Id.; Tr. 91; R. Ex. 2.
On November 30, 1999, Woolley received a phone call at her office. 22 FMSHRC at
108. According to Woolley, the caller identified himself as Bussanich, stated that he was on
L&I leave rather than FMLA leave, that he "got another job, so [he] quit," that he would later
pick up his tools, and that he needed his "40l(k) money." Id. Woolley immediately discussed
the call with Centralia's safety director, Ralph Sanich, and typed a brief memorandum describing
her recollection of the conversation based in part on notes she took during the conversation. Id.
at 108, 112.
Sanich telephoned Centralia's attorney, Thomas C. (''Tim") Means, who already
represented Centralia with respect to Bussanich's other discrimination complaints. Id. at 113; Tr.
122. Means asked whether the mine accepted oral resignations from employment, and Sanich
answered in the affirmative. 22 FMSHRC at 113. Means then advised him to treat Bussanich in
the same manner that Centralia would treat any other employee. Id. Near the end of the
conversation, Dave Kendrick, Bussanich's foreman, entered the room and was instructed to
escort Bussanich to get his tools when he arrived at the mine that day. Tr. 131. Bussanich never
came to retri.eve his tools. Tr. 131-32.
On December 3, 1999, Sandy Wallace, Centralia's Senior Benefits Specialist, sent
Bussanich a letter, acknowledging that he had quit on November 30, asking him to make
arrangements to retrieve his tools, and reminding him to schedule an exit interview. 22
FMSHRC at 108. She enclosed with the letter Bussanich's final paycheck, and a check for his
accrued vacation pay. Id. Bussanich deposited the checks on approximately December 9, 1999.
Id.

1

Although section 105(c)(3) requires the Secretary to inform a miner of the results of her
investigation of the miner's complaint within 90 days after receiving the complaint, MSHA has
not completed its investigation of these complaints. 22 FMSHRC at 110-11.
154

On December 7, 1999, Bussanich sent a letter to Wallace stating that he was under a
doctor's care for an on-the-job injury, that he did not quit, and that he did not call Woolley on
November 30. Id. Marjorie Taylor, the Senior Human Resources Administrator for Centralia,
sent Bussanich a letter in reply, stating that Centralia considered him to have quit on November
30. Id. at 109.
On December 18, 1999, Bussanich filed a discrimination complaint with MSHA. Id.
The complaint refers to Wallace's December 3 letter, his December 7 letter, and the reply he
received from Taylor. Id. In addition, his complaint stated that "this is another attempt by the
company to terminate my employment due to my earlier complaints due to safety at the mine."
Id.
On or around December 21, 1999, Bussanich telephoned the mine to participate in an exit
interview with Wallace. Id.; Tr. 166, 175; R. Ex. 7. That same day, Wallace signed a paper
documenting the issues discussed during the exit interview and sent it to Bussanich, who signed
it on December 23. Tr. 166, 175; R. Ex. 7. During the exit interview, Bussanich expressed
interest in obtaining the funds from his 40l(k) account and pension plan. 22 FMSHRC at 109.
At the hearing, Bussanich testified that he elected the take the entire proceeds from his 401(k)
account in cash because he could not withdraw only a portion of the funds due to two outstanding
loans on the account, and because he needed the money to pay off household debts and support
himself. Id.; Tr. 54, 68-69, 202. On approximately December 28, 1999, Bussani ch received a
check in the amount of $61,792, which were the net proceeds from his 401 (k) account. 22
FMSHRC at 109. Although Bussanich testified that he used these proceeds for household debts
and to support himself, he acknowledged that he also owed Bradley Whisnant, his business
partner in an adult video store, $75,000. Tr. 45, 60-61, 210, 213.
On December 30, 1999, the Secretary filed an application for temporary reinstatement of
Bussanich. Prior to filing the application, MSHA interviewed Bussanich and John Gift, Jr.,
another Centralia welder. 22 FMSHRC at 109. Centralia requested a hearing within 10 days of
receipt of the Secretary's application, and the matter proceeded to hearing before Judge Manning
on January 21. Id. at 107.
After the case was filed, Centralia served a subpoena on U.S. West, the local phone
company, in order to determine the originating phone number of the call received by Woolley on
November 30, as well as the originating number for another call on August 18, 1999,2 relating to
Bussanich's third, pending complaint. Id. at 109; Tr. 225; R. Ex. 12-13. Based on the
information provided by U.S. West and GTE Northwest, another phone company, both calls
2

This call was made to the mine on the same day and during the approximate time-frame
that the mine received an anonymous call suggesting a search of Bussanich's truck for a stolen
citizen's band radio. Tr. 186, 194, 224-25; R. Ex. 13. This search constituted the adverse action
which formed the basis for one ofBussanich's earlier discrimination complaints. Ex. B-3 to
Application for T~mp. Reinstatement.
155

originated from a phone registered to Kim Whisnant, Bradley Whisnant's wife. 22 FMSHRC at
109; Tr. 196-97; R. Ex. 11-14. Centralia served subpoenas on Bradley and Kim Whisnant to
testify at the temporary reinstatement hearing, but neither of the Whisnants complied with the
subpoenas. 3 22 FMSHRC at 109, 110.
At the hearing, Bussanich testified that Mr. Whisnant subsequently called him because he
was upset about the subpoena. Id. at 110. Bussanich stated that Whisnant informed him that he
(Whisnant) called the mine in November to inquire about Bussanich's employment status, and
that he obtained Woolley's phone number from her FMLA correspondence, which Bussanich had
thrown in the trash at the video store which Whisnant and Bussanich operated as partners. 4 Id.;
Tr. 49-50, 212-13.
The judge concluded that the Secretary failed to establish that Bussanich's complaint had
not been frivolously brought. 22 FMSHRC at 113. The judge noted that the parties had
stipulated that Bussanich had engaged in protected activity, and that the sole issue for the hearing
was whether there was a colorable claim that Bussanich had been discharged. Id. at 112. The
judge assumed, for purposes of the proceeding, that Bussanich had not called Woolley to quit his
job on November 30. Id. at 113. The judge found, however, that uncontroverted evidence
established that Centralia sincerely believed that Bussanich had voluntarily quit his job on
November 30, and that all of its actions from November 30 to the present were based on that
belief. Id. The judge reasoned that, because Centralia understood that Bussanich quit his job,
there was no colorable claim that he was discharged by Centralia because of his protected
activity. Id. Finally, the judge rejected the argument that Centralia discriminatorily failed to
rehire Bussanich after it received his December 7 letter. Id. at 113-14. The judge noted that the
discrimination complaint does not contain such an allegation, the Secretary did not raise such an
argument, and the record contained no evidence to support it since Centralia treated Bussanich in
the same manner that it treated other employees who orally quit their jobs. Id. Accordingly, the
judge denied the application and dismissed the proceeding.
On February 2, 2000, the Commission received from the Secretary on behalf ofBussanich
a petition for review of the judge's order denying temporary reinstatement. First, the Secretary
argues that the judge's finding that there is uncontroverted evidence which establishes that
Bussanich voluntarily quit his job is not supported by the record. Pet. at 7-9. Second, the
Secretary contends that Bussanich's December 7 letter should have been considered by the judge
in the context of whether Centralia reasonably believed that Bussanich had quit his job. Id. at 910. Third, the Secretary argues that the record raises a colorable question concerning Centralia's

3

At the hearing, the Secretary opposed Centralia's motion to enforce the subpoenas. 22
FMSHRC at 110 n.l.
4

Bussanich owned three businesses at the time he was working at the mine: a real estate
business, a video store, and a welding business. Tr. 66.
156

motivation, and that the November 30 phone call was a pretext for discharging Bussanich. Id. at
10-14.
On February 9, the Commission received a response from Centralia, disputing the
Secretary's arguments. C. Resp. at 13-22. In addition, it maintains that the judge's decision
should be affirmed on the basis that the judge alternatively should have made a credibility
determination against B~ssanich, and on the basis that the Secretary failed in her duty to
sufficiently investigate whether Bussanich's complaint was frivolously brought. Id. at 22-26.
II.

Diwosition
As the Commission has previously recognized, "[t]he scope of a temporary reinstatement
hearing is narrow, being limited to a determination by the judge as to whether a miner's
discrimination complaint is frivolously brought." Secretary ofLabor on behalfofPrice v. Jim
Walter Resources, Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 920 F.2d 738 (11th Cir.
1990). The phrase "not frivolously brought" is not defined in the Mine Act. The Mine Act's
legislative history defines the "not frivolously brought" standard as indicating that a miner's
"complaint appears to have merit." S. Rep. 95-181, at 36 (1977), reprinted in Senate Subcomm.
on Labor, Comm. on Human Resources, 95th Cong., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 624. The Commission and courts have approved the
description of the "not frivolously brought" standard as being indistinguishable from the
"reasonable cause to believe" standard applied in other statutes. Secretary ofLabor on behalfof
Markovich v. Minnesota Ore Operations, USXCorp., 18 FMSHRC.1349, 1350 (separate opinion
of Commissioners Holen and Riley), 1352 (separate opinion of Chairman Jordan and
Commissioner Marks) (Aug. 1996); Jim Walter Resources, 920 F.2d at 747. In reviewing a
judge's temporary _reinstatement order, the Commission has applied the substantial evidence
standard.5 See Secre_tary ofLabor on behalfofAlbu v. Chicopee Coal Co., 21 FMSHRC 717,
719 (July 1999) (applying substantial evidence standard); Secretary ofLabor on behalfofPeters
v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993) (same); cf Jim Walter
Resources, 920 F.2d at 750 (applying court's traditional substantial evidence standard to
Commission's order).
5

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). In reviewing the whole record, an appellate tribunal must consider
anything in the record that "fairly detracts" from the weight of the evidence that supports a
challenged finding. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
157

The judge recognized that the parties entered into several stipulations that narrowed the
focus of the hearing. 22 FMSHRC at 112. Specifically, the judge noted that the parties had
stipulated that Bussanich had engaged in protected activity. Id. In addition, he reiterated the
parties' stipulation that "ifthere is a reasonable evidentiary basis that Centralia . .. has
discharged Mr. Bussanich, then the allegation that Centralia ... did so on account of Mr.
Bussanich's protected activities is not frivolous. That, therefore .. . is the sole issue for hearing,
whether there is a colorable claim that Bussanich was discharged." Id.
We conclude that substantial evidence supports the judge's conclusion that ''there is no
colorable claim that [Bussanich] was discharged by Centralia." Id. at 113. The evidence is
undisputed that Woolley received a phone call on November 30 from his partner Whisnant's
residence.6 Tr. 91, 186-87; R. Ex. 12. Woolley testified that she believed that she had spoken
with Bussanich because he had referred to FMLA leave, which had been the subject of her
previous correspondence to him, and had spoken knowingly about his 401(k) plan and tools. Tr.
91-92, 95, 106. In addition, she believed that she recognized his voice. Tr. 95. After the phone
call, it is undisputed that Woolley discussed the call with Sanich, Means, and subsequently with
Taylor. Tr. 98, 102, 119, 180. On December 9, despite his contention in his December 7 letter
that he had not quit, Bussanich deposited the final pay and accrued vacation checks sent to him
by Centralia. Tr. 58, 183; R. Ex. 10. In addition, on December 21, Bussanich engaged in an exit
interview during a phone call that he initiated, and he made additional calls to Centralia's record
keeper about obtaining the proceeds from his 401 (k) account. Tr. 166, 170-71; R. Ex. 8. On
December 23, Bussanich signed and returned an exit interview checklist sent to him by Centralia
with no indication he was signing the checklist under protest. Tr. 166, 174-7 5; R. Ex. 7. In
addition, Bussanich deposited the proceeds from his 401(k) account after they were disbursed to
him on December 22. Tr. 45, 69.
In light of all of the record evidence regarding the events of November and December, we
conclude that substantial evidence supports the judge's fmding that there was no colorable claim
that Bussanich was discharged. With the one exception of his letter of December 7, Bussanich's
actions were consistent with those of an employee who quit. 7 He proceeded to obtain nearly all

6

We note that Bussanich's testimony that Bradley Whisnant called him on January 18
and informed him that Whisnant had called the mine in November to inquire about Bussanich's
employment status (Tr. 50-51), was contradicted by Paul Buchanan, local counsel for Centralia.
Tr. 205. Buchanan testified that Whisnant had informed him that Whisnant had not told
Bussanich about his phone call to the mine. Tr. 214.
Although the judge considered the D~cember 7 letter in the context of whether
Centralia failed to rehire Bussanich, we nevertheless agree with the Secretary that the judge
should also have considered the letter in the context of whether Bussanich had been discharged.
Pet. at 9-10. The application for temporary reinstatement filed by the Secretary and Bussanich's
initiating complaint filed with MSHA include in their allegations of discharge and disparate
treatment, references to Bussanich's December 7 letter. See Ex. A., Aff. of Sandra Yamamoto at
7

158

of the financial proceeds to which an employee who resigned was entitled (at the time of the
hearing, Bussanich had applied for but not received his pension funds, Tr. 46), never once stating
that he was accepting them under protest or that he in fact wanted to return to work. His actions
belie his claim that he did not wish to resign. Seen in the entire context of his actions over this
period of time, his testimony and his December 7 letter are not sufficient to detract from all the
evidence supporting the judge' s finding. Substantial evidence supports the judge's conclusion
that the Secretary failed to pro~e that the complaint was not frivolously brought. 8 Accordingly,
we affirm the judge's denial of the Secretary's application.9

ii 3f; Ex. B-4. Our consideration of the letter, however, does not alter our conclusion that
substantial evidence supports the judge's determination that Bussanich did not make out a
colorable claim of discharge.
8

We emphasize that our holding is limited to the unusual facts of this case, and the
narrow issue it presents, as stipulated by the parties. In addition, we note, as did the court in Jim
Walter Resources, that "[w]e are required to uphold the [judge's] findings if we determine that
they are supported by substantial evidence.... However, because our review ... must be
evaluated against the 'not frivolously brought' standard, this opinion has no bearing on the
ultimate merits" of the case. 920 F.2d at 750 n.15.
9

Given our holding, we need not reach the Secretary's argument that the record raises a
colorable question concerning Centralia's motivation (Pet. at 10-14), or the operator's arguments
relating to altema~ve grounds for affirming the judge's decision (C. Resp. at 22-26).
159

III.
Conclusion
For the reasons set forth above, we affirm the judge's order denying the temporary
reinstatement of Bussanich.

c.'2.

James C. Riley, Commissioner

----- re:
/lu..il_

Theodore F. Verheggen, Co

.·

160

Commissioners Marks and Beatty, dissenting:
We dissent from the decision of the Commission majority to affirm the judge's denial of
temporary reinstatement to miner Levi Bussanich based on his determination that there was no
colorable claim that Bussanich was discharged by Centralia. In our view, the majority's decision
is flatly inconsistent with the language and spirit of the provision for temporary reinstatement in
section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2), and further contributes to an
unwarranted expansion of the scope of temporary reinstatement proceedings beyond the intent of
Congress or the requirements of due process. In addition, we believe that the majority errs in
affirming a judge's decision that fails to adequately consider the sole issue presented for his
resolution, recognize the clear testimonial conflict presented on that question, comply with
Commission precedent that prohibits the resolution .o f such conflicts at this preliminary stage of
the proceedings, and that is not supported by the record evidence.
We begin our analysis with the express language of section 105(c)(2) of the Mine Act,
which is omitted from the majority's decision. Section 105(c)(2) provides in part:
Any miner or applicant for employment or representative of
miners who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of
this subsection may, within 60 days after such violation occurs, file
a complaint with the Secretary alleging such discrimination. Upon
receipt of such complaint, the Secretary ... shall cause such
investigation to be made as [she] deems appropriate. . . . [l}f the
Secretary finds that such complaint was not frivolously brought,
the Commission, on an expedited basis upon application of the
Secretary, shall order the immediate reinstatement of the miner
pending final order on the complaint.
30 U.S.C. § 815(c)(2) (emphasis added). 1
The provision for temporary reinstatement that later became part of section 105(c)(2) first
appeared in section 106(c) of the bill reported out of the Senate Committee on Human Resources,
S. 717, 95th Cong., reprinted in Senate Subcomm. on Labor, Comm. on Human Resources, 95th
Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 543-46 (1978)
("Legis. Hist."). The report accompanying S. 717 explained:
Upon determining that the complaint appears to have merit, the
Secretary shall seek an order of the Commission temporarily

1

The Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq.
(amended 1977) ("Coal Act"), the Mine Act's predecessor, contained no temporary reinstatement
provision. See Coal Act § 11O(b)(2).
161

reinstating the complaining miner pending final outcome of the
investigation and complaint. The Committee feels that this
temporary reinstatement is an essential protection for complaining
miners who may not be in the financial position to suffer even a
short period of unemployment or reduced income pending the
re.s olution of the discrimination complaint.
S. Rep. No. 95-181, at 36-37 (1977), reprinted in Legis. Hist. at 624-25. A report by the
Conference Committee on the legislation further explained that temporary reinstatement was
intended "[t]o protect miners from the adverse and chilling effect of loss of employment while [a
discrimination complaint is] being investigated." S. Con£ Rep. No. 95-461, at 52 (1977),
reprinted in Legis. Risi. at 1330.
Thus, the express language of section l 05(c)(2) provides that temporary reinstatement
shall be ordered "if the Secretary finds that [the] complaint was not frivolously brought." 30
U.S.C. § 815(c)(2) (emphasis added). In recognition of this express delegation of authority to the
Secretary, Commission Procedural Rule 44 provided "a procedure for reinstatement of miners
whose complaints of unlawful discrimination, discharge, or interference have been found by the
Secretary not to have been frivolously brought." 44 Fed. Reg. 38,226, 38,226 (1979) (codified at
29 C.F.R. § 2700.44). Under the former Rule 44, an operator had no right to a hearing on an
application for temporary reinstatement before an order ofreinstatement was issued (commonly
referred to as a "pre-deprivation hearing"). The rule also lacked any procedures for appealing a
judge's temporary reinstatement order to the Commission. It included a standard ofreview under
which an application for temporary reinstatement would 1Je granted so long as the Secretary's
"not frivolously brought" finding was not arbitrary and capricious.
The Commission subsequently revised its rules governing temporary reinstatement
proceedings in response to due process concerns. In Secretary of Labor on behalf of Gooslin v.
Kentucky Carbon Corp., the Commission, with no accompanying explanation, held that an
operator's due process rights were violated by the "arbitrary and capricious" standard in Rule 44
governing Commission review of judges' orders. 3 FMSHRC 1707, 1708 (July 1981). In
response to the Gooslin decision, the Commission switched the focus of Rule 44 to whether the
complaint on which the Secretary's application is based was "frivolously brought." 46 Fed. Reg.
39,137, 39,137 (1981). In 1985, the Sixth Circuit held that the lack in Rule 44 of even "a
minimal opportunity [for employers] to present their side of the dispute before temporary
reinstatement is forced upon them" violated the due process rights of mine operators. Southern
Ohio Coal Co. v. Donovan, 774 F.2d 693, 705 (6th Cir. 1985), amended by 781 F.2d 57 (6th Cir.
1986) ("SOCCO"). In response to the Sixth Circuit's decision, the Commission once again
revised Rule 44 to include the "opportunity for an expeditious pre-reinstatement hearing that
insures due process to all [affected] parties." 51 Fed. Reg. 16,022, 16,022 (1986). At the same
time, the Commission added a new provision to the rule - subpart (e), the predecessor to the

162

current Rule 45(f) - affording parties the rights to appeal to the Commission a judge's order
granting or denying an application for temporary reinstatement. Id. at 16,024.2
Following the 1981 and 1986 rules revisions, the U.S. Supreme Court issued its decision
in Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). In Roadway Express, the Court
considered a due process challenge to a section of the Surface Transportation Assistance Act on
temporary reinstatement similar to section 105(c)(2) of the Mine Act. Although the provision
examined by the Court in Roadway Express did not provide for pre-deprivation hearings, the
Court held that it satisfied due process. The Court reasoned that "[s]o long as the
prereinstatement procedures establish a reliable 'initial check against mistaken decisions,' and
complete and expeditious review is available," due process rights are not violated and "a prior
evidentiary hearing is not otherwise constitutionally required." Id. at 263 (quoting Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 545 (1985)). The Court stated that "the minimum due
process for the employer in this context requires notice of the employee's allegations, notice of
the substance of the relevant supporting evidence, ... and an opportunity to meet with the
investigator and present statements from rebuttal witnesses." Id. at 264. It further explained that
"presentation of the employer's witnesses need not be formal, and cross-examination of the
employee's witnesses need not be afforded at this stage of the proceedings." Id. A very good
argument could be made that Roadway Express implicitly overruled the Sixth Circuit's 1985
SOCCO decision, and made the 1986 amendments to the Commission's rules adding a
requirement for a pre-reinstatement hearing unnecessary to satisfy due process requirements. See
Secretary ofLabor on behalf ofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306
(Aug. 1987) ("The Commission's temporary reinstatement procedures exceed the constitutional
minimum sanctioned in Roadway Express."), aff'd, 920 F.2d 738 (11th Cir. 1990).
While we recognize the need to provide some check against erroneous decisions in
temporary reinstatement proceedings, and to afford adequate due process to mine operators, we
believe that the procedure followed by the judge and sanctioned by the majority in resolving the
issue of eligibility for temporary reinstatement in this case improperly expands the scope of the
proceedings envisioned by section 105(c)(2), and thereby undermines the underlying purpose of
temporary reinstatement. While the majority pays lip service to the well-established principle
that "[t]he scope of a temporary reinstatement hearing is narrow" (slip op. at 5), they affirm a
judge's decision that is flatly inconsistent with that concept. In the underlying temporary
reinstatement hearing held in this ·case, Centralia was afforded an opportunity to cross-examine
Bussanich, subpoena other potential witnesses, introduce voluminous exhibits, and call at least
ten witnesses, including an attorney who initially represented Centralia in this matter. This type
of hearing far exceeds the minimum due process requirements established by the Supreme Court
in Roadway Express and, by essentially providing for a preliminary adjudication of the merits of

2

In a subsequent rulemaking finalized in March 1993, the Commission redesignated
Rule 44 as Rule 45, and added, without comment, the following clause to the end of Rule 45(f):
"In extraordinary circumstances, the Commission's time for decision may be extended." 58 Fed.
Reg. 12,158, 12,169 (1993).
163

the underlying discrimination case, makes a mockery of the "not frivolously brought" standard
set forth in the language of section 105(c)(2). In essence, it amounts to a "mini-trial" of the
merits of the underlying discrimination claim that, as here, poses the risk of turning any
subsequent investigation and litigation of the merits of that claim into a pointless formality. 3 It is
fair to assume that any alleged discriminatee whose complaint is found by the judge and the
Commission to have been "frivolously brought" for purposes of temporary reinstatement is not
likely to prevail on the merits of his claim before the same trier of fact. Indeed, such a
determination is likely to also discourage the Secretary from continuing to fully investigate and
prosecute the miner's discrimination claim.
The most troublesome aspect of the judge's decision in this case, now endorsed by the
Commission majority, is its resolution of a clear testimonial conflict as to the dispositive issue in
the underlying proceeding - whether Bussanich was discharged or quit his job. While the judge
3

It is noteworthy that this was a potential danger identified by commenters on the
Commission's 1981 amendments to its rule governing temporary reinstatement proceedings. For
instance, the Office of the Solicitor warned that:

the application of a test of frivolousness can result in a "minihearing," where the demarcation between questions going to the
issue of frivolousness and questions going to the ultimate merits of
the case becomes blurred ....

. . . At this early stage of an investigation it would be inappropriate
and contrary to the purpose of Section 105(c) to tum a temporary
reinstatement proceeding into an in-depth inquiry into the merits of
the ·case.
Comments submitted by Cynthia L. Attwood, Associate Solicitor, Division of Mine Safety and
Health, dated September 28, 1991, at 2. The United Mine Workers of America expressed similar
concerns, and identified another potential problem:
Under the Commission's new procedural approach, however, it
will be very difficult to have a hearing on whether a particular
claim was frivolously brought, without getting into the merits of
the entire case. . . . The operator should not be able to use the
hearing as a fishing expedition to find out the basis for the
Secretary's determination to issue a complaint.
Comments submitted by Attorney for United Mine Workers of America, dated September 28,
1991, at 9-10.

164

ostensibly assumed, for purposes of the temporary reinstatement proceeding, that Bussani ch did
not call Centralia and quit his job on November 30 (22 FMSHRC at 113), his finding that "there
is no colorable claim that [Bussanich] was discharged by Centralia" (id.) necessarily involves a
discrediting of Bussanich 's testimony that he did not quit his job, but rather was discharged.
This resolution of credibility conflicts, particularly as to dispositive issues, in the context of
preliminary temporary reinstatement proceedings directly contravenes applicable precedent. The
Commission itself has recognized that it "was not the judge's duty, nor is it the Commission's, to
resolve the conflict in testimony at this preliminary stage of proceedings." Secretary ofLabor on
behalf ofAlbu v. Chicopee Coal Co., 21FMSHRC717, 719 (July 1999). See generally Fleischut
v. Nixon Detroit Diesel, Inc., 859 F.2d 26, 29 (6th Cir. 1988-) (in the context of temporary relief,
stating that a court "need not concern itself with resolving conflicting evidence if facts exist
which could support the [agency's] theory of liability'' where the standard is merely one of
frivolousness of the claim ofliability). Likewise, the Supreme Court indicated in Roadway
Express that the resolution of credibility conflicts is not appropriate in the context of temporary
reinstatement proceedings, but rather appropriately reserved for a subsequent trial on the merits.
481 U.S. at 266. The Court explained:
[TJhe primary function of the investigator is not to make credibility
determinations, but rather to determine simply whether reasonable
cause exists to believe that the employee has been discharged for
engaging in protected [activity.] . . . Final assessments of the
credibility of supporting witnesses are appropriately reserved for
the administrative law judge [in a subsequent trial on the merits],
before whom an opportunity for complete cross-examination of
opposing witnesses is provided.
Id.

By affirming the judge's denial of temporary reinstatement to Bussanich, our colleagues
in the majority are in'essence departing from, and expanding, the "not frivolously brought"
standard set forth in section 105(c)(2) and reflected in Commission Procedural Rule 45(d).
Although the Secretarial burden for meeting that standard is very low, it reflects Congressional
intent that "employers should bear a proportionately greater burden of the risk of an erroneous
decision in a temporary reinstatement proceeding." Jim Walter Resources, 920 F.2d at 748 n.11;
29 C.F.R. § 2700.45(d) ("In support of [the] application for temporary reinstatement, the
Secretary may limit [her] presentation to the testimony of the complainant."). As the court
explained in Jim Walter Resources, "the erroneous deprivation of an employer's right to control
the makeup of his workforce ... is only a temporary one that can be rectified by the Secretary's
decision not to bring a formal complaint or a decision on the merits in the employer's favor."
920 F.2d at 748 n.11 (emphasis in original). 4
4

If temporary reinstatement was granted and the Secretary were to subsequently
determine, after investigating Bussanich's complaint, that the provisions of section 105(c)(l) of
165

In addition to our concerns that the temporary reinstatement process has mutated far
beyond that necessary to satisfy constitutional due process requirements and contemplated by
Congress in the Mine Act, we cannot uphold the judge's denial of the merits of the temporary
reinstatement application the Secretary brought on behalf ofBussanich. The record simply does
not support the judge's determination that the complaint had been "frivolously brought."
As the majority recognizes, the "frivolously brought" standard is an extremely low one.
See slip op. at 5. The.term "frivolous" as it is used in a similar context -Federal Rule of
Appellate Procedure 38's provision for damages and costs in the case of a "frivolous" appeal has been interpreted by a number of courts to mean "wholly without merit." 20A James Wm.
Moore, Moore's Federal Practice~ 338.20[1], at 338-7 & n.1 (3d ed. 1999) (emphasis added). A
low standard is plainly appropriate, given that, at this preliminary stage of the proceedings, the
Secretary has not even completed an investigation into whether a violation of section 105(c)
occurred. Moreover, the standard reflects Congressional intent that employers bear a
proportionately greater burden of the risk of erroneous decision in a temporary reinstatement
proceeding. See authorities cited supra, at 13.

an

The majority correctly recognizes that the stipulations of the parties narrowed the focus of
the "frivolousness" inquiry to but a single issue: Bussanich's claim that he no longer is employed
by Centralia as a result of adverse action taken against him by Centralia. Slip op. at 5-6. It is
important to remember that the Commission has defined adverse action to be "an act of
commission or omission by the operator subjecting the affected miner to discipline or a detriment
in his employment relationship." Secretary ofLabor on behalf ofJenkins v. Hecla-Day Mines
Corp., 6 FMSHRC 1842, 1847-48 (Aug. 1984) (emphasis added). Moreover, "[d)eterminations
as to whether an adverse action was taken must be made on a case-by-case basis." Id. at 1848
n.2.
The' judge, while he initially acknowledged the frivolousness of Bussanich's claim as the
sole issue before him (22 FMSHRC at 112), did not so limit his determination. Instead, the
judge went to the ultimate merits of the adverse action claim, and made a finding of fact that
Bussanich's separation from employment was not the result of his termination by Centralia. Id.
at 113. We believe the judge's approach was improper as a matter oflaw and should be
reversed.
The Commission majority, however, not only fails to recognize this error but compounds
it by limiting its examination of the evidence to the evidence supporting Centralia's claim that it

the Mine Act have not been violated, the Commission's procedural rules provide that the judge
would be so notified, and that he would enter an order dissolving the order of reinstatement. 29
C.F.R. § 2700.45(g).
166

did not discharge Bussanich. See slip op. at 6. Such a review is-oflittle value,5 given that the
issue before the Commission is whether it is "frivolous" for Bussanich to claim that the contrary
is true, and that he was discharged by Centralia. The majority further errs by making its own
credibility findings 6 and drawing conclusions from the evidence that contradict the undisputed
evidence.7
Unlike the majority, we limit our inquiry to the only issue that Bussanich's application
presents, and conclude that, when all of the evidence is considered, Bussanich' s claim of
discharge was not shown to be frivolous. Weighed against the evidence found by the majority to
support the conclusion that Bussanich quit is the following: (1) in testimony that the judge did
not discredit, Bussanich explained that he did not call Centralia's employee Woolley nor did he
quit on November 30, and no one was authorized to call on his behalf (22 FMSHRC at 113; Tr.
26, 30, 47); (2) Woolley acknowledged on cross-examination that there was a possibility that she
did not speak with Bussanich on November 30 (Tr. 107); (3) telephone records indicate that the
November 30 phone call originated not from Bussanich's residence, but from the Whisnant's
phone in Portland, Oregon (Tr. 195-97); (4) Bussanich testified that Bradley Whisnant had

5

The majority couches its analysis as one of whether "substantial evidence" supports the
judge's decision. See slip op. at 6-7. However, because the judge did not properly limit his
decision, the substantial evidence standard is hardly applicable. In any event, as the majority
acknowledges, on review, the Commission is required to consider the entire record, especially
anything in it that fairly detracts from the weight of the evidence that supports a challenged
finding. Slip op. at 5 n.5 (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
6

See slip op. at 7 (Bussanich's "actions belie his statements that he did not wish to
resign"). As discussed above, the Commission and the courts, including the Supreme Court in
Roadway Express, have clearly indicated that it is not appropriate at this preliminary stage of
proceedings to resolve conflicts in evidence.
7

Apparently in reaction to Bussanich's late December receipt of all of his net section
401(k) account funds, the majority alleges that Bussanich "obtain[ed] nearly all of the financial
proceeds to which an employee who resigned was entitled ... , never once stating that he was
accepting them under protest or that he in fact wanted to return to work." Slip op. at 6-7. The
majority completely ignores Bussanich's explanation that he took the 401(k) funds at that point
only because Centralia was treating him as having quit, thus leaving him without a means to
support himself. Tr. 45. Moroever, as Bussanich explained, he had no other choice but to take
all of the 401(k) funds; taking just a portion was not an option. Tr. 45, 54. In second guessing
Bussanich for not accepting his final pay and retirement checks and signing an exit interview
checklist "under protest" (slip. op. at 6), the majority unfairly imputes a level oflegal knowledge
not common among lay individuals. Finally the majority, like Centralia, ignores the import of
Bussanich's December 7 letter. How many times should Bussanich have reiterated that he had
not quit before Centralia was required to listen to him? The answer to that question is not
provided by the ~ajority.
167

informed him that he had called the mine in November to inquire about Bussanich' s employment
status, and that Whisnant had obtained Woolley's number from her November 4 FMLA
correspondence, which Bussanich had thrown in the trash (Tr. 50); 8 (5) Bussanich testified that
he had no reason to quit because he was receiving workers' compensation, was getting four
weeks of vacation per year, had 401(k) and retirement accounts, and was working on the day shift
after 12 years of working on the night shift (Tr. 40); (6) Woolley and Centralia foreman Kendrick
conceded that miners typically quit their employment by speaking to their foremen and that
Bussanich never indicated to Kendrick that he had quit or was quitting (Tr. 105, 132-33); and (7)
Bussanich never came by to pick up his tools, and his tools remained at the mine at the time of
the hearing (Tr. 131-32).
It is also impossible to ignore the import ofBussanich' s December 7 letter and how
Centralia responded to it.9 In the December 7 letter, Bussanich stated that he did not speak with
Woolley on November 30, and that he did not quit. Gov't Ex. 1. It is undisputed that Centralia
responded to Bussanich' s December 7 letter by refusing to consider his allegations, and instead
continued to rely upon the November 30 telephone call. Tr. 28, 164-65, 200; S. App. for Temp.
Reinst., Ex. B-4. 10

8

Further, Paul Buchanan, local counsel for Centralia, testified that Mr. Whisnant had
informed him that Bussanich had not been in Whisnant's apartment on November 30, and that
Mr. Whisnant may have made the call. 22 FMSHRC at 109; Tr. 212. He explained that
Whisnant had obtained the mine number from the trash, called the mine, and ascertained that
Bussanich was still employed:_ Tr. 213-14.
9

As even the majority concedes, not only the events of November 30, but also evidence
relating to the entirety of the employment separation process is relevant here. See slip op. at 6 &
n.7. It is undisputed that Bussanich's separation from employment occurred over a period of
time, beginning on November 30 and extending through at least the completion of his exit
interview on December 23, 1999. We agree with the majority that the judge clearly erred in
considering such evidence only in terms of Centralia's failure to rehire Bussanich. See 22
FMSHRC at 113-14.
10

Tellingly absent from the 15 exhibits Centralia introduced below is the letter it sent
Bussanich in reply to his December 7 letter.
168

At the very least, there are significant facts in this case supporting the notion that
Bussanich's separation from employment ultimately resulted not from Centralia's belief that he
was quitting, but rather from Centralia's adverse "act[s] of commission or omission." Hecla~Day
Mines, 6 FMSHRC at 1847. Consequently, there is clearly more than enough evidence to
establish that Bussanich's claim of discharge is not wholly without merit, and is therefore not
frivolous. Based upon the parties' stipulations that if a colorable claim of discharge were found,
Bussanich should be temporarily reinstated (22 FMSHRC at 112), we would reverse the judge's
decision and order tempor·ary reinstatement.

Marc Lincoln Marks, Commissioner

/
Robert H. Beatty, Jr., Commissioner

169

Distribution
Jack Powasnik, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Timothy M. Biddle, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

170

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

February 29, 2000
BRYCE DOLAN

v.

Docket No. CENT 97-24-DM

F & E ERECTION COMPANY

BEFORE: Jordan, Chairman; Marks, Riley, and Verheggen, Commissioners

DECISION
BY: Riley, Verheggen, and Beatty, Commissioners
In this discrimination proceeding arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Administrative Law Judge Jerold
Feldman concluded that complainant Bryce Dolan engaged in a work refusal protected by section
105(c) of the Act, 30 U.S.C. § 815(c), and granted the complaint of discrimination brought by
Dolan against his employer, F & E Erection Company ("F&E"). 20 FMSHRC 591(June1998)
(ALJ). In a subsequent decision on relief awarding back pay, attorney's fees, and litigation
expenses, the judge determined that Dolan's unavailability for work due to his claimed physical
disability constitute.d a willful loss of earnings inconsistent with Dolan's duty to mitigate
damages, and he con~equently excluded the period of unavailability from the calculation of back
pay. 20 FMSHRC 847 (Aug. 1998) (ALJ). The Commission granted the petition for discretionary review filed by F&E challenging the judge's conclusion that F&E discriminated against
Dolan, and directed for review sua sponte the issue of whether Dolan failed to mitigate his
damages. For the reasons that foll_ow, we vacate the finding of discrimination, the determination
that Dolan failed to mitigate damages, and the award of relief, and remand for further proceedmgs.
I.

Factual and Procedural Backiuound
The complainant, Bryce Dolan, was an iron worker employed by F&E, a construction
contractor that performed work at an alumina smelter in Point Comfort, Texas operated by the
Aluminum Company of America ("Alcoa"). 20 FMSHRC at 594-95. In September or October
171

19, 76. Dolan's work involved welding "stiffeners" 1 on trusses that support large storage tanks.
20 FMSHRC at 595. In order to ensure a good weld on the stiffeners, Dolan and the five to six
other members of his crew would remove paint from the angle iron of the trusses before affixing
the stiffeners. Id.; Tr. II 141-42. The crew removed the paint by burning it off using a cutting
torch. 20 FMSHRC at 591. From late 1994 until March 1996, Dolan's crew was not furnished
with any personal protective equipment or clothing. Id. at 595.
In March 1996, Dolan learned that Alcoa employees performing similar work in the R35
tank farm were furnished with protective clothing and respirators and that the entire R35 tank
farm was to be treated as a lead abatement area. 20 FMSHRC at 596; Tr. I 45-46. Dolan
complained to safety man Dennis Spears, crew foreman Howard Talbert, and general foreman
Steve Whitehead about the health hazards ofremoving lead-based paint without wearing
personal protective gear, and about symptoms oflead poisoning that he and members of his crew
were experiencing.2 20 FMSHRC at 596; Tr. I 24, 47-48, 54-56, 78-80, 95-96, 153-54, 347, 397;
Tr. II 146-47. From March 18 to March 22, 1996, F&E contracted with Health and Safety
Management Inc. ("HSM") to perform air sample monitoring on crew members who, in the
meantime, had been provided with Tyvek suits3 and half-face respirators. 4 20 FMSHRC at 596.
Based on lead exposure levels measured,5 HSM recommended that the crew member using the

1

"Stiffeners" are 4-inch-wide pieces of channel iron welded onto the trusses to "stiffen"
or strengthen them to prevent bending. Tr. II 141-43.
2

Lead can be absorbed into the body by inhalation and ingestion of dust and fumes. 20
FMSHRC at 593; RX-1 (29 C.F.R. § 1926.62 App. A., part II.A). Symptoms oflead overexposure include loss of appetite, constipation, nausea, excessive tiredness, weakness, insomnia,
headache, muscle and joint pain or soreness, fine tremors, numbness, and dizziness. 20
FMSHRC at 593; RX-1 (29 C.F.R. § 1926.62 App. A., part II.B). Overexposure to lead can
result in severe damage to blood-forming, and nervous, urinary, and reproductive systems. Id.
3

Tyvek suits are thin, disposable coveralls made of spun olefin. 20 FMSHRC at 597;

CX-6.
4

Half-face respirators are air purifying respirators with high efficiency filters that
provide protection up to 500 micrograms per cubic meter of air ("µg/m 3"). 20 FMSHRC at 593;
Tr. II 44; RX-1 (Table 1).
5

The March 1996 air sample monitoring measured lead levels ranging up to 467 µg/m 3 .
20 FMSHRC at 596; CX-3. The standard regulating exposure to airborne contaminants issued by
the Department of Labor's Mine Safety and Health Administration ("MSHA") limits lead
exposure to an average of 150 µg/m 3 . 30 C.F.R. § 56.5001(a); RX-3; Tr. I 518-21. The
construction industry lead standard issued by the Department of Labor's Occupational Safety and
Health Administration ("OSHA"), a copy of which was provided to F&E employees (Tr. I 52122), requires that employers provide respiratory protection, protective clothing,
172

cutting torch wear a full-face respirator, 6 while the remaining crew members could continue to
wear half-face respirators. 20 FMSHRC at 596. F&E implemented this recommendation. Id. at
597; Tr. I 405-08.
On or about March 25, 1996, Dolan complained that the entire crew should wear full-face
respirators due to their close proximity to each other, and that the Tyvek suits were inadequate to
prevent lead contamination because they were easily tom and sparks from the cutting torch
readily burned holes in the suits. 20 FMSHRC at 597; Tr. II 155-56. In response, F&E provided
a large quantity ofTyvek suits so that the crew could replace them as needed. 20 FMSHRC at
597. In addition, F&E required the crew to vacuum their clothing with high efficiency vacuums
before leaving the work area. Id.; Tr. I 513.
Dolan continued to complain about the inadequacy of the half-face respirators and Tyvek
suits. 20 FMSHRC at 597. On April 16, 1996, F&E held a meeting to address Dolan's concerns.
Id. At this meeting, Whitehead stated that F&E was going to continue using the half-face
respirators and Tyvek suits and he offered to transfer any employee who wanted to perform nonlead work. Id. at 598. No employees accepted Whitehead's offer of reassignment. Tr. I 417-19.
At the conclusion of this meeting, Dolan quit his job due to his belief that the personal protective
gear was inadequate to prevent lead exposure to himself and his family. 20 FMSHRC at 598.
After quitting on April 16, 1996, Dolan looked for work and received unemployment
compensation. Id. at 598; Tr. I 113-14; CX-7. He began seeing Dr. Arch Carson on May 17,
1996. CX-8. According to Dr. Carson, Dolan's symptoms included "muscle and joint pains,
tremor, severe headache, and additional neurologic symptoms which are disabling in nature." Id.
Dr. Carson stated in a memorandum dated June 5, 1996, that Dolan was "currently unable to
engage in employment in his usual trade, or in any other usual form of employment." Id. On or
about August 11and12, 1996, Dolan worked for United Kensington Group as a construction
worker. 20 FM$HRC at 598, 849; Tr. I 114-15, Tr. II 166, 280. He quit on or about August 12
due to severe pains in his legs. 20 FMSHRC at 598, 849; Tr. I 115. He testified that he has been
disabled from working since that date. 20 FMSHRC at 598, 849; Tr. I 115-16. Dolan did not
look for work thereafter. 20 FMSHRC 598, 849.
Dolan filed a discrimination complaint with MSHA on May 20, 1996. MSHA subsequently informed Dolan·that, because F&E had taken appropriate remedial actions, his complaint
did not merit litigation. On December 27, 1996, Dolan filed a complaint of discrimination on his

housekeeping, and hygiene facilities to employees who are exposed to lead above the permissible
exposure limit of 50 µg/m 3 averaged over an 8-hour period. 20 FMSHRC at 596; 29 C.F.R.
§ 1926.62(c), (f)- (i).
6

Full-face respirators provide lead protection up to either 2,500 or 100,000 µg/m 3,
depending on the type of full-face respirator used. 20 FMSHRC at 593; Tr. II 42-43; 29 C.F.R.
§ l 926.62(f)(3) (Table I).
173

own behalf pursuant to section 105(c)(3) of the Mine Act, 30 l].S.C. § 815(c)(3). Evidentiary
hearings were held in San Antonio, Texas on April 15 and 16, 1997, and April 14 and 15, 1998.
Analyzing the case as a work refusal, the judge concluded that Dolan's work refusal was
protected (20 FMSHRC at 606) and that, accordingly, Dolan should be awarded back pay,
attorney's fees, and litigation expenses. Id. at 847. First, the judge found that Dolan's complaints were made in good faith and that his concerns were reasonable in light ofF&E' s
admission that "it should have taken protective measures prior to the time of the complaints." Id.
at 599. He further found that Dolan adequately communicated his complaints to F&E personnel.
Id. at 600. The judge found that F&E' s continued use of the half-face respirators and Tyvek suits
failed to provide "a meaningful response" so as to quell Dolan's fears. Id. at 604. He also noted
that F&E's offer to transfer employees "did not address the hazardous conditions complained of
by Dolan" and "thwart[ ed] the Mine Act's purpose of encouraging a safe workplace" by
continuing to expose any employees who remained at the R35 tank farm to lead poisoning. Id. at
604-05.
Concerning back pay eligibility, the judge noted that "whether Dolan is disabled is
beyond the scope of this proceeding," and that he did not claim back pay from July 25, 1997, the
date Dolan began receiving temporary lost wage payments under the Texas workers' compensation program. Id. at 849. The judge rejected Dolan' s claim of back pay for the period August 12,
1996 to July 25, 1997, on the basis that Dolan "removed himself from the labor market as of
(August 12, 1996]." Id. at 849-50. Noting that it is appropriate to reduce back pay where an
employee incurs a "willful" loss of earnings, the judge determined that, in the absence of a
medical finding of disability for the relevant time period, "Dolan's loss of earnings due to his
decision not to look for work must be characterized as voluntary." Id. Excluding the period
from August 12, 1996 to July 25, 1997, the judge ordered F&E to pay Dolan $12,094.60 in back
pay, less applicable deductions. Id. at 850.
II.
Disposition of Issues
F&E argues that Dolan "voluntarily quit his job" and that substantial evidence does not
support the judge' s finding ofa protected work refusal. PDR at 1, 8-10, 18; F&E Br. at 2, 13-20.
It contends that Dolan's work refusal was not reasonable because (1) Dolan knew that his blood
lead level was well below that recognized as safe by the OSHA standard; (2) there was no
evidence that Dolan's family was exposed to lead and, in any event, the protection of family
members is beyond the scope of the Mine Act; (3) the protective measures implemented by F&E
following Dolan's complaint were adequate; and (4) F&E offered to transfer Dolan to a non-lead
job. Id. F&E also argues that the judge erred in applying the wrong legal standard by focusing
on Dolan's subjective concerns and not whether a reasonable person standing in Dolan's place
would be justified in refusing to work. PDR at 10; F&E Br. at 21-22.

174

Dolan responds that substantial evidence supports the judge's finding that his work
refusal was protected. D. Br. at 9-19. He points to evidence of faulty monitoring, inadequate
personal protective gear, and health hazards to himself and his crew, as well as his fears about
"bringing lead home to his family." Id. Dolan asserts that, prior to giving blood samples,
workers were usually assigned to non-lead jobs for 2 weeks or longer, which casts doubt on the
significance of his blood lead level test results. Id. at 9. In addition, Dolan argues that the judge
applied the correct legal standard by considering whether, viewed from Dolan's perspective, he
had a good faith, reasonable belief of a hazardous condition. Id. at 19-22.
We conclude that the judge erred by failing to analyze this case as a constructive
discharge. There is no dispute that Dolan was not disciplined, but rather quit his job. Under our
precedent, a finding that an operator took adverse action against a miner engaged in protected
activity is a necessary element of the complainant's case. Secretary ofLabor on behalf ofPasula
v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (Oct. 1980), rev'd on other grounds sub
nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on
behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981 ). Thus,
unless Dolan was forced to resign, i.e., constructively discharged, there was no adverse action
here, and hence no finding of discrimination could be made.
By contrast, a work refusal is a form of protected activity. See Price v. Monterey Coal
Co., 12 FMSHRC 1505, 1514 (Aug. 1990); Secretary of Labor on behalf of Cooley v. Ottawa
Silica Co., 6 FMSHRC 516, 520 (Mar. 1984), af!'d mem., 780 F.2d 1022 (6th Cir. 1985). Not all
work refusals lead to a termination of the employment relationship, even where they are not
protected. See, e.g., National Cement Co. v. FMSHRC, 27 F.3d 526 (11th Cir. 1994). In the
work refusal context as well, a finding of adverse action is a prerequisite to a determination that
the operator violated section 105(c). See id. at 534. Thus, in proceeding directly from his
finding of protected work refusal to his conclusion that F&E discriminated against Dolan, the
judge erred.

In declining to consider the constructive discharge claim, at trial the judge purported to
distinguish the concepts of constructive discharge and work refusal, stating:
I don't see any issue of constructive discharge in this case.
I don 't view the circumstances ofMr. Dolan 's employment as
being created for the specific purpose of creating intolerable
conditions to encourage him to quit his employment.
So really what we have to do is focus in on the issue of
work refusal. Mr. Dolan refused to work under the conditions that
F&E was requesting him to work under and the issue is whether or
not that work refusal is covered under the Mine Act.
Tr. II 8 (emphasis supplied). The judge further stated:
175

A work refusal is where an employee refuses to continue
working under the conditions that he's been working under because of a perceived hazard.

A constructive discharge is where when the employee
complains about a perceived hazard, the employer then creates
working conditions that are so intolerable, unrelated to the perceived hazard, that he wants the employee to quit.
Tr. II 9 (emphasis supplied).
It thus appears that the judge's failure to analyze the constructive discharge question was
based on his view that the complainant must show that, in retaliation for the miner's protected
activity, the operator intended to create the conditions prompting the resignation. The judge's
statements regarding constructive discharge reflect a misunderstanding of our constructive
discharge jurisprudence. In light of this error, we find it necessary to review our analytical
framework for constructive discharge cases.

A constructive discharge is proven when a miner engaged in protected activity shows that
an operator created or maintained conditions so intolerable that a reasonable miner would have
felt compelled to resign. See, e.g., Simpson v. FMSHRC, 842 F.2d 453, 461-63 (D.C. Cir. 1988).
Contrary to the judge's statement at trial, in determining whether a constructive discharge has
occurred, the focus is not on whether the operator has retaliated against a miner's engaging in
protected activities by deliberately causing hazardous conditions in an explicit effort to get the
employee to resign. In Simpson, the D.C. Circuit specifically rejected any requirement that a
miner establish retaliatory motivation to establish a constructive discharge. Id. at 462-63.
Rather, the key inquiry in a constructive discharge case is whether intolerable conditions existed
such that a reasonable miner would have felt compelled to resign. It is the operator's failure to
reasonably remedy such conditions that converts the resignation into an adverse action. See
Secretary ofLabor on behalfofNantz v. Nally & Hamilton Enters., Inc., 16 FMSHRC 2208,
2210-13 (Nov. 1994) (affirming conclusion of constructive discharge in the absence of finding
that operator deliberately created intolerable conditions to provoke miner's resignation). The
question whether conditions are intolerable is "viewed from the perspective of a reasonable
employee alleging such conditions." Secretary ofLabor on behalf of Bowling v. Mountain Top
Trucking Co., 21FMSHRC265, 276 (Mar. 1999),pet.for review docketed, No. 99-4278 (6th
Cir. Oct. 22, 1999). The Simpson court also explained that "[w]hether conditions are so
intolerable that a reasonable person would feel compelled to resign is a question for the trier of
fact." 842 F.2d at 463.
In cases involving claims of constructive discharge, the Commission has first examined
whether the miner engaged in a protected.work refusal, and then whether the conditions faced by

176

the miner constituted intolerable conditions. See Bowling, 21 FMSHRC at 272-81; Nantz, 16
FMSHRC at 2210-13. The Mine Act grants miners the right to complain of a safety or health
danger or violation, but does not expressly state that miners have the right to refuse to work
under such circumstances. Nevertheless, the Commission and the courts have recognized the
right to refuse to work in the face of such perceived danger. See Price, 12 FMSHRC at 1514;
Cooley, 6 FMSHRC at 520. In order to be protected, work refusals must be based upon the
miner's "good faith, reasonable belief in a hazardous condition." Robinette, 3 FMSHRC at 812;
accord Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989). A good faith belief"simply
means honest belief that a hazard exists." Robinette, 3 FMSHRC at 810. Consistent with the
requirement that the complainant establish a good faith, reasonable belief in a hazard, "a miner
refusing work should ordinarily communicate, or at least attempt to communicate, to some
representative of the operator his belief in the safety or health hazard at issue." Secretary of
Labor on behalfof Dunmire v. Northern Coal Co., 4 FMSHRC 126, 133 (Feb. 1982).
Once it is determined that a miner has expressed a good faith, reasonable concern about
safety, the analysis shifts to an evaluation of whether the operator addressed the miner's concern
"in a way that his fears reasonably should have been quelled." Gilbert, 866 F .2d at 1441; see
also Secretary ofLabor on behalf ofBush v. Union Carbide Co., 5 FMSHRC 993, 998-99 (June
1983); Thurman v. Queen Anne Coal Co. , 10 FMSHRC 131, 135 (Feb. 1988), aff'd mem., 866
F.2d 431 (6th Cir. 1989). A miner's continuing refusal to work may be deemed unreasonable
after an operator has taken reasonable steps to dissipate fears or ensure the safety of the challenged task or condition. See Bush, 5 FMSHRC at 998-99.
There is no doubt that Dolan's initial fears in March 1996, at a time when F&E had
provided no personal protective gear to Dolan's crew, were reasonable. As the judge noted, F&E
conceded as much at the hearing. 20 FMSHRC at 599-600. Nor is it disputed that Dolan made
protected safety complaints to F&E based on his fears. The question is whether a reasonable
miner in Dolan's position would have had his fears quelled by the measures taken by F&E in
response to Dolan's initial complaint. 7 We find that substantial evidence supports the judge's

7

We reject F&E's suggestion that the judge erroneously adopted a subjective test to
determine the work refusal issue. In fact, the standard under which work refusals are analyzed
includes the subjective element of a miner's "honest beliefthat a hazard exists," as well as the
objective requirement that the miner's belief be reasonable. Robinette, 3 FMSHRC at 810
(emphasis added). In contrast, a constructive discharge analysis requires a determination of
whether the conditions faced by the miner were so intolerable that a reasonable miner would
have felt compelled to quit. On this question, the sine qua non of a constructive discharge, we
employ a purely objective standard and view the conditions faced by the miner from the
perspective of a reasonable employee alleging such conditions. Bowling, 21 FMSHRC at 276.
Here, as the judge correctly noted, the issue is whether F&E addressed Do Ian's concerns
"in a way that should have alleviated" his fears. 20 FMSHRC at 592. Whether Dolan's fears
were in fact quelled is relevant to the determination of this question. See Secretary ofLabor on
177

conclusion that F&E failed to address Dolan's concerns in a way that should have alleviated his
fears. 8
Concerning the half-face respirators provided to the crew, Dolan testified that, due to the
close proximity of the crew members (all working within a 10-foot square area) and exposure to
what Dolan believed was the same air, the entire crew should wear full-face respirators. Tr. II
154-56. Dolan's concerns about the half-face respirators were shared by Robert Miller, an
industrial hygienist called to testify as an expert witness on Dolan's behalf. Miller testified that
welders, as well as those using the cutting torch, should be issued full-face respirators with
supplied air, in part based on air monitoring readings showing a high lead content in the air
sampled by a welder. Tr. II 245-48, 251-52; CX-9, 28. The judge credited Miller's testimony
that respirators may leak due to a poor fit or perspiration. 20 FMSHRC at 601.
With regard to the Tyvek suits, Dolan testified that sparks from the cutting torch readily
burned holes in the suits and they were easily tom, thus exposing the crew to lead contamination.
Tr. I 32, 44, 69, 88, 111. Crew members Kenneth Tam and Troy Stewart also testified that the
Tyvek suits were inadequate. Tr. I 203-08, 217, 225, 292-93. Although F&E further made
available a quantity of Tyvek suits for replacement and provided a high efficiency vacuum
following Dolan's subsequent complaints, the record indicates that the availability ofreplacement Tyvek suits was inadequate to protect workers because rips and holes exposed underlying
clothing to lead contamination. 20 FMSHRC at 600. Moreover, the vacuuming of body parts
that were not covered by the Tyvek suits before departing the work area did not prevent lead
contamination to the underlying clothing. Id. at 597.
Miller also testified that the Tyvek suits were inadequate. He stated that "[t]he use of
Tyvek suits when welding or cutting or any use of flame producing situation ... is not an optimal
solution because of the propensity for spun olefin materials to develop holes ... from the heat of
particulate hot particles hitting the suits . . . . [T]he concern ... would be with potential
contamination of clothing underneath the coverall .... " Tr. II 233-34. Miller further testified:
[t ]he particles are so small in a fume [created by burning leadbased paint] that they readily penetrate most mechanical barriers.

behalfofJames Johnson v. Jim Walter Resources, Inc., 18 FMSHRC 841, 848-49 (June 1996)
(discussing operator's failure to quell discriminatee' s fears).
8

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion.'" Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).

178

For example, the spun olefin Tyvek suits are designed to block
large particulate material. However, a fume would find very little
problem in finding its way through the suit, even if they ... didn't
have holes as a result of the burning activity, which would certainly
raise concerns for potential contamination of clothing underneath
the Tyvek suit itself, because you're dealing with such small
particulates.
Tr. II 239. Noting that Dolan was required to take home the clothing he wore underneath the
Tyvek suit, Miller further testified that, because of "both the holes as well as the size of the fume
particles, [the Tyvek suit] doesn't necessarily represent an appropriate particulate protection
system for the clothing he wore underneath." Tr. II 263. Finally, Miller added that, unlike the
Tyvek suits, "there are several [fire resistant] materials that are job appropriate" as a protective
coverall for torch burning and welding. Tr. II 276. Miller's testimony about the inadequacy of
the Tyvek suits was uncontradicted. 9
A major shortcoming in our dissenting colleagues' opinion is that it fails to recognize the
importance in the distinction between the largely subjective legal standard applied in the
protected work refusal context, and the objective standard used in determining if intolerable
conditions existed in the workplace. The dissenters collapse these separate and distinct legal
standards into a single inquiry by asserting that there is no basis for drawing "a distinction
between a miner who is engaged in a protected work refusal with no end in sight and a miner
who quits under the same conditions." Slip op. at 13. In our view the merging of these two legal
constructs into a single analytical framework creates a legal hodgepodge that is inconsistent with
Commission case law. More importantly, however, the collapsing of these standards is also a
venturous legal maneuver that may lead to unintended and inconsistent results.
As we stated above, the issue of whether a miner has engaged in a protected work refusal
is determined by whether the miner has a "good faith, reasonable belief in a hazardous
condition." Robinette, 3 FMSHRC at 812. From a practical standpoint, this means that miners
are able to make decisions removing themselves from potentially hazardous conditions without
the concern of having to prove that the condition actually existed. Id. This is an extremely
important legal construct, particularly in the mining industry, where hazards often appear

9

The judge discussed, at length, the propriety of burning paint with a cutting torch, rather
than chipping it with a needle gun and grinder, as a method of lead abatement, concluding that
burning "was contrary to industry standards and maximized worker exposure to lead fumes." 20
FMSHRC at 600-04. However, Dolan complained about the lack of personal protective gear, not
about the method of lead abatement. Tr. II 69-70. Moreover, the burning method is not
prohibited by OSHA or MSHA regulations. Tr. II 96-97; 29 C.F.R. § 1926.62(d)(2)(iv)(D); see
30 C.F.R. §§ 56.5001 - 56.5006. Thus, while the method oflead abatement is relevant for
purposes of evaluating the adequacy ofF&E's protective measures in response to Dolan's
complaint, we agree with F&E that it is not in and of itself an issue in this case.
179

instantaneously and a miner's decision to remove him or herself from a dangerous situation could
be the difference between life and death.
We see a further problem with our colleagues' approach collapsing these two different
standards into a single inquiry. As we have stated, once a miner engages in a protected work
refusal based on his or her good faith, reasonable belief in the existence of a hazard, the operator
must take steps to reasonably quell the miner's concerns. A situation could arise, however,
where an operator has taken such measures, but the miner clings to his or her belief in the
existence of a hazard and quits. In this situation, resorting to the largely subjective standard
applied to work refusals would almost certainly turn the miner's quitting into a constructive
discharge - and this is essentially what our dissenting colleagues do in this case. In other
words, a miner's continuing belief in a hazard would establish a constructive discharge even
where the operator took reasonable steps to address the miner's concern. At its worst under this
approach, a miner could prove a constructive discharge even where the hazard in which he or she
believed was illusory and where the operator could not address his or her concerns because the
hazard did not exist.
As illustrated above, the distinction between these separate legal constructs is more than
semantic. Under our colleagues' line of reasoning, it is unclear which legal standard would apply
to a miner's protected work refusal, and which would apply to a determination of intolerable
conditions. We are extremely reluctant to adopt a mode of legal analysis that serves to confuse a
clear area of Commission case law, particularly one that has the potential to have such important
ramifications on a miner's safety rights.

In sum, substantial evidence supports the judge's conclusion that Dolan's refusal to
perform lead abatement work was protected. However, because the judge erred in failing to
analyze the constructive discharge issue, we remand for the judge to determine whether Dolan
faced intol~rable conditions as of the date of his resignation.Io In so doing, the judge must
consider anew the impact ofF&E's offer to reassign Dolan and other crew members to non-lead
jobs. On this issue, we have held that a short-term reassignment, which the miner reasonably
believes would soon be followed by his return to duties subjecting him to intolerable conditions,
is not an adequate response to a miner's complaint involving such conditions. Nantz, 16

While we are sympathetic to our dissenting colleagues' desire to avoid a remand of this
case, we believe that such a result is necessitated by the judge's fundamental error in not
analyzing this case as a constructive discharge. We are troubled by our colleagues' attempt to
derive the necessary elements of a constructive discharge from factual findings made by the
judge in his opinion below, since those findings were made in the context of applying an
admittedly incorrect legal standard. Given our perspective that a judge's factual findings are
often colored by the legal standard applied, we believe that the more appropriate course here is to
remand so that the judge can base his factual findings upon application of the correct (i.e.,
constructive discharge) standard.
IO

180

FMSHRC at 2214. Because the record contains evidence on both sides of this question, 11 it is the
judge in the first instance who must resolve the parties' dispute over whether Dolan reasonably
believed that the transfer offered by Whitehead would only last for a short period of time before
he would again be returned to intolerable conditions. Unlike our dissenting colleagues, we are
unwilling to usurp the province of the judge, as the initial finder of fact, on this and the other
significant factual issues he must resolve on remand.
III.

Conclusion
For the foregoing reasons, we vacate the judge's finding of discrimination and remand the
case for further proceedings consiste~t with this opinion. 12

James C. Ri_ley, Commissioner

11

Dolan, Tam and Whitehead testified that at times, F&E moved crew members to nonlead work for short periods of time. Tr. I 72-73, 221-23, 478-83. Dolan testified that he
understood F&E's reassignment offer to be a short-term reassignment similar to past transfers.
Tr. I 72-73. Whitehead, Talbert and F&E foreman Gary Smith testified that in the April 16
meeting, Whitehead did not state any limitations on the reassignment offer. Tr. I 348-49, 368,
382-83, 417-19. Whitehead also testified that, at the time he made the offer, there were about
300 F&E employees at Point Comfort, and that Dolan's crew was the only one doing lead
abatement work. Tr. II 44, 64-67.
12

Given our decision remanding the discrimination issue to the judge, we do not believe
it is appropriate at this time to decide the mitigation of damages issue the Commission directed
for review sua sponte.
181

Chairman Jordan and Commissioner Marks, concurring in part and dissenting in part:
We agree with the majority that the judge erred when he ruled that in a constructive
discharge case a complainant must show that the operator acted in retaliation against his or her
protected activity. The majority is correct that the D.C. Circuit resolved this question in Simpson
v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988), holding that a complainant need not prove retaliatory motivation. However, because the evidence demonstrates that Dolan was subjected to
intolerable conditions.and constructively discharged, we believe that a remand is unnecessary,
and would instead affirm the judge's finding of discrimination.
The majority remands this case because the judge failed to apply a constructive discharge
analysis. But the very evidence relied on by our colleagues to support the judge's finding of a
protected work refusal - coupled with additional evidence already in the record - shows that
Dolan met his burden of showing that he faced intolerable conditions and thus was forced to quit.
The analyses of a work refusal and a constructive discharge often overlap, as they do in
this case. This is because, at the heart of a work refusal case is the existence of a "hazardous
condition" (Robinette, 3 FMSHRC at 812), while a successful constructive discharge claim
requires "that conditions be 'intolerable,,, (Simpson, 842 F.2d at 463). It is not surprising that the
intersection between these two concepts and the evidence needed to prove each is sometimes
blurred. This is especially true when, as is the case here, the intolerable condition is the
continued exposure to the hazardous condition prompting the work refusal.
The case of Secretary ofLabor on behalf of Nantz v. Nally & Hamilton Enters., Inc., 16
FMSHRC 2208 (Nov. 1994) is instructive in this regard. In Nantz, the complainant was
routinely exposed to dust after the window of his enclosed-cab bulldozer was broken. He
complained about the dust exposure, and when the situation was not remedied, he quit. The
Commissiol_l upheld his discrimination claim, finding that he had engaged in protected activity
when he refused to operate the bulldozer based on his good faith, reasonable belief that the dust
conditions were hazardous. Id. at 2211-13. In upholding this finding, the Commission relied on
Nantz's testimony and the testimony of his co-workers. Id.
After an extensive analysis of this work refusal, the Commission disposed of the question
of whether conditions reached .a n intolerable level in one brief paragraph, in which it upheld the
judge's findings that the dust conditions were in fact severe, and thus intolerable. The judge
based his determination on Nantz's testimony and the corroborating testimony of his co-workers
- undoubtedly, the same evidence the Commission used to find a protected work refusal. With
a general reference to that testimony, the Commission simply held that substantial evidence
supported the judge's finding that the dust reached an intolerable level. Id. at 2213. Thus, the
Commission relied on identical evidence for both findings.
An even more explicit illustration of the overlap between the evidence of a work refusal
and a constructive discharge was provided in the decision of the administrative law judge in

182

Simpson v. Kenta Energy, Inc., 6 FMSHRC 1454 (June 1984) (ALJ). 1 In Simpson, the complainant refused to work because of dangerous conditions. The judge stated that "[t]he intolerable
conditions which caused him to quit his employment are the same conditions justifying his work
refusal." Id. at 1461.

Although the judge here did not analyze the evidence in terms of a constructive discharge,
he found that the operator failed to adequately respond to Dolan's concerns, and that Dolan's
work refusal therefore retained its protected status. 20 FMSHRC at 604-05. If a judge finds a
miner justified in refusing to work under certain conditions and there is no dispute that those
conditions are not going to improve, then the judge has conferred protected status on an
indefinite work refusal. We fail to see why we would make a distinction between a miner who is
engaged in a protected work refusal with no end in sight and a miner who quits under the same
conditions. In determining that a work refusal remains protected even though the operator had
ample opportunity to address the concerns motivating the refusal, a judge necessarily concludes
that the miner does not have to tolerate the conditions under which the employer is requiring him
or her to work. The conditions have, therefore, been deemed intolerable.
In this case, although the judge never used the word "intolerable," he found that the
working conditions facing Dolan were objectively intolerable, and that Dolan was therefore
justified in quitting his job. The judge found that F&E completely ignored Dolan 's legitimate
complaints about lead exposure and continued to employ inadequate protective measures. Id.
The judge's implicit finding ofintolerable conditions is amply supported by the record. For
instance, the judge concluded that the frequent replacement ofTyvek suits (relied on heavily by
the operator to prove that its response to Dolan's complaints was adequate) "does not prevent
contamination." Id. at 600. This finding is supported by Dolan's testimony that he was constantly forced to keep changing the Tyvek suits and taking off his clothes in a contaminated area.
Tr. I 69. He stated that sometimes he had to use 15 Tyvek suits in one day. Tr. I 146. He also
testified that when he complained that there were no full-face respirators Whitehead simply told
him 'just keep your face out of the smoke and everything will be okay." Tr. I 53.
In addition, the dangers of lead contamination were unequivocally described in a
pamphlet from the Texas Department of Health admitted into evidence as Complainant's Exhibit
2. This handout, which Dolan testified he had received from other employees who took a lead
abatement course in 1996 (Tr. I 38), outlined in detail the potential hazards of lead, characterizing it as a "strong poison," with detrimental effects ranging from fatigue and numbness to
reproductive problems and brain disorders. CX-2; see also RX- 9 at 5.

The judge's finding that the Tyvek suits did not prevent lead contamination, coupled with
the dire warning in the pamphlet that lead poisoning could lead to a "decreased life span," and

1

Although unreviewed decisions of administrative law judges are not binding Commission precedent (29 C.F.R. § 2700.72), we nonetheless find it helpful to examine how constructive
discharge was analyzed in the Simpson case.
183

that extreme cases "can result in convulsions, coma, or death," (CX-2 at 5), supports the judge's
conclusion that Dolan's continued work refusal was reasonable. As we explained above, this is,
in fact, an implicit finding that Dolan faced intolerable conditions and thus was constructively
discharged. See Liggett Indus., Inc. v. FMSHRC, 923 F.2d 150 (10th Cir. 1991) (walking offjob
because of exposure to inadequate ventilation of welding fumes and noxious gases constituted
constructive discharge). Consequently, remanding the case to the judge to address this issue is
not warranted. 2
Nor is it necessary to remand the case to the judge to determine whether the employer's
offer to transfer Dolan to a non-lead job defeats Dolan's claim that he faced intolerable conditions. Although Whitehead did not place a restriction on his offer, prior transfers had invariably
resulted in only a short-term reassignment. Tr. I 72, 221-22, 478-83. The judge found that "the
sincerity ofF&E's offer ofreassignment as a permanent solution to Dolan's complaints is
suspect." 20 FMSHRC at 604-605. The judge also acknowledged that the offer ofreassignment
"was not a permanent solution." Id. at 605. We believe, therefore, that the judge has already
made a finding that the transfer would be temporary, and that consequently there is no need to
remand this issue back to him. See Nantz, 16 FMSHRC at 2214 (miner's refusal to accept
temporary job was inextricably connected to his initial work refusal and also qualified as
protected activity).
Because we would affirm the judge's ruling that F&E discriminated against Dolan, we
next tum to the question of how Dolan's damages should be computed. Specifically at issue is
whether he should be compensated for the period August 12, 1996 (when he left a construction
job due to pain in his legs) to July 25, 1997 (when he began to receive temporary lost wage
payments under the Texas workers' compensation program).
As the judge noted, he was not required to decide in the Mine Act proceeding whether
Dolan was actually disabled during this period. That determination had yet to be made by the
appropriate Texas agency at the time the parties submitted their evidence on back pay to the
judge. 20 FMSHRC at 849; Tr. I 184-86. If in fact Dolan was disabled, then his failure to look

2

The majority hypothe_sizes that the foregoing analysis would permit a finding of
constructive discharge where, even though the operator has taken reasonable steps to address the
complaining miner's concern, the miner continues to believe in the existence of a hazard and
quits. Slip op. at 10. As the majority recognizes, however, it is unlikely that a miner who
continues to refuse to work after an operator has taken reasonable steps to dissipate his fears or
ensure the safety of the challenged task or condition will be considered to be engaging in a work
refusal protected by the Mine Act. See slip op. at 7 (citing Bush, 5 FMSHRC at 998-99). The
miner's reasonable belief in the hazard remains a central component of the work refusal test.
Thus, the majority's fears that we would somehow dilute the constructive discharge standard
because we are adopting the findings the judge made in concluding that this work refusal was
protected are unfounded.
184

for work could hardly be called ''voluntary." Therefore the judge erred in concluding that
Dolan's failure to look for work after August 12 was "willful."
F&E is correct in asserting the general proposition that when a miner is disabled, he or
she is not entitled to back pay for the period the disability renders the miner unavailable for work.
Although this appears to be a question of first impression under the Mine Act, it is well settled
under the National Labor Relations Act, a statute to which the Commission has referred in other
cases involving mitigation of damages,3 that back pay is generally not awarded for periods when
an employee is unavailable due to a disability. NLRB v. Louton, Inc., 822 F.2d 412, 415 (3d Cir.
1987); American Mfg. Co., 167 NLRB 520, 522 (1967). However, this does not settle the
question ofDolan's mitigation of damage, because under the NLRA an exception to this general
rule is recognized "[w ]here an interim disability is closely related to the nature of the interim
employment or arises from the unlawful discharge and is not a usual incident of the hazards of
living generally." Id.; see also Graves Trucking, Inc. v. NLRB, 692 F.2d 470, 476-77 (7th Cir.
1982) (upholding award of back pay to union steward disabled by his supervisor, but shortening
time period of award) (citing cases). In Becton-Dickinson Co., 189 NLRB 787 (1971), the NLRB
awarded back pay to an employee for a period during which she was disabled due to an acute
anxiety reaction which the Board concluded the employer had induced or to which it had
substantially contributed. Concluding that "[t]o withhold a backpay order in these circumstances
would permit [the employer] to escape all liability for the loss of wages which [the employee]
may have suffered because of factors [the employer] unlawfully set in motion, contrary to the
remedial purposes of the Act." Id. at 789.
Under Title VII as well, a causation analysis has been applied to determine whether
periods of disability are to be included in a back pay calculation. Martin v. Department ofAir
Force, 184 F.3d 1366 (Fed. Cir. 1999). In Martin, a Back Pay Act case, the Federal Circuit
awarded back pay to an employee for a period of time when he was disabled as a result of an
interim job he-was forced to take after his unlawful termination from his government job. The
Court ruled that, taking into account the Congressional intent in passing the Back Pay Act and
the requirement of a causation analysis in connection with the back pay provisions of similar
federal laws, denying an employee back pay for a period of disablity without reviewing the cause
of the disability would be unreasonable. Id. at 1371. The court explained that "equity and reason
require that if such an employee is unable to work because of an accident or illness closely
related or due to interim employment or arises because of the unlawful discharge, the period of
disability should be included in a back pay period." Id. at 1372.
We agree with the NLRB that "the practice of disallowing back pay without inquiry as to
the nature of the physical disability, [and] the cause thereof, ... may be convenient but is not
always equitable." American Mfg. Co., 167 NLRB at 522. Therefore, we would adopt the
exception discussed above to ensure that miners disabled due to the conditions which gave rise to
their employer's discriminatory conduct can still receive redress. Thus, if his exposure to lead

3

See, e.g., Metric Constructors, Inc., 6 FMSHRC 226, 231-32 (Feb. 1984).

185

caused Dolan's disability, Dolan should be entitled to back pay for th~ period of time at issue.
Because the Commission had not explicitly adopted this principle prior to the trial in this case,
we would remand and reopen the record for the submission of evidence relevant to this issue.

Marc Lincoln Marks, Commissioner

186

Distribution
James S. Cheslock, Esq.
Cheslock, Deely & Rapp
408 North St. Mary's Street, Suite 600
San Antonio, TX 78205
Errol John Dietze, Esq. ·
Dietze & Reese
108 N. Esplande
P.O. Box 841
Cuero, TX 77954
Administrative Law Judge Jerold Feldman
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

187

188

ADMINISTRATIVE LAW JUDGE DECISIONS

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

February 1, 2000
ROSEBUD MINING COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 2000-21-R
Citation No. 7042925; 10/5/99

V.

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

Docket No. PENN 2000-22-R
Citation No. 7042926; 10/5/99
Josephine No. 3
Mine ID 36-08719

DECISION
Appearances:

Joseph A. Yuhas, Esq., Northern Cambria, Pennsylvania,
for the Contestant;
Pam E. Difillippo, Esq., Merna Butkovitz, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania, for the Petitioner.

Before:

Judge Feldman

Before me for consideration is a notice of contest with respect to Citation Nos. 7042925
and 7042926 filed by Rosebud Mining Company (Rosebud) against the Secretary of Labor (the
Secretary) and the Mine Safety and Health Administration (MSHA) pursuant to section 105 of
the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 815. Rosebud
challenges the propriety of the subject citations that allege violations of the mandatory safety
standard in section 75.1710-l(a), 30 C.F.R. § 75.1710-l(a). 1
The citations were issued because the tram station canopy and the roof bolting station
canopy installed on the Long-Airdox roof bolting machines, serial numbers 62-873 and 62-874,
model LRB-15-AR, operating in low seam coal in the first north butt 002-0 working section,
allegedly were not protecting certain operators from falls of the roof/ribs when the operators were
at the operating controls. The Secretary characterized the cited conditions as significant and
substantial (S&S) in nature.

1

Section 75.1710-1 (a) provides, in pertinent part, that "canopies ... [shall be] installed in
such a manner that when the operator is at the operating controls of [self-propelled face]
equipment he shal.l be protected from falls of roof, face, or rib, or from rib and face rolls."
189

The operators of the cited Long-Airdox roof bolting machines remain under supported
roof at all times, even when under the cited canopies. As a general proposition, the canopies in
question were adequate to protect roof bolt operators of average build. However, portions of the
bodies of stouter roof bolt operators extended beyond the perimeters of the canopies.
Consequently, the degree of negligence attributable to Rosebud for the cited violative conditions
was considered to be low because the alleged violations were not obvious unless a physically
larger roof bolter operator was operating the machine.
The Secretary concedes that her mandatory safety standards do not prohibit miners from
traversing, without th~ protection of any canopies, the vicinity of the supported roof areas where
the cited roof bolting machines were operating. In fact these areas are traversed on a daily basis
during pre-shift and on-shift examinations.
Rosebud's contest is based on its assertion that the Long-Airdox model LRB-15-AR roof
bolting machines have been in operation for more than 15 years without incident. Rosebud is
reluctant to install extensions on the canopies because it believes larger canopies extending
beyond the frame of the roof bolting machines will hamper the machines' maneuverability in low
seam coal mining.
A hearing in these contest proceedings was conducted in Pittsburgh, Pennsylvania, on
December 16, 1999. Upon completion of the Secretary's direct case, a settlement conference was
conducted with the parties' counsel. After conferring with their clients, counsel advised that they
had reached a settlement agreement. The terms of their agreement was presented and approved
on the record. (Tr. 227-50). This decision formalizes the settlement terms.
Rosebud has agreed to withdraw its notices of contests for Citation Nos. 7042925 and
7042926. In addition, on or before March 16, 2000, Rosebud will install extended tram station
canopies and roof bolting station canopies on the cited Long-Airdox roof bolting machines.
Specifically, the tram station canopy will be extended by approximately 10 inches, and the roof
bolting station canopy will be extended by approximately 9 inches. In addition, the drill controls
on both machi11:es will be moved forward approximately 10 inches to afford the operator with
more overhead protection from the canopy.
In return, MSHA has agreed to extend the abatement period for the subject citations until
March 16, 2000. In addition, the Secretary has agreed not to impose any civil penalty for these
citations. Finally, MSHA reserves the right to evaluate these modifications to ensure that they
provide adequate protection . .·

190

ORDER

In view of the above, the contestant's withdrawal of its notices of contest for
Citation Nos. 7042925 and 7042926 IS GRANTED and the temis of the settlement agreement
specified above ARE APPROVED. Accordingly, the contest proceedings in Docket Nos.
PENN 2000-21-R and PENN 2000-22-R ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Joseph A. Yuhas, Esq., P.O. Box 1025, Northern Cambria, PA 15714 (Certified Mail)
Pam E. DeFillippo, Esq. Office of the Solicitor, U.S. Department of Labor, Gateway Bldg.,
Rm. 14480, 3535 Market St., Philadelphia, PA 19104 (Certified Mail)
/mh

191

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3993/FAX 303-844-5268

February 3, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 99-137-M
A.C. No. 05-02357-05516

v.
Whitewater #81.

WHITEWATER BUILDING
MATERIALS CORPORATION,
Respondent
DECISION
Appearances: Edward Falkowski, Esq., Jennifer A. Casey, Esq.,
Office of the Solicitor, U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Nathan A. Keever, Esq., Dufford, Waldeck, Milburn & Krohn,
Grand Junction, Colorado;
for Respondent.
Before:

_Judge Cetti

This case is before me upon a petition for assessment of civil penalties under sections
105(d) and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the
"Mine Act." The Secretary of Labor, on behalf of the Mine Safety and Health Administration,
(MSHA), charges Whitewate~ Building Materials Corporation with the violation of five
mandatory safety standards. Two of the violations were alleged to be S&S. The total proposed
penalty was $393.00.
In the prehearing conference that preceded opening the record for the requested hearing,
the parties advised the judge that they were unable to reach a settlement of any of the citations,
thus confirming their negative response to the judge's prehearing order instructing the parties to
attempt to negotiate a settlement.

At the hearing, the parties were able to agree on the following stipulations which
Secretary's counsel read into the record.
192

1. Respondent is engaged in the mining and selling of sand and gravel in the United
States, and its mining operations affect interstate commerce.
2. Respondent is the owner and operator of the HM2 Crusher mine, I.D. #390315.
3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 801 et seq. ("the Mine Act").
4. The Administrative Law Judge has jurisdiction in this matter.
5. The subject citation was properly served by a duly authorized representative of the
Secretary upon an agent of Respondent on the date and place stated therein, and may be admitted
into evidence for the purpose of establishing their issuance, and not for the truthfulness or
relevancy of any statements asserted therein.
6. The exhibits to be offered by the parties are stipulated to be authentic, but no
stipulation is made as to their relevance or the truth of the matters asserted therein.
7. The proposed penalties will not affect the ability of Respondent's ability to continue in
business.
8. Respondent is a mine operator with 1,327 hours worked at the HM2 Crusher mine
(I.D. #3901315) in 1997 and 7,452 total hours worked by Respondent in 1997.
9. The certified copy of the MSHA Assessed Violations History accurately reflects the
history of this mine for the two years prior to the date of the citation.
The issues were the existence of each of the five violations and the inspector's S&S
designation of two of the alleged violations.
There were a large number of potential witnesses in the courtroom so the Judge, off-therecord, inquired as to who would be testifying. Secretary's counsel stated that he would be
presenting the testimony of two MSHA inspectors. Inspector George Rendon would be testifying
as to the violative conditions he observed as set forth in the two citations Inspector Rendon
wrote. Inspector Gary Grimes would testify as to his observations of the violative conditions he
observed as set forth in the three citations he wrote.
Respondent's Vice-President, Edward M. Gardner, indicated he would testify to the facts
and contentions he set forth in his letter of April 30, 1999, which reads as follows:
Whitewater requests that the following citations, under the above Docket No., be
vacated.

193

Citation Nos. 7921947 and 7921949 (lights for caterpiller truck and front-end
loader). These citations do not violate Section 56.141 OOb, Title 30 CFR. Non-use
or non-operating lights do not affect safety during daylight hours. Whitewater
does not operate and has not operated during hours of darkness or low visibility. A
safety hazard is not created as the lights were not required to be used at the time of
the inspection.
Citation No. 7921948 (pulley belt guards for haul truck, alternator and condenser).
The area cited is in an area that is isolated and accidental contact can not happen.
The left front wheel and the truck frame isolate this item from contact. It is not in
the normal work area of the operator and is not in arm's reach of any one checking
the engine fluids. The only time this area would be entered by work.men would be
during shut down for maintenance of the item. Fan guards were in place at the
time of inspection. See enclosed photo exhibits Nos. I and 2.
Citation No. 4669758 (side panels for tail pulley). Whitewater believes that it had
this area guarded properly at the time of inspection and that accidental contact
could not have happened. The Inspector so notes that a person would have to
reach in to make contact. Guards were so placed as to allow spill clean-up to be
accommodated and still protect the work.men from accidental contact with the
danger area. Also we believe that even if the guards did not satisfy the inspector
that the citation was not an S & S citation. If the citation is upheld we request that
the S & S designation be removed. See enclosed photo exhibits No. 3 and 4.
Citation 4669383 (hand railings on haul truck); We are not sure what the inspector
saw or intended with this citation. This (haul truck) unit is equipped with
handholds and guards rails in all areas above the ground and utilized by the
operator to mount, dismount and check the unit. These safety rails where installed
by the manufacturer and have not been altered, removed or changed by
Whitewater. The cab door will not open beyond hand rail. See enclosed photo
exhibits No. 5 and 6.
Having reviewed the entire file and participated in off-the-record discussions of the
issues, I told the parties that the proposed penalties were quite modest and that they should be
able to negotiate a settlement that would resolve all issues satisfactorily to both parties. With the
assistance and recommendations of the Judge, the parties, off-the-record, negotiated an agreed
disposition of all issues.
The agreement did not reduce the MSHA proposed penalty of $393.00. It did, however,
provide for a modification of Citation Nos. 4669758 and 4669383 by deleting the S&S
designation of the two violations charged in those citations. Having considered the entire record,
the essence of the proposed testimony and contentions of the parties and the statutory criteria in

194

section 1 lO(i) of the Mine Act, I found the agreed disposition of the issues appropriate and
approved the settlement on the record.

ORDER
Citation Nos. 7921947, 7921948 and 7921949 are AFFIRMED; Citation No. 4669758
and 4669383 are MODIFIED by deleting the "significant and substantial" designation and, as so
modified, are AFFIRMED.
Whitewater Building Materials Corporation is ORDERED TO PAY a civil penalty of
$393.bO to the Secretary of Labor within 30 days of the date of this decision. Upon receipt of
timely payment, this case is dismissed.

~4 r2ffi
August F. Cetti
Administrative Law Judge

Distribution:
Edward Falkowski, Esq., Jennifer A. Casey, Esq., Office of the Solicitor, U .S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 (Certified Mail)
Nathan A. Keever, Esq., DUFFORD, WALDECK, MILBURN & KROHN, L.L.P., 744 Horizon
Court· Suite 300, Grand Junction, CO 81506 (Certified Mail)

/sh

195

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

February 9, 2000
CNIL PENALTY PROCEEDING

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

Docket No. CENT 99-184-M
A . C. No. 41-00906-05503 CX2

V.

HOLT COMPANY OF TEXAS,
Respondent

Sherwin Plant

DECISION
Appearances:

Ernest A. Burford, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Dallas, Texas, on behalf of Petitioner;
William M . Knolle, Esq., Knolle, Livingston & Holcomb, Austin, Texas,
on behalf of Respondent.

Before:

Judge Melick

This case is before me upon the Petition for Civil Penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
et seq., the "Act," charging the Holt Company of Texas (Holt) with two violations of mandatory
standards and proposing civil penalties of $50,000.00 for those violations. The general issue
before me ,is whether Holt violated the cited standards as alleged and, if so, what is the
appropriate civil penalty to be assessed considering the criteria under Section 1 lO(i) of the Act.
On August 1, 1998, Holt mechanic Benny Duncan suffered fatal injuries when the bucket
of a Caterpillar 990 front end loader collapsed pinning him between the lift arms and the main
body of the loader. Duncan had been working on the main hydraulic valve assembly of the
loader but failed to block the.lift arms prior to disengaging the hydraulic lines. Reynolds Metal
Company (Reynolds) operated the subject mine and had engaged independent contractor Holt to
repair and maintain the loader and other equipment at its mine.
Citation No. 7852384
This citation, issued pursuant to Section 104(d)(l) of the Act, alleges a "significant and
substantial" violation of the standard at 30 C.F.R. § 56.1421 l(c) and charges as follows:'

.· Section 104(d)(l) of the Act provides as follows:

196

A fatal accident occurred at this operation on August 1, 1998, when a
mechanic was crushed between the bucket assembly and the frame of the loader.
The bucket lift arms had not been blocked or supported to prevent accidental
lowering of the component. The employer received supplemental information
from the manufacturer that detailed safe work procedures which included the
necessity to block or support the bucket lift arms whenever these types of repairs
are made. The employer, however, did not pass the information on to the field
technicians. Management engaged in aggravated conduct constituting more than
ordinary negligence in that they had received information on safe work procedures
that could have prevented this accident and did not distribute the information to
the persons responsible for carrying out the tasks.
The cited standard, 30 C.F.R. § 56.14211 (c), provides that "[a] raised component must be
secured to prevent accidental lowering when persons are working on or around mobile equipment
and are exposed to the hazard of accidental lowering of the component."
Since it is undisputed that Holt employee Benny Duncan failed to secure the bucket on
the 990 front end loader while exposed to the hazard of the accidental lowering of the bucket, the
violation is proven as charged. The violation herein was also "significant and substantial."
A violation is properly designated as "significant and substantial" if, based on the
particular facts surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious nature.
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies

"If, upon any inspection of a coal or other mine, an authorized representative of the
Secretary finds that there has been a violation of any mandatory health or safety standard, and if
he also finds that, while the conditions created by such violation do not cause imminent danger,
such violation is- of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard, and if he finds such violation to be
caused by an unwarrantable failure of such operator to comply with such mandatory
health or safety standards, he shall include such finding in any citation given to the operator
under this Act. If, during the·same inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized representative of the Secretary finds
another violation of any mandatory health or safety standard and finds such violation to be also
caused by an unwarrantable failure of such operator to so comply, he shall forthwith issue an
order requiring the operator to cause all persons in the area affected by such violation, except
those persons referred to in subsection (c) to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative of the Secretary determines that such
violation has been abated."

197

Coal Co., 6 FMSHRC 1,3-4 (January 1984), the Commission explained:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary 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.
See also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), affg 9
FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

The third element of the Mathies formula requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in which there is an
injury (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such
injury must be evaluated in terms of continued normal mining operations without any
assumptions as to abatement. U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984);
See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).
Since there is no dispute that the violation caused Duncan's death I find that the violation
was clearly "significant and substantial."
The Secretary also maintains that the violation was the result of high negligence and
"unwarrantable failure." In Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987), the
Commission determined that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. This determination was derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"), "failure" ("neglect of an assigned, expected
or appropriate action"), and "negligence" (the failure to use such care as a reasonably prudent and
careful person would use, and is characterized by "inadvertence," "thoughtlessness," and
"inattention"). 9 FMSHRC at 2001. Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct," "indifference" or a "serious lack of reasonable
care." 9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 189, 193-94
(February 1991).
The instant case is similar to the case of Secretary v. Whayne Supply Company, 19
FMSHRC 447 (March 1997). The victim in that case was, as was the deceased in this case,
performing only the routine duties of a rank-and-file field mechanic. The Commission held that
the deceased mechanic therein was not therefore an agent of the operator whose negligent
conduct could be imputed to the operator. As in the Whayne case, Duncan's conduct in this case
similarly cannot be imputed to Holt on the basis of an agency theory. The Commission also
noted in Whayne however that although an operator is not liable for aggravated conduct based on

198

the actions of a rank-and-file miner it may nevertheless be held re.sponsible for an unwarrantable
failure based on its own conduct. It therefore held that in the context of evaluating operator
conduct for purposes of both civil penalty assessment and unwarrantable failure determinations
that "where a rank-and-file employee has violated the Act, the operator's supervision, training
and discipline of its employees must be examined to determine if the operator has taken
reasonable steps to prevent the rank-and-file miner's violative conduct." Whayne Supply
Company at pages 452 and 453.
In this regard the Secretary argues in her post-hearing brief that Holt provided no
supervision of its employees at the subject plant. In support of her claim the Secretary cites the
testimony of Holt heavy equipment operator Domingo Flores, who stated that his supervisor,
Charlie Burnham, had never inspected his work or supervised him at the Sherwin Plant.
Burnham was also a supervisor for the deceased, Benny Duncan. While one cannot clearly infer
from Flores' testimony that Benny Duncan himself had not been properly supervised, the
testimony nevertheless suggests some absence of direct on-site supervision over field service
technicians. However, the Commission intimidated in the Whayne case that supervision of field
technicians may occur in ways other than direct review of the employee's work, such as
evaluation based on feedback from customers and coworkers, See Whayne Supply Company, fn. 7
at page 452. As Respondent observes in its brief there is ample record evidence that Holt
received nothing but positive reports from its customers, including Reynolds, and other
employees about Duncan's competence and safety consciousness.

Moreover, in contradiction of the observations of Domingo Flores, Richard Barton,
former shop supervisor and field service dispatcher for Holt, testified that he frequently visited
the field technicians including those at the Reynolds Plant to consult and assist them. In
addition, technical service manager Bill Kammer, testified that he had occasionally acted as a
supervisor and observed the work of Benny Duncan in the field. Kammer further explained that
when a person advances to the fovel of a field service technician he has already had years of
supervision and has·demonstrated he is qualified to make decisions on his own. Kammer
indicated it was the accepted industry practice for field technicians to work without supervision
in the field. The Secretary herself apparently recognizes this reality in that she did not, as a
condition of abatement, require any closer supervision of Holt's field technicians.
Under the circumstances and within the framework of the Whayne case, I do not find that
the lack of day-to-day direct supervision of field technicians such as Benny Duncan, constituted,
in itself, such aggravated conduct as demonstrating high negligence or unwarrantable failure.
The Secretary next contends as grounds for high negligence and unwarrantability, that
Benny Duncan failed to receive adequate training on blocking the 990 loader and, specifically,
that he did not receive information necessary for him to safely to remove the main control valve
on that loader. In this regard it appears to be undisputed that Duncan had never received any
formal training in blocking procedures specifically for the Caterpillar 990 loader. There is
credible record evidence however, that Duncan had received general classroom training in

199

blocking procedures and had in fact properly utilized blocking procedures while working on the
hydraulics of Z~bar linkage loaders similar to the Caterpillar 990 loader. Robert Yell and other
coworkers had observed Duncan demonstrate proper blocking techniques. Richard Barton
recalled specifically that Duncan had, only shortly before the fatal accident, properly blocked a
Caterpillar 950 loader while working on the main control valve. According to Barton, the
Caterpillar 950 loader has the same Z-bar linkage as the Caterpillar 990 loader. Holt field
technician Domingo Flores, had also seen Duncan working on a properly blocked Caterpillar 992
loader shortly before the accident at issue.
Thus, even assuming, argu.endo, that Duncan had no formal training on blocking the 990
loader, the fact that he had been observed shortly before the accident at issue properly utilizing
blocking procedures on similar equipment, attenuates any causal link between the absence of
such training and the incident herein. In reaching this conclusion I have not disregarded the
hearsay testimony of MSHA inspector Mike Davis that he was told by Reynolds maintenance
supervisor Guy Asher, that a month prior to the fatality he saw Duncan attempting to work under
the loader without properly blocking it and that Asher purportedly sent Duncan off the Reynolds
property to obtain proper stands to block the loader. While hearsay testimony is admissible in
Commission proceedings I find that the testimony proffered herein, not subject to the scrutiny of
cross examination, can be given but little weight.
In a related argument the Secretary appears to contend that Holt did not supply Duncan
with the blocking instructions contained in the Caterpillar 990 Assembly and Disassembly
Manual. Indeed, according to the charging document, this claim was the basis for the Secretary's
unwarrantability finding. However, Richard Barton, a technical communicator who assisted the
field technicians with information obtained from Caterpillar's computerized Service Information
System (SIS), credibly testified that he commonly conferred with Duncan regarding particular
problems and furnished Duncan data from the SIS. According to Barton, approximately one
week before Duncan's accident, Duncan consulted him about continuing problems on the
Reynolds' Caterpillar 990 loader. In response, Barton, had printed-out and provided Duncan the
pages from the Caterpillar 990 manual regarding work on the 990 main control valve including
blocking instructions. Under the circumstances it is clear that, contrary to the Secretary's
allegations, Duncan did have in his possession only a week before the accident herein the most
up-to-date information for blocking the Caterpillar 990 loader.
Under all the circumstapces I cannot find Holt chargeable with significant negligence.
Accordingly, I find that the violation was not the result of Holt's unwarrantable failure.
Citation No. 7852386
This citation alleges a "significant and substantial" violation of the training standard at 30
C.F.R § 48.26 and charges as follows:
A fatal accident occurred at this operation on August 1, 1998, when a
mechanic was crushed between the bucket assembly and the frame of a front end
loader. The employee had not received comprehensive training in accordance
200

wit)l 30 C.F.R. Part 48.26. The Federal Mine Safety and Health Act of 1977
declares an untrained miner is a hazard to himself and others. The contractor was
aware of these training requirements.
The Secretary alleges that Holt failed to provide training to Duncan under 30 C.F.R.
§ 48.26. There is no dispute that Holt did not provide this training. The violation is accordingly
proven as charged. Holt argues however that the Secretary has not established that Section 48.26
training would have required any specific training for blocking the Caterpillar 990 loader or that
the failure to provide Sec~ion 48.26 training contributed to the accident. Indeed, the Secretary
has not established that the Section 48.26 training would have included training specific to
blocking the Caterpillar 990 loader. Moreover, in light of the credible evidence that Duncan
knew that blocking was required and knew how to block a 990 loader, the failure to have
provided Section 48.26 training would not appear to have been a causative factor in the accident
herein. The Secretary has offered no rationale nor cited any evidence in her brief to support her
gravity and "significant and substantial" findings. Under the circumstances I find that the
Secretary has failed to establish that this violation was "significant and substantial" or of
significant gravity.
In assessing a civil penalty herein I have also co_nsidered the evidence that Holt was of
modest size, has a minimal history of violations, that it abated the violations in good faith and
that the proposed penalties herein would not effect its ability to stay in business.

ORDER
Citation No. 7852384 is hereby modified as a "significant and substantial" citation issued
under "Section 104(a)" of the Act. Citation No. 7852386 is modified to delete the "significant
and substantial" findings. Holt Company of Texas is further directed to pay civil penalties of
$2,000.00 and $300.00 respectively for the violations charged in the above citations within 40
days of the date of this decision.

Distribution: (Certified Mail)
Ernest A. Burford, Esq., Office of the Solicitor, U.S. Dept. of Labor, 525 South Griffin St.,
Suite 501, Dallas, TX 75202
Vlilliam M. KI1olle, Esq., K.nolle, Livingston & Holcomb, 1121 Chase Bank of Texas Bldg.,
700 Lavaca St., P.O. Box 684038, Austin, TX 78768-4038

201

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

February 9, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 99-90
A. C. No. 15-02263-03551

V.

Darby Fork No. 1
LONE MOUNTAIN PROCESSING INC.,
Respondent
DECISION

Appearances: J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, Lexington, Kentucky,
and Anne Wathen O'Donnell, Esq., Arch Coal, Inc., St. Louis, Missouri, for
Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor, acting through her Mine Safety and Health Administration (MSHA), against Lone
Mountain Processing, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815. The petition alleges a violation of the Secretary's mandatory health and
safety standards and seeks a penalty of $655.00. A hearing was held in Gate City, Virginia. For
the reasons set forth below, I modify the citation and assess a penalty of $1,000.00.
Background

The Darby Fork No. 1 Mine is a large, underground coal mine operated by Lone
Mountain, a subsidiary of Arch Coal, Inc., in Harlan County, Kentucky. On October 10, 1998, a
fatal roof fall accident occurred at the mine. Among the many inspectors who went to the mine
in the late night on October 10 and the early morning of October 11, was MSHA Coal Mine
Inspector William R. Johnson. Johnson's assignment was not to investigate the accident, but to
conduct a "spot" inspection of the rest of the .002 unit where the accident occurred. Since the
accident happened in the No. 4 heading, he inspected the Nos. 1, 2 and 3 headings.
As a result of his inspection, Inspector Johnson issued Citation No. 7456174, alleging a
violation of section 75.207(c)(2) of the Secretary's regulations, 30 C.F.R. § 75.207(c)(2), in that:
202

The approved pillar plan was not being followed on the .002 unit
inby the pillar line because the roadway leading from the solid
pillar to the final stump in the No. 2 and No. 3 headings, had not
been narrowed down to sixteen feet. The timbers set for the
roadway in the No. 2 heading were twenty feet apart. The right
side timbers needed to establish the sixteen foot roadway in the No.
3 heading had not been installed. 1
(Jt. Ex. 2.)

Findings of Fact and Conclusions of Law
Section 75.207(c)(2) provides, in pertinent part, that:
Pillar recovery shall be conducted in the following manner,
unless otherwise specified in the roof control plan:

(c) Before mining is started on a final stump--

(2) Only one open roadway, which shall not exceed 16 feet
wide, shall lead from solid pillars to the final stump of a pillar.
Concerning this citation, the company argues that, with regard to the No. 2 heading, there was no
violation at all, and with regard to the No. 3, the violation was neither "significant and
substantial" nor an "unwarrantable failure." I find that the Secretary has failed to prove that there
was a violation of the regulation in the No. 2 heading and that the violation in the No. 3 was not
the result of an "un~arrantable failure" on the part of the operator.
It should be noted at the outset, that there is no dispute·that the Respondent was
conducting pillar recovery or that the roadways in question led from a solid pillar to the final
stump. Likewise, the parties agr~~ that the company's roof control plan did not specify a
different method of conducting pillar recovery from the regulation.
No. 2 Heading
Inspector Johnson testified that he determined that the roadway in the No. 2 heading was
20 feet wide by standing against the outby comer of the intersection of the No. 2 heading and the

1

This is an edited version of the text of the citation. It originally included findings
concerning the No. 1 heading which were removed by a subsequent modification. (Jt. Ex. 3.)
203

crosscut, and ~ing his tape measure along the ground, diagonally across the intersection, until
it touched what he believed to be the middle roadway post (the No. 3 timber). He stated that
Brad Sears, the mine superintendent, was with him and observed the measurement. He further
claimed that "I just told him what I measured and what I found," and that Sears made no
response. (Tr. 57.)
On the other hand, Sears maintained that when Johnson took the measurement, "I saw 16
feet and two inches is what I saw." (Tr. 342.) He further declared that: "The only thing that I
remember him saying that it looked like it may widen out. No, he didn't say anything about us
having a citation or anything of that nature." (Tr. 344.)
Gaither Frazier, the mine manager, testified that when he was informed by the mine's
safety manager that the company was receiving a citation for the wide roadways, he went to the
No. 2 heading to measure the roadway. He stated that: "I lined myself up best I could outby the
comer and measured over to the timbers on the left with a metal tape. And I measured 16 feet
two inches .... " (Tr. 375.)
After taking this measurement, he went and got some other people and went back to the
heading two or three times to have them witness his measurement. Among the people that he
had go with him were Sears, Dale Jackson (a fire-boss at the mine), Dennis Cotton (the MSHA
inspector conducting the fatality investigation), Gary Harris (another MSHA inspector) and
George Johnson (a Kentucky mine inspector). He asserted that every time he measured the
roadway, it was sixteen feet, 2 inches. He stated that after showing the measurement to Inspector
Cotton, "I came away from the thing feeling that he didn't think there was a violation there." (Tr.
379.)
Sears corroborated Frazier's testimony. He said that when the company learned that the
Nos. 1and2 headings were included in the violation, he went back to the headings with Frazier,
Cotton and, possibly, Jackson because "we couldn't really see how there was anything wrong
with it, you know, that it should be included." (Tr. 347.) He related that when they measured the
roadway in the No. 2 heading, it measured " 16 feet or close to 16 feet." (Tr. 348.)
Inspector Cotton, who apparently could have resolved the issue one way or another, gave
testimony that can only be described as evasive. He admitted accompanying the others to
witness the measurement of the roadway in the No. 2 heading and he admitted that he observed a
measurement of 16 feet, but claimed that he did not know what the measurement represented
because:

I wasn't sure what they wanted me to observe, but I had my
mind on the accident scene. As to the lead investigator, I have a lot
of responsibility on me, and I wanted to do that job to the best of
my ability. I had a lot of people that --- my primary concern was
this accident scene, the area over there.

204

(Tr. 252.) He even a_dmitted that in observing the 16 feet measurement he actually observed the
numbers on the tape measure, but he never was specific as to exactly what he observed being
·
measured. 2
I find Inspector Cotton's testimony distressing. While his reluctance to contradict his
colleague is understandable, such reluctance should not, and cannot, override his obligation to
provide the hearing with the facts, as he observed them, in a clear and concise manner.
Operators are frequently reproached in decisions for not having brought a fact or
disagreement to the attention of the inspector at the time of the inspection, and then bringing it up
for the first time at the hearing. Here the company questioned the citation, made its own
measurements and then attempted to bring the discrepancy to MSHA' s attention as soon as
possible. While the best course would have been to bring it to Inspector Johnson's attention,
contacting Inspector Cotton was not unreasonable. Now the Respondent, instead of having taken
care of the matter appropriately, finds that its inspector witness' testimony has become more
imprecise the nearer the hearing gets.3
If Inspector Cotton really was so involved in the accident investigation that he could not
pay attention to anything else, he should have informed the company's representatives that he
could not go with them. Once he agreed to accompany them, it was his duty as an inspector to
give the matter his complete and undivided attention, to ascertain exactly what he was being
asked to do, and to report the facts as he observed them, "letting the chips fall where they may."
I find that the Secretary has failed to prove that the roadway in the No. 2 heading was
more than 16 feet wide. In making this finding, I accept the testimony of the company over that
of Inspector Johnson. I can think of no explanation for the inspector's mistaken measurement,
nor do I believe that he has been deliberately misleading. However, the weight of the evidence
supports the testimony of Frazier and Sears. In this regard, I note that Sears, although when he
testified about t~e width of the roadway was testifying on cross examination, was the Secretary's
witness. Further, while Frazier was the company's witness, he ceased.working for Lone
Mountain or any of its related companies on June 7, 1999, and, thus, would not have been under
any apparent pressure to testify in the company's favor. Finally, vague as Inspector Cotton's
testimony was, it tends to corroborate the testimony of Frazier and Sears, more than refute it, and
certainly adds nothing to Inspector Johnson's testimony.
Consequently, I conclude that the company did not violate its approved pillar plan, or
section 75.207(c)(2), when it set its roadway posts in the No. 2 heading. The citation will be
modified accordingly.

2

Cotton's colloquy with the judge, set out in the Appendix, demonstrates the elusive
nature of his testimony on this issue.
3

He evid~ntly was more specific when he gave his deposition. (Tr. 304-05.)
205

No. 3 Heading
As noted above, the Respondent agrees that none of the required roadway posts had been
installed on the right side of the roadway leading to the final stump in the No. 3 heading. The
company argues, however, that this violation was neither "significant and substantial" nor an
"unwarrantable fai lure." I find that the violation was S&S, but not an "unwarrantable failure."

Signtficant and Substantial
A "significant and substantial" (S&S) violation is described in Section 104(d)(1) of the
Act as a violation "of such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." A violation is properly designated
S&S "if, based upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out four
criteria that have to be met for a violation to be S&S. See also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary, 861F.2d99, 10304 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). Evaluation of the criteria is made in terms of "continued normal mining
operations." U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of
whether a particular violation is significant and substantial must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny &
Ohio Coal Co., 9 FMSHRC 2007 (December 1987).
In order to prove that a violation is S&S, the Secretary must establish: (1) the underlying
violation of a safety standard; (2) a distinct safety hazard, 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 will be of a reasonably serious
nature. Mathies, Q FMSHRC at 3-4.

Everyone agrees that the hazard created by failing to narrow the roadway to 16 feet with
timbers is an increased danger of roof falls. Nevertheless, the Respondent argues that in this case
there was no hazard created in !he No. 3 heading because the company was not going to mine the
final stump. If the final stump had not, in fact, been mined, this might be a valid argument. The
evidence indicates, however, that not only was this a dangerous area even if no mining were
performed, but also that the company did mine at least part of the final stump.
Ricky Clark, the continuous miner operator, testified that he unilaterally decided not to
set the roadway timbers on the right side of the No. 26 pillar (final stump) because he was not
going to mine the pillar. He said that the bottom was bad and he was afraid he would get the
miner stuck. He admitted, however, that he did mine two cars worth of coal, which he estimated
to be about two feet of the pillar, in the hopes that it would cause the roof to fall.
206

Fr.azier test.ified that when he observed the No. 26 cut, after the citation was issued, that:
"It looked short. It looked like maybe from the comer that probably ten feet may have been taken
out of it." (Tr. 383.) Conversely, Inspector Johnson testified that in his opinion the entire cut
had been taken. He based this on the fact that when he looked into the cut he could not see the
back of it with his cap light and the fact that if all, or almost all, of the cut had not been taken, he
would not have been able to see into the No. 24 cut. I credit his testimony for the following
reasons.
Since the company's defense is that the violation was not S&S because the cut was not
mined, its witnesses would not want to admit that it had been. However, both Clark and Frazier
acknowledged some of it had been mined. Therefore, the next best defense is to minimize the
extent of the cut. Since Clark decided not to place the roadway posts on his own, without
consulting or informing the foreman, it was clearly in his interest to claim that only a few feet
were mined. But his testimony is contradicted by Frazier, who admitted that at least ten feet had
been cut. Thus, the Respondent's own evidence supports a finding that a minimum of ten feet of
the No. 26 pillar had been mined.
Inspector Johnson' s reasons for concluding that the No. 26 cut had been entirely made
were logical. Obviously, no one could go in and accurately determine the exact depth of the cut.
When comparing the inspector's testimony with the company's obvious interest in minimizing
the amount of coal taken, I find the Inspector's testimony to be more credible.
Turning to whether there was a reasonable likelihood of injury, I note that pillar recovery
is inherently dangerous under the best of circumstances. When the final pillar is removed, the
roof is supposed to fall. Thus, mining the final stump is one of the more dangerous, if not the
most dangerous, activities performed in underground coal mining. 4 Moreover, in this case, the
best of circumstances did not exist. The floor was "heaving" so badly that Clark wanted to get
his continuous miner out of there. 5 Yet, instead of installing the roadway posts, he attempted to
mine coal froi;n the No. 26 stump, which, without the roadway posts, made an unstable situation
even worse.6
I have little difficulty in concluding that a serious, probably fatal, injury was reasonably
likely to occur in these circumstances. The company was fortunate that it did not. But the fact
that it did not, does not mean that a serious injury was not reasonably likely. As the Commission

4

The Secretary offered into evidence accident reports involving two fatal roof falls at
mines that occurred during mining of the final stump. Both reports concluded that failure to
install the required roadway posts contributed to the accident. (Govt. Ex. 2 & 3.)
5

Inspector Johnson testified that pressure from the roof comes down through the pillars
and causes the bottom to "heave up." (Tr. 79.)
6

In fact, Clark testified that the reason he mined in the No. 26 pillar was to try "to get
that intersection to fall where it wouldn't hurt us later on." (Tr. 196.) .

207

has long held: ''The question of whether a violation is S&S must be resolved on the basis of
conditions as they existed at the time of the violation and as they might have existed under
continued normal mining operations. Eastern Associated Coal Corp., 13 FMSHRC 178, 183
(February 1991); US. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985)." Manalapan
Mining Co., Inc., 18 FMSHRC 1375, 1382 (August 1996). Accordingly, I conclude that the
violation was "significant and substantial."

Unwarrantable Failure
The Commission has held that unwarrantable failure is aggravated conduct constituting
more than ordinary negligence by a mine operator in relation to a violation of the Act. Emery
Mining Corp., 9 FMSHRC 1997, 2004(December1987); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007, 2010 (December 1987). "Unwarrantable failure is characterized by such
conduct as 'reckless disregard,' 'intentional misconduct,' 'indifference' or a 'serious lack of
reasonable care.' [Emery] at 2003-04; Rochester & Pittsburgh Coal Corp. 13 FMSHRC 189,
193-94 (February 1991)." Wyoming Fuel Co., 16 FMSHRC 1618, 1627 (August 1994); see also
Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (71h Cir. 1995) (approving Commission's
unwarrantable failure test).
The Secretary's argument that this violation involved an unwarrantable failure is based on
the theory that Ricky Clark, the continuous miner operator, was a de facto supervisor. If Clark
were a supervisor, the violation would clearly be an unwarrantable failure, since he intentionally
decided not to install the roadway posts and then went ahead and mined coal anyway. However,
he was not a supervisor, de facto or otherwise.
The Commission has long held that the negligence of a "rank-and-file" miner cannot be
imputed to the operator for penalty assessment purposes. Fort Scot Fertilizer-Cul/or, Inc., 17
FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (March
1988); Sout~ern Ohio Coal Co., 4 FMSHRC 1459, 1464 (August 1982) (SOCCO). To determine
whether such a miner was an agent of the operator, whose negligence can be imputed to the
operator, "the Commission examines whether the miner was exercising managerial or
supervisory responsibilities at the time the negligent conduct occurred. US. Coal, Inc., 17
FMSHRC 1684, 1688 (October 1995)." Whayne Supply Co., 19 FMSHRC 447, 451 (March
1997).

It is the Secretary's position that the following factors made Clark a supervisor: (1) He
was certified as a foreman in the state of Kentucky; (2) In his prior employment he had worked as
a foreman for six years; (3) On occasion he had filled in as a foreman for the Respondent; (4) He
had authority to shut down the mine if methane was encountered; (5) He had the authority to
make decisions that affected the safety of miners; (6) He could determine how much of a cut
should be made when operating his continuous miner; and (7) The foreman and he worked
together and the foreman relied on him to make safety tests.

208

In -Whayne Supply the Commission rejected a similar argument by the Secretary as
"lacking legal and evidentiary support" because "[a]lthough the record evidence indicates that
... was a highly experienced repairperson who needed little supervision and helped less
experienced employees, this does not convert him into a supervisor, much less a manager." Id.
The Commission further found that there was no evidence that he "exercised any of the
traditional indicia of supervisory responsibility such as the power to hire, discipline, transfer, or
evaluate employees. Nor was there any evidence that ... 'controlled' the mine or a portion
thereof; rather he merely carried out routine duties involving the repair of Caterpillar machinery."

Id.
Likewise, in this case there is no evidence that Clark exercised any of the traditional
indicia of supervisory responsibility. While the record demonstrates that he was an experienced
continuous miner operator who needed little supervision, he did not "control" the mine or any
part of it, but merely carried out routine duties involving the operation of a continuous mining
machine. Among those routine duties were being alert for methane and shutting down the miner
when it was encountered and determining how much of a cut to make, or not make, based on the
conditions encountered. There is no evidence to support the Secretary's claim that he had the
authority to make decisions affecting the safety of other miners, or that he had any more authority
than any miner has when encountering hazardous conditions. 7
Consequently, I conclude that Clark was not a supervisor whose aggravated conduct can
be imputed to the operator. However, that does not end the inquiry because the Commission has
further held that: "[W]here a rank-and-file employee has violated the Act, the operator's
supervision, training and disciplining of its employees must be examined to determine if the
operator has taken reasonable steps to prevent the rank-and-file miner's violative conduct."
SOCCO at 1464. While this standard is normally applied in determining the operator's
negligence for penalty purposes, the Commission has also confirmed that it applies in
determining whether an operator can be held responsible for an unwarrantable failure. Whayne
Supply at 452-53.
Nonetheless,- the Secretary did not present any evidence concerning Lone Mountain's
supervision, training and disciplining of its employees. Nor is there sufficient evidence in the
record to make such a determination. Since the Secretary has failed to show that the
Respondent's supervision, training and discipline of its employees was deficient, it must be
concluded that the company had taken reasonable steps to prevent the violative conduct.

7

This claim is apparently based on the following question and answer:
Q. Does the company intrust you with the authority to make
decisions which effect [sic] the safety of miners?
A. I would think so.

(Tr. 194.)

Finally, it is uncontroverted that no supervisor was present when the violation was
committed. Cf Midwest Material Co., 19 FMSHRC 30, 35 (January 1997). Accordingly,
inasmuch as Clark's negligence cannot be imputed to Lone Mountain and there is no evidence
that the company engaged in aggravated conduct, I conclude that the violation was not the result
of an "unwarrantable failure." I will modify the citation appropriately.
Civil Penalty Assessment
The Secretary has proposed a penalty of $655.00 for this violation. However, it is the
judge's independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section 11 O(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481, 483-84 (April 1996).
With regard to the penalty criteria, the parties have stipulated, and I so find, that the
penalty will not adversely affect the company's ability to continue in business and that the Darby
Fork No. 1 Mine is a large-sized coal mine. (Tr. 20-21.) I also find that Lone Mountain is a
large company. (Jt. Ex. 6.) Based on the company's Assessed Violation History Report, I find
that the company has a relatively good history of previous violations. (Jt. Exs. 1 and 6.) I further
find that the Respondent demonstrated good faith in attempting to achieve rapid compliance after
notification of the violation.
Turning to the question of gravity, I find this to be a serious violation. As previously
noted, pillaring is dangerous under the best of circumstances and mining the final stump is the
most dangerous aspect of pillaring. Mining the final stump without putting in the required
roadway posts is a situation fraught with the gravest consequences.
Notwithstanding the fact that the miner operator's negligence cannot be imputed to the
Respondent and that there is no evidence that the operator engaged in aggravated conduct, I find
that the operator was moderately negligent. The inspectors testified that while there is no
requirement in th.e regulations that the foreman be present when the final stump is being mined, it
is good mining practice for him to be present to monitor the mining and the roof conditions.
Indeed, they maintained that in their experience the foreman had always been present in such a
situation. In this case, the foreman was not present, but was off on another matter. It may be that
the miner operator got to the ~nal stump sooner than anticipated, but I find that the company was
not blameless in not having someone in authority present.
Taking all of the penalty criteria into consideration, I conclude that a penalty of $1,000.00
is appropriate for this violation.

Order
Citation No. 7456174 is MODIFIED by deleting the words "No. 2" and the words "the
timbers set for the roadway in the No. 2 heading were also twenty feet apart" from section 8, by
210

reducing the level of negligence from "high" to "moderate," by deleting the "unwarrantable
failure" designation and by making it a 104(a) citation, 30 U.S.C § 814(a), instead of a 104(d)(l)
citation, 30 U.S.C. § 814(d)(l). The citation is AFFIRMED as modified.

Lone Mountain Processing, Inc., is ORDERED TO PAY a civil penalty of$1,000.00
within 30 days of the date of this decision.

1-r~t!?~·
Administrative Law Judge

211

Appendix
Q. Mr. Cotton, when you went up to review this measurement, did they tell you
what they were measuring?

A. They said they were lined up with the timbers.
Q. Okay.
A. That's what I---.
Q. And then what were they measuring?
A. They said they were going to measure over to the next row of timbers over
here, sir.

Q. And did they measure over to the next row of timbers?
A. I don't know for --- I mean, I didn't do it, I was just standing there.
Q. You watched them do it?
A. As far as I know that's what --- they said they did that.
Q. Could you tell whether they were or not?
A. I didn' t --- I didn't check it myself[.] I just watched them do it.

Q. Yes. But when I see somebody measuring something I could see where the
end of the tape measure is and where it's going to?

A. Well, like I said if it gets into this, to me, since I didn't evaluate this area, this
plan calls for timbers up in here.
Q. I want to know what they were measuring.
A. From what I understood that's what they said they were measuring and I
believe I even told them which I didn't get to say on the record that was according
to Mr. Johnson and the company because I was very concerned about coming
back here.

212

Q. -You did see the tape measure that said 16 feet; right?
A. It was some point down --- back in --- .

Q. Wherever it was down there --- was it 16 feet from the timbers across the
intersection to that?
A. To these over here?

Q. Yes. Was it the red one?
A. Their 16 foot was in this area right here.

Q. But it wasn't to the timbers?
A. Like I said I didn't come over here and make sure that it was those timbers. I
just assume they did what they were saying they were doing. And like I said I
didn't know, I just --- .

(Tr. 318-22.)

\
213

Distribution:
J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215 (Certified Mail)
Anne Walthen O'Donnell, Esq., Arch Coal, Inc., City Place One, Suite 300, St, Louis, MO 63141
(Certified Mail)
Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, 250 West Main Street, Suite 1700,
Lexington, KY 40507 (Certified Mail)
/nj

214

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

February 15, 2000

DISCRTh1INATION PROCEEDING

GARY D. MORGAN,
Complainant

Docket No. LAKE 98-17-D
VINC CD 97-02

v.

ARCH OF ILLINOIS,
Respondent

Conant Mine
Mine ID 11-02886

DECISION ON REMAND
Before: Judge Weisberger
This case is before me based upon a decision issued by the Commission, Gary D. Morgan
v. Arch of Illinois, 21FMSHRC1381 (December 23, 1999), vacating the decision that was
issued by me on June 10, 1998, (20 FMSHRC 571) and remanding the case for "further
consideration".
In this discrimination case, Gary D. Morgan alleged that Arch of Illinois (Arch) took
adverse action against him in not recalling him for a position after he had failed a hands on test
regarding the operation of a bolter. It was Morgan' s contention that the adverse action taken
against him by Ar~h was motivated, in any part based on his protected activities. In the original
decision, 20 FMSHJ?C supra, it was found that Morgan did engage in protected activities, and
that Arch did take action that was adverse to him. However, in the decision, it was concluded
that John Cotter, a shift foreman, who administered the hands on test, and made the decision to
fail him, which resulted in his not being rehired, was the only agent of Arch to have taken
adverse action against Morgan, a.nd that it was not established that he had any animus towards
Morgan relating to his protected activities. In the decision, it was found that Ben Williams,
Morgan's immediate supervisor, did have some animus toward Morgan in part due to Morgan's
complaints of dust violations. However, it was further found that Williams was not involved in
any decisions relating to an evaluation of hands on testing, or whether to recall him. The basis
for this finding was the lack of evidence in the record that Williams had communicated his
animus to either Cotter or Bob Blaylock, who made these decisions. Specifically, Williams'
testimony that he did not tell Cotter to fail Morgan, did not talk to Cotter prior to the time
Morgan took the hands on test, and did not tell anyone to fail Morgan on the hands on testing,
was accepted because it was not contradicted or impeached.

215

In addition, it was found that although the version of events testified to by Morgan and
Gerald Shelby another miner who worked with Morgan, establishes animus on the part of Harry
Riddle, the mine Manager, who had knowledge of Morgan's safety complaints, it was concluded
that there was no evidence that this animus formed the basis, in any part, for the adverse action
taken against Morgan. This conclusion was based upon Riddle's testimony that he was not
involved in the testing procedures, did not ask or tell Cotter or anyone else to fail Morgan, and
that he did not tell Cotter that Morgan had filed dust complaints with MSHA. Riddle's testimony
was accepted because I observed his demeanor and found his testimony credible in these regards.
A further basis for the acceptance of Cotter's testimony was that it was noted that there was no
direct evidence contradicting or impeaching his testimony.
In its remand the Commission directed to "more fully consider the record evidence that
[I] did not address." (21FMSHRC1393) Specifically, the Commission remanded for
consideration of "additional evidence" which is summarized as follows: that Morgan had
complained about dust to Williams and that Riddle was aware of these complaints, that Arch's
supervisors were angry at Morgan for dust complaints, that Riddle told Shelby, according to
Shelby but denied by Riddle, that Morgan would never work at Arch's Minerals mine again, that
I had discredited both Williams' and Riddle's testimony that Riddle was not aware of Morgan's
complaints about dust violations, that in crediting Williams testimony that he did not tell Cotter
to fail Morgan I did not look at the entire body of evidence regarding his hostility towards
Morgan referring to miners having kidded Williams about the possibility that Morgan be rehired
onto Williams' section, that the superintendent at the Conant Mine, Whykoff testified that when
he was presented with a list of panel applicants for employment at the Conant Mine he usually
tried to talk to their ex-supervisors, and that he had admitted that he attended a meeting at which
Williams stated that he did not want Morgan on his crew and that he did not recall making any
response or.follow-up to Williams criticism, and finally that the small size of the mine supports
an inference that the operator knew of protected activity. The Commission also indicated that I
could have relied-on Morgan's testimony of evidence of disparate treatment i.e. that he was not
given time to warm up on the bolter, that he was denied the assistance of a helper, and did that he
did not bend a steel, as evidence of disparate or inconsistent treatment of Morgan versus other
similarly laid off miners who were tested.
Upon reconsideration the entire record, and weighing the testimony of Williams, Riddle
and Cotter against the above summarized factors and also taking into account inconsistencies in
the record noted by the Commission (21 FMSHRC 1393) as to whether Cotter timed miners
when they were tested on the roof bolter, and Cotter's inability to explained why he gave Morgan
non-satisfactory ratings on aspects of the roof bolter test, and "the conflicting" testimony of
Cotter regarding warm up time or a helper, I conclude that whereas the above summarized
evidence could possibly support some inferences adverse to Arch, I find it of insufficient weight
to outweigh the above referenced testimony of Riddles and Cotter whose demeanor I carefully
observed and found to be credible. I further find that the evidence and "inconsistencies" are not

216

of such weight as to constitute an impeachment or contradiction of the direct testimony of
Williams, Cotter and Riddle whom I found credible based upon observations of their demeanor.
For all the above reasons, on reconsideration, I reiterate my earlier conclusion as set forth
in the initial decision 20 FMSHRC at 581, that it has not been established that Cotter, the only
agent of Arch to have taken adverse action against Morgan, had any animus toward Morgan
relating to protected activities, or even knew of Morgan's protected activities on or before of
October 1996 when the adverse actions were taken. I thus reiterate my initial conclusion that it
has not been established that the adverse actions taken by Arch, acting through Cotter, were in
part motivated by Morgan's protected activities. Thus, I reiterate my earlier conclusion that it
has not been established th~t Morgan was discriminated against in violation of Section 105(c) of
the Act.
ORDER
It is ORDERED that Morgan's complaint be DISMISSED, and that this case be
DISMISSED.

~

Avram eisberger
Administrative Law Judge
Distribution:

Leonard D. Rice, Esq., 404 South Washington Street, DuQuoin, IL 62832 (Certified Mail)
Marco M. Rajkovich; Esq., Robert Cusick, Esq., Julie M. O'Daniel, Esq., Wyatt, Tarrant &
Combs, 250 West Main Street, Suite 1700, Lexington, KY 40507 (Certified Mail)
nt

217

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577IF AX 303-844-5268

February 18, 2000
BOWIE RESOURCES LIMITED,
Contestant

CONTEST PROCEEDING
Docket No. WEST 99-120-R
Citation No. 7018205; 1/27/99

V.

Bowie No. 2 Mine
Id. No. 05-04591

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

DECISION

Appearances:

R. Henry Moore, Buchanan Ingersoll P.C., Pittsburgh, Pennsylvania,
for Contestant;
Mark W. Nelson, Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Respondent.

Before:

Judge Manning

This case is before me on a notice of contest filed by Bowie Resources Limited ("Bowie")
against the Secretary of Labor pursuant to sections 105(d) of the Federal Mine Safety and Health
Act of 1977, 30.U.S.C. § 815(d)(the "Mine Act"). Bowie' contested a citation issued on January
27, 1999, at the B.owie No. 2 Mine alleging a violation of the Secretary's safety standard at 30
C.F.R. § 75.202(a). A hearing was held in Delta, Colorado. The parties presented testimony and
documentary evidence and filed post-hearing briefs.
I. BACKGROUND

The Bowie No. 2 Mine is an underground coal mine in Delta County, Colorado. On
December 14; 1998, two miners were killed when a portion of the mine roof fell as they were
mining a pillar. The miners were conducting retreat mining in a conventional mining section
when the roof above the pillar they were mining fell. The men were under supported roof at the
time of the accident.

1

The name "Bowie" is pronounced 'baiie so it rhymes with "Howie."
218

At the conclusion ofMSHA's investigation, the Secretary issued one citation under
section 104(d)(l) of the Mine Act alleging a violation of section 30 C.F.R. § 75.202(a). The
condition or practice section of the citation alleges a violation as follows:
The mine roof was not adequately supported to protect persons
from hazards related to falls of roof in the Number 22 coal pillar
and intersection of the 002-0 MMU, an active working section
where persons worked and traveled. On the evening of December
14, 1998, retreat mining was in progress on the No. 22 Coal Pillar.
Statements obtained during the accident investigation revealed that
ground conditions had been deteriorating over a period of two
separate working shifts. During this period, unusual amounts of
heaving in the mine floor had been observed, some timbers had
dislodged or broken and been reset, however no additional support
was added. At least once during each of the last two shifts prior to
the accident, the continuous mining machine and crew had
retreated for safety to an outby location. Despite these conditions
being present, mining was resumed without installing additional or
supplemental support. The section foreman was present during
earlier mining activity, however had left the area immediately prior
to the accident. As the final cut was taken from the coal pillar, the
mine roof fell, extending from the Number 22 pillar continuing
into the outby intersection, crushing the remainder of the coal
pillar, covering the continuous mining machine, and fatally
injuring both the machine's operator and his helper. This violation
was determined to be a contributing factor to the occurrence of the
fatal accident.
MSHA determined that the violation was serious, was of a significant and substantial
nature ("S&S"), and·was a result of Bowie's unwarrantable failure to comply with the safety
standard. The safety standard provides, in pertinent part, that the "roof, face and ribs of areas
where persons work or travel shall be supported or otherwise controlled to protect persons from
hazards related to falls of roof, face or ribs .... "
It is important to understand that the Secretary is not contending that Bowie failed to
follow its MSHA-approved roof-control plan. Rather, she is arguing that unusual conditions
were present in and around Pillar 22 on the day of the accident and during the previous shifts.
These conditions should have put Bowie on notice that additional measures were needed to
support or control the roof. The Secretary contends that Bowie continued to mine the pillar in its
normal fashion despite these warning signs. She maintains that Bowie's failure to take additional
steps to support the roof created a serious hazard of a roof fall in the area and contributed to the
death of two miners. The Secretary argues that Bowie's conduct constitutes a serious violation
of section 202(a) and that Bowie was highly negligent in failing to adequately support or control
the roof.

219

Bowie argues that the information available to its experienced personnel did not indicate
that additional support was necessary. Bowie states that it was fo llowing its approved roofcontrol plan and that its supervisors had carefully instructed the crew on how to safely mine the
pillar at the start of the shift. It contends that the Secretary improperly relies on hindsight to
establish her case. It argues that the conditions that existed in the area on the evening of
December 14, 1998, did not indicate that additional support was necessary. Bowie maintains that
the roof fell because of the presence of an undetectable anomaly in the roof near the comer of
Pillar 22. Bowie ma~ntains that it did not know about this anomaly because it was virtually
undetectable.

II. DISCUSSION WITH FINDINGS OF FACT
The Bowie No. 2 Mine is a relatively new mine that was still being developed at the time
of the accident. A longwall section was being developed, but the accident occurred in the First
East Submains where continuous mining machines were being used to extract the coal. The
submains had already been advanced and retreat mining was taking place. Bowie's roof-control
plan included provisions for partial pillar recovery. (Ex. G-18 pp. 23-24). The plan for partial
pillar recovery was approved by MSHA on November 19, 1998. Under the plan, Bowie could
make five cuts into each pillar in a preestablished order and was required to leave several stumps.
The plan also set forth the sequence for installing timbers as supplemental support. The
roadways2 in this section were about 8 feet high and 18 feet wide. The pillars were on 85-90 foot
centers. The basic plan is illustrated in Exhibits G-3A and B-14. A portion of Exhibit B-14 is
attached to this decision as Illustration No. 1.
Bowie pulled Pillars 1-20 between November 20 and December 5, 1998. This was the
first time that pillar mining was conducted at the Bowie No. 2 Mine. Additional rooms were
developed between December 6 and 12, 1998. On December 13, 1998, Bowie resumed pillar
extraction on Pillar 21. Thus, between December 6 and December 12, 1998, no retreat mining
occurred the. area. The most inby row of pillars left standing during that period, Pillars 21 25, is referred to. as the "standing row." Since this pillar row was immediately adjacent to the
gob for that seven-day period, Bowie anticipated that roof and rib conditions could make mining
more difficult.

in

A number of conditio~s were present along the standing row on December 13, 1998.
First, a substantial amount of floor heaving occurred in the area. Such heaving produced a
significant amount of loose coal in the roadways between the pillars along the standing row.
Second, cutters developed at a number of locations along the standing row. "Cutters" are cracks
along the roof immediately adjacent to a pillar. Third, some of the ribs developed sloughage
problems along the standing row. Sloughage is fairly common at the mine because of the way
the coal cleaves. All of these conditions developed, at least in part, as a result of the pressure

2

I use the term "roadways" to refer to entries and crosscuts.
220

from the roof. This area is under about 750 feet of overburden. The roof is relatively strong at
the mine and the pressure was at least partially relieved by the floor heaving.
Bowie took a number of steps to ensure roof stability before it resumed retreat mining on
December 13. First, it cleaned up the loose coal produced by the floor heave. Bowie believed
that the presence of floor heave indicated that much of the pressure that built up in the standing
row had been relieved. It indicated to them that the roof was strong and solid. The pressure
pushed the pillars down .and the floor up. Some support timbers were cracked. Bowie replaced
these timbers. Bowie also bolted the cutters with eight-foot roof bolts. Bowie uses six-foot roof
bolts in the roadways, but it uses eight-foot bolts to support cutters.
Prior to the beginning of his shift on December 14, 1998, Keith McFarland, the section
foreman, talked with D. Richard Kendall, the supervisor on the previous production shift. Mr.
Kendall told Mr. McFarland that his crew had a tough time mining Pillar 21. Kendall said that
cap rock fell while his crew was mining the pillar. Cap rock is a hard layer of rock, usually
sandstone, just above the coal seam. See A Dictionary of Mining, Mineral, and Related Terms
2 11d ed, 83 (1997). The cap rock fell in the unsupported area being mined.
McFarland's shift began at about 4:30 p.m. on December 14. At the beginning of the
shift, McFarland conducted a safety talk. He reviewed ari MSHA safety bulletin entitled "Best
Practices - Retreat Mining." (Ex. G-20). It deals specifically with safe practices to follow
when removing pillars. Rocky Gallob was late arriving to work that day and was not present
during this safety training.
The crew followed Bowie's normal procedures when mining Pillar 22. The cuts were
made in sequence and all of the timber supports were installed at the appropriate time. As the
crew made each cut, the continuous miner operator frequently backed the continuous miner out
to wait and watch the roof. Sometimes he backed out because it looked like cap rock was going
to fall. At other times, he backed out to observe and listen to the roof. The continuous miner
was operated by remote control, so the crew was under supported roof at all times and could
observe the roof from the outby roadways adjacent to the pillar and from the outby intersection.
The Secretary agrees that backing out the continuous miner to observe the roof is "a common
practice in retreat mining." (Tr. 78).
Mr. McFarland was present during much of the shift, but he was absent from the
immediate area some of the time. After the fourth cut was made, McFarland consulted with the
continuous miner operator and his helper and he determined that it was safe to take the fifth
(final) cut. Because it was near the end of the shift, many people were in the area to watch the
roof. As the fifth cut was started, Mr. McFarland, Barry Schreckengost, Richard Ungaro, Rocky
Gallop, and Hector Camacho were near the outby intersection between Pillars 22 and 23. Denis
Linman was near the outby intersection between Pillars 21 and 22. Before the cut was made, Mr.
Ungaro walked around Pillar 27 to stand near Mr. Linman. Messrs. McFarland and
Schreckengost left the area just before the roof fell. Mr. Schreckengost was the shift foreman.

221

A massive roof fall occurred as the fifth cut was being made shortly after Mr. McFarland
left the area. The roof fell from the unsupported area of Pillar 22 out into the outby intersection
between Pillars 22 and 23. The diagram of the roof fall included in MSHA's accident
investigation report, Exhibit G-1, is attached to this decision as Illustration No. 2. The fall came
with some warning. Mr. Linman heard timber break and saw roof material fall. Mr. Linman
waived his cap light and blew his whistle, which are warnings to immediately vacate an area.
Mr. Ungaro ran around Pillar 27 to provide assistance. Unfortunately, the continuous miner
operator, Rocky Gallob and his helper, Hector Camacho, did not escape in time. They were in
the outby intersection between Pillars 22 and 23 when the roof fell. It appears that the roof fall
started in the comer of the unsupported area in Pillar 22 and spread into the supported roof of the
outby intersection adjacent to Pillars 22 and 23. The roof separated above the six-foot roof bolts
that were installed in the intersection. The outby stump of Pillar 22 was crushed. The Secretary
believes that if Gallob and Camacho had an additional second or two to escape, they would not
have been under the roof fall. For reasons that are not entirely clear, Messrs. Gallob and
Camacho did not immediately leave the area but apparently tried to back the continuous miner
into the intersection before attempting to retreat outby.

A. Factors Relied Upon by the Secretary to Establish a Violation
The Secretary argues that Bowie knew or should have known that the roof was
deteriorating, thereby risking a potential roof fall. Consequently, Bowie should have provided
supplemental support to protect persons working in the area. She relies on a number of
conditions that developed in the area and she described the steps that Bowie should have taken to
control the roof. She states that these measures may not have been sufficient to prevent the roof
from falling, but that they might have given Messrs. Gallob and Camacho more time to escape.
1. Conditions that Developed along the Standing Row
The Secretary relies on a number of physical factors that occurred along the standing row
to support her po.sition. The Secretary believes that one of the most significant events that
indicated that the roof was deteriorating was the fact that the floor was heaving in the roadways.
There is no dispute that there was a significant amount of heaving in several areas immediately
adjacent to the standing row. The heaving occurred between Pillars 22 and 23, 23 and 24, and 24
and 25. Some of the loose coal that was observed in the roadway between Pillars 22 and 23 was
material that had been pushed up with a scoop from outby roadways rather than coal that had
heaved up in the area. Nevertheless, the heaving was greater than had ever been experienced
during pillar mining at the Bowie No. 2 Mine. It must be kept in mind, however, that Bowie had
been pillar mining at Bowie No. 2 for only two weeks. Significant heaving also occurred at the
adjacent Bowie No. 1 Mine and in other areas of the Bowie No. 2 Mine.
The Secretary maintains that another significant event was the development of cutters
along the standing row. There is no dispute that cutters were present along Pillars 22, 23, 24, and

222

25.3 She contends that, as with the floor heave, the presence of cutters indicated that the roof was
deteriorating and that additional support was required in the roadways. The Secretary
acknowledges that Bowie installed eight-foot roof bolts at the cutters before mining was
commenced, but argues that the presence of the cutters should have alerted management that
additional measures were required.
The Secretary also points to the fact that there was a significant amount of rib sloughage
in the vicinity of the standing row. The Secretary maintains that this fact also shows that the
pillars were taking weight and that the roof could be unstable. She characterizes the amount of
sloughage as abnormal. Bowie does not dispute that there was more rib sloughage along the
standing row than was typical at the mine.
The Secretary contends that the presence of floor heave, cutters, and rib sloughage
evidenced increased stress created by the weight of the roof bearing down on the pillars and
floor. She argues that these warning signs should have alerted Bowie to the danger and that
Bowie should have added additional support or mined only the first four cuts. Bowie contends
that it cleaned up the rib sloughage and floor heave, and also repaired the cutters. It also
maintains that it believed that these factors showed that the stress on the roof had been relieved,
reducing the danger of a fall of roof. It also points to the fact that the standing row was stable at
the time Pillar 22 was mined. The floor heaving had stopped; it did not appear that the ribs were
continuing to slough; and the condition of the cutters had not changed. It states that there is no
evidence that additional cutters were forming.
Finally, the Secretary contends that Bowie failed to take into account the fact that an old
abandoned coal mine, the King Mine, is approximately 260 feet below the Bowie No. 2 Mine.
Maps show that pillar remnants were located below Pillar 22. She contends that Greg Hunt,
Bowie's geology consultant, advised Bowie that it could experience difficult conditions in areas
above such re~ant pillars. Bowie argues that Mr. Hunt merely stated such conditions were a
"possibility" and that his concerns related to the longwall section. It also noted that pillar
remnants were also present under many of the 20 pillars originally mined and no roof-control
problems were encountered there. The roof fall in this case was the first reportable roof fall that
·
occurred at the Bowie No. 2 Mine.
2. Conditions During the Previous Production Shift
The Secretary also contends that the crew on the previous production shift had a difficult
time mining Pillar 21 and the adjacent barrier. She argues that the problems that developed on
that shift should have alerted Bowie that additional roof support was required beyond that set
forth in the roof-control plan. The barrier and Pillar 21 were the first areas mined in the standing

3

Bowie maintains that these "cutters" were cracks rather than true cutters in the sense that
a mining engineer would use that term. As stated above, I find that a cutter is a crack along the roof
immediately adjac_ent to a pillar. I reject Bowie's argument.
223

-

row. In addition to the floor heave, rib sloughage, and cutters that were present, the Secretary
points to evidence that Pillar 21 was difficult to mine. She relies upon Mr. Kendall's statement
to MSHA that cap rock fell as Pillar 21 was mined and that it took longer to mine the pillar than
is typically the case.
Bowie contends that although it anticipated that conditions along the standing row would
pose some roof and rib-control problems, it took those conditions into account. Christopher
Barker operated the c.ontinuous mining machine during the previous production shift. He
testified that he had to back out his machine two or three times to watch the roof because of the
presence of cap rock. He testified that backing out was not unusual in retreat mining and that
mining Pillar 21 was no more difficult than normal. (Tr. 636, 641).
3. Conditions Encountered while Mining Pillar 22
As stated above, Mr. Kendall warned Mr. McFarland that there had been a lot of cap rock
in Pillar 21. The Secretary maintains that Mr. McFarland demonstrated his knowledge of the
poor roof conditions when he provided safety training to his crew at the start of the shift. In his
statement to MSHA following the accident, McFarland said that he told his crew to "keep an eye
out" for bad conditions and that he instructed them to install additional breaker posts at any
indication of bad roof; watch the mine floor for evidence of heaving; and not to mine the final cut
if conditions did not look safe. The Secretary argues that this instruction evidences McFarland's
knowledge that additional roof control measures were necessary in the standing row.
The crew began mining Pillar 22 at about 6 p.m. The crew cleaned up loose coal in the
roadway between Pillars 22 and 23, and reset timbers in the tum row for the first cut. These were
the only timbers that had to be reset at Pillar 22. The first cut was then made. The continuous
miner was backed out twice to observe cap rock in the roof. After some cap rock fell, the crew
watched the roof to see if it was stable. Before starting the second cut, the crew installed four
tum row tiinbe~s across the roadway as required by the roof-control plan. The crew pulled the
mining machine pack at least twice while making this cut. Once the second cut was completed,
four danger row timbers were installed across the mouth of the roadway between Pillars 22 and
23. That roadway would no longer be used duripg retreat mining.
As the crew began making the third cut into the pillar, the continuous miner was pulled
back due to cap rock. Upon completion of the fourth cut, four tum row timbers were installed
across the roadway between Pillars 22 and 27. The fourth cut was then made. Sometime after
the crew started making the fifth cut, Mr. Gallob pulled the continuous miner back to watch and
listen to the roof. Apparently, he did this because the crew saw some cap rock fall in the area
mined during the first cut. At that time Mr. McFarland, Mr. Schreckengost, Mr. Camacho, and
Mr. Gallob were in the outby intersection. After examining the roof, Messrs. McFarland and
Schreckengost determined that it was safe to continue mining the fifth cut. Soon after both
supervisors left the area, the roof above the pillar collapsed.

224

The Secretary believes that the conditions that unfolded as the pillar was mined gave
notice to Bowie that additional roof support was necessary or that the fifth cut should not be
completed. She states that Messrs. Schreckengost and McFarland "effectively abandoned the
crew during the most critical and potentially most dangerous sequence of mining.... " (S. Br. 13).
She contends that after the continuous miner was pulled back during the fifth cut, Bowie
management should have instructed the crew to add· more timber4 or ordered them to withdraw
from the pillar.
Bowie maintains that roof conditions looked stable when the crew resumed mining the
fifth cut. The timbers and the caps above the timbers were not deforming. The roof bolts in the
intersection looked secure and the roof-bolt plates were not deformed from roof pressure. The
floor was not heaving and the pillar stump was not being crushed. Bowie contends that there was
no indication that supplemental roof support was necessary or that the fifth cut should not be
made. It contends that the evidence shows that the fall of roof occurred because of an anomaly in
the roof that was not detected during the installation of the bolts to control the cutter. It points to
the testimony of Mr. McFarland that an examination of the roof after the fall revealed that there
was no separation in the rock structure where the roof fell. (Tr. 762-63). Thus, it maintains that
a miner drilling roof bolts or test holes would not have detected the condition.5

B. Alleged Violation of Section 75.202(a)
The Secretary's roof-control standard at 30 C.F.R. § 75.202(a) is broadly worded.
Consequently, the Commission held that "the adequacy of particular roof support or other control
must be measured against the test of whether the support or control is what a reasonably prudent
person, familiar with the mining industry and protective purposes of the standard, would have
provided in order to meet the protection intended by the standard." Canon Coal Co., 9 FMSHRC
667, 668 (April 1987)(cited in Harlan Cumberland Coal Co. 20 FMSHRC 1275, 1277
(December 1998).
Although mx resolution of the issues raised in this case has some bearing on the cause of
the fatal accident, the purpose of this proceeding is not to determine the cause of the accident or
the steps that could have been taken to prevent it. Some of the evidence presented in this case
has little to do with roof control. For example, the Secretary's position that management
"effectively abandoned the crew" when the fifth cut was made has little to do with the issue in
this case. I have not considered these peripheral issues in my analysis.

4

The Secretary contends that, if Bowie had used one roadway rather than two for access by
the ram cars that off-loaded the coal, there would have been more room to add supplemental timber
support. Bowie used two roadways for cuts 3 through 5.
5

The Secretary also argues that Bowie should have drilled additional test holes in the area
to obtain more information about the condition of the roof.
225

I find that the Secretary did not establish a violation of section 75.202(a). The factors
relied upon by the Secretary to establish the violation are not sufficient to show that a reasonably
prudent person would have provided additional support. I reach this conclusion for a number of
reasons, as discussed below.
First, I agree with the Secretary that the conditions that developed along the standing row
should have raised concerns about the safety of retreat mining in that area. Nevertheless, I find
that Bowie addressed those concerns and continually monitored the conditions to make sure that
the roof and ribs were not deteriorating. It cleaned up the coal that heaved up into the roadways
and it continued to monitor the roadways for additional heaving. Bowie reasonably believed that
the floor heaving demonstrated that the roof was strong and that the pressure on the roof had
been reduced as a result of the heaving. The cutters along the pillars were bolted. There is no
evidence that these cutters were expanding or that additional cutters developed. Rib sloughage
was rather common at the mine due to the cleavage of the coal. Rib sloughage occurred in other
areas of the mine without creating a hazardous condition. I find that these factors did not
indicate that the roof around Pillar 22 was deteriorating. Bowie management was concerned
about these conditions but it reasonably believed that it had addressed them and that it was safe
to mine the standing row using the roof support contained in the approved roof-control plan.
Bowie did install additional roof support in other areas of the mine when conditions warranted,
but it did not believe that supplemental support was necessary to protect persons at Pillar 22 .
The Secretary's evidence on the effect of the underlying King Mine is not convincing.
Although it is true that the maps show that a pillar remnant may have been under Pillar 22, it is
just as likely that this remnant had given way. Moreover, many of the pillars that were
previously mined were on top of similar pillar remnants. Thus, it is highly speculative that the
abandoned mine had any effect on the stability of the roof in the Bowie No. 2. It was reasonable
for Bowie to continue following the approved roof-control plan without adding supplemental
support due ~o the presence of the King Mine.
The Secretary's arguments concerning the events that occurred during the previous
production shift also do not indicate that additional roof support was necessary. Cap rock was
present when mining Pillar 21, but otherwise the roof appeared to be stable. There was no
evidence of deterioration in the pillar or the roof. Mr. Barker, one of the miners who operated
the continuous miner during th~t shift, testified that Pillar 21 was not particularly difficult to
mine. (Tr. 636). He also stated that he pulled the mining machine back two or three times,
which was not an abnormal amount. Id. He said that it is up to the crew to determine when to
pull out. The crew will often pull out when anyone sees or hears something that makes him
uncomfortable, such as timber taking weight. (Tr. 639-41). The miner operator and his helper
constantly watch the roof and the roof-support system to make sure that it is safe to continue
mining the pillar. Id.
With respect to the events that occurred on the evening of December 14, the Secretary
relies heavily on the statements of miners given to MSHA's investigators rather than on
testimony produced at the hearing. Indeed, she relies on these interviews to establish her entire
226

case. (Exs. G-4 thiough G-14). The Secretary did not use these interview statements to
supplement the testimony of eyewitnesses. In fact, she did not call as witnesses any miners who
observed the conditions along the standing row or any miners who were present on the evening
of December 14. There was no showing that these miners were unavailable to testify. As
justification for this approach, counsel for the Secretary argued that the events on the night of
December 14, 1998, were still fresh in the minds of these individuals at the time of the interviews
so that the interview transcripts were more reliable than live testimony. I admitted the interview
transcripts over the objec.tion of Bowie. (Tr. 260-61).
Although I agree with the Secretary that the interviews were conducted when the events
were still fresh in everyone's minds, the interviews suffer from other infinnities. There was no
opportunity for cross-examination. In a number of instances, the question asked by the MSHA
investigator and the answer given by the miner are ambiguous. Bowie was not afforded the
opportunity to clarify the facts. For example, the Secretary cited the interview transcript of Mr.
Linman to argue that three or four support timbers broke while Pillar 22 was mined and that one
of the stumps for this pillar crumbled as mining progressed, with the result that the roof was not
adequately supported. ( S. Br. 8 citing Ex. G-8 pp. 46-49). As Bowie points out it its reply brief:
this portion of Mr. Linman' s interview is ambiguous. It appears that Mr. Linman was referring
to timbers in the gob that usually give way as pillars are mined. It also appears that Linman was
referring to Pillar 21 when he stated that the pillar was crumbling. There was no opportunity to
clarify this testimony.
In addition, many of the questions asked by the MSHA investigator relate to how such
accidents could be avoided in the future. For example, Mr. Schreckengost was asked "looking
back on what you've seen and what you know about this accident, what additional support ...
would you have installed to prevent this accident .... " (Ex. G-7, p. 46). Mr. Schreckengost
answered that double breaker rows could have been added. The Secretary cites this answer for
the proposition that Mr. Schreckengost realized that additional roof support should have been
added. (S. Br. '12). This argument ignores the fact that the question was directed at future
protection. What I must examine in this case is the adequacy of the roof support measured
against what a reasonably prudent person would have provided to meet the protection intended
by the standard. I must look at the conditions that were present as Pillar 22 was being mined
without takin.g into consideration the fact that the roof fell. MSHA interviews miners during
accident investigations for a wide_range of reasons. In pursuing the Secretary's mission of
reducing the number of fatal accidents, MSHA must know what can be done to prevent similar
accidents. Thus, the questions asked often do not lend themselves to resolving issues raised in
enforcement actions.
It appears that the Secretary's approach in this case was to establish that, because it
conducted a competent investigation of the accident, the citation should be affirmed. Most of the
first day of the hearing consisted of testimony of the MSHA investigators describing, in detail,
how they conducted their investigation. (Tr. 39-263). These witnesses described the infonnation
that they relied upon in reaching their conclusions. Much of the Secretary's evidence on the
second day of the hearing consisted of testimony of other MSHA officials concurring in these

227

-

conclusions. (Tr. 318-396). As stated above, the Secretary did not call any miners who were eye
witnesses to the events on December 13-14, 1998. The Secretary has the burden of proof in this
de novo proceeding. The Secretary does not meet her burden by establishing that MSHA's
investigation was thorough and competent. Commission administrative Jaw judges do not affirm
or vacate citations based on an evaluation of the adequacy ofMSHA's investigation. If the
Secretary believes that a violation occurred, she must present evidence to establish that fact to the
trier of fact. She may seek to use interview transcripts as part of her proof but, given the nature
of such interviews, .she runs the risk that such evidence will fall short of establishing a violation.
The interviews presented by the Secretary are evidence in this case and I have considered
them in rendering my opinion. Nevertheless, I principally rely on the live testimony presented at
the hearing. The testimony at the hearing was specifically directed to the issues in this case;
there was an opportunity for cross-examination; and I was able to observe the witnesses.
I find that Mr. McFarland advised the crew at the start of the shift that cap rock had fallen
on the previous production shift. He also reviewed with the crew MSHA's safety instructions
setting forth precautions to be followed when mining pillars. He instructed the crew to install
additional timber if it appeared that the roof was weakening. He told them to watch for evidence
of floor heaving. He also told them not to mine the final cut if it could not be done safely.
The evidence establishes that the crew had to pull back the continuous miner a number of
times as it mined the pillar. The crew was instructed to pull back the miner whenever they
believed that they needed to closely watch the roof. This procedure was in place for safety
reasons, but also to protect the continuous mining machine from being damaged by falling cap
rock. Although it was a common practice at the mine to pull back the miner when recovering
pillars, the crew pulled back more frequently than is typically the case.
The crew was instructed to constantly examine the roof for any indications of instability
as mining occurred and between cuts. I credit the testimony of Messrs. McFarland and
Schreckengost that the roof appeared stable on the evening of December 14. The roof and roofbolt plates were not deformed; the timber supports were not showing signs of unusual pressure;
and there were no signs of deterioration in the roof (Tr. 622, 694-95, 698, 715, 752-53, 754).
The fact that cap roe~ was falling within the mined portion of the pillar does not indicate
that the roof was deteriorating. Mr. Ungaro, the roof bolter on the crew, testified that "you want
the cap rock to fall" and you expect the roof to cave where you have mined the coal. (Tr. 63233). Mr. Ungaro also testified that although the crew expected a "cave" to develop in
unsupported areas, "we never expected the intersection" to cave in. (Tr. 633).
I find that the Secretary did not establish that a reasonably prudent person, familiar with
the mining industry and the protective purposes of section 202(a), would have provided
additional roof support at Pillar 22 or would have stopped mining Pillar 22 in the face of the
conditions that existed on the evening of December 14, 1998. In reaching this conclusion, I have
considered all of the factors submitted at the hearing, including the conditions that developed
228

along the standing row, the events during the previous production shift, and the events on the
evening of December 14. It is not clear why the roof fell. The roof fell in the outby corner of the
pillar and out into the supported outby intersection. There is no dispute that there was a
sandstone formation above the fall.
The Secretary's expert witness, Joseph Zelanko, testified that he reached his conclusion
that the roof was not adequately supported, based in large measure on the statements made by
miners during the MSHA investigation that the conditions in the standing row were "not
common." (Tr. 424). He was referring to floor heave, cutters, and rib sloughage. Mr. Zelanko
testified that these conditions indicated that the roof was under high stress. He attributed this
high stress to the fact that, as the pillar rows were mined, the overburden was getting
progressively deeper. (Tr: 425; Ex. G-34 p. 5). He also attributes the high stress to the fact that,
as retreat mining progressed, the area of the gob increased. He believes that this section of the
mine was not getting a good cave in the gob and this fact greatly increased the stress on the roof
in the standing row. (Tr. 427). Finally, he also concluded that the underlying King Mine may
have increased the instability in the roof.
John Stankus, Bowie's expert witness, testified that the floor heave reduced the stress in
the roof above the standing row. (Tr. 544). He believes that there was a reduced potential for a
roof fall in the area because of the heaving. (Tr. 554). He testifies that the effect of the King
Mine and the overburden on the stability of the roof was insignificant. Dr. Stankus concluded
that the roof fell because of a "geologic anomaly in the roof over pillar 22" that was difficult or
impossible to detect. (Tr. 564-65).
Because the roof fell, it is quite obvious that more should have been done to support the
roof around Pillar 22 or the final cut should have not been made. Both experts were highly
qualified and they presented competing theories about the cause of the accident. MSHA's
investigation brought forth information that it believes contributed to the roof fall. As stated
above, however, Qn the evening of December 14, Bowie management reasonably believed that
the roof was adequ(!.tely supported. Messrs. McFarland and Schreckengost reasonably believed
that any abnormal stress on the roof had been released when the floor heaved and that it was safe
to make the final cut in Pillar 22. Their belief was confirmed by the relatively stable conditions
they observed that evening.

III. ORDER
For the reasons set forth above, the notice of contest in this case is GRANTED and
Citation No. 7018205 issued on January 27, 1999, is VACATED . .

Richard W. Manning
Administrative Law Judge
229

Distribution:

R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 201h Floor, Pittsburgh, PA 152191410 (Certified Mail)
Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)

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230

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FEDERAL M INE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

February 18, 2000
SECRETARY OF LABOR,
On behalf of CURTIS STAHL,
Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2000-145-DM
WEMD 98-18

v.
A & K EARTH MOVERS INC.,
Respondent

Bella Vista Pit
Mine ID No. 26-02046

DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT

Appearances: Christopher B. Wilkinson, Esq., Office of the Solicitor, U.S. Department of
Labor, San Francisco, California, for Applicant;
Richard L. Elmore, Esq., Hale, Lane, Peek, Dennison, Howard & Anderson,
Reno, Nevada, for Respondent.
Before:

Judge Hodgdon

This case is before me on an Application for Temporary Reinstatement brought by the
Secretary of Labor, on behalf of Curtis Stahl, under section 105(c) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(c). The application seeks reinstatement of Mr. Stahl as
an employee of the· Respondent, A & K Earthmovers, Inc., pending a decision on a
discrimination compfaint he has filed with the Mine Safety and Health Administration (MSHA)
against the company. 1 A hearing was held on the application on February 15, 2000, in Sparks,
Nevada. For the reasons set forth below, I grant the application and order Mr. Stahl's temporary
reinstatement.
Summary of the Evidence

On July 27, 1998, Stahl filed a discrimination complaint with MSHA stating that he had
been discharged from A & Kon July 15, 1998, and alleging that the discharge was the result of
his making safety complaints. Specifically, he set out the following as his Summary of
Discriminatory Action:

1

It does not appear that the Secretary has yet filed a Complaint of Discrimination with
the Commission. In view of this decision, and in fairness to both parties, the complaint should
be filed as soon as possible.
233

June 24. 1988 [sic] At 7:15 am, I phoned Joe Hess and
told him I needed another fuel truck driver because David
Chickering (702)425-8042 hadn't showed [sic] up for work. At
8:30 am, I checked out unit #627 and determined that both the
park brake and the service brakes were completely wore [sic] out.
At 9:00 am, David's father showed up on the job site and informed
me that David was in jail and he had no idea when he would get
out. At 9: 15 am, I phoned Joe Hess and told him what I had
learned about David and the brakes.
On June 26. 1998 Fuel truck unit #627 was written up on
a "required maintenance form" by the new fue l truck driver named
Eleuterio Jacinto (702)324-6125 indicating that unit # 627 had no
park brake and no service brakes. He also stopped the lead
maintenance mechanic named Kevin ????? (702)972-4487 down
by the water tank near the crusher. After thoroughly inspecting the
brakes, Kevin confirmed that they were completely wore [sic] out.
He said he would inform his boss (the maintenance supervisor)
Brian Wade about it and get it fixed.
On June 29-30 & July 1-2-3 Eleuterio Jacinto continued
writing up the problem with the brakes and he was fired July 6,
1998.
July t51• 2"d, 3rd Acting as foreman in charge of Bella Vista
Pit and the person responsible for the safety of all persons on the
property, I personally had verbal conversations with the
maintenance supervisor (Brian Wade) about the problem with the
brakes on unit #627. He indicated he knew all about the brake
·problem. He told me he could not work on it now because they
were to [sic] busy but he would get to it when he could.
July 6, 1998 I spoke to Brian Wade in front of the office
and told him the brakes on unit #627 are worse now than when
M.S.H.A. wrote a citation on it just three weeks ago and asked him
if he could please get them repaired. He said he would get to it as
soon as he could.
July 7.1998 I spoke to Kevin ???? and asked him if he
knew when they were going to fix the brakes and he asked me if I
had done something to upset Brian because he had no intention of
fixing it for me. So I said "I'm going to Red Tag it then", and
that's what I did.

234

July 15. 1998 I was terminated. Upon asking why, Joe
Hess said: (you allowed both generators to run out of fuel last
week and we just don't need any more trouble around here.) [sic]

(Comp Ex. 1at9.)
Stahl was the only witness called by the Secretary. He testified that he was hired as the
Crusher Foreman in October 1996. His testimony was essentially a reiteration of his statement
set out above. He said that: "I feel like I was terminated because of the incident with the 627
fuel truck and when I red-tagged it." (Tr. 32:)
The company presented five witnesses: Melvin E. Borden, Safety Director; F. Joseph
Hess, Crushing Superintendent and Head of Asphalt Operations; Kelly Bart Hiatt, Vice President
and General Manager; James Busch, Equipment Manager; and Bryan Wade, Field Mechanic
Supervisor. The company's case can be summed up as follows: (1) Stahl did not communicate
any safety complaints to his superiors; (2) There was no reason to continue using the 627 fuel
truck after its brakes were determined to be deficient, since there was another fuel truck available
to fuel the generators; (3) Bryan Wade specifically told Stahl to park the 627 truck and he would
fix it when he could; (4) If there were any safety violations, they were Stahl's in requiring, or
permitting, his drivers to continue to operate an unsafe truck; (5) Stahl was terminated for
reasons having nothing to do with his alleged protected activity; and (6) The decision to
terminate Stahl was made a week prior to his first alleged safety complaint.
Findings of Fact and Conclusions of Law

Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint "and ifthe Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order immediate reinstatement of the miner pending final order on the
complaint." The Commission has established a procedure. for making this determination with
Commission Rule 45, 29 C.F.R. § 2700.45.
Rule 45(d), 29 C.F.R. § 2700.45(d), states that:
The scope.of a hearing on an application for temporary
reinstatement is limited to a determination as to whether the
miner's complaint was frivolously brought. The burden of proof
shall be upon the Secretary to establish that the complaint was not
frivolously brought. In support of his application for temporary
reinstatement, the Secretary may limit his presentation to the
testimony of the complainant. The respondent shall have an
opportunity to cross-examine any witnesses called by the Secretary
and may present testimony and documentary evidence in support of
its position that the complaint was frivolously brought.
235

Thus, ".[t]he scope of a temporary reinstatement hearing is narrow, being limited to a
determination by the judge as to whether a miner's discrimin~tion complaint is frivolously
brought." Secretary of Labor on behalfofPrice v. Jim Walter Resources, Inc., 9 FMSHRC
1305, 1306 (August 1987) aff'd sub nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738
(11th Cir. 1990).

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought,
ifit "appears to have merit." S. Rep. No. 181, 95lh Cong., !51 Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95'h Cong. 2"d Sess.,
Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In
addition to requiring that a complaint appear to have merit, the Commission and the courts have
also equated "not frivolously brought" to a "reasonable cause to believe" and "not insubstantial."
Jim Walter Resources, Inc., 920 F.2d at 747 & n.9; Secretary of Labor on behalfof Price, 9
FMSHRC at 1306.

In order to establish a prima facie case of discrimination under Section 105(c) of the Act,
a complaining miner bears the burden of establishing (1) that he engaged in protected activity and
(2) that the adverse action complained of was motivated in any part by that activity. Secretary on
behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786(October1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary
on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981 ); Secretary on
behalf ofJenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), rev'd on other grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).

In this case, the Complainant has testified that he engaged in protected activity by
complaining on several occasions to his superiors about the defective brakes on fuel truck 627
and there is no dispute that his discharge by the company was an adverse action. Other than his
opinion, ho~ever, he has presented no evidence that his discharge was motivated by his engaging
in protected activity. Nevertheless, as the Commission has frequently acknowledged, it is very
difficult to establish "a motivational nexus between protected activity and the adverse action that
is the subject of the complaint." Secretary on behalfof Clay Baier v. Durango Gravel, 21
FMSHRC 953, 957 (September 1999). Consequently, the Commission has held that "(l)
knowledge of the protected activity; (2) hostility or animus towards the protected activity; and (3)
coincidence in time between the protected activity and the adverse action" are all circumstantial
indications of discriminatory intent. Id. Here, Stahl testified that the company had knowledge of
his complaints and there was a coincidence in time, eight days, between this activity and his
discharge.
Thus, if Stahl's claims are found to be credible, he would be entitled to relief under the
Act. I find that his testimony was not inherently incredible and no evidence was presented that
he was altogether unworthy of belief. The conflicts between Stahl's testimony and the
Respondent's are the types of conflicts in testimony that arise in every case. However, it is "not
the judge's duty ... to resolve . . . conflict[s] in testimony at this preliminary stage of the

236

proceedings." Secretary ofLabor on behalfofAlbu v. Chicopee Coal Co., 21 FMSHRC 717,
719 (July 1999).
A & K's evidence indicates that it may well have a valid defense to Stahl's complaint,
but, as set out above, the purpose of a temporary reinstatement proceeding is to determine
whether the evidence presented by the Complainant establishes that his complaint is not
frivolous, not to determine "whether there is sufficient evidence of discrimination to justify
permanent reinstatement." Jim Walter Resources, Inc. 920 F.2d at 744. Consequently, the focus
of the hearing is clearly on the evidence presented by the Complainant and the evidence
preser:ited by the Respondent is relevant, at this stage, only to the extent it demonstrates that the
claim is frivolous. The company has not presented any evidence that things could not have
happened the way the Complainant alleges that they did, that he had stated to witnesses that his
claim was "made up" or anything of a similar nature.
Finally, in a temporary reinstatement proceeding, Congress intended that the benefit of
the doubt should be with the employee, rather than the employer, because the employer stands to
suffer a lesser loss in the event of an erroneous decision since he retains the services of the
employee until a final decision on the merits is rendered. Jim Walter Resources, Inc., 920 F.2d at
748 n.11.
Accordingly, finding that Stahl's complaint is not entirely without merit, I conclude that
his discrimination complaint has not been frivolously brought.

Order
Curtis Stahl's Application for Temporary Reinstatement is GRANTED. A & K
Earthmovers, Inc., is ORDERED TO REINSTATE Mr. Stahl to the position that he held on
July 15, 1998, or to a similar position, at the same rate of pay and benefits, IMMEDIATELY

ON RECEIPT ,OF THIS DECISION.

if.~~

Hod~~"r''"'

T. Todd
Administrative Law Judge
Distribution:
Christopher B. Wilkinson, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson
Street, Suite 1110, San Francisco, CA 94105 (Certified Mail)
Richard L. Elmore, Esq., Hale, Lane, Peek, Dennison, Howard & Anderson, 100 West Libert
Street, 10m Floor, Reno, NV 89501 (Certified Mail)

237

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

February 28, 2000
CNIL PENALTY PROCEEDINGS

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

Docket No. KENT 99-182
A. C. No. 15-13920-03925

V.

Docket No. KENT 99-212
A. C. No. 15-13920-03927

LODESTAR ENERGY, INC.,
Respondent

Wheatcroft Mine

DECISION
Appearances: J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee;
Richard M. Joiner, Esq., Mitchell, Joiner & Hardesty, P.S.C., Madisonville,
Kentucky, for Respondent.
Before:

Judge Hodgdon

These consolidated cases are before me on Petitions for Assessment of Civil Penalty filed
by the Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA),
against Lod~star Energy, Inc., pursuant to section 105 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 815. The petitions allege two violations of the Secretary's mandatory
health and safety standards and seek penalties of$797.00. A hearing was held in Evansville,
Indiana. For the reasons set forth below, I modify the two orders to citations and assess penalties
of$205.00.
Background
The Wheatcroft Mine is an underground coal mine owned by Lodestar Energy, Inc., and
located in Webster County, Kentucky. The mine is operated by Green Pond Energy Corporation
under contract with Lodestar.
On November 24, 1998, MSHA Inspector Archie Coburn went to the mine to conduct a
quarterly inspection, customarily referred to as a "Triple A" inspection. He accompanied
Lodestar Fire Boss Dennis Marsili to examine the air courses and seals in the inactive area of the

238

mine. 1 While they were crawling through the cross-cut going toward the first seal of the No. 6
set of seals, Marsili informed the inspector that the roof in that ·area was getting heavy, that he
had written in the mine book that additional support was needed and that he had orally informed
Charlie Dame, the Safety Director for Green Pond, of the situation.
On hearing this, Inspector Coburn examined the area after he got through it. He observed
that the roof was sagging six to eight inches in various locations in an area that was
approximately 40 feet 19ng and 20 feet wide. When he got back to the surface, the inspector
checked the weekly examination book which had the following entry for the previous week:
Walked ret O/C2 from #5 seals up to ret O/C 0.1%20.6%; across
and down through #4 seals 0% 20.7% 7:47 am/10:28 am 11-17-98.
No hazards observed. DFM
NOTE: The top in x-cut in front of#l seals #6 set, to next entry
needs extra support - top getting heavy. 11-17-98 DFM
(Govt. Ex. 5 at 4.) The initials DFM are Marsili's.
Inspector Coburn then asked Jess O'Rourke, Green Pond General Superintendent, when
they were going to add support to the area. O'Rourke questioned Charlie Dame about the
situation and Dame advised him that he had told David Weinbarger, Lodestar Mine Manager,
and Kevin Vaughn, Lodestar Safety Director, about the condition, but that Weinbarger was on
vacation and nothing had been done.
Based on these facts, Inspector Coburn issued Order No. 4274546 alleging a violation of
section 75.364(d) of the Secretary's regulations, 30 C.F.R. § 75.364(d), because:
The hazardous condition recorded in the mine book
provided for weekly examination has not been corrected. The
examiner recorded in the mine book on 11117/98 that additional
roof support was needed in the entry outby the No. 1 seal in the
No. 6 set of seals, that the top was getting heavy. Several of
Lodestar management were informed of the hazardous condition
on 11117/98. As of 11124/98 no corrective action has been made.
Some draw rock has already fallen in the area.
(Govt. Ex. 3.)

1

The responsibility for maintaining the inactive areas was Lodestar's rather than Green
Pond's. (Tr. 123.)
2

O/C stands for "overcast."
239

On January 19, 1999, MSHA Inspector Robert Simms was conducting a ventilation
review at the Wheatcroft Mine. While going through the weekly examination books, he
discovered numerous record-keeping errors for which he issued citations not involved in this
proceeding. He returned the following day to examine the books more thoroughly. In trying to
match the areas shown on the mine map with the notations in the examination books, he
discovered that entries were not being made for some areas in the mine and that this had occurred
for a period of several weeks.
As a consequence, Inspector Simms issued Order No. 4275621 charging a violation of
section 75.364(h), 30 C.F.R. § 75.364(h), in that:
There is no record showing that the return air course has
been traveled from the #2 seals to the #3 seal and from the #6 seal
toward the #2 belt entry. There is also no record showing that the
Intake and Return of the Main North Parallels have been made. At
the completion of any shift during which a portion of a weekly
examination is conducted, a record of the results of each weekly
exam ... shall be made.
(Govt. Ex. 6.) The order was subsequently modified to delete the first sentence concerning the
"#2 seals to the #3 seal" and "the #6 seal toward the #2 belt entry." (Id. at 2.)
Order No. 4274546 makes up Docket No. KENT 99-182 and Order No. 4275621 is found
in Docket No. KENT 99-212. Since the two violations are not related, they will be discussed
separately.
Findings of Fact and Conclusions of Law

Order No. 4274546
Section 75.364(d) provides, in pertinent part, that: "Hazardous conditions shall be
corrected immediately." It is the company's position that the sagging roof was not a "hazardous
condition." I find that it was and that the company violated the regulation by not adding
additional roof support.
At the hearing, everyone agreed that there is no way to know when a sagging roof is
going to fall. It could fall sooner or later, with later being months or years later.
Marsili testified that his main concern was that if the roof did fall it would affect
ventilation, not that he would be caught in the fall. According to him, he did not consider this to
be a hazard, but was notifying management of the condition so they could add the roof support

240

and the ventilation system would not be affected.3 Dame testified that based on Marsili's entry in
the examination book, and his discussion with Marsili, he was of the same opinion. On the other
hand, Inspector Coburn testified that the roof was hazardous because it could fall on a mine
examiner traveling through the area.
Section 75.364(d) does not define the term "hazardous condition." Nonetheless, the
Commission, in discussing the same term concerning section 75.360(b), 30 C.F.R. § 75.360(b),4
noted that it had
recognized in National Gypsum [Cement Division, National
Gypsum Co., 3 FMSHRC 822 (April 1981)] that, based on its
dictionary definition, a "hazard" denotes a measure of danger to
safety or health. 3 FMSHRC at 827 & n.7. The Commission has
approved the definition of"hazard" as 'a possible source of peril,
danger, duress, or difficulty,' or 'a condition that tends to create or
increase the possibility of loss.' Id. (citing Webster's Third New
International Dictionary 1041 ( 1971 ).
Enlow Fork Mining Co., 19 FMSHRC 5, 14 (January 1997).
While it may not have been likely that the roof would fall on the examiner since he was
only in the area once a week, it was certainly a possibility. Thus, it was a possible source of
peril, danger, duress or difficulty as well as a condition that tended to create or increase the
possibility of loss and, therefore, involved a measure of danger to safety. Consequently, I
conclude that the roof was a hazardous condition.
The regulation requires that hazardous conditions be corrected "immediately." In this
case, no one would be traveling the area until the next week. Accordingly, I find that for this
violation, "immediately" means before anyone is in the area again. Since no roof support had
been added before Marsili and the inspector went into the cross-cut, I conclude that the company
violated section 75.364(d).
Unwarrantable Failure
This order was issued under section 104(d)(2) of the Act, 30 U.S.C. § 814(d)(2). That
section provides that:

3

I find it curious that Marsili made it a point of informing the inspector of the situation,
if this was his only concern.
4

75.360(b) states: ''The person conducting the preshift examination shall examine for
hazardous conditions .... "

If a withdrawal order with respect to any area in a coal or
other mine has been issued pursuant to paragraph (1 ), a withdrawal
order shall promptly be iss~ed by an authorized representative of
the Secretary who finds upon any subsequent inspection the
existence in such mine of violations similar to those that resulted in
the issuance of the withdrawal order under paragraph (1) until such
time as an inspection of such mine discloses no similar violations.
Following an inspection of such mine which discloses no similar
violations, the provisions of paragraph (1) shall again be applicable
to that mine. 5
To establish that a violation comes within section 104(d)(2), the Secretary must prove
three things: "(l) a valid underlying section 104(d)(l) withdrawal order; (2) a violation of a
mandatory safety or health standard caused by unwarrantable failure; and (3) the absence of an
intervening clean inspection.' 1 Cyprus Cumberland Resources Corp., 21FMSHRC722, 725
(July 1999) (citation omitted); Kitt Energy Corp., 6 FMSHRC 1596, 1600 (July 1984). In this
case, the Secretary did not present any evidence concerning the absence of an intervening clean
inspection. Nor is there any evidence in the record from which such a finding can be inferred.

5

Section 104(d)(l), 30 U.S.C. § 814(d)(l), states:

If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has been
a violation of any mandatory health or safety standard, and if he
also finds that, while the conditions created by such violation do
not cause imminent danger, such violation is of such nature as
could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard, and if he
finds such violation to be caused by an unwarrantable failure of
such operator to comply with such mandatory health or safety
standards, he shall include such finding in any citation given to the
operator under this Act. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the
Secretary finds another violation of any mandatory health or safety
standard and finds such violation to be also caused by an
unwarrantable failure of such operator to so comply, he shall
forthwith issue an order requiring the operator to cause all persons
in the area affected by such violation, except those persons referred
to in subsection (c) to be withdrawn from, and to be prohibited
from entering, such area until an authorized representative of the
Secretary determines that such violation has been abated.
242

Consequently, I conclude that this violation does not come withi~ the purview of section
104(d)(2).
The order will be modified accordingly. In this regard, it cannot be modified to a section
104(d)(l) order because there is no evidence that this order was issued within 90 days of a
104(d)(l) citation. Indeed, the assumption is that it was not since in that case it should have
originally been issued as a I 04(d)(l) order rather than a 104(d)(2) order. Nor can it be modified
to a l 04(d)(l) citation inasmuch as the parties stipulated that the violation was not "significant
and substantial." (Tr. 14-15.) Hence, it will be modified to a 104(a) citation, 30 U.S.C. § 814(a).
Order No. 4275621
Section 75.364(h) requires, in pertinent part, that: "At the completion of any shift during
which a portion of a weekly examination is conducted, a record of the results of each weekly
examination, including a record of hazardous conditions found during each examination and their
locations, the corrective action taken, and the results and location of air and methane
measurements, shall be made." The Respondent argues that the regulation was not violated. I
find that it was.
After the order was modified, the only violation alleged is that there was "no record
showing that the Intake and Return of the Main North Parallels have been made." The parties
agree that the air courses had, in fact, been made. Thus, this violation is, as depicted by Inspector
Simms, a "bookkeeping" violation.
The company argues that because no hazardous conditions were observed and no
measurements of air and methane were required in these areas, the examiner had not failed to
follow the regulation when he did not make any entry for the intake and return air courses in the
Main North Parallel. However, the regulation requires that the "results" of the examination be
recorded. The fact that no hazardous conditions were observed is a result of the examination.
Therefore, it should have been recorded. Additionally, as Inspector Simms testified, making
such an entry allows someone reading the examination book t~ verify that the required
examinations were being performed.
For these reasons, I conclude that the Respondent violated section 75.364(h) when the
examiner did not record the results of his examination of the intake and return air ways in the
Main North Parallel.
Unwarrantable Failure
Like the previous order, this one was lodged under section 104(d)(2). For the same
reason that I found that the Secretary did not demonstrate that the other order was properly issued
under that section, that there is no evidence of the absence of an intervening clean inspection, I

243

-

conclude that this order was not properly issued under section 104(d)(2). Accordingly, as with
the previous order, this violation will be modified to a 104(a) citation.

Civil Penalty Assessment
The Secretary has proposed penalties of $797.00 for these two violations. However, it is
the judge's independent responsibility to determine the appropriate amount of penalty in
accordance with the siX; penalty criteria set out in section 1lO(i) of the Act, 30 U.S.C. § 820(i).
Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (71h Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481, 483-84 (April 1996).
In connection with the penalty criteria, the parties have stipulated that a reasonable
penalty will not affect the ability of Lodestar to remain in business, that the Wheatcroft mine
produces 342,117 tons of coal per year and that Lodestar produces 9,387,053 tons of coal per
year. (Tr. 14.) From this I conclude that Lodestar's ability to remain in business will not be
adversely affected by the penalties in these cases and that the mine is a medium size mine, while
Lodestar is a large operator.

Based on the company's Assessed Violation History Report and the Proposed Assessment
documents in this case, I find that Lodestar has an average history of prior violations. (Govt.
Exs. 1 & 2.) I further find from the evidence of record that the company demonstrated good faith
in attempting to achieve rapid compliance after being notified of the violations.
As previously noted, the parties stipulated that neither of these violations were
"significant and substantial." (Tr. 14-15.) Therefore, I find that the gravity of these violations is
not very high.
Finally, with regard to the negligence involved in these violations, I find that the company
was moderately n.egligent in not adding roof support in the cross-cut before the No. 1 seal in the
No. 6 set of seals. ~make this finding based on the fact that the violation was not S&S, that the
area was only traveled once a week, and that Marsili apparently indicated to the company that the
matter was not urgent. I find that the negligence involved in the bookkeeping violation was low
in view of the facts that the decision not to enter negative findings was not an unreasonable
interpretation of the regulation 8?d that several other inspectors had reviewed the examination
books and had not alerted the company to the deficiency.
Taking all of these factors into consideration, I conclude that a penalty of $150.00 is
appropriate for Citation No. 4274546. I find a penalty of $55.00 to be appropriate for Citation
No. 4275621.

244

Order
Order No. 4274546 in Docket No. KENT 99-182 is MODIFIED to a 104(a) citation by
deleting the "unwarrantable failure" designation and by reducing the level of negligence from
"high" to "moderate," and is AFFIRMED as modified; Order No. 4275621 in Docket No.
KENT 99-212 is MODIFIED by deleting the "unwarrantable failure" designation and reducing
the level of negligence from "high" to "low," and is AFFIRMED as modified.
Lodestar Energy, Inc. is ORDERED TO PAY a civil penalty of$205.00 within 30 days
of the date of this decision.

'1~~
Administrative Law Judge

Distribution:
J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201 , Nashville, TN 37215-2862 (Certified Mail)
Richard M. Joiner, Esq., Mitchell, Joiner & Hardesty, P.S.C., 113 East Center Street, P.O. Box
659, Madisonville, KY 42431 (Certified Mail)

/nj

245

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
1730 K STREET, N.W ., Room 6003
WASHINGTON, D. C. 20006-3868
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

February 28, 2000

NORTHERN ILLINOIS STEEL
SUPPLY,
Contestant

CONTEST PROCEEDING
Docket No. LAKE 99-78-RM
Citation No. 7819416; 1/28/99

v.

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

Lemont Quarry & Mill

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

CIVIL PENALTY PROCEEDING

Mine ID 11-01546

Docket No. LAKE 99-120-M
A. C. No. 11-01546-05501 1 PR
Lemont Quarry & Mill

DECISION
Appearances: Theordore J. Tierney, Esq., Adriana I. Reyes-Villanueva, Esq., Vedder, Price,
Kaufman & Kammholz, Chicago, Illinois, for Contestant;
Christine M. Kassak, Esq., ·office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois; Gary Cook, Conference and Litigation Representative,
U.S. Department of Labor, Duluth, Minnesota, for Respondent.
Before:

Judge Barbour

These are contest and civil penalty proceedings arising under section 105 of the Federal
Mine Safety and Health Act of 1977 (30 U.S.C. § 815 (Mine Act or Act)). They involve one
citation issued to Northern Illinois Steel Supply (NIS) at the quarry owned and operated by
Vulcan Materials (Vulcan). When the citation was issued, an NIS employee was in the process
of unloading steel from the bed of an NIS truck. The employee had delivered the steel to the
quarry pursuant to a contract between NIS and Vulcan. The employee was standing on top of the
steel. The employee was not tied off or otherwise secured against falling. The Secretary alleges
the employee, and therefore NIS, violated 30 C.F.R. § 56.15005, a mandatory safety standard for
surface metal and nonmetal mines requiring in part that "(s )afety belts and lines be worn when
persons work where there is danger of falling''.

246

NIS contested the citation. NIS argued it was not an "independ.ent contractor" within the
meaning of the Act and therefore was not .an "operator". In the associated civil penalty proceeding the Secretary proposed the assessment of a civil penalty of $113 for the alleged violation, and
NIS again raised its jurisdictional defense. The cases were consolidated for hearing and decision.
They were tried in Chicago, Illinois. Counsels have filed helpful briefs.
THE CENTRAL ISSUE
Section 104(a) of the Act (30 U.S.C. § 814(a)) requires that an inspector of the Secretary's Mine Safety and Health Administration (MSHA) issue a citation whenever he or she
believes an "operator'' has violated the Act or any mandatory safety standard promulgated
pursuant to the Act. Section 3(d) of the Act defines "operator" as including "any independent
contractor performing services or construction at [a] mine" (30 U.S.C. §802(d)). The cases turn
upon the question of whether NIS was an "independent contractor" and thus was an "operator" as
a result of its delivery and its unloading of steel at the quarry.
STIPULATIONS
At the hearing the parties stipulated in part as follows:
1. The ... judge has authority to hear and decide [the] proceeding[s].

2. At all times relevant to [the] proceedings, [NIS's] operations affect[ed]
interstate commerce.
3. On January 28, 1999, [NIS] employed a truck driver to drive a flatbed
truck with a load of prime domestic steel to Vulcan[ 's] ... Lemont Quarry ... in
Romeoville, Illinois.
4. Citation [No.] 781941 6 ... was properly served.
5. From January 1, 1998 through December 31, 1998, [NIS] worked [68]
hours (in approximately 20 to 30 minutes oftime) for each presence at the mine.
6. [NIS] has no history of previous violations.
7. [NIS] employs 41 people at all of its facilities.
8. [The] Lemont Quarry is a mine under MSHA jurisdiction.
9. The ... [q]uarry mines limestone.
10. On January 28, 1999, NIS either owned or leased the flatbed truck
mentioned in Citation No. 7819416.
247

lL On January 28, 1999, [NIS] did not engage in construction at the
Lemont Quarry.
12. NIS sold prime domestic steel products to the Lemont Quarry.
13. On January 28, 1999, the truck driver identified in Citation
No. 781941 drove to the ... [q]uarry and while there, released the restraints on the
flatbed truck holding the steel.
14. The payment of the $113 assessed penalty will not affect (NIS's]
ability to continue in business (Tr. 9-11, see Tr. 111-112~ see also Joint Exh. 1).
The parties also stipulated that operations at the quarry affected interstate commerce
(Tr. 111-112).
THE FACTS

The Quarry And The Delivery Of Steel To The Quarry
At the quarry limestone is extracted, crushed, and stockpiled. The processed stone, which
is sold by Vulcan, is trucked away by independent haulers. Much of the stone is used in road
construction.
Terry Croxford, who testified on behalf of the Secretary, is an employee of Vulcan. Croxford
manages construction projects for the company (Tr. 41 ). As the manager of construction, he plans
and oversees the projects. He orders materials and equipment needed for the projects. He assigns
miners to do the work (Tr. 44).
Many of the projects require the use of structural steel in the form of beams, bars, plates,
and angles. (Angles are used most often for structural support.) Vulcan purchases the steel from
NIS and has done.so since either late 1997 or early 1998 (Tr. 126). Depending upon the size of a
project, the company may purchase the steel from one to two times a week.
The steel is shipped from the NIS plant to the quarry on flatbed trucks. The trucks are
owned or leased by NIS, and the truck drivers are NIS employees. Most of the trucks used by
NIS are not equipped with hoists for unloading the steel. Therefore, once the trucks reach the
delivery point at the mine, they are unloaded using Vulcan-owned and operated equipment.
At the NIS plant, steel that is put on a delivery truck is secured to the truck bed by wire
ropes or metal chains. Before the truck leaves the plant, the ropes or chains are tightened with a
winch-like device. Once the load is secured, it is not touched until it is unloaded at the quarry.
The truck leaves the plant and travels on public roads until it reaches the quarry access
road. (Vulcan shares this road with some of its contiguous neighbors.) The truck turns onto the

248

access road. The truck proceeds down the road toward the point where the steel is to be
delivered (Tr. 62). It is approximately one half mile from the beginning of mine property to the
active areas of the mine (Tr. 63). The delivery point is usually near the project where the steel is
to be used, and the truck driver usually backs the truck into the area where the truck is unloaded
(Tr. 90). In general, Vulcan employees decide where and when it is safe to unload (Tr. 91).
Most often the equipment used to unload the steel consists of a crane with a hoist,
although occasionally a fork lift or a loader is used. When the steel is lifted by a crane, a hook is
attached to the crane's metal hoist line. The wire ropes or chains securing the load to the bed of
the truck are loosened and removed. The crane operator lowers the hook, and the hook is
inserted into a metal sling that surrounds the load. The crane operator raises the hoist line and
hook, lifts the load, swings the load away from the flatbed truck, and lowers it to the ground or to
a waiting Vulcan vehicle.
Up to and including the time the subject citation was issued, the NIS truck driver usually
helped with the loading process by unbinding or "unlocking" the restraints on the load (Tr. 93).
On "rare occasions" the driver also guided the hook into the lifting chain that surrounded the
load, an act described as "rigging" the load (Tr. 75, 93). Croxford estimated the driver rigged the
load approximately 10% to 15% of the time (Tr. 93):
Events Surrounding Citation No. 7819416

On the morning of January 28, 1999, Denis Libertoski, an MSHA inspector, arrived at the
quarry to conduct his first regular inspection of the site. Around 8: 15 a.m., as he approached the
maintenance shop, he saw an NIS truck. It was parked about 100 feet in front of the shop
(Tr. 154). A load of steel was on the bed of the truck. The load consisted ofH-beams and
I-beams. Also, it may have included angles (Tr. 161). The steel was going to be used in building
a catwalk and hand rails at the crusher (Tr. 70).
Libertoski rioticed that the load was being readied to be lifted from the truck. Libertoski
could not recall the equipment that was going to be used to lift the steel, but he remembered that
there was a metal sling around the load (Tr. 166-167). In addition, Libertoski remembered seeing
a person standing on top of the steel. The person was guiding a hook into the sling so that the
steel could be lifted and removed (Tr. 144-145).
As Libertoski walked toward the truck he saw that the person standing on the steel was
not wearing a safety belt and line. The person was approximately 5Yi feet to 6 feet above the
ground (Tr. 170-172). The road below was surfaced with gravel and the ground was frozen (Tr.
150). There was nothing to prevent the person from falling off of the load to the gravel road.

·since the citation was issued the unloading practice has changed. After January 28,
1999, upon instructions from NIS officials, NIS drivers have remained at all times in the cabs of
their trucks.
249

At first, Libertoski thought the person was a Vulcan miner. (A Vulcan employee was
running the equipment used to unload the steel and two other miners were in the area (Tr. 145146).) However, when he approached the truck and spoke to the person, the person told
Libertoski that he was the truck driver and that he worked for NIS (Tr. 157). The driver also told
Libertoski that usually he delivered steel to the quarry twice a week (Tr. 175, 184).
Libertoski touched the steel and found that it was wet, making it "extra slippery"
(Tr. 144, 161). He believed the driver reasonably was likely to slip off the steel, fall to the gravel
road and be injured seriously. Libertoski acknowledged that the driver might have grabbed the
hoist line to regain his stability and that the driver was wearing a hard hat, nonetheless Libertoski
thought the driver was in danger (Tr. 149-150, 173-175).
No Vulcan supervisors were present when Libertoski saw the driver, but as he walked
toward the truck, a Vulcan management official arrived (Tr. 185). Because of the lack of on-site
supervisory personnel, Libertoski speculated that neither Vulcan nor NIS management actually
knew the driver was engaging in an unsafe work practice (Tr. 152-153).
Libertoski required the driver to climb down off of the truck bed. Libertoski and the
Vulcan supervisor then instructed the driver on the hazards of working without being tied off.
Also, Libertoski explained to the driver the requirements of mandatory safety standard section
56.15005 (Tr. 190). The driver agreed that standing on the steel without a safety belt and line
was hazardous, and he assured Libertoski that he would not do it again.
Libertoski thought there was a violation of section 56.15005 because the driver was
working without a safety belt and line where there was a danger of falling (Tr. 143). Libertoski
cited NIS for the violation because the driver was an NIS employee and because NIS was an
independent contractor performing a service (the delivery and the rigging of steel). Therefore,
Libertoski believed that NIS was an "operator" within the meaning of the Act (Tr. 138, 159,
169).
Libertoski was the last witness to testify for the Secretary. At the close of the Secretary's
case, NIS rested. Counsel for NIS maintained that the Secretary had not established that NIS was
an operator (Tr. 195-196).
THE STATUS OF NIS
The Mine Act subjects to regulation each coal or other mine affecting commerce and
"each operator of such mine" (30 U.S.C. § 803). Section 3(d) of the Act defines "operator" as
"any owner, lessee or other person who operates, controls, or supervises a ... mine or any
independent contractor performing services or construction at such mine" (30 U.S.C. § 802(d)).
The phrase "any independent contractor performing services or construction at [a] mine"
was not included in the definition of "operator" set forth in the Federal Coal Mine Health and
Safety Act of 1969 (Coal Act), the predecessor to the Mine Act. It was added in 1977 when

250

Congress amended·the Coal Act and renamed it the Mine Act. Expansion of the statutory
definition was motivated by concern about the authority of the Secretary to regulate independent
contractors (See. e.g., National Industrial Sand Association v. Marshall, 601 F.2d 689, 702-703
(3ro Cir. 1979)). The context within which the concern arose involved the Secretary's attempts to
assert jurisdiction over independent general contractors perfonning surface and subsurface
construction at mines (See, Bituminous Coal Operator's Association v. Kleppe, 547 F. 2d 240
(4lh Cir. 1977)). In discussing the decision to include independent contractors in the revised
definition of "operator'', the Senate Committee that drafted the Mine Act stated, "[T]he definition
of 'operator' is expanded to include 'any independent contractor perfonning services o[r]
construction at such mine. ' It is the Committee's intent to thereby include individuals or firms
who are engaged in construction at such mine, or who may be ... engaged in the extraction
process for the benefit of the owner or lessee of the property'' (S. Rep. No. 95-181, l st Sess.,
14 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95rh
Congress, 2d Sess. Legislative Histoiy of the Federal Mine Safety and Health Act of 1977 at
602)).
The courts have emphasized that the statutory definition of "operator" does not include all
independent contractors at a mine, but rather is restricted to those that are "performing services
or construction at [a] mine" (30 U.S.C. § 802(d)). For example, the 3rd Circuit has stated that:
The reference made in the statute only to independent contractors
who "perform[ ] services or construction" may be understood as
indicating ... that not all independent contractors are to be considered
operators. There may be a point, at least, at which an independent contractor's contact with a mine is so infrequent or de minimis that it would be
difficult to conclude that services were being performed. (National
Industrial Sand Association, 601 F. 2d 689, 701 (3rd Cir. 1979) (footnote
deleted)).
The court's analysis of the legislative history lead it to conclude that the concern of Congress was
with the permissive scope of the Secretary's authority not with the mandatory imposition of the
Act's requirements (National Industrial Sand, 601 F.2d at 703).
Following this reasoning, the Secretary decided that rather than spell out the parameters
of her authority, she would leave·to herself the enforcement discretion to determine whether or
not a particular regulation applied to a particular independent contractor (45 F.R. 44495, 44497
(July 1, 1980)).
The Secretary's lack of specificity, did not reassure the industry. There was concern concern that was reiterated at the hearing on these matters - that the Secretary would abuse her
discretion by extending jurisdiction to entities that only were c01mected remotely with mining;
for example, that she might attempt cite as "operators" independent contractors delivering food
or office supplies to a mine (See Tr. 29-31). Partly in response to such concerns, the Commission set forth two bases it would consider when evaluating the Secretary's exercise of discretion.

251

The 8ommission stated that it would look to: (1) the contractor' s proximity to the mining
process and whether the contractor's work was sufficiently ~elated to that process, and (2) the
extent of the presence of the contractor at the mine (see Otis Elevator Company, 11 FMSHRC
1896 (October 1989), 921 F. 2d 1285 (D. C. Cir. 1990); Joy Technologies Inc., 17 FMSHRC
1303, 1307 (August 1995), affd, 99 F. 3d 991 (I01h Cir. 1996) cert. denied, S. Ct. 1691 (1997)).
The courts have not overturned these bases and the words of the statute and the
Commission's guidelines remain relevant to the subject cases. Applying the statutory definition
and the Commission's guidelines, I conclude the record fully supports finding that when it was
cited, NIS was governed by the Mine Act.
First, NIS was an "independent contractor". Neither the operation of the truck, nor the
rigging of the steel was carried out pursuant to Vulcan's supervision. An NIS employee was
driving the truck. An NIS employee was "unlocking" and rigging the steel. Vulcan was not
supervising the unloading process. In other words, NIS, through its employee, was acting
independently of Vulcan. Moreover, NIS was delivering the steel that Vulcan ordered and at no
additional cost to Vulcan. In so doing, NIS was acting pursuant to its contract with Vulcan.
Second, NIS was "performing [a] service". It was delivering the steel to the mine, and it
was assisting in unloading the steel. As Libertoski properly noted, in so doing, NIS was
engaging in work that Vulcan would have had to do if NIS had not acted. Clearly, this was a
service to Vulcan.
Third, NIS was engaged in work that was closely related to the mining process. The steel
that was delivered on January 28, 1999, was going to be used in building a catwalk and handrails
at the crusher. The crusher was vital to the on-site preparation of limestone extracted at the
quarry.
Fourth, NIS had a significant presence at the quarry. The delivery of the steel required
the NIS driver-to traverse a road used by NIS employees and by other contractors, and the steel
was unloaded in an area where NIS employees were present and where others might come.
Thus, the fact that the NIS driver and the NIS truck were on Vulcan's property had a potential
impact on the safety of Vulcan's employees and on the safety of others at the mine.
Because NIS was acting as an independent contractor performing a service, because the
delivery of the steel by NIS was closely related to the mining process, and because the presence
of the NIS driver and equipment was sufficiently extensive, I find that the Secretary did not abuse
her discretion in citing the company, and I conclude that on January 29, 1999, NIS was subject to
the Act.

THE VIOLATION
Libertoski ' s testimony that the N1S driver was on top of the truck's load of steel, that the
steel was wet, and that the driver was not tied off with a safety belt and line was not disputed.

252

Nor was Libertoski challenged when he testified the driver was approximately 5'l'2 to ·6 feet above
the road surface. The testimony establishes that if the driver slipped, there was nothing to
prevent him from falling to the road. Thus, driver was "in danger of falling" and since he was
not wearing a safety belt and line, the violation existed as charged.
S & S and GRAVITY

The inspector found the violation was a significant and substantial contribution to a mine
safety hazard. A violation is significant and substantial, if based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in
an injury or illness of a reasonably serious nature (Arch of Kentucky, 20 FMSHRC 1321, 1329
(December, 1998)); Cyprus Emerald Resources. Inc., 20 FMSHRC 790, 816 (August 1998));
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981)). In Mathies Coal Co., 6 FMSHRC 1
(January 1984)); the Commission held ·that in order to establish a S&S violation of a mandatory
standard the Secretary must prove: (1) the existence of an underlying violation; (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 injuryj and (4) a reasonable
likelihood the injury in question will be of a reasonable serious nature.
Here, the Secretary met her burden. The failure of the driver to be protected by a safety
belt and line contributed to the danger he would tumble from the truck to the road below. The
wet steel made it likely he would slip and fall. A fall of up to six feet onto the hard surface of the
road certainly was reasonably likely to result in injury to the driver. Had he slipped, the only
thing to prevent the driver from falling was for him to grab the hoist line and to use it to stabilize
himself. However, rigging the steel required him to move out ofreach of the line at times. By
wearing a safety belt and line, all element of chance would have been eliminated, and slipping
would not have posed a danger of falling unrestrained. Therefore, I conclude that it was
reasonably likely the driver would have slipped and that his unrestrained fall would have caused
injury. Also, given the distance of the fall and the surface upon which he would have landed, I
conclude the injury would have been of a reasonably serious nature.
Finally, the nature of the injury that could have been expected and the present possibility
that an accident would have occurred, indicate that, in addition to being S&S, the violation was
senous.

NEGLIGENCE
The driver was under the supervision and control of NIS, and NIS failed to ensure
compliance with the standard in spite of the fact NIS was aware that its drivers occasionally assisted
in rigging steel. (Only after January 29, did the company ordered its drivers to remain in the cab of
the truck when delivering steel to the mine.) In failing to make sure its driver complied with section
56.15005, the company failed to exhibit the care required by the circumstances and was negligent.

253

OTHER CIVIL PENALTY CRITERIA
NIS has no history of previous violations. Given the number of employees and the
number of hours NIS employees worked at the mine, counsel for the Secretary characterized the
company as small in size (Stips. 5-6; Tr. 13). The parties also stipulated that payment of the
assessed civil penalty will not affect the ability ofNIS to continue in business (Stip. 14). Finally,
the inspector described the violation as have been abated in good faith (Tr. 190).

CIVIL PENALTY
Considering the penalty criteria, and especially in view of the fact that this is the first
time NIS has been cited for a violation and that NIS is a small company, I conclude that a civil
penalty of $50 is appropriate.

ORDER
NIS is ORDERED to pay a civil penalty of $50 within 30 days of the date of this
decision and upon paym'ent of the penalty, this proceeding is DISMISSED.

~.~/.&.~

David F. Barbour
Chief Administrative Law Judge

Distribution: (Certified Mail)
Adriana T. Reyes-Villanueva, Esq., Theodore J. Tierney, Esq., Vedder, Price, Kaufman &
Kammholz, 222 North LaSalle Street, Suite 2600, Chicago, IL 60601
!

Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South
Dearborn Street, 8th Floor, Chicago, IL 60604
Gary Cook, Conference and Litigation Representative, U.S. Department of Labor, MSHA, 515
West l51 Street, Room 333, Duluth, MN 55802-1302

/gl

254

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

February 7, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 99-266
A. C. No. 41-03164-03544

V.

Jewett Mine
NORTHWESTERN RESOURCES CO.,
Respondent
ORDER DENYING MOTION
TO CERTIFY FOR INTERLOCUTORY REVIEW
This case is before me on a Petition for Assessment of Civil Penalty under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Before assigning the
case to me, former Chief Administrative Law Judge Paul Merlin denied the Respondent's
opposition to the Secretary's motion to accept late filing of the petition. On January 11, 2000,
the Respondent fi led a motion requesting that Judge Merlin's ruling be certified for interlocutory
review. The Secretary did not respond to the motion.
Interlocutory review is governed by Commission Rule 76, 29 C.F.R. § 2700.76. Rule
76(a)(l)(i), 29 C.F.R. § 2700.76(a)(l)(i), provides that:
(!) .Review cannot be granted unless:
(i) The Judge has certified, upon his own motion or the
motion of a party, that his interlocutory ruling involves a
controlling question of law and that in his opinion immediate
review will materially advance the final disposition of the
proceeding . . ..
I find that the motion must be denied because the ruling does not involve a controlling question
oflaw.
In Salt Lake County Road Dept., 3 FMSHRC 1714 (1981 ), the Commission held that the
late filing of a Petition for Assessment of Civil Penalty was not jurisdictional, that is, that
automatic dismissal was not required when the petition was not filed on time. Id. at 1716.
Instead, it established a two part test for determining whether a late-filed petition should be
dismissed: (1) The Secretary must establish adequate cause for the delay; and (2) If adequate
255

cause is established, the Respondent must show prejudice. Id. The determination of both parts
of the test is within the discretion of the judge or Commission.

In effect, the Respondent is arguing that Judge Merlin abused his discretion in allowing
the petition to be filed late. If a matter is discretionary, it does not involve a controlling question
oflaw. Accordingly, the motion to certify is DENIED.

J~~L.

T. Todd Hod~'r,...,
Administrative Law Judge
(703) 756-6213

Distribution:
Raquel Tamez, Esq., Office of the Solicitor, U.S. Department of Labor, 525 South Griffin Street,
Suite 501, Dallas, TX 75202 (Certified Mail)
Charles C. High, Jr., Esq., Kemp, Smith, Duncan & Hammond, P.C., 1900 Northwest Plaza,
El Paso, TX 79901-1441 (Certified Mail)
/nj

256

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 t

February 7, 2000
CONTEST PROCEEDINGS

KEYSTONE CEMENT COMPANY,
Contestant

v.

Docket No. PENN 99-137-RM
Citation No. 4439698; 2/9/99

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

Docket No. PENN 99-138-RM
Order No. 4439699; 219199
Keystone Cement
Mine ID No. 36-00125

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 2000-29-M
A.C. No. 36-00125-05571

KEYSTONE CEMENT COMPANY,
Respondent

Keystone Cement Co.

ORDER DENYING MOTION TO COMPEL
During the course of discovery the Secretary has revealed to Keystone Cement Company
(Keystone) the·names of all of her potential witnesses and has produced the notes of interviews
that have been conducted, redacting in each case however the identity of each interviewee
asserting, inter alia, the govenunent informant's privilege. Keystone seeks, by motion to
compel, the disclosure of the identity of each interviewee and identification with his
corresponding statement.
The informant's privilege is the well-established right of the government to withhold
from disclosure the identity of any person who provides information about violations of the law
to law enforcement officials. Roviaro v. U.S., 353 U.S. 53 (1957); Secretary v. Bright Coal Co ..
Inc., 6 FMSHRC 2520 (November 1984). The purpose of the privilege is two-fold: to protect the
public interest, by maintaining a free flow of information to the government concerning possible
violations of the law, and to protect persons supplying that information from retaliation. Bright,
6 FMSHRC at 2522-2523 (quoting Roviaro, 353 U.S. at 59).
Keystone argues that by revealing the names of all her potential witnesses, the Secretary
has in fact waived the informer's privilege. While it is true that the informer's privilege
257

technically extends only to the identity of an informer and not to a known informer's statement
Keystone does not yet know whether the persons identified as witnesses are "infonnants" p er se.
This is because Keystone does not know whether any of these witnesses spoke disparagingly or
in an incriminating manner about Keystone or others and are thus in need of the protection
afforded by the informant's privilege. This distinction was noted in Martin v. Albany Business
Journal Inc., 780 F.Supp. 927 (N.D.N.Y. 1992), citing Hodgson v. Charles Martin Inspectors of
Petroleum, Inc., 459 F.2d 303 at 306 (5 1h Cir. 1972):
Knowing the identity of persons who have given statements to the
Secretary is not equivalent to knowledge of which of those persons were
informers within the context of the privilege. Only when the content of the
statement is disclosed will it be revealed whether the information was given
reluctantly or voluntarily, whether the tone and manner in which it was given was
friendly to the defendant or unfriendly, and whether it was accusatory or
favorably. In short, if the employee is not known to the defendant as an informer
but merely as a statement giver, then disclosure of the statement might reveal him
as an informer. 459 F.2d at 306.
As the court noted in the Martin case, disclosure of the identity of the statement givers in
association with their statements would reveal for the first time whether any of those witnesses
were "informers," i.e., speakers who implicated as opposed to mere "statement givers." As that
court stated, such a disclosure would defeat the very purpose of the informant's privilege. Since
Keystone does not know which of the witnesses were "informers" as that term relates to the
informer's privilege there has been no waiver of the informer's privilege as to their identification
with particular statements.
Keystone argues that the privilege is, in any event, qualified and must yield where
disclosure is essential to the fair determination of a case. Bright, 6 FMSHRC at 2523 (quoting
Roviaro, 353 U.S. at 60-61). The burden of proving facts necessary to show that the information
sought is essential to a fair determination rests however with the party seeking disclosure.
Secretary v. Asarco, Inc., 12 FMSHRC 2548, 2555 (December 1990) (quoting Bright, 6
FMSHRC at 2526). In Asarco, the Commission reiterated its holding in Bright, stating that the
informant's privilege is "well-established, but qualified," and that it is "applicable to the
furnishing of information to government officials concerning possible violations of the Mine
Act." Asarco, 12 FMSHRC at 2553 .
The privilege is overcome only by a showing that the opposing party's need for the
information outweighs the government's need to maintain the privilege to protect the public
interest. Bright, 6 FMSHRC at 2526. Therefore, the opposing party must demonstrate special
circumstances or a substantial need for the information sought. Factors to be considered in
determining whether the information sought is essential to a fair determination include: (a)
whether the Secretary is in sole control of the requested material; (b) whether the material sought
is already within the control of the party seeking it; and (c) whether that party had other avenues
available from which to obtain the substantial equivalent of the requested material. Bright, 6

258

FMSHRC at 2526.

In this regard Keystone makes the following representations:
In this case, Keystone will be unable to depose several key eyewitnesses to
the case, the former Murray's Contracting employees, without knowing which
employees gave which statements to MSHA. Simply put, this information is
critical which eyewitnesses saw which events at the time of the accident [citation
ommitted]. Keystone does not have alternative means of obtaining the same
information-the Murray's Contracting employees were the only witnesses to the
events. Moreover, Murray's Contracting has ceased operations and its employees
may not be accessible to Keystone as trial witnesses. Given that those
individuals' recollections may be offered at trial by MSHA as hearsay testimony,
it is all the more critical for Keystone to be able to evaluate the nature of such
initial statement. Therefore, even if, arguendo, a legitimate claim for privilege
existed, Petitioner's need for this information outweighs the Secretary's need to
protect it.
I find Keystone's claims to be overstated. Keystone has been provided the identities of all
witnesses including the former Murray Contracting employees and is free to interview and/or
depose those persons. In addition, the witnesses are subject to the court's jurisdiction by
subpoena so that Keystone's claims that certain persons may not be accessible as trial witnesses is
without substance. Finally, since Keystone has in its possession all of the statements that have
taken from the "informants," and states that it will be deposing the MSHA inspectors, it now has
or will have available what may be anticipated at trial as hearsay testimony. Keystone may
explore those statements in any event during interviews of the named witnesses. Under the
circumstances I do not find that such circumstances exist as would warrant the disclosure of the
privileged information.
If, during trial, Respondent can demonstrate prejudice by the failure to have had the
information now sought, an appropriate request for continuance would be considered by the trial
judge at that time.

ORDER
The Respondent's Motion to Compel is denied.

259

Distribution: (Via Facsimile and Certified Mail)
David Farber, Esq., Patton Boggs, LLP, 2550 M Street, N.W., Washington, D.C. 20037
Gayle M. Green, Esq., Office of the Solicitor, U.S. Dept. of Labor, Gateway Building,
Room 14480, Philadelphia, PA 19104
/mca

260

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WA SHINGTON, D. C. 20006-3868
Telephone No.: 202-653-5454 ·
Telecopier No.: 202-653-5030

February 11, 2000
CONTEST PROCEEDING

FLORIDA CANYON MINING,
INCORPORATED, .
Contestant

Docket No. WEST 2000-24-M
Order dated August 10, 1999

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

Florida Canyon Mine
Mine ID No. 26-01947

ORDER DENYING MOTION T O STAY
ORDER TO SUBMIT INFORMATION
On October 12, 1999, the Commission received the operator's notice of contest of
MSHA's notices to terminate an Agreement to Abate Violative Health Conditions which was
given the above-captioned docket number. The operator advised that it entered into an
agreement with MSHA on October 17, 1997, which provided that the time for abatement of
certain citations would be extended so that the operator could address the problem of exposure of
miners to dust at the mine. On August I 0, 1999, MSHA sent a letter to the operator stating that
MSHA was terminating the agreement within 30 days. The operator asked for and was granted
additional time.until October 12, 1999, to comply with MSHA regulations in a letter dated
September 8, 1999,. from MSHA. On September 10, 1999, MSHA sent another letter confirming
that the operator must be in full compliance by October I 0. The operator is seeking to contest
the August 10 and September 8 letters.
On October 18, Chief Administrative Law Judge Paul Merlin issued an order directing
the Solicitor to file a response to the operator's notice of contest.
On November 17, 1999, the Solicitor filed his response stating that the abatement date
was extended until November 29, 1999, and the parties were engaged in discussions in order to
avoid litigating this matter. Because of these actions, the Solicitor asserted that the contest of the
termination of the extension of abatement agreement was not ripe.
On December 16, 1999, Judge Merlin issued an order directing the parties to set forth in
writing why this case should not be dismissed for lack of subject matter jurisdiction. Judge
Merlin stated in his order that the parties should addressed what appeared to him the more
fundamental question of whether the Commission has jurisdiction in this case. Judge Merlin
261

pointed out that it is well established the Commission as an administrative agency has only the
jurisdiction which Congress gives it, Lyng v. Payne, 476 U.S. 926, 937 (1986); Killip v. Office
of Personnel Management, 991 F.2d 1564, 1569 (Fed Cir. 1993); Samuel B. and Nancy Sanders,
18 FMSHRC 377, 378 (March 1996), and that the Commission has long recognized that it cannot
exceed the limits of its authority as enacted by Congress. Kaiser Coal Corp., 10 FMSHRC 1165,
1169, (September 1988). Judge Merlin further observed that section 105(d) of the Act, 30 U.S.C.
§ 815(d), sets forth how and under what circumstances Commission review may be obtained of
actions taken by MSHA, and that he had repeatedly held the jurisdictional restrictions on the
Commission must be observed. Samuel B. and Nancy Sanders, supra; Jim Walter Resources, 18
FMSHRC 380, 381(March1996); D.H. Blattner & Sons, 17 FMSHRC 1073, 1074 (June 1995);
Consolidation Coal Co., 16 FMSHRC 1403, 1404 (June 1994); Wallace Brothers, 14 FMSHRC
586, 588 (May 1992). Finally, Judge Merlin stated that it did not appear the termination of an
abatement agreement is an action covered by the statute.
On January 11, 2000, the parties filed a joint motion to stay this proceeding. The parties
advise the primary reason for this request is the repeated abatement extensions of related
citations and agreements that present a time delay in any basis for contest in these matters. The
parties state that they plan to meet within the next sixty days to explore resolution of pertinent
issues concerning respirable dust standards at the mine and this may cause the parties to settle
these matters without further litigation.
The parties' motion is not well taken. The question of subject matter jurisdiction has
been raised by Judge Merlin. Once this issue has raised by either the judge or the parties, it must
be adjudicated. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Moreover, rule 12(h)(3)
of the Federal Rules of Civil Procedure requires a judge to dismiss an action "whenever it
appears by suggestion of the parties or otherwise that the court lacks subject matter jurisdiction."
The parties are now requesting that I stay a proceeding regardless of whether subject matter
jurisdiction-exists. However, implicit in tlie power to stay a case is that the judge has jurisdiction
over the matter: Since it is unclear whether jurisdiction is present, the stay request cannot be
granted. Rather, the parties must set forth their position with respect this issue.

In light of the foregoing, it is ORDERED that the motion to stay is DENIED.
It is further ORDERED that within 30 days of the date of this order the parties set forth
in writing why this case should not be dismissed for lack of subject matter jurisdiction.

Yw1c1.f.5~

David F. Barbour
Chief Administrative Law Judge

262

Distribution: (Certified Mail)
Laurence S. Kirsch, Esq., Geraldine Edens, Cadwalader, Wickersham & Taft, 1333 New
Hampshire Avenue, N.W., Washington, DC 20036
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
Thomas A. Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Room 420, Arlington, VA 22203
/gl

263

FEDERAL MINE SAFETY AND BEALTH REVIEW COMMISSION
1730 K. Street, N.W., 6'h Floor
Washington, D.C. 20006

February 11, 2000

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

SPECIAL PROCEEDING

Docket No. S. 2000-1

STERLING VENTURES, LLC,
and CHRJS PULLIAN
Adverse Parties
ORDER GRANTING MOTION TO PERPETUATE TESTIMONY

Counsel for the Secretary is seeking an order granting her the right to take the testimony
of Placido (Carlos) Lino, an employee of Sterling Ventures, LLC d/b/a/ Sterling Materials
(Sterling). The testimony relates to circumstances surrounding a fatal accident that allegedly
occurred at Sterling's mine on December 21, 1999. The accident took the life of a miner who
was working with Lino. According to the Secretary, Lino and the victim were shoveling spilled
material onto a conveyor belt, Lino was called away for a few moments, and the victim was
pulled into the belt' s tail pulley.
The Secretary investigated the accident and interviewed Lino, who is a citizen of Mexico.
The Secretary issued citations and an order to Sterling. She also interviewed Lino's and the
victim's foreman, Chris Pulliam. According to Pulliam's counsel, during the course of the
interview representatives of the Secretary candidly advised Pulliam he might be subject to
proceedings brought by the Secretary under section 1lO(c) of the Act for knowing violations of
mandatory safety standards.
Sterling did not challenge the validity of the citations and the order, and the Secretary has
yet to initiate a penalty proceeding against Sterling or Pulliam. Nevertheless, because she
believes that "Lino may return to Mexico at any time and most likely will be outside of the
subpoena power of the Commission before any discovery can be commenced in any anticipated
litigation", the Secretary requests that she be permitted to depose Lino as soon as possible and
prior to the initiation of any proceeding (Sec. Mem. at 6).

264

The Secretary's request was received on February 1, 2000. Because it did not initiate a
proceeding nor relate to one that was pending, it was assigned a special docket number (Docket
No. S 2000-1). Counsels then were contacted by telephone. Counsel for Pulliam was not
available, but counsel for Sterling stated that he would file a response and that he would consult
with counsel for Pulliam about whether he (counsel for Pullian) would file one as well.
Today, February 11, 2000, at 10:30 a.m., counsel for the Secretary advised me via a
conferenced telephone call that certain "developments" necessitated an expeditious ruling.
Counsel for Sterling added that the company discovered that Lino's Social Security number did
not "match" his name and that information Lino filed with the Immigration and Naturalization
Service did not appear to be accurate. Counsel for Sterling stated that the company was required
to advise Lino of this, to suspend him from employment, and to give him time to correct or
supplement his records. Counsel for the Secretary voiced concern that upon being suspended
Lino might immediately leave either the country or the jurisdiction.
I asked counsels for Sterling and Pulliam to file by facsimile copy and as expeditiously as
possible responses to the Secretary's request. Counsels and I agreed to talk again in an hour, at
which time I would rule orally on the request and following which I would issue a written ruling.
Counsel for Sterling's response was received. In it counsel opposed the Secretary's
request. Counsel for Pulliam's written response was not received prior to the 11 :30 a.m. followup conversation, but in the conversation counsel for Pulliam orally stated his opposition to the
request and expressed his concerns should the request be granted. 1
Counsels for Sterling and Pulliam believe that I am without jurisdiction to order the
deposition because no "proceeding" is pending before the Commission. They maintain section
113(d)(l) and 113(d)(2) of the Act (30 U.S.C. §823(d)(l) and §823(d)(2)) when read together
confine the Cor;iunission's authority to "proceedings instituted before the Commission"
(Response of Sterling 1-2), and they argue that there is no provision in the Commission's rules
for the imposition of an order prior to the institution of a proceeding.
Counsel for the Secretary notes that Commission Rule ·1(b) (29 C.F.R. §2700.l{b))
requires the Commission and its judges to be "guided" by the Federal Rules of Civil Procedure
on any procedural question not regulated by the Act, and she argues that although the order she
seeks is not provided for by the Commission's rules, it is allowed by Rule 27 of the Federal
Rules (Sec. 's Mem. 2-6).
As I orally explained to counsels, I agree with the Secretary. While it is true the
Commission's rules state they are applicable to "proceedings before the ... Commission" (29
C.F.R. §2700. l(a)), they also state that they must be "construed to secure ... just
determination[s]" (29 C.F.R. §2700.l(c)). The situation before me is extraordinary, and a just

Counsel for Pullium's response was received following the conversation.
265

determination well may be thwarted if the Secretary is not aff<:>rded the opportunity to prevent
Lino's testimony from being lost. Federal Rule 27 provides a means for doing just that by
allowing for the perpetuation of testimony in "any matter that~ be cognizable". Guided by
Rule 27, I conclude these principles can be applied in an unusual situation such as this where a
matter presently is not able to be brought before the Commission.
Under Rule 27, the unique nature of the right to depose a person before an action begins
requires the moving party to meet five demanding conditions, all of which the Secretary
successfully has established (See See's Mem. 2-3).2 Accordingly, I conclude the Secretary's
petition should be and is GRANTED.
ORDER
Therefore, it is ORDERED that the Secretary be allowed to depose Lino regarding the
dates of his employment at Sterling, the nature and extent of his duties, his knowledge of his and
of other miners' training while employed, his knowledge of the events and conditions
surrounding the alleged accident of December 21, 1999, and any supplementary matters
necessary for establishing such facts.
In issuing this order I note the concern of counsels for Sterling and Pulium that prior to
the deposition they be afforded copies of notes in the Secretary's possession regarding the
Secretary's interview(s) with Lino and copies of any other records that may bear upon the content
of the interview(s). They stated that such information is necessary if due process is to be
afforded their clients. The problem was discussed with counsel for the Secretary, and she has
agreed to provide such copies, reserving her right(s) of privilege.

2

1.) The petitioner must show it expects to be a party to an action but is
presently unable to bring it or cause it to be brought;
2.) The petitioner must state the subject matter of the expected action;
3.) The petitioner must state the facts which the petitioner desires to
establish by the proposed testimony and the reasons for perpetuating it;
4.) The petitioner must name or describe the person the petitioner expects
will be the adverse party and must give the address of the person so far as is
known; and
5.) The petitioner must state the name and address of the person to be
examined and the substance of the testimony the petitioner believes will be
elicited (See Fed. R. Civ. P 27(a)(l)).

266

Further, I note that counsel for the Secretary requested and counsel for Sterling orally
agreed to advise Lino that he can expect to be served with a subpoena and to be deposed
regarding the subject accident.

_j)c,,/~CI~

David Barbour
~
Chief Administrative Law Judge

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road, Suite B-201, Nashville, TN 37215-2862 (Via Fax and Certified Mail)
Marcus P. McGraw, Esq., Greenbaum, Doll & McDonald, 333 West Vine Street, Suite 400,
Lexington, KY 40507 (Via Fax and Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., 841 Corporate Drive, Suite 101,
Lexington, KY 40503 (Via Fax and Certified Mail)

267

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

February 16, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF MICHAEL JENKINS
AND MICHAEL MAHON,
Complainants
v.

DISCRIMINATION PROCEEDING
Docket No. WEVA 2000-31-D
HOPE CD 99-10
Mine No. 1
Mine ID 46-08102

DURBIN COAL, INC.,
Respondent

ORDER
The Secretary of Labor initiated this case by filing a complaint on behalf of two miners,
Michael Jenkins and Michael Mahon, alleging that they had been discriminated against in
violation of Section 105(c)(l) of the Federal Mine Safety and Health Act of 1977, (Act),
30 U.S.C. § 815(c)(l). Respondent, Durban Coal, Inc., filed a motion to dismiss, or in the
alternative, for a more definite statement, contending that the complaint failed to state a claim
upon which relief could be granted and otherwise failed to apprize Respondent of the basis of the
claims being advanced. Complainants response to the motion further clarified their claims. In
it's reply, Respondent continued to maintain that the complaint failed to state a claim upon which
relief could ~e granted and prayed for dismissal or entry of an order directing complainants to file
a more definite statement. For the reasons set forth below, Respondent's motion is denied.
The complaint sets forth more than ample allegations of jurisdiction, including that
Jenkins and Mahon had a specific employment relationship with Respondent and were miners
entitled to the protections of the Act, that Respondent is a mine operator as defined in the Act
and that the mine's operations and products enter and affect commerce. It further alleges that:
Respondent illegally discriminated and retaliated against Complainants by
discharging or constructively discharging Complainants, on or about March 2,
1999, because Respondent suspected that complainants had made or caused to be
made a Code-A-Phone complaint to MSHA which alleged health and safety
violations of the mine Act at Respondent's mine.***
Complaint, at p.2. The complaint also advances specific demands for relief. Appended to the
complaint as Exhibit A, is the initial complaint of discrimination submitted by Jenkins and
Mahon to the Mine Safety and Health Administration (MSHA) on March 3, 1999, which states
268

that they were discriminated against by being discharged on March 2, 1999 because they "were
falsely accused of reporting safety violations to inspectors and for stealing." The MSHA
complaint identified the person responsible for the discriminatory action as "Forrest Newsome,
Superintendent."
Respondent filed a motion to dismiss or in the alternative for a more definite statement
asserting that the complaint was deficient, chiefly because it failed to allege that either of the
Complainants had engaged in activity protected by the Act or that there was a causal nexus
between protected activity and the adverse action complained of. Respondent also argues that
the complaint fails to allege that Respondent committed an adverse action motivated by animus
toward a protected activity, which is largely a re-casting of it's first argument.
Complainants opposed the motion, indicating that they were relying on Secretary on
behalf ofMoses v. Whitley Development Corp., 4 FMSHRC 1475 (1982), aff'd. sub nom, Whitley
Development Corp. v. FMSHRC, 770 F.2d 168 (6th Cir. 1985). In Moses, the Commission held
that "discrimination based upon a suspicion or belief that a miner has engaged in protected
activity, even though, in fact, he has not, is proscribed by section 105(c)(l)." Id. at 1480.
Complainants did not allege, either in their complaint to MSHA or in the instant complaint, that
they engaged in protected activity. Rather, they contend that Respondent' was motivated to
discharge them by the apparently mistaken belief that they had engaged in protected activity, i.e.
making, or causing to be made, a Code-A-Phone complaint to MSHA. Complainants also further
explained that a second, or alternative, reason for their discharges was a false allegation that they
engaged in stealing, which they contend was a pretext for the illegal personnel actions.
Under Commission Rule 2700.42, a "discrimination complaint shall include a short and
plain statement of the facts, setting forth the alleged discharge, discrimination or interference,
and a statement of the reliefrequested." 29 C.F.R. § 2700.42. This notice pleading standard is
consistent with the general practice in federal litigation under Fed. R. Civ. P. 8(a) and requires no
more than that.an opposing party be given fair notice of the claim and the grounds upon which it
is based. Conley v. Gibson, 355 U.S. 41, 47 (1957); and see, Carmichael v. Jim Walter
Resources, Inc., 20 FMSHRC 479, n. 9 at 489 (1998). A complaint need not set forth all facts
upon which a claim is based or specify the precise legal theory that would entitle the complainant
to relief. E.g., Crull v. GEM Ins. Co., 58 F.3rd 1386, 1391 (9th Cir. 1995); Harris v. Procter &
Gamble Cellulose Co., 73 F.3rd 321 (11th Cir. 1996). These liberal pleading rules permit
inconsistency in both legal and factual allegations. Independent Enterprises Inc., v. Pittsburgh
Water and Sewer Authority, 103 F.3rd 1165, 1175 (3rd Cir. 1997).
A motion to dismiss for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), tests
only the formal sufficiency of the claims for relief under the liberal notice pleading standard and
can be granted "only if it is clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984)
(citing Conley, supra, 355 U.S. at 45-46). The complaint filed on behalf of Jenkins and Mahon
easily passes this test.

269

-There is no question that under Moses, a miner can state a cause of action for
discrimination in violation of§ 105(c)(l), by alleging impermissible motivation for adverse
action, without claiming to have engaged in protected activity. See also, Secretary on behalfof
Smith, et al. v. Stafford Construction Co., 5 FMSHRC 618, 621 (1983). While a specific
reference to Moses may have helped to clarify the precise legal theory relied upon, it was
certainly not required. The complaint alleged that Jenkins and Mahon were subjected to adverse
action based upon a motive prohibited by§ 105(c)(l). If the complainants can prove facts
consistent with those basic allegations, they clearly could be entitled to relief, even if they did not
personally engage in protected activity.
Respondent also contends that it needs considerably more information in order to prepare
a responsive answer. Without detailed allegations specifying "whether such a [Code-A-Phone]
complaint was in fact made and when, whether Complainants made it, and what actions on the
part of Durbin indicated that it suspected that Complainants had made it", 1 Respondent asserts
that it would not be able to file a complete answer. While Respondent's desire for such
information from claimants is understandable, it is difficult to understand how it would be
necessary to enable Respondent to admit or deny that it discharged or constructively discharged
the Complainants on the date alleged, to admit or deny that if it did so it was motivated by a
suspicion or belief that they had engaged in protected activity, or to respond to other allegations
in the complaint. Respondent also objects to Complainants' alternative allegations that they were
either discharged or constructively discharged, contending that they cannot rely upon theories
based upon essentially inconsistent factual allegations. However, as noted supra, pleading
alternative theories of recovery based upon inconsistent factual premises is clearly permitted.
See also, Perlman v. Zell, 938 F.Supp 1327, 1337-38 (N.D.ID 1996). Moreover, while the
evidence used to prove those alternative propositions might generally be quite different, the line
between discharge and constructive discharge may not always be clear2 and the essence of both
allegations is the same, i.e. that their employment relationship with Respondent was involuntarily
terminated.
Upon consideration of Respondent's motion to dismiss or in the alternative for a more
definite statement,. Complainants' opposition and the reply thereto, the motion be and the same is
hereby DENIED. Respondent shall file an answer to the complaint on or before March 3, 2000.

/acac.iiA~~,
c·

Mrcliaer-··· i~i-i~ski.

Admi · rative Law Judge
-···-·

Memorandum of points and authorities in support of the motion, at p. 5.
2

See, Moses, supra, 4 EMSHRC at 1479.

270

Distribution:
M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Blvd., Suite 516, Arlington, VA 22203 (Certified Mail)
David J. Farber, Esq., Alexandra V. Butler, Esq., Patton Boggs, LLP, 2550 M Street, NW,
Washington, D.C. 20037 (Certified Mail)
/mh

I

27]

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3868
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

February 25, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2000-71-M
A. C. No. 03-00256-05559 A

V.

JERRY HUDGEONS, EMPLOYED BY
ASH GROVE CEMENT COMPANY,
Respondent

Foreman Quany & Plant

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 2000-72-M
A. C. No. 03-00256-05560 A

V.

Foreman Quany & Plant

FRED WALKER, EMPLOYED BY
ASH GROVE CEMENT COMPANY,
Respondent

ORDER DENYING MOTION TO DISMISS
ORDER ACCEPTING LATE FILING
ORDER DIRECTING SECRETARY TO AMEND PENALTY PETITIONS
ORDER DIRECTING RESPONDENTS TO ANSWER AMENDED PETITIONS
On October 7, 1999, the Secretary Labor issued penalty assessments against
Jerry Hudgeons and Fred Walker pursuant to section 1lO{c) of the Federal Mine Safety and
Health Act of 1977, (30 U.S.C. § 810(c)), hereinafter referred to as the "Act". In accordance
with section 105(d) of the Act, (30 U.S.C. § 815(d)), Hudgeons and Walker timely notified the
Mine Safety and Health Administration (MSHA) on November 2, 1999, that they wished to
contest the proposed penalty assessments. Copies of the notices were forwarded to the
commission and the above docket numbers were assigned to these cases. On December 20,
1999, the Solicitor on behalf of the Secretary of Labor and MSHA filed penalty petitions in these
matters.
On January 19, 2000, counsel for Hudgeons and Walker filed motions to dismiss on the
ground that the Secretary has failed to timely file the penalty petitions. Counsel further asserts
that respondents are prejudiced because considerable time has passed since the citations involved
were issued in June, 1998 and the investigation of the citations was initiated by the Secretary in
January, 1999.

272

On February 4, 2000, the Solicitor filed responses to the _motions to dismiss as well as
motions to accept late filing of the penalty petitions. The Secretary advises that the cases were
received by the Solicitor's Dallas Regional Office on December 8, 1999. However, the person
responsible for assigning the matters to the appropriate Solicitor, Acting Counsel for Safety and
Health, Janice H. Mountford, was away during the week of December 6, 1999 and December 13,
1999, on official business. The Solicitor states that apart from Ms. Mountford's duties as a
supervisor, she also carries her own caseload. The responsibility to assign the cases was given to
another supervisor in the Dallas office but these files were inadvertently misplaced. The cases
were not assigned to a Solicitor until December 17 (Docket No. CENT 2000-72-M) and
December 21 (Docket No. CENT 2000-71-M). The Solicitor promptly filed a petition for each
case the next business day following the Solicitor's receipt of each case.
The hearing contests filed by Hudgeons and Walker were received by MSHA on
November 2, 1999. The Secretary had 45 days after receipt of the hearing requests to file the
penalty petitions. 29 C.F.R. § 2700.28. The petitions were due on December 17, 1999.
29 C.F.R. § 2700.8. Filing is effective upon mailing and the petition in Docket No. CENT 200071-M was mailed on December 22, 1999, and the petition for Docket No. CENT 2000-72-M was
mailed on December 20, 1999. 29 C.F.R. § 2700.S(d). The petitions were therefore, 5 and 3
days late respectively.
The Commission has permitted late filing of penalty petitions where the Secretary
demonstrates adequate cause for the delay and where the respondent fails to show prejudice from
the delay. Salt Lake County Road Department, 3 FMSHRC 1714, 1716 (July 1981). The
Secretary must establish adequate cause apart from any consideration of whether the operator has
been prejudiced. Rhone-Poulenc of Wyoming Co., 15 FMSHRC 2089 (Oct. 1989).
A determination of adequate cause is based upon the reasons offered and the extent of the
delay. Late filings have been accepted where the delay caused by clerical error was of short
duration. In Apac·Oklahoma, Docket No. CENT 97-187-M, unpublished (December 16, 1997)
(attached to Patterson Materials Corp, 21 FMSHRC 463, 466 (April 1999)), a delay of24 days
was permitted where the Solicitor claimed clerical error, and in M. Jamieson Company,
12 FMSHRC 901 (April 1990), a delay of a relatively short period of time was allowed where the
matter was misfiled by the Solicitor and the Solicitor promptly filed a response to the show
cause order. In addition, a late filing has been accepted where the delay was only 7 days and the
Secretary discovered the error and did not wait until either the Commission or the operator took
action. Patterson Materials Corp, 21 FMSHRC 463 (April 1999).
Late filings have not been permitted based on mishandling of cases where the delay was
lengthy. In Phelps Dodge Morenci Inc., 1993 WL 395589 (June 1993), a delay of over five
months was not countenanced where the Regional Solicitor's Office misplaced the case upon
receipt and the Solicitor did not file the petition until after the Commission issued a show cause
order. See also, Hecla Mining Company, 1993 WL 395630 (June 1993) (where a delay of five
months resulted in a dismissal of the petition).
273

The circumstances in the subject cases are similar to those cited above where late filing
was permitted. The delay here was very short and the petitions were promptly filed once they
were assigned. Therefore, I find that the Secretary has demonstrated adequate cause for the
delay.
It is now necessary to determine whether the respondents nevertheless have demonstrated
sufficient prejudice to justify dismissal. The respondents have not alleged specific prejudice
from the three to five day delay involved in these matters. Rather, the respondents refer to the
length of time from the issuance of the citations to the operator and the time accrued since the
initiation of the special investigation. These time delays do not involve the filing of the petitions.
The only prejudice that can be evaluated here is that caused by the untimely petitions, and the
respondents have failed to demonstrate specific prejudice from these short delays. Therefore, I
find that sufficient prejudice does not exist to warrant dismissal of these matters.
Finally, the Solicitor is advised that the petitions incorrectly name Hudgeons' and
Walker's employer Ash Grove Cement Company as the respondent. Moreover, the petitions fail
to identify section l lO(c) as the authority for assessing penalties against individual employees.
Rather, they erroneously cite section l lO(a), which is the basis for assessing fines against
operators. The Solicitor must amend his petitions to reflect the correct respondents and the
proper statutory sections.

In light of foregoing, it is ORDERED that the motion to dismiss is DENIED.
It is further ORDERED that the Solicitor's late filed penalty petitions are ACCEPTED.
It is further ORDERED that within 15 days the Solicitor filed amended petitions that
reflect the proper respondents and statutory sections involved.
It is further ORDERED that within 30 days of the date the Solicitor files his amended
petitions the respondents file answers to the amended petitions.

_I}a/t(i.,:~
David (ifarbour
Chief Administrative Law Judge

274

Distribution: (Certified Mail)
Thomas A. Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 525 Griffin Street,
Suite 501, Dallas, TX 75202
William K. Doran, Esq., Heenan, Althen & Roles, Suite 400, 1110 Vermont Avenue, NW.,
Washington, DC 20005-3593
Mr. Jerry Hudgeons, 119 Little River 168, Foreman, AR 71836
Mr. Fred Walker, 410 Archia Briggs Lane, Ashdown, AR 71822
/gl

275

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

February 28, 2000
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF ROYAL SARGENT,
Complainant

DISCRIMINATION PROCEEDING
Docket No. CENT 2000-96-D
DENY CD 99-03

v.
Freedom Mine
Mine ID 32-00595

THE COTEAU PROPERTIES CO.,
Respondent

ORDER TO SHOW CAUSE
WHY THE COMPLAINT SHOULD NOT BE DISMISSED

This ~ase is before me on an amended complaint filed by the Secretary of Labor on behalf
of Royal Sargent, alleging that Respondent, The Coteau Properties Co, had discriminated against
him in violation of section 105(c)(1) of the Federal Mine Safety and Health Act of 1977 (the
"Act"), 30 U.S.C. § 815(c)(l). Sargent alleged that, on August 3, 1998, he had been suspended
for five days because he brought safety issues to Respondent's attention. He also claims that
on August 10, 1998, he was subjected to an involuntary job transfer and restrictions on job
availability, and was placed on probationary status. Sargent filed his initial written complaint
of discrimination with the Mine Safety and Health Administration ("MSHA") on November 20,
1998, 49 days beyond the statutorily prescribed 60 day period. 1 MSHA investigated the
complaint and initially determined that no violation of the Act had occurred. By notice dated
December 30, 1998, MSHA advised Sargent of it's determination and his right to file a
discrimination complaint with the Commission. Upon receipt of the letter, apparently on
January 11, 1999, Sargent requested reconsideration of that determination and on February I,
1999, the "no violation" determination was rescinded and the investigation was reopened. On
December 21, 1999, a complaint alleging discrimination was filed with the Commission. The
complaint was subsequently amended, first to correct the docket number and second to add a
demand that a civil penalty be assessed.
Respondent filed an Answer and a motion to dismiss the complaint asserting that Sargent
did not timely file his complaint with the Secretary and that the Secretary's recission of the "no

30 U.S.C. § 815(c)(2).
276

violation" determination was without authority. 2 The Secretary opposed the motion, claiming
that there were justifiable circumstances to excuse the late filing and that the Secretary had the
authority to reopen the investigation. The opposition relied upon an affidavit by a senior
investigator describing actions by and on behalf of Sargent leading up to the filing of the MSHA
complaint and providing factual information regarding Sargent's receipt of the "no violation"
letter and the re-opening of the investigation. In reply, Respondent challenged the legitimacy of
the justifiable circumstances explanation and submitted an affidavit by Complainant's immediate
supervisor describing how Complainant was notified of the disciplinary action. Attached to the
affidavit was a copy of a memorandum given to Complainant on August 3, 1998, the subject of
which was "Disciplinary Suspension and Probation." A copy of Sargent's original complaint to
MSHA was also submitted.
Untimely Filing of the MSHA Complaint
Coteau's argument that Sargent's filing of a complaint with the Secretary of Labor's
MSHA was untimely is based upon§ 105(c)(2) of the Act, which specifies that:
Any miner * * * who believes that he has been discharged, interfered with,
or otherwise discriminated against by any person in violation of this subsection
may within 60 days after such violation occurs, file a complaint with the
Secretary alleging such discrimination. * * * (emphasis supplied.)
Here, the discriminatory actions are alleged to have occurred on August 3 and 10, 1998.
Sargent's complaint of discrimination was filed on November 20, 1998, some 49 and 42 days,
respectively, beyond the statutory period.
The Commission has held that the 60 day time limit in section 105(c)(2) of the Act is not
jurisdictional and that non-compliance may be excused on the basis of justifiable circumstances.
Hollis v. Consolidation Coal Co., 6 FMSHRC 21 (1984), aff'd, 750 F.2d 1093 (D.C. Cir 1984)
(table); Herman v. IMCO Services, 4 FMSHRC 2135 (1982).
The cases dealing with justification for delays in filing identify several factors that are
typically considered, including: complainant's awareness of his rights under the Act, Hollis,
supra.; Secretary on behalfof Franco v. WA. Morris Sand and Gravel, Inc., 18 FMSHRC 278
(1996)(Manning, ALJ)(delay of 107 days justified by prompt filing after complainant first
became aware of rights under the Act, filing of substantially identical allegations in workmen's
compensation and employment discrimination claims and absence of prejudice to respondent);
Secretary on behalf ofSmith v. Jim Walter Resources, Inc., 21FMSHRC359 (1999) (Melick,
ALJ)(lO month delay excused by filing within 65 days of first learning of rights under
section 105(c), no claim of prejudice by respondent); Secretary on behalf of Gay v. Ikard-Bandy

2

The motion will be treated as a motion for summary decision pursuant to Commission
Rule 2700.67. 29 C.F.R. § 2700.67.
277

Co., 18 FMSHRC 341 (1996)(Melick, ALJ)(3 month delay excused by filing 1 day after first
learning of section 105(c) rights and no claim of prejudice); complainant's capacity or ability to
initiate and pursue such a remedy, See, Sinnott v. Jim Walter Resources, Inc., 6 FMSHRC 2445
(1994) (Maurer, ALJ); and, the length of the delay and whether it has resulted in prejudice to a
respondent. See, Sinnott, Id. (delay of over 3 years "inherently prejudicial"); Avilucea v. Phelps
Dodge Corp., 19 FMSHRC 1064, 1067 (1997)(Fauver, ALJ.)("very special circumstances"
required to justify delay of over 2 years). All such factors must be weighed to reach the ultimate
determination of whether, on the facts of the particular case, justifiable circumstances exist to
allow the complainant to pursue his claim. Hollis, supra; Herman, supra.

The ultimate determination to be made is whether, in fairness, a complainant who has
failed to timely file a discrimination complaint should, nevertheless, be allowed to pursue his
claims forcing a respondent to defend against allegations that should have been made at an earlier
point in time. Herman, supra, 4 FMSHRC at 2138-39. Here, Coteau does not claim that it's
ability to defend against the allegations has been prejudiced by either the untimely filing of the
MSHA complaint or the Secretary's reopening of the investigation. It argues that a
demonstration of prejudice is not required in order to defeat a claim of justifiable circumstances
for late filing.
While the situation may be different when the delay has been the fault of the Secretary,3
Respondent is correct that the Commission has not held that a respondent must demonstrate
prejudice to overcome a claim ofjustifiable circumstances for a miner's late filing of an initial
complaint of discrimination with the Secretary. However, prejudice is an important factor in the
overall "justifiable circumstances" determination. As the Commission has observed, the
legislative history pertinent to the 60 day time limit indicates that it was intended to avoid stale
claims4 and it is entirely appropriate and consistent with that legislative purpose to include a
consideration of prejudice as a highly relevant factor in the determination of whether a miner's
late filing wUl be excused. Herman, supra, 4 FMSHRC at 2137; and see, Morgan v. Arch of
fllinois, 21FMSHRC1381, 1387 (1999); cf Boswell v. National Cement Co., 14 FMSHRC 253,
257 (1992). Here the delay of 49 days was neither de minimis nor excessively lengthy. In the
absence of prejudice to Respondent, Complainant's burden of demonstrating justifiable
circumstances is not exacting. Nevertheless, he has failed, at least on the present record, to
satisfy it.
Sargent's opposition to the motion is troubling on many fronts. He relies upon a
Declaration by Judy R. Peters, a Senior Special Investigator employed by MSHA, which relates
that Sargent made numerous attempts to obtain certain information from Coteau's management
and when the information was not forthcoming, he contacted an attorney. Thereafter, he was
advised to notify MSHA of his complaints. He spoke with his brother, who contacted MSHA on

3

See, Secretary on behalf ofHale v. 4-A Coal Co., Inc., 6 FMSHRC 905 (1986).

4

See, Herman, supra, 4 FMSHRC at 2137.

278

two occasions and was advised to contact MSHA's Denver District Office, which he did on
October 23, 1998. A discrimination complaint form was mailed to Complainant, was received
on October 30, 1998, executed on November 15, 1998 and mailed to MSHA, where it was
received on November 20, 1998.
The operable facts on this issue, as related in Ms. Peters' Declaration, are apparently not
based upon her personal knowledge. While hearsay is admissible in Commission proceedings so
long as it is material and relevant, it's probative value, if any, must be determined by the
Administrative Law Judge, based upon factors evidencing it's reliability. 5 There are very few
indicia ofreliability for the facts reported in Ms. Robert's Declaration. The sources of the
information are not identified, which precludes any assessment of their bias or whether
statements she relied upon were made with personal knowledge. Very little detail is provided as
to times, dates, locations or the identities of involved individuals. There is no indication as to
whether the information provided has been verified by someone other than the source or by
documentary evidence, such as contemporaneous notes of conversations or letters.
Even if it is assumed that the reported facts were reliable, many important questions
remain unanswered. There is no explanation of the significance of the information that Royal
Sargent was seeking or why it's unavailability impaired his ability to timely file a discrimination
complaint, particularly since his complaint was eventually filed without it. At some undisclosed
point, Ms. Roberts relates that Complainant contacted an attorney and was "thereafter advised to
notify MSHA. " 6 There is no information as to when he contacted the attorney, what he learned
as a result, who advised Complainant to notify MSHA or when that advice was given. More
striking is the fact that, despite the advice, he apparently did not personally contact MSHA until
he filed his complaint on November 20, 1998. Ms. Roberts further relates that Complainant
spoke to his brother, who then contacted MSHA, at undisclosed points in time. His brother
apparently also contacted MSHA's Denver office on October 23, 1998, which eventually lead to
the filing of the complaint almost a month later. There is no explanation of why Complainant
waited two full weeks to fill out the relatively brief complaint form at a time when he was most
likely fully aware that he was well past the deadline for submitting a complaint.
In it's motion, Coteau argued that Sargent is an experienced miner and was well aware of
his right to submit a claim of discrimination to MSHA within 60 days of an adverse action. It's
argument is based upon Sargent's length of service, the fact that he had completed all required
training, which included information on such rights under the Act, and that a poster explaining

5

29 C.F.R. § 2700.63(a); REB Enterprises, Inc., 20 FMSHRC 203, 206 (1998); MidContinent Resources, Inc., 6 FMSHRC 1132, 1135-37 (1984).
6

Declaration of Ms. Peters, para. J. Paragraph 4 of the Secretary's opposition contains
the following statement: "The attorney advised [Sargent] to contact MSHA immediately." This
somewhat at variance with Ms. Peters' Declaration.
279

those rights was displayed on a bulletin board at Sargent's place of work. 7 In opposing the
motion, Sargent did not dispute either that contention or the facts upon which it is based. The
written notification of "Disciplinary Suspension and Probation" that was given to Complainant
on August 3, 1998, was fairly detailed and clearly indicated the serious nature of the action that
Coteau was taking. There is no question but that these actions amounted to adverse action within
the meaning of the discrimination provisions of the Act.
On the basis of the record as presently constituted, I find that Complainant has not
established justifiable circumstances for failing to file his discrimination complaint within the
time limits established by the Act. For the reasons set forth above, on the issue of justifiable
circumstances the Declaration of Ms. Peters is entitled to very little weight and, in any event, is
notably deficient in many critical respects. I have little choice but to conclude that, at all relevant
times, Complaint was aware of his right to file a discrimination complaint with the Secretary
within 60 days of adverse action taken in violation of the Act. The August 3, 1998,
memorandum in no uncertain terms, put him on notice of serious adverse action and his initial
complaint of discrimination was based upon information known to him at that time. There is no
reliable evidence that he brought his discrimination complaint to Respondent's attention within
the statutory 60 day period, either directly, or through some other agency, or that he
misunderstood or was mislead as to his rights or obligations under the Act. Despite being aware
of his rights, and having been directly advised to contact MSHA regarding his complaint, he did
not contact MSHA until November 20, 1998, when his complaint was received.
Complainant is in a situation comparable to that in Herman, supra, 4 FMSHRC
at p. 2138, i.e. "he had abundant opportunity and the ability to go forward with his complaint in a
more timely fashion." However, unlike the complainant in Herman, Sargent has had only a
limited opportunity to establish justifiable circumstances for his late filing. Rather than
dismissing the complaint at this time, Complainant will be afforded an additional opportunity to
establish justifiable circumstances.
The Secretazy's Authority to Rescind the "no violation" Determination
Respondent's argument on the Secretary's authority is based upon an erroneous
interpretation of the law. It contends that, section 105(c)(3) of the Act requires that, "upon
issuance of a 'no violation' determination, the miner must file a complaint with the Commission
within 30 days. The Mine Act nowhere provides the Secretary the authority to 'rescind' a 'no
violation' determination 31 days after it has been issued." Motion, at p. 4. While the Act does
specify a 30 day period within which a miner may file a complaint with the Commission, the
time period runs from the date the miner receives "notice of the Secretary's determination", not
the date of the notice. 30 U.S.C. § 815(c)(3). Ms. Roberts' Declaration, apparently based, in
part, upon MSHA records, undercuts the factual predicate of Respondent's argument, stating that
the notice was not received until January 11, 1999, and that the decision to rescind the notice was
7

A copy of the poster was attached to Respondent's motion.
280

made on February 1, 1999. While the reliability of the statement regarding the date of receipt is
open to question, assuming a reasonable time for receipt of the notice,8 it appears that the
decision to rescind was made prior to the expiration of the 30 day period. Respondent did not
address the argument further in it's reply and appears to have abandoned it.
ORDER

Based upon the foregoing, it is therefore ORDERED: That on or before March 17,
2000, Complainant may submit evidence establishing justifiable circumstances for the late filing
of his discrimination complaint, i.e. to show cause why the complaint should not be dismissed
because of his failure to file a complaint of discrimination within 60 days of the adverse actions
complained of. Complainant shall serve a copy of any such submission upon counsel for
Respondent by facsimile and first class mail. Respondent may reply to any such submission on
or before March 28, 2000. If Respondent intends to pursue it's argument as to the Secretary's
authority to rescind a "no violation" determination, it shall address the Secretary's argument in
ifs reply.

Distribution:
Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)
James A. Lastowka, .E sq., McDermott, Will & Emery, 600 l3 1h Street, N.W., Washington,
D.C. 20006-3096 (Certified Mail)
/mh

8

Commission Rule 2700.8 provides that: "When service of a document is by mail,
5 days shall be added to the time allowed by these rules for the filing of a response or other
documents." 29 <;::.F .R. § 2700.8.
281

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 Skyline, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

February 29, 2000
IN THE MATTER OF:
CONNIE PRATER,

DISCIPLINARY PROCEEDING
Docket No. D 99-1

ORDER GRANTING WITHDRAWAL OF COUNSEL
AND
ORDER TO SHOW CAUSE

This disciplinary proceeding is before me on referral from the Commission pursuant to
Rule 80, 29 C.F.R. § 2700.80. On December 20, 1999, counsel for the Respondent filed a letter
stating: "I am writing to inform the Court that Ms. Connie Prater will be unable to proceed in
this matter due to unexpected health reasons. Therefore, please withdraw my appearance for Ms.
Prater. Further, please be advised that Ms. Prater will not make any further appearances before
the Court." In his response to the letter, the Prosecutor pointed out that it was not clear whether
the Respondent was requesting a continuance because of her "unexpected health" problems or
whether she no longer intended to contest the charges in this proceeding.
On January 24, 2000, counsel for the Respondent filed a response to the Prosecutor's
letter. Unfortunately, it is not any clearer as to what Ms. Prater's position in this proceeding is
than the cryptic letter of December 20. He states that Ms. Prater "is currently fighting for her life
against what I understand is a recurring cancer," but that he did not "intend to disturb Ms. Prater
during her illness to obtain 'sworn affidavits' from her or her medical doctors." On the other
hand, he states that: "I can represent to the Court without even discussing it with Ms. Prater that
she would never" consent to an order determining her culpability for ethical misconduct.
Counsel concludes by stating: "This proceeding, and the extreme infrequency with which she
even participated in Commission proceedings in the past, is simply too remote to the core
activities in her life to permit her to focus on this matter as she originally intended."
Counsel closed his January 24 letter by reiterating:
Finally, because I am essentially without a client, I
indicated that I wished to withdraw from this case as well. I would
appreciate the Court's advice as to whether it desires a formal
motion pursuant to Rule 2700.3 or whether such a motion is
unnecessary in the event that the Court will shortly resolve this
matter.
Turning to the matter of withdrawal first, Commission Rule 3(d), 29 C.F.R. § 2700.3(d),
provides that: ·"Any representative of a party desiring to withdraw his appearance shall file a
282

motion with the.:. Judge." Thus, counsel for the Respondent should have filed a motion if he
wanted to withdraw. However, since the letter plainly states his position, I will treat it as a
Motion to Withdraw rather than require the filing of another document. Accordingly, the request
to withdraw is GRANTED. With the exception of this order, no further documents in this
proceeding will be served on counsel. This, and all further documents, will be served directly on
·
the Respondent.
Next, as the Prosecutor correctly observed in his response to the January 24 letter, if Ms.
Prater desires that this proceeding be continued until such time as her illness permits her to
participate, she must accompany her request with an affidavit from her treating physician setting
forth the nature of her illness, how long she has been ill, the reason the illness renders her
incapable of participating in the proceedings, and the probable length of time she will be
unavailable before the proceeding can resume. Such an affidavit may not be conclusory, but
must set forth a medical history and prognosis of Ms. Prater's condition, substantiate the medical
basis for concluding that her health conditions preclude her from participating in the proceedings
at this time and identify any medical restrictions that should be placed on her participation in
pretrial examination or at trial.
If the Respondent is not seeking a continuance, but does not intend to participate in the
proceedings at all, she should be aware that failure to participate will result in her being found in
default and the issuance of a disciplinary order, "which may include reprimand, suspension, or
disbarment from practice before the Commission." 29 C.F.R. § 2700.80(c)(3). In this
connection, Commission Rule 66(a), 29 C.F.R. § 2700.66(a), requires that: "When a party fails
to comply with an order of a Judge or these rules ... an order to show cause shall be directed to
the party before the entry of any order of default ...."

Therefore, in accordance with Rule 66(a), the Respondent is ORDERED TO SHOW
CAUSE, within 21 days of the date of this order, why she should not be held in default in this
matter. The Respondent shall comply with this order by filing a statement that she is ready to
proceed, by requesting a continuance in the manner set out above, or by filing a statement
acknowledging that ·she is aware of the possible penalties facing her and stating that she does not
desire to participate in the proceedings. Failure to comply with this order will result in the
issuance of a disciplinary order adjudging a reprimand, suspension or disbarment from
practice before the Commission. The Prosecutor shall file comments on the Respondent's
response to this order, or lack oftesponse, within ten days of receiving the response, or the
expiration of time for a response, whichever occurs first.

'{~(/tA
Administrative Law Judge
(703) 756-6213

283

Distribution: .

Peter A. Eveleth, Special Counsel to the General Counsel, National Labor Relations Board, 1099
141h Street, N.W., Room 10308, Washington, D.C. 20570-0001 (Certified Mail)
David J. Farber, Esq., Patton Boggs, L.L.P., 2550 M Street, N.W., Washington, D.C. 20037
(Certified Mail)
Ms. Connie Prater, 2057 Kentucky Route 850, David, KY 41616 (Certified Mail)

/nj

284

*li.S. GOV'ER."iMEXT PRL'-'Til\G OFFICE:.2000--'62-12-1/.W02