DECEMBER 1990
COMMISSION DECISIONS
12-04-90
12-04-90
12-26-90

Bethel Fuels Incorporated
Joseph G. Delisio v. Mathies Coal Co.
ASARCO, Incorporated

WEVA 90-228
PENN 89-8-D
SE
88-82-RM

Pg. 2533
Pg. 2535
Pg. 2548

ADMINISTRATIVE LAW JUDGE DECISIONS
12-05-90
12-06-90
12-10-90
12-13-90
12-14-90
12-14-90
12-17-90
12-17-90
12-18-90
12-20-90
12-20-90
12-20-90
12-20-90
12-27-90

John S. Guido v. Southern Ohio Coal Co.
Blue Diamond Coal Company
Bethel Fuels Incorporated
Featherlite Building Products Corp.
Joe G. Pina v. Featherlite Building Prod.
Tunnelton Mining Company
Corona Industrial Sand Project
Mid-Continent Resources, Inc.
Sec. Labor on behalf of Joseph C. Culp v.
Mid-Continent Resources, Inc.
Leo Slone & 180 Miners v. Sun Glo Coal Company
Sec. Labor on behalf of Michael Price & Joe
John Vacha & UMWA v. Jim Walter Resources
Roy Farmer & Others v. Island Creek Coal Co.
Consolidation Coal .Company
C & C Crushed Stone, Inc.

WEVA 90-64-D
Pg.
KENT 89-258-R Pg.
WEVA 90-228
Pg.
CENT 88-113-RM Pg.
CENT 90-106-DM Pg.
PENN 90-17
Pg.
WEST 89-413-M Pg.
WEST 90-75
Pg.
WEST 91-108-D Pg.

2563
2565
2578
2580
2601
2602
2605
2623
2625

KENT 90-122-C
SE
87-128-D

Pg. 2633
Pg. 2635

VA
91-31-C
WEVA'. 9JJ-56-R
CENT 90-21-M

Pg. 2641
Pg. 2643
Pg . .2651

DECEMBER 1990
Review was granted in the following cases during the month of December:
ASARCO, Inc. v. Secretary of Labor, MSHA, Docket No. SE 89-24-RM, etc.
(Judge Fauver, October 25, 1990)
Secretary of Labor, MSHA v. Shamrock Coal Company, Inc., Docket No.
KENT 90-137, 142. (Judge Weisberger, October 26, 1990)
Secretary of Labor, MSHA v. Bethel Fuels, Inc., Docket No. WEVA 90-228.
(Default Decision of Chief Judge Merlin on November 6, 1990)
There were no cases filed in which review was denied.

COMMISSION DECISIONS

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

20006

December 4, 1990

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

v.

Docket No. WEVA 90-228

BETHEL FUELS INCORPORATED
BEFORE:

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

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988), Commission Chief
Administrative Law Judge Paul Merlin issued an Order of Default on November 6,
1990, finding Bethel Fuels Incorporated ("Bethel") in default for failure to
respond to a show cause order. The judge assessed a civil penalty of $600.
For the reasons that follow, we vacate the default order and remand the case
for further proceedings.
On November 15, 1990, the Commission received a letter from the
Department of Labor's Regional Solicitor's Office in Arlington, Virginia,
forwarding an attached letter from Bethel that was received in the Solicitor's
office on August 28, 1990. Bethel's letter, dated August 14, 1990, and
addressed to the Solicitor's Office in Arlington, Virginia, contains a short
and plain statement of the reasons why Bethel disagrees with the civil penalty
proposed by the Secretary of Labor in this case.
The judge's jurisdiction over the case terminated when his decision was
issued. 29 C.F.R. § 2700.6S(c). Under the circumstances presented, we deem
Bethel's letter, forwarded by the Solicitor's Office, as a timely petition for
discretionary review of the judge's default order. ~. Flippy Coal Co ..
Inc., 12 FMSHRC 391(March1990). The petition is granted.
The record discloses tha.t on November 8, 1989, an inspector of the
Department of Labor's Mine Safety and Health Administration ("MSHA") issued a
citation to Bethel alleging a violation of 30 C.F.R. § 75.202(a) for its
alleged failure to support adequately or otherwise control mine roof. Upon
preliminary notification by MSHA of the civil penalty proposed for the alleged
violation, Bethel filed a "Blue Card" request for a hearing before this
independent Commission. Counsel for the Secretary certified that on July 18,
1990, the Secretary's penalty proposal was mailed to Bethel. As noted, on
August 28, 1990, Bethel served on the Secretary's counsel a document

2533

constituting an answer to the penalty proposal. The answer, however, was not
filed with the Commission. Under the Commission's rules of procedure, the
party against whom a penalty is sought must file an answer with the Commission
within 30 days after service of the penalty proposal. 29. C.F.R. § 2700.S(b) &
.28. When no answer to the penalty proposal was filed with the Commission,
the judge, on September 7, 1990, issued a show cause order directing Bethel to
file an answer within 30 days or show good reason for the failure to do so.
When Bethel failed to respond to the show cause order, the judge issued an
order of default on November 6, 1990.
Bethel appears to be a small company proceeding without benefit of
counsel. In conformance with the standards set forth in Fed. R. Civ. P.
60(b)(l), the Commission has previously afforded such a party relief from
default upon a showing of inadvertence, mistake, or excusable neglect. E....&..,_,
Amber Coal Co., 11 FMSHRC 131, 132 (February 1989). Here, Bethel may have
confused the roles of the Commission and the Department of Labor in this
adjudicatory proceeding. In light of these considerations, we conclude that
Bethel should have the opportunity to present its position to the judge, who
shall determine whether final relief from the default order is warranted.
See,~. Patriot Coal Company, 9 FMSHRC 382, 383 (March 1987). Accordingly, we vacate the judge's default order and remand this matter
for further proceedings. Bethel is reminded to file with the Commission, and
to serve the opposing party, with copies of all its filings and correspondence
in this matter. 29 C.F.R. §§ 2700.S(b) & 7.

,,,,

'-- -~: 1'.. '(

----< _.. < (/( {,_£/ ... //)11~-

Richard V. Backley, Acting Chairman

&

Jofce A. Doyle, Commissioner

/7
,'11)

~ ( ( (f,,._f._

<j)

' c::\_L_ L-c

L. Clair Nelson, Commissioner

Distribution
Pamela S. Silverman, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Charles Myers, Superintendent
Bethel Fuels, Inc.
Route 7, Box 510
Morgantown, WV 26505

2534

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

December 4, 1990
JOSEPH G. DELISIO

v.

Docket No. PENN 89-8-D

MATHIES COAL COMPANY

BEFORE:

Backley, Acting Chairman; Doyle and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This proceeding involves a discrimination complaint brought by Joseph
Delisio pursuant to the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1988)(the "Mine Act" or "Act"). The issue presented
is whether Mathies Coal Company ("Mathies") discriminated against Delisio in
violation of section lOS(c)(l) of the Mine Act by not paying Delisio, an
hourly employee, wages that he lost as a result of testifying as a witness
under subpoena by the Secretary of Labor in a contest proceeding involving
Mathies, while paying the salaries of its management officials whom it had
subpoenaed as witnesses in the same proceeding. 1 Commission
1

Section lOS(c)(l) of the Mine Act provides in pertinent part:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
[Act] because such miner, representative of miners or
applicant for employment has filed or made a complaint
under or related to this [Act], including a complaint
notifying the operator or the operator's agent, or the
representative of the miners at the coal or other mine
of an alleged danger or safety or health violation in
a coal or other mine, or because such miner,
representative of miners or applicant for employment
is the subject of medical evaluations and potential
transfer under a standard published pursuant to
section [101] of this [Act] or because such miner,
representative of miners or applicant for employment
has instituted or caused to be instituted any
proceeding under or related to this [Act] or has

2535

Administrative Law Judge William Fauver concluded that Mathies discriminated
against Delisio by not paying Delisio his wages for that day while paying
the salaries of its management employee witnesses. 11 FMSHRC 2352 (November
1989)(ALJ). The judge awarded Delisio back pay, plus interest, and
litigation expenses, including reasonable attorney's fees. 11 FMSHRC 2628
(December 1989)(ALJ). We granted Mathies' petition for discretionary review
and permitted the American Mining Congress ("AMC") and the National Coal
Association ("NCA"), proceeding jointly, and Pennsylvania Coal Association
to participate on review as amici curiae. We hold that, under the
circumstances of this case, Mathies' treatment of Delisio did not violate
the discrimination provisions of the Mine Act. Accordingly, we reverse the
judge's decision.
Complainant Joseph Delisio is employed as a mine examiner by Mathies
at the Mathies Mine, an underground coal mine in Pennsylvania. 2 In his
job as a mine examiner, Delisio, an hourly employee, conducts on-shift and
pre-shift examinations. Delisio also serves as chairman of the local United
Mine Workers of America ("UMWA") safety committee and is a representative of
miners for purposes of the Mine Act.
On July 21, 1988, in Mathies Coal Company, Docket No. PENN 88-36-R,
Commission Administrative Law Judge Roy J. Maurer held a hearing in
connection with Mathies' contest of a citation and a withdrawal order issued
to it by the Department of Labor's Mine Safety and Health Administration
("MSHA"). The Secretary subpoenaed Delisio to testify as part of the
Secretary's case against Mathies, and Delisio testified at the hearing. The
citation and order were ultimately upheld by the judge, based, in part, on
Delisio's testimony. Mathies Coal Co., 11 FMSHRC 90 (January 1989)
(ALJ). 3
testified or is about to testify in any such
proceeding, or because of the exercise by such miner,
representative of miners or applicant for employment
on behalf of himself or others of any statutory right
afforded by this Act.
30 U.S.C. § 815(c)(l).
2
The parties stipulated the facts and submitted the case for decision
without an evidentiary hearing. This narrative of facts is based on the parties'
stipulation of facts, the parties' pleadings, and the record and judge's decision
in Mathies Coal Company, Docket No. PENN 88-36-R, the contest proceeding that
gave rise to the subpoenas, including Delisio's.

3

The citation involved in Docket No. PENN 88-36-R alleged a violation of
30 C.F.R. § 50.20 for failure by Mathies to report an accident. Delisio reported
the alleged violation to MSHA and requested an inspection under section 103(g)
of the Mine Act, 30 U.S.C. § 813(g). The withdrawal order cited a violation of
30 C.F.R. § 75.400 for accumulation of float coal dust in four locations.
Delisio was the miners' representative who accompanied the MSHA inspector,
Francis Wehr, on the inspection that resulted in the issuance of the order.

2536

Attendance at the contest hearing caused Delisio to miss his normally
scheduled working hours for the day, and Delisio did not perform any work
for Mathies that day. The UMWA's collective bargaining agreement does not
contain any provision requiring Mathies to compensate employees for wages
lost because of attendance at judicial hearings, and Mathies did not pay
Delisio for the day he spent testifying. Delisio did receive a $30.00
witness fee paid by the Secretary. Delisio's usual wages for the day in
question would have been $126.52. The UMWA local union ultimately paid
Delisio the difference between his usual wages and the $30 witness fee. The
witnesses called to testify by Mathies on its behalf were salaried
management employees who received their regular salaries for the day spent
testifying.
Delisio subsequently filed a discrimination complaint with the
Secretary, alleging that Mathies' failure to pay him the difference between
his usual wages and the $30 witness fee, while paying the salaries of its
management witnesses, constituted unlawful discrimination under the Mine
Act. After completing her investigation of the complaint pursuant to
section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), the Secretar¥ notified
Delisio of her determination that no violation of section 105(c)(l) of the
Act had occurred. Delisio thereupon filed his own discrimination complaint
with the Commission pursuant to section 105(c)(3) of the Act, 30 U.S.C. §
815(c)(3), and the matter proceeded to hearing before Judge Fauver.
In his decision, the judge concluded that section 105(c)(l) of the
Mine Act prohibits a mine operator from withholding wages from a miner
witness who testifies against the operator at a Commission hearing while
compensating other employee witnesses who testify on behalf of the operator.
11 FMSHRC at 2356.
In reaching this conclusion, the judge discussed decisions by the
National Labor Relations Board ("NLRB") under the National Labor Relations
Act, 29 U.S.C. § 151 et seq. (1988)("NLRA"), concerning allegations of
employer discrimination against employees testifying at NLRB hearings,
including Electronic Research Co., 187 NLRB 733 (1971) ("Electronic Research
.1"), Electronic Research Co., 190 NLRB 778 (1971) ("Electronic Research
II"), and General Electric Company, 230 NLRB 683 (1977). 11 FMSHRC 2355-56.
In general, the NLRB does not deem unlawful, under the NLRA, the practice of
an employer paying the wages of its employee witnesses while not paying the
lost wages of employees called by other parties. General Electric, supra,
230 NLRB at 684-86; Electronic Research II, supra. On the other hand, if an
employer distinguishes between its employees "in their employment
In upholding the float dust violation, the judge relied in significant part
on Delisio's testimony. 11 FMSHRC at 96. The judge also concurred with the
opinions of the MSHA inspector who issued the order and Delisio, that the
violative· conditions in two of the cited locations were "significant and
substantial" ("S&S"). 11 FMSHRC at 97-98. Finally, the judge relied in part on
Delisio' s testimony that the two S&S violations were also the result of Mathies'
"unwarrantable failure" to comply with the standard. 11 FMSHRC at 99. The judge
accordingly affirmed the withdrawal order. 11 FMSHRC at 100.

2537

relationship" on the basis of whether they were summoned by it or the
opposition as, for example, in granting or denying perfect attendance
awards, it violates the NI.RA. General Electric, 230 NLRB at 686; Electronic
Research I, supra. Rather than following the NLRB approach, however, the
judge relied on the dissent in General Electric of then Chairman Fanning,
which argue4 that the employer's denial of wages to opposition witness
employees "was disparate treatment based on whether the testimony was on
behalf of or against [the employer's] interest" (230 NLRB at 686) and
therefore constituted discrimination within the meaning of the NI.RA. 11
FMSHRC at 2356.
In determining that Mathies violated section 105(c)(l) of the Mine
Act, the judge stated:
The distinction relied upon by the majority
opinion in General Electric -- between (1) discri..,
mination as to a perfect attendance award or the use
of vacation time and (2) discrimination as to
wages -- appears to me to [be] artificial and in any
event distinguishable from Mine Act cases. The
broad protection of § 105(c) of the Mine Act
prohibits "any manner" of discrimination.
Because of Respondent's discriminatory
treatment of witnesses in a Mine Act proceeding,
i.e. , refusing to pay wages to Complainant who was
an opposition witness but paying the wages of the
witnesses who appeared on its behalf, no further
examination of discriminatory motive is necessary.
11 FMSHRC at 2356.
On review, Mathies and amici take the position that Delisio failed to
establish a prima facie case of discrimination because he did not show any
adverse action against him. Mathies and amici argue that Delisio, while
testifying pursuant to the Secretary's subpoena, was not working for Mathies
and that, therefore, its failure to pay Delisio his wages did not involve
his employment relationship. Conversely, Mathies and amici argue that
Mathies' witnesses were performing their job duties for their employer in
testifying at the hearing.
Mathies and amici also state that Congress knew how to establish
specific compensation for miners involved in safety and health tasks and
duties under the Mine Act. They argue that neither section 105(c)(l) nor
any other provision of the Mine Act requires an operator to compensate
witnesses subpoenaed by adverse parties merely because it compensates its
own witnesses. Mathies specifically points out that section 113(e) of the
Mine Act, 30 U.S.C. § 823(e), provides only that "witnesses shall be paid
the same fees and mileage that are paid witnesses in the courts of the
United States .... " Mathies and amici additionally rely on the NLRB's
decision in General Electric as compelling. Moreover, the amici argue that
the Commission's Rules provide only that each side pay for its own witness

2538

fees and mileage. The AMC and NCA also contend that nothing in common law
or federal law requires a party to subsidize the opposing party's witnesses
or provide compensation outside the employment relationship confines .
. Delisio argues that the judge's decision should be affirmed, because
section 105(c) prohibits a person from discriminating "in any manner"
against miners who have exercised their statutory rights under the Mine Act.
Delisio asserts that he established a prima facie case, because his
testimony in support of MSHA's enforcement action constituted protected
activity and he suffered adverse action when he was deprived of wages that
he otherwise would have received. Accordingly, in Delisio's view, Mathies
discriminated against him in violation of section 105(c)(l) when it refused
to pay him for time spent testifying in the proceeding while at the same
time paying its other employees who testified on its behalf in the same
enforcement action. Delisio argues that Mathies, having elected to pay the
salaries of some of its employees, was required to treat all of its
employees alike, on the basis that the activities of the employees -testifying about the conditions present when MSHA issued the challenged
citation and closure order -- were identical.
The question raised is whether Mathies discriminated against Delisio,
in violation of section 105(c)(l) of the Mine Act, when it refused to pay
wages to Delisio, who had been subpoenaed by the Secretary, for time spent
testifying in support of the Secretary's case against Mathies, while at the
same time paying the salaries of its managerial employees, who testified on
its behalf in the same proceeding.
In order to establish a prima facie case of discrimination under
section 105(c) of the Mine Act, a complaining miner bears the burden of
production and proof to establish (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in any part by
that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2
FMSHRC 2786, 2797-2800 (October 1989), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); and
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-18 (April 1981). See also Donovan v. Stafford Constr. Co., 732 F.2d
954, 958-59 (D.C. Cir. 1984)(specifically approving the Commission's PasulaRobinette test).
It is undisputed that Delisio, in testifying in the earlier Mine Act
proceeding, engaged in protected activity. Section lOS(c)(l) provides: "No
person shall ... discriminate against ... any miner ... because such miner
... has testified ... in any ... proceeding [under or related to the Mine
Act] .... " However, we conclude that Delisio did not show that Mathies took
an adverse action against him or, even assuming that an adverse action had
occurred, that it was discriminatorily motivated. Hence, we conclude that
Delisio did not establish the second element of a prima facie case. We find
the judge's conclusion to the contrary unsupported by the evidence and
legally erroneous.
A showing that an adverse action was taken is part of the second
element of a prima facie case of unlawful discrimination under section

2539

105(c) of the Mine Act. Generally, "an adverse action is an act of
commission or omission by the operator subjecting the affected miner to
discipline or a detriment in his employment relationship." Secretary on
behalf of Jenkins v. Hecla Day Mines Corp., 6 FMSHRC 1842, 1847-48 (August
1984). However, an "adverse action under ... section 105(c) of the Mine Act
is not simply any operator action that a miner does not like." Secretary on
behalf of Price & Vacha v. Jim Walter Resources. Inc., 12 FMSHRC 1521, 1533
(August 1990), citing Jenkins, supra, 6 FMSHRC at 1848 n.2. Moreover, as
emphasized in Price & Vacha, "Not every classification or difference in the
treatment of employees ... amounts to illegal 'discrimination,' especially
where there is sufficient lawful reason for the challenged distinction." 12
FMSHRC at 1532.
Did Mathies refuse to pay Delisio's wages for time spent testifying in
behalf of another party, in and of itself, constitute a discriminatory
adverse action under the facts of this case? At common law, witnesses are
not entitled to compensation. The right to witness fees is purely
statutory. 97 C.J.S., Witnesses, § 35 at 421; 81 Am Jur. 2d, Witnesses,
§ 23 at 47.
Under the American legal system, parties have trad:H:ionally
paid only their own witnesses and witness fees may be taxed against the
other party only if allowed by legislative enactment. 20 C.J.S., Costs, §
221 at 466. Absent such legislation, a litigant on one side is not required
to subsidize the fees or compensation of the other side's witnesses. Here,
Mathies' conduct mirrors this established system that, absent legislation
providing otherwise, litigants bear their own costs, including the payment
of compensation to witnesses. We perceive no statutory mandate under the
Mine Act supporting the kind of compensation sought by Delisio here.
With respect to witness fees, section 113(e) of the Mine Act provides:
In connection with hearings before the
Commission or its administrative law judges under
this [Act], the Commission and its administrative
law judges may compel the attendance and testimony
of witnesses and the production of books, papers, or
documents, or objects, and order testimony to be
taken by deposition at any stage of the proceedings
before them. Any person may be compelled to appear
and depose and produce similar documentary or
physical evidence, in the same manner as witnesses
may be compelled to appear and produce evidence
before the Commission and its administrative law
judges. Witnesses shall be paid the same fees and
mileage that are paid witnesses in the courts of the
United States and at depositions ordered by such
courts.
30 U.S.C. § 823(e). Section 113(e) thus incorporates by reference the
practice of the courts of the United States in terms of the amount of fees
paid to witnesses. 28 U.S.C. § 182l(b) provides that, absent explicit
statutory authority or contractual authorization to the contrary, a witness
fee of $30/day applies in the courts of the United States.

2540

Implementating section 113(e) of the Act, Commission Procedural Rule
58(b), 29 C.F.R. § 2700.58(b)(l990), provides:
Fees payable to witnesses. Witnesses subpoenaed by
any party shall be paid the same fees and mileage as
are paid for like service in the district courts of
the United States. The witness fees and mileage
shall be paid by the party at whose request the
witness appears, or by the Commission if a witness
is subpoenaed on its own motion or the motion of a
judge. This paragraph does not apply to Government
employees who are called as witnesses by the
Government.
Therefore, under our Rule 58(b), witness fees must be paid by the party at
whose request the witness appears. This, of course, parallels the general
practice of the American litigation system, under which each party pays its
own witnesses. Accordingly, in accordance with Rule 58(b), Delisio was paid
$30 by the Secretary for the day he testified at the hearing, based-0n the
level authorized by 28 U.S.C. § 182l(b).
Section 113(e) of the Mine Act, in conjunction with Rule 58(b),
essentially authorizes a per diem fee paid to a witness by the party calling
the witness, but creates no additional statutory entitlement to compensation
for wages or salaries. Neither the Mine Act nor its legislative history
suggests any intention to provide for operator-paid compensation for miners
testifying in Mine Act proceedings. Indeed, Congress established a number
of specific operator-paid compensation provisions for miners under the Mine
Act. Congress required walkaround pay for one miner representative during
the physical inspection of the mine and pre- or post-inspection conferences
(30 U.S.C. § 813(f)), provided for compensation where a miner is withdrawn
because he has not received requisite safety training (30 U.S.C.
§ 814(g)(2)), established a graduated scheme of miner compensation where a
mine is closed under various withdrawal orders issued under the Act (30
U.S.C. § 821), and mandated compensation for miners for required training
(30 U.S.C. § 825(b)). Congress did not provide for operator-paid
compensation for miners testifying in Mine Act proceedings, instead
providing under section 113(e) only for per diem witness fees. While we are
not implying an expressio unius est exclusio alterius construction here
(~,~.Loe. U. 2274. UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1502
(November 1988), aff'd, 895 F.2d 773 (D.C. Cir. 1990), cert. denied, October
1, 1990)(No. 90-77)), this legislative silence involving the question before
the Commission dictates cautious judicial review of Delisio's position (see,
~.Rushton Mining Co., 11 FMSHRC 759, 764 (May 1989), and authority
cited).
Our concern with the Mine Act's silence on the subject is further
accentuated by 5 U.S.C. § 6322(a)(l988). That provision generally provides
that federal employees are entitled to leave without loss of pay when
testifying as witnesses on behalf of any party in connection with any
judicial proceeding in which a government is a party. Essenti~lly, Congress
has provided for full compensation by the United States for its employees

2541

testifying in such proceedings, regardless of the party for whom such
employees may be testifying. Delisio's position is essentially analogous to
the statutory policy embedded in 5 U.S.C. § 6322(a). However, there is no
comparable provision imposing similar compensation obligations on operators
under the Mine Act.
Here, Delisio was subpoenaed by the Secretary of Labor and paid a
standard witness fee by the Secretary in accordance with Rule 58(b).
Although Delisio was scheduled to work at Mathies' mine on the date of the
hearing, he did not report for work to Mathies and did not perform any work
on that day for Mathies. Mathies did not compensate Delisio for that day.
As a general matter, Delisio was not paid by Mathies simply because he did
not work for Mathies on the day of the hearing. Consequently, Mathies'
failure to compensate Delisio was not, in itself, adverse action directed at
his employment relationship. Delisio's right to a witness fee payment under
section 113(e) of the Mine Act is not a term or condition of his employment
relationship with Mathies and he was subpoenaed as a witness by another
party, the Secretary.
Delisio and the judge would tie a conclusion of discrimination to the
fact that Mathies paid its managerial witnesses their salaries for the day
they spent at the hearing. In the judge's view, this was "disparate
treatment" that was inherently discriminatory. We are not persuaded. It is
undisputed that these witnesses (1) were Mathies' own witnesses and (2) were
salaried management safety representatives at the mine. According to
Mathies, their managerial positions required testifying, as might be
necessary, from time to time. Although the judge made no finding on this
point, Delisio has not controverted it. There is no evidence in the record
that these employees' salaries were dependent on their testifying in support
of Mathies' position and there is no indication that the witnesses would
have had their salaries withheld had they testified adversely to Mathies.
Under these circumstances, we cannot view Delisio, an hourly employee
subpoenaed by the Secretary, as "similarly situated" to the managerial
witnesses subpoenaed by Mathies to testify as a part of their job duties.
As previously indicated: "Not every classification or difference in the
treatment of employees ... amounts to illegal 'discrimination,' especially
where there is sufficie11t lawful reason for the challenged distinction."
Price & Vacha, supra, 12 FMSHRC at 1532. We therefore find that a
"sufficient lawful reason" and a reasonable basis for the difference in
treatment Mathies accorded Delisio has been demonstrated on the record.
We also place considerable weight on the NLRB's decision in General
Electric, supra. Like the Mine Act, the NLRA contains a provision
protecting employees from discrimination for participating in judicial
proceedings under the statute. 4 The Commission has recognized in several
4

Section 8(a)(4) of the NLRA provides:
It shall be an unfair labor practice for an
employer -- (4) to discharge or otherwise discriminate
against an employee because he has filed charges or

2542

contexts that settled cases decided under the NI.RA -- upon which much of the
Mine Act's antiretaliation provisions are modeled -- provide guidance on
resolution of discrimination issues under the Mine Act. See, ~.
Secretary v. Metric Constructors. Inc., 6 FMSHRC 226, 231 (February 1984),
aff'd, 766 F.2d 469 (11th Cir. 1985), and authority cited.
In General Electric, the employer paid an hourly employee his normal
wages for having testified on its behalf at an unfair labor practice
hearing, but refused to pay another hourly employee, who testified on behalf
of the NLRB's General Counsel at the same hearing, the difference between
the statutory witness fee that he received from the NLRB and his normal
wage. The NLRB distinguished "between those situations where the employer's
actions were directed at the employment relationship" (Electronic Research
.1. supra) and those where they are not, "as in the witness fee situation"
(Electronic Research II, supra). 230 NLRB at 685. 5 The NLRB noted that
in "the latter instance, the obligation to pay witness fees is imposed by
statute or fiat and not by the employment relationship." Id. The NLRB
pointed to its witness rule at 29 C.F.R. § 102.32, which, (like the
Commission's Rule 58(b)), provides that witness fees shall be pai~ by the
party at whose request the witness appears. Id.
The NLRB reasoned:
But there is no prohibition against a party paying
its witnesses more than the minimum, or more than
another party will pay their witnesses, nor should
any adverse inferences be drawn against the party
paying the higher amount merely from that fact. In
this regard, we deem as reasonable a party's use of
employee wages as the measure for determining the
fee to be paid its witness. Indeed, many parties,
recognizing that an individual's employer is not
obligated to pay him wages for time away from work
testifying as a witness for them, use actual loss of
earnings as a criteria for settling the witness fees
they will pay.
given testimony under this [Act] ....
5

In Electronic Research I, the NLRB concluded that it was a violation of
section 8(a)(4) of the NLRA, supra, to deny a perfect attendance award to an
employee who was absent from work because he was testifying against the employer
in a Board hearing, while awarding the perfect attendance award to those
employees who appeared at the same hearing at the employer's request.
See
General Electric, 230 NLRB at 684. In Electronic Research II, the NLRB held that
it was not a violation for an employer to pay the wages of the employees whom it
called to testify, while at the same time refusing to pay the employees whom had
been subpoenaed by the union. See General Electric, 230 NLRB at 684. In that
case, the NLRB stated that "to order the [employer] to pay the employees for time
lost from work in testifying against it is to require a litigant in effect to
subsidize its opponent." Id.

2543

Furthermore, the obligation exists only
between the party and its witnesses; it does not
extend to witnesses called by others. It follows,
·then, that the witness fee paid by one party is not,
nor should it be, the concern or affair of another
party. In short, no party stands as the guarantor
for equal payment to all witnesses summoned by all
parties to the proceeding. A fortiori, an employer,
as here, -- or a union in a case not involving an
employer as a party -- is not as a general
proposition obligated to pay opposition witnesses
anything in connection with witness fees.
Consequently, we conclude that an employer is not
discriminating with respect to the employment
relationship by not paying an employee called as a
witness against it the difference between what such
witness would have earned had he worked and what the
party calling him as a witness is willing to pay.
Nor do we believe that the failure of the employer
to pay such difference to employees testifying
against it is otherwise per se discriminatory ....
As we have previously stated, to hold that an
employer must pay this difference would result in
making employer liability dependent on what others
are willing to pay, something we are unwilling to
do.
230 NLRB at 685.
The NLRB further noted that while the disparity in compensation
created by a party paying its witnesses more than another party may result
in a monetary disadvantage to the latter, "that is not the fault of the
higher paying party or within its immediate control. Nor is such a
disparity due to actions aimed at the employment relationship." 230 NLRB at
685-86. We agree substantially with the reasoning of General Electric.
Like the NLRB in General Electric, supra, 230 NLRB at 685, we also
note that the question of whether an employer is required, in general, to
pay an employee for time not worked or, specifically, for time spent
testifying, has been reserved to the employment mechanisms and prerogatives
of the private sector. Delisio did not perform work for Mathies on the day
of the hearing. Lying behind Delisio's complaint of discrimination is an
underlying claim of a right: a right to be paid by his employer for time
during which he did not work but rather was testifying as an opposition
witness in litigation involving his employer. The subject of recognizing
any such employment benefit is amenable to collective bargaining or to other
private employment agreement. As we have emphasized in related contexts,
the Commission does not sit as a super grievance board to judge the
industrial merits, fairness, reasonableness, or wisdom of an operator's
employment policies except insofar as those policies may conflict with
rights granted under section 105(c) of the Mine Act. See Price & Vacha, 12
FMSHRC at 1532, citing Price & Vacha, 9 FMSHRC at 1307. See also Mullins v.

2544

Beth-Elkhorn Coal Corp., 9 FMSHRC 891, 899 (May 1987), citing Loe. U. No.
781. Dist. 17. UMWA v. Eastern Assoc. Coal Corp., 3 FMSHRC 1175, 1179 (May
1981)~

We conclude as a matter of law that an operator's policy of not paying
an employee for time spent testifying as another party's witness, while
paying employees who testify as its own witnesses, does not, by itself and
without more, amount to an adverse action under the Mine Act. In other
words, we do not view such a policy as aimed adversely or discriminatorily
at the employment relationship per se. Rather, in the words of General
Electric, it stems "from different obligations, considerations, and
motives .... " See 230 NLRB at 686. If the record in this case contained
evidence of specific retaliatory motivation or discriminatory intent,
another question would be presented. The record in this case, however,
reveals no evidence of retaliatory motive or discriminatory intent. 6
In sum, the record contains no evidence of an adverse action
cognizable under _the Mine Act. To the extent that the judge equated the
mere fact of different compensation of the employee-witnesses wi~h unlawful
discrimination, we conclude that he erred as a matter of law. Accordingly,
and for the foregoing reasons, we hold that Delisio failed to establish a
prima facie case of discrimination prohibited under the Mine Act. 7

6

Delisio also relies on Carpenter v. Miller, 325 S.E. 2d 123 (WV 1984),
a decision by the West Virginia Supreme Court of Appeals. Although the West
Virginia statutory antidiscrimination provision is, as pertinent, similar to
section 105(c)(l) of the Mine Act, the relevant state statutory witness fee
provision provides that all subpoenas are issued by the Director of the
Department of Mines and "[a]ny witness so ... subpoenaed ... shall be paid out
of the state treasury upon a requisition upon the state auditor." 325 S.E. 2d
at 126. The court reasoned that the legislature must therefore have intended
that miners receive no reduction in compensation due to absence from employment
when testifying in the mine proceedings. The West Virginia court's decision is
bottomed on a subpoena provision unlike that involved in the Mine Act.
The
Commission is not bound by state court decisions interpreting state statutory
schemes and we are not persuaded that the court's reasoning applies in the Mine
Act context.
7

Two days prior to the scheduled Commission meeting in this case, the
Commission received Mathies' first request for oral argument.
The motion is
untimely. This case was thoroughly briefed by all concerned, and the Commission
would not have found oral argument particularly helpful in any event.
Accordingly, the motion is denied.

2545

For the foregoing reasons, we reverse the judge's decision, vacate his
award of back pay, interest, and costs, and dismiss Delisio's discrimination
complaint. 8 _

~. ~~ssi4JG_
/~

/i

'-.·:

,~l,C°'-~.,, /Le~.,__''--.·

L.~Clair Nelson, Commissioner

8

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we have
designated ourselves a panel of three Commissioners to exercise the powers of the
Commission in this matter.
Commissioner Holen assumed office after this case had been briefed and
shortly before it was considered at a Commission decisional meeting.
A new
Commissioner possesses legal authority to participate in pending cases, but such
participation is discretionary. Commissioner Holen elects not to participate in
this case.

2546

Distribution
Joseph Mack, III, Esq. for Mathies
Thorp, Reed & Armstrong
One Riverfront Center
Pittsburgh, Pennsylvania 15222
Mary Lu Jordan, Esq. for Delisio
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Nichael J. Healey, Esq. for Delisio
Healey, Whitehall
Fifth Floor, Law & Finance Bldg.
Pittsburgh, PA 15219
R. Henry Moore, Esq. for Pennsylvania Coal Assn.
Buchanan Ingersoll
56th Floor, USX Tower
600 Grant St.
Pittsburgh, PA 15219
William Hynan, Esq.
National Coal Association
1130 17th Street, N.W.
Washington, D.C. 20036
Edward Green, Esq.
American Mining Congress
1920 N Street, N.W., Suite 300
Washington, D.C. 20030
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

2547

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

December 26, 1990

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

v.

Docket Nos. SE 88-82-RM
SE 88-83-RM
SE 89-67-M

ASARCO, INC.

Before:

Backley, Acting Chairman; Doyle, Holen and Nelson,
Commissioners
DECISION

BY THE COMMISSION:

This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seg. (1988)
("Mine Act"), and concerns a discovery dispute between the Secretary of Labor
and ASARCO, Inc. ("Asarco"). On November 21, 1989, Commission Admir.istrative
Law Judge Avram Weisberger granted Asarco's motion to dismiss these
proceedings because the Secretary refused to comply with his order requiring
her to produce certain docwnents for inspection by Asarco. ASARCO. Inc.,
11 FMSHRC 2351 (November 1989)(ALJ). For the reasons that follow, we vacate
the judge's order and remand this matter for further consideration consistent
with this decision.
I.

Factual and Procedural Back~round
Asarco operates the Immel Mine, an underground zinc mine located in Knox
County, Tennessee. A fatal accident occurred at the Immel Mine on
July 15, 1988, when an electrician contacted an energized 4,160-volt terminal
located inside a transfer switch cabinet. An electrical apprentice assisting
him escaped serious injury. Following an investigation, Don B. Craig, a
supervisory inspector of the Department of Labor's Mine Safety and Health
Administration ("MSHA"), issued Asarco two citations alleging violations of
30 C.F.R. §§ 57.12017 & .12019 because the top terminals in the cabinet were
not de-energized and because suitable clearance was not provided when the
electrician was cleaning the terminals and insulators. Asarco contested the
citations.

2548

On March 9, 1989, during the course of pretrial discovery, Asarco served
the Secretary with a request for production of documents in accordance with
Commission Proc~dural Rules 55 and 57, 29 C.F.R. §§ 2700.55 and 2700.57. The
request for production contained nine requests for documents related to MSHA's
investigation of the accident, including its "special investigation,"
documents related to MSHA's special assessment procedures, and other
documents. In accordance with Commission Procedural Rule 57, Asarco asked
that MSHA's answer be provided within 15 days. MSHA did not respond to the
request.
On April 21, 1989, Asarco filed a motion for an order to compel
production of the documents sought in its March 9 request. Asarco asserted
that the Secretary had failed to respond to the request for production except
to notify Asarco orally that it would not comply with some of the requests on
the basis of an "investigatory privilege." In order to facilitate production,
Asarco agreed to limit its request for production to documents prepared during
the past two years and, with respect to one request, to documents exchanged
between specifically listed MSHA officials. Asarco also agreed to enter into
a "protective order" to protect the identities of confidential info:i;mants.
On May 12, 1989, the Secretary filed responses and objections to
Asarco's request for production. The Secretary objected to the requests for a
number of reasons. As pertinent to this review proceeding, she asserted that
answering certain requests would (1) reveal the identity of miners or violate
Commission Procedural Rule 59, 29 C.F.R. § 2700.59, 1 and (2) disclose
protected work product of the Secretary's employees.
On June 6, 1989, Asarco filed another motion to compel production of
documents. As relevant here, it asserted that the government cannot proceed
affirmatively against Asarco and, under the guise of privilege, suppress
evidence useful to its defense. It asserted that it was entitled to
exculpatory information in the Secretary's possession. Second, Asarco
maintained that the Secretary misunderstood the privileges that she asserted.
It maintained that the Secretary could not simply state that documents
contained privileged matters but must submit the documents in question to the
administrative law judge for in camera inspection. Asarco argued that the
Secretary's claim of confidentiality was too generalized to meet her burden of
showing that the documents were protected from discovery.
1

29 C.F.R. § 2700.59 provides:
Name of miner witnesses and informants
A Judge shall not, until 2 days before a hearing, disclose or
order a person to disclose to an operator or his agent the name of
a miner who is expected by the Judge to testify or whom a party
expects to summon or call as a witness. A Judge shall not, except
in extraordinary circumstances, disclose or order a person to
disclose to an operator or his agent the name of an informant who is
a miner.

2549

On July 12, 1989, Judge Weisberger issued an order responding to
Asarco's motions to compel. The judge concluded that the information sought
in the requests for production was relevant to the proceeding. The judge
ordered the Secretary to respond to each of the requests for production within
10 days of the order. The judge held that the Secretary was not to disclose,
until two days before the hearing, the name of any miner who was expected to
be a witness or the name of any informant who was a miner.
On July 31, 1989, the Secretary filed responses to the request for
production. In her responses, the Secretary stated that the documents were
being produced under protest and that she preserved for appeal all previously
made objections.
On August 11, 1989, Asarco filed another motion to compel production of
documents, alleging that the Secretary's response to the judge's order
compelling production was incomplete. As relevant here, Asarco alleged that
the Secretary improperly excised voluminous amounts of material from the
documents produced. Asarco maintained that the Secretary imprope~ly asserted
"work product," "attorney/client privilege" or "miner/informant privilege"
throughout the documents produced. In response to Asarco's motion to compel,
the Secretary argued that she had properly excised privileged material from
the documents produced, in part, to protect the identity of miner-informants.
The Secretary requested the judge to view the documents in camera, if
necessary, to resolve the matter.
By order dated September 1, 1989, the judge directed the Secretary to
file with him the disputed documents for in camera examination with respect to
the claimed privileges. In reviewing these documents, the judge did not
consult with the attorneys for the parties and did not request additional
information.
In an order dated September 22, 1989, the judge issued his rulings with
respect to the excised portions of the documents. The judge discussed each
document that contained excised material and set forth his determination as to
what portion of each was protected by a privilege. The documents provided by
the Secretary are contained in two files: File A (Civil Penalty Investigation
File) and File B (Special Investigation File). The judge assigned exhibit
letters to each contested document. In a number of instances, the judge held
that portions of the documents that the Secretary wished to withhold from
Asarco should be produced.
The judge's rulings with respect to the six documents that are the
subject of this review proceeding are as follows:
I - FILE A

2. Exhibit B (Special Assessment Review, August 10. 1988) An informer is not identified, and the entire statement is thus not to
be excised.

2550

9. Exhibit I (Continuation Sheet) - Taking into account the
significance of the excised statement, and the circumstances of this
case, the excised portion is subject to discovery.
II - FILE B

3. Exhibit E - The statements by a miner (employed by Respondent)
in response to detailed questioning by an MSHA Special Investigator are
detailed, extensive, and hence significant and relevant to the issues of
the instant proceedings. There is no evidence that there exists herein
any possibility of harassment or retaliation against the informer. I
find accordingly that Respondent's need for the information in this
exhibit outweighs the Petitioner's need to maintain this privilege (see,
Bright Coal Co .. Inc. 6 FMSHRC 2520 at 2526 (1984)). Accordingly, this
exhibit is subject to discovery.
The disposition of Exhibit F is the same as
4. Exhibit F
Exhibit E, based on the same rationale.
5. Exhibit G - The disposition of Exhibit G is the same as
Exhibit E, based on the same rationale.

7. Exhibit K - The excised statements on pages 3 and 4 are
contained in statements Dan Craig made in an interview with Robert
Everett. Neither of these persons ha[s] been identified as attorneys.
Accordingly, the statement of Craig are not within the scope of the
attorney work product, or attorney/client privilege, and are
discoverable. However, the last line of page 3 and the first 3 lines of
page 4 are to be deleted, as they contain references to the work
processes of a solicitor, and they are not relevant to the case at bar.
Accordingly they are privileged.
Order of September 22, 1989.
The judge ordered the Secretary to serve Asarco with copies of these
clocuments within three days. For reasons that are not clear, the judge
attached to his order copies of some of the disputed documents that are not
before the Commission on review. Thus, Asarco was provided with unexcised
copies of some of the contested documents before the Secretary was given the
opportunity to determine how she wished to respond to the judge's order.
In response to the judge's order of September 22, the Secretary stated
that she would "respectfully decline" to produce unexcised copies of six of
the documents that the judge ordered her to produce and moved to seal the
documents that she had provided to the judge. She also protested the judge's
action in unilaterally providing certain other documents without the

2551

Secretary's knowledge or consent. Asarco subsequently filed motions to cancel
the trial, impose sanctions, dismiss the penalty proceedings and vacate the
citations. Asarco argued that the judge was correct in ordering the Secretary
to provide the contested documents, and that its case has been prejudiced by
the Secretary's continued failure to comply with its discovery requests.
On October 16, 1989, the judge denied the Secretary's motion to seal the
documents. He stated that he was "most concerned" about the Secretary's
failure to comply with his order of September 22. He denied Asarco's motions
to dismiss the cases and again ordered the Secretary to produce the disputed
documents.
On October 23, 1989, the Secretary stated that because she believed that
the judge's order was issued in error, she had no choice but to decline to
produce the "identifying documents" in order to obtain review by the
Commission. On November 21, 1989, the judge dismissed the proceeding against
Asarco based on the Secretary's continued refusal to comply with his discovery
order of September 22. 11 FMSHRC 2351 (November 1989)(ALJ).
The Commission granted the Secretary's subsequent petition :[or
discretionary review.
The Secretary asserts that the informant's privilege
applies to all or part of each of the six documents on review. She asserts
that the attorney-client privilege and the work product privilege apply to
part of Exhibit K.
II.
Disposition of Issues

A.

Informant's Privilege

The Secretary argues that each of the passages withheld from Asarco in
the six documents are protected by the informant's privilege and are not
subject to discovery. She relies on Commission Procedural Rule 59, and Bright
Coal Co., 6 FMSHRC 2520 (November 1984), to support her position. She
maintains that although the Secretary has the burden of proving facts
necessary to support the existence of the informant's privilege, she satisfied
this burden. She argues that once the privilege is established, the burden of
proving facts necessary to show that the information sought is essential to a
fair determination of the case rests with the party seeking disclosure. She
alleges that Asarco has failed to meet this burden with respect to each
document.
Asarco argues that the judge's determinations, set forth above, involved
a balancing of interests and careful consideration of the relevant facts. It
maintains that his findings in this regard should be affirmed because they are
supported by substantial evidence. It argues that the Commission should not
reweigh the factors the judge considered in reaching his decision. According
to Asarco, the judge determined that the materials sought were relevant and
discoverable after he carefully balanced the needs of each party. Asarco
contends that because a judge is provided with considerable discretion when
determining what is privileged, Judge Weisberger's orders compelling
production should not be disturbed because he did not abuse this discretion.

2552

In Bright, the Commission set forth in considerable detail the
procedures to be followed if the Secretary asserts the informant's privilege.
In that case, the Commission recognized the well established, but qualified,
right of the government to withhold from disclosure information concerning
possible violations of the law reported to government enforcement officials.
Bright, 6 FMSHRC at 2522; see also. e.g., Roviaro v~ United States,
353 U.S. 53, 59 (1957). The Commission held that this general privilege is
applicable to the furnishing of information to government officials concerning
possible violations of the Mine Act. 6 FMSHRC at 2524. The Commission
concluded that an informant is "a person who has furnished information to a
government official relating to or assisting in the government's investigation
of a possible violation of law, including a possible violation of the Mine
Act." 6 FMSHRC at 2525.
In Bright, the Commission set forth the procedural framework that
Commission administrative law judges should use in analyzing whether an
informant's identity should be withheld. If the judge concludes that the
information sought is relevant and, therefore, discoverable, he must determine
whether the information is privileged. The Commission stated that the burden
of proving facts necessary to support the existence of the privileg& rests
with the government. 6 FMSHRC at 2523. The Commission stated:
Recognizing that the informer's privilege is qualified, if
the judge concludes that the privilege is applicable, he should
next conduct a balancing test to determine whether the
respondents' need for the information is greater than the
Secretary's need to maintain the privilege to protect the public
interest. Drawing the proper balance concerning the need for
disclosure will depend upon the particular circumstances of this
case, taking into account the violation charged, the possible
defenses, the possible significance of the informer's testimony,
and other relevant factors. Among the relevant factors to be
considered are the possibility for retaliation or harassment, and
whether the information is available from sources other than the
government.
The burden of proving facts necessary to show that the
information is essential to a fair determination rests with the
party seeking disclosure. Hodgson v. Charles Martin Inspectors of
Petroleum. Inc., 459 F.2d [303] at 307 [(5th Cir. 1972)]. In this
regard a demonstrated, specific need for material may prevail over
a generalized assertion of privilege. Black v. Sheraton Corp. of
America, 564 F.2d [531] at 545 [(D.C. Cir. 1977)]. Some of the
factors bearing upon the issue of need include whether the
Secretary is in sole control of the requested material or whether
the material which. respon4ents seek is already within their
control, and whether respondents had other avenues available from
which to obtain the substantial equivalent of the requested

2553

material. Where the disclosure of the identity of an
informer is essential to a fair determination of the
case, the privilege must yield or the case may be
dismissed. Roviaro, 353 U.S. at 59.
6 FMSHRC at 2526.
On review the Secretary does not contend that the information contained
in the contested portions of the six documents is not relevant, but argues
that such information is protected by the informant's privilege. Each of the
six documents is discussed below.
1.

Exhibit B

With respect to Exhibit B, the judge ruled that "[a]n informer is not
identified, and the entire statement is thus not excised." Order of
September 22, 1989, p.l. It appears that the judge held that the privilege is
not applicable to the relevant passage in Exhibit B because it does not
contain the name of the informant.
It is well established that "where the disclosure of the contents of a
communication will tend not to reveal the identity of an informer, the
contents are not privileged." Roviaro, 353 U.S. at 60. If, on the other
hand, the content of a communication would tend to reveal the identity of the
informant, the contents are privileged. Westinghouse Electric Corp. v. City
of Burlington, 351 F.2d 762, 768 (D.C. Cir. 1965); Hodgson v. Charles Martin
Inspectors of Petroleum. Inc., 459 F.2d 303, 306 (5th Cir. 1972). See also
Annotation, Application. in Federal Civil Action. of Governmental Privilege of
Nondisclosure of Identity of Informer, 8 A.L.R. Fed. 6, 27-28 (1971). The
Secretary argues that because the universe of persons in this case with
knowledge of the facts is small, release of the statement would reveal the
identity of the informant notwithstanding the fact that the informant's name
is not actually contained in the document. Asarco maintains that the judge's
finding of fact that release of the statement would not reveal the identity of
the informant must be upheld unless it is not supported by substantial
evidence.
As stated above, there can be no dispute that an informant's statement
is protected by the privilege if it would tend to reveal his identity. As the
above authorities make clear, whether an informant is identified by name is
not the sole basis for making that determination. The judge was required to
determine whether release of the entire document, including the disputed
passage, would tend to reveal the identity of the informant. We believe that
he failed to do so and, accordingly, committed error.
Accordingly, we vacate the judge's order of September 22, 1989, with
respect to Exhibit B of File A and remand the issue for further consideration
by the judge. The judge should determine whether release of the statement
attributed to an unidentified informant would tend to reveal the informant's
identity, taking into consideration the factual context of this case. If the
judge determines that release of the statement would tend to reveal the
identity of the informant, the judge must then determine whether Asarco's need

2554

for the information outweighs the Secretary's need to maintain the privilege,
taking into account the factors set forth in Bright, quoted above, and as
discussed further below.
2.

Exhibit I

With respect to Exhibit I, the judge ruled that "[t]aking into account
the significance of the excised statement, and the circumstances of this case,
the excised portion is subject to discovery." Order dated September 22, 1989,
p. 2. It appears that the judge may have used the Bright balancing test and
concluded that Asarco's need for the information outweighed the Secretary's
need to maintain the privilege. It is difficult to determine, however, what
specific factors the judge balanced in reaching his conclusion.
The Secretary argues that she was not in sole control of the information
sought by Asarco in this exhibit because the same information would be
available to Asarco by taking the depositions of the small number of persons
with knowledge of the facts of this case. She maintains that, as a result,
Asarco failed to meet its burden of demonstrating a specific need for the
document. Asarco maintains that the judge properly balanced the competing
interests of the parties and that the Secretary is asking the Commission to
examine the document de novo to determine whether the contested passage in the
document should have been provided to Asarco. It maintains that the
Commission should not reweigh the judge's determinations but should determine
whether the judge abused his discretion.
We generally agree with Asarco that the Commission cannot merely
substitute its judgment for that of the administrative law judge in this
context. The Commission is required, however, to determine whether the judge
correctly interpreted the law or abused his discretion and whether substantial
evidence supports his factual findings. Cf. Knox County Stone Co.,
3 FMSHRC 2478, 2480 (November 1981) (articulating similar standard of review
of a judge's disposition of a settlement).
In Bright, the Commission held that the burden of proving that the
information in the documents sought is essential to a fair determination of
the issues rests with the party seeking disclosure. 6 FMSHRC at 2526; see
also Hodgson, 459 F.2d at 307. The Commission stated that important factors
to be considered when evaluating whether the documents sought are essential
include "whether the Secretary is in sole control of the requested material or
whether the material which respondents seek is already within their control,
and whether respondents had other avenues available from which to obtain the
substantial equivalent of the requested material." 6 FMSHRC at 2526 (emphasis
added). We cannot determine from review of the text of the judge's
September 22, 1989, order if he considered whether the information contained
in the disputed document could also be obtained from another source. The
order also does not explain how the judge determined that Asarco's need for
the information was greater than the Secretary's need to maintain the
privilege to protect the public interest. Specifically, the order does not
set forth the basis for the judge's conclusion that Asarco's need for the
document was essential to a fair determination of the issues in the case. The
judge simply stated that the excised statement in the document was

2555

"significant."
Given the strong policy embodied in the Mine Act to protect the identity
of informants, as explained in Bright, the fact that the judge did not set
forth the basis for his conclusion that Asarco demonstrated that the document
was essential to a fair determination of the issues, and the fact that the
judge apparently did not consider whether Asarco could have obtained
substantially similar information by other means, we vacate the judge's order
of September 22, 1989, with respect to Exhibit I of File A. We remand this
issue to the judge for further consideration. One of the factors that the
judge should consider in balancing the interests of the parties should be
whether Asarco could obtain substantially similar information from other
sources. The judge should determine whether the information excised by the
Secretary is essential to a fair determination of the issues and he should
clearly articulate the basis for his conclusion.
3.

Exhibits E, F & G

The judge held that Exhibits E, F & G of File B, which are detailed
statements of miners, are "significant and relevant to the issues.""" Order of
September 22, 1990, p.2. He further stated that the record contains no
evidence of "any possibility of harassment or retaliation against the
informer[s]." Id. He concluded that Asarco's need for the information in
these exhibits outweighed the Secretary's need to maintain the privilege.
As with Exhibit I, discussed above, the judge apparently did not
consider whether the information in these statements could be obtained through
depositions or by other means. The order does not set forth the basis for the
judge's conclusion that Asarco's need for the information was essential to a
fair determination of the issues. We also do not find a full articulation of
the basis for his conclusion that Asarco's need for the information outweighed
the Secretary's need to maintain the privilege.
Although under a Bright analysis the judge may consider the "possibility
for retaliation or harassment," the Secretary is not required to present
evidence that harassment or retaliation is likely or possible in the case
being considered. The informant's privilege protects generally and broadly
against possible retaliation and applies regardless of whether a particular
operator would actually retaliate against an informant. "The purpose for
allowing the informer's privilege ... is to make retaliation impossible, thus
obviating the deterrent force of sanctions for retaliation." Wirtz v.
Continental Finance & Loan Co., 326 F.2d 561, 564 (5th Cir. 1964). It appears
that the judge put great weight on the lack of "evidence" that retaliation or
harassment was possible. The judge did not take any evidence on this issue
and it is doubtful whether the Secretary could produce such evidence in any
particular case, even if she were given the opportunity.
Based on the foregoing, we vacate the judge's order compelling the
Secretary to produce Exhibits E, F and G of File B and remand the issue for
further consideration by the judge. On remand the judge should consider
whether Asarco could obtain substantially similar information from other
sources and whether these documents are essential to a fair determination of

2556

the issues. Finally, the judge should weigh the factors set forth in Bright
and clearly articulate the basis for his conclusion.
4.

Exhibit K

The judge did not decide whether the relevant material in Exhibit K is,
as the Secretary contends, protected by the informant's privilege. His ruling
with respect to this exhibit relates exclusively to consideration of other
privileges, as discussed below. The Secretary maintains that the judge's
failure to rule indicates that he determined that the subject statements
should not be provided. We cannot make that assumption on the existing
record, and remand this issue to the judge for his reconsideration in
accordance with this decision and Bright.
B.

Work Product Rule

The passages of Exhibit K that the Secretary contends are protected by
the work product rule are notes that MSHA Special Investigator Robert Everett
made while interviewing MSHA Supervisory Inspector Craig concerning Craig's
conversation about this case with an attorney of the Secretary's So~icitor's
office. The Secretary argues that since the writing discloses the thoughts of
an attorney, the contested passages are protected by the work product rule,
notwithstanding the fact that the writing was by the hand of the "client."
Asarco maintains that since the document was not prepared by an attorney, it
falls outside of the scope of the work product rule. Asarco also asserts that
this rule does not apply because the Secretary does not allege that the
contested passages contain the impressions or personal recollections prepared
or formed by an attorney for his own use in prosecuting his client's case.
The work product rule has its modern origins in the case of Hickman v.
Taylor, 329 U.S. 495 (1947), and in Rule 26(b)(3) of the Federal Rules of
Civil Procedure. ("Fed. R. Civ. P"). 2 Unlike the attorney-client
privilege, discussed below, the work product rule does not solely protect
confidential communications between attorney and client and is best described

2

Fed. R. Civ. P. 26(b)(3) provides in pertinent part:
... [A] party may obtain discovery of documents and tangible
things otherwise discoverable under subdivision (b)(l) of this rule
and prepared in anticipation of litigation or for trial by or for
another party or by or for that other party's representative
(including
the
other party's
attorney,
consultant,
surety,
indemnitor, insurer, or agent) only upon a showing that the party
seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without
undue hardship to obtain the substantial equivalent of the materials
by other means.
In ordering discovery of such materials when the
required showing has been made, the court shall protect against
disclosure of the mental impressions, conclusions, op1n1ons, or
legal theories of an attorney or other representative of a party
concerning the litigation.

2557

as a qualified immunity against discovery. In order to be protected by this
immunity under Fed. R. Civ. P. 26(b)(3), the material sought in discovery must
be:
1.

"documents and tangible things;"

2.

"prepared in anticipation of litigation or for trial;" and

3.

"by or for another party or by or for that party's
representative."

See ~enerally 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024,
pp. 196-97 (1970); 6 J. Moore, J. Lucas & G. Grotheer, Moore's Federal
Practice ~26.64 (2d ed. 1989).
It is not required that the document be prepared by or for an attorney.
Wright & Miller, supra, § 2024, pp. 207-09; Moore, supra, ~26.64[2]; U.S. v.
Chatham City Corp., 72 F.R.D. 640, 642-43 (S.D. Ga. 1976). If materials meet
the tests set forth above, they are subject to discovery "only upon a showing
that the party seeking discovery has substantial need of the materials in the
preparation of the party's case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other
means." Fed. R. Civ. P. 26(b)(3). If the court orders that the materials be
produced because the required showing has been made, the court is then
required to "protect against disclosure of the mental impressions,
conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation." Id.
Commission Procedural Rule 55(c), 29 C.F.R. § 2700.SS(c), provides, as
pertinent here, that parties may obtain discovery of any relevant matter that
is not privileged. The Commission is guided, "so far as practicable" and as
is "appropriate," by the Federal Rules of Civil Procedure on procedural
questions not regulated by the Mine Act or its rules. 29 C.F.R. § 2700.l(b).
In applying Fed. R. Civ. P. 26(b)(3) to the contested passages of Exhibit K,
the material in dispute is clearly a document. In addition it was prepared by
a party to this litigation or by its representative, MSHA Special Investigator
R.L. Everett. As stated above, it is not necessary that the document be
prepared by or for an attorney.
The key issue is whether Exhibit K was prepared in anticipation of
litigation. If, in light of the nature of a document and the factual
situation in the particular case, the document can fairly be said to have been
prepared because of the prospect of litigation, then the document is covered
by the privilege. Wright & Miller, supra, § 2024, p. 198-99. If, on the
other hand, litigation is contemplated but the document was prepared in the
ordinary course of business rather than for the purposes of litigation, it is
not protected. Id. In addition, particular litigation must be contemplated
at the time the document is prepared in order for the document to be
protected. Finally, documents prepared for one case have the same protection
in a second case, if the two cases are closely related. Wright & Miller,

2558

supra, § 2024, p. 201.
The record appears to us to reveal that the disputed portions of the
special investigator's notes were prepared in anticipation of litigation. A
major function of an MSHA special investigation is to determine whether
litigation should be commenced under section llO(c) or (d) of the Mine Act.
30 U.S.C. § 820(c) & (d). A special investigator does not know at the outset
of his investigation whether charges will be filed in that particular case.
Nevertheless, the purpose of his investigation is to allow the Secretary to
determine whether a case should be filed.
It is our understanding that no charges have been brought as a result of
Everett's special investigation. Nevertheless, this civil penalty case,
brought under section llO(a), 30 U.S.C. § 820(a), is closely related
litigation and it further appears that it could fairly be said that the
document was prepared in anticipation of that litigation. See Kent Corp. v.
NLRB, 530 F.2d 612, 623-24 (5th Cir. 1976), cert. denied, 429 U.S. 920 (1976)
(investigative reports of NLRB regional office are prepared in anticipation of
litigation even though at time reports were prepared there had been no
determination that charges had substance); Chatham, 72 F.R.D. at 64~43 (notes
of interviews conducted by FBI agents constitute materials prepared in
anticipation of civil rights litigation).
Thus, it would appear that the excised portions of Craig's statements
contained in Exhibit K meet the relevant immunity tests described above.
We,
therefore, vacate that part of the judge's order of September 22, 1989, that
held that the excised portions of the statements of Craig in Exhibit K are not
within the scope of the work product rule. However, the judge may have
considered relevant factors or nuances not fully reflected in his prior order.
Accordingly, we remand this issue to the judge for further consideration
consistent with this decision. In accordance with Commission Procedural Rule
l(b), 29 C.F.R. § 2700.l(b), the judge should use Fed. R. Civ. P. 26(b)(3) as
a guide in analyzing this issue.
C.

Attorney-Client Privilege

In his consideration of Exhibit K, the judge summarily concluded that
the statements of Craig were not within the protection of the work product
rule or the attorney-client privilege. Inasmuch as we are remanding the work
product rule issue, we also remand the attorney-client privilege issue. We
note in passing that the attorney-client privilege generally protects
communications made by the client in confidence to his attorney and does not
protect an attorney's mental impressions, conclusions, opinions or legal
theories. Wright & Miller, § 2017, pp. 132-33; Hickman v. Taylor,
329 U.S. at 508.

2559

III.

Conclusion
The proc.edure to be followed by a judge, as set forth in Bri&ht, bears
repeating:
If, on the one hand, the judge concludes that the
Secretary's need to preserve the identity of his informers should
prevail, he should deny the amended motion to compel production of
documents, seal the material previously withheld as part of the
record for use on any appeal, and proceed to decide the case on
the merits without resort to the sanctions previously imposed due
to the Secretary's nondisclosure of the statements. If, on the
other hand, the judge concludes that the respondents' need for
this information is essential for a fair determination of the
case, and that the privilege must yield, he should order the
Secretary to disclose the information. The judge may, at his
discretion, conduct a limited hearing to afford the parties an
opportunity to develop additional evidence based upon t:he
disclosure. He should then proceed to decide the case solely on
the basis of the supplemented record. Should the Secretary resist
the judge's order to disclose, dismissal of the proceeding is the
appropriate sanction with further review available in accordance
with section 113(d)(2) of the Mine Act. 30 U.S.C. § 823(d)(2).
In any event, the judge's decision must be supported by findings
of fact and conclusions of law, and be grounded in the body of
case law developed by the Commission in the areas of work refusal
and discriminatory discharge.
6 FMSHRC at 2526. Under no circumstances should the judge transmit the
disputed documents to the party requesting them if he determines that a
privilege should yield. Instead, he should order the party asserting the
privilege to produce the material. If that party refuses to do so, dismissal
or other sanctions may be appropriate.

2560

For the reasons set forth above, we vacate the judge's order of
November 21, 1989, dismissing these proceedings. We vacate that portion of
the judge's order of September 22, 1989, directing the Secretary to produce
the excised portions of the six disputed documents and we remand this matter
to the judge for further proceedings consistent with this decision. 3

Richard V. Backley, Acting Chairman

Arlene

'

0

!./"

olen, Commissioner

i
.,

'--71

~v I LLLJ-~v

L. Clair Nelson, Commissioner

3

We note that this case concerns Asarco' s requests for documents
during the discovery phase of this proceeding. We need not, and do not, decide
in this case whether Asarco would be entitled, at the time of trial, to a
document that is otherwise protected by the informant's privilege, if the
Secretary calls that informant as a witness in the proceeding.

256l.

Distribution
Henry Chajet, Esq.
David J. Hardy, Esq.
Jackson & Kelly
1701 Pennsylvania Ave., N.W.
Suite 650
Washington, D.C. 20006
Jerald S. Feingold, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety and Health Review Commission
Off ice of Administrative Law Judges
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041

2562

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

DEC 51990
JOHN S. GUIDO,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. WEVA 90-64-D
MSHA Case No. MORG CD 90-02

SOUTHERN OHIO COAL COMPANY,
Respondent

Martinka No. 1 Mine
DECISION

Appearances:

Daniel v. Lane, Esq., Salem, West Virginia, for
the Complainant;
Joseph M. Price, Esq., Robinson & McElwee,
Charleston, West Virginia, for the Respondent.

Before:

Judge Fauver

Complainant brought this action under § 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg. He contends that, following a mine accident in which he
was injured on May 7, 1989, 1 he requested an MSHA investigation
under§ 103(g) of the Act and Respondent discriminated against
him because of his § 103(g) request to MSHA. He alleges three
acts of discrimination:
(1) cutting off his workmen's
compensation, (2) putting him in step three of the employer's
absentee control program, and (3) making derogatory statements
about Complainant in Respondent's conference with MSHA concerning
the May 7, 1989, incident.
The case was heard in Morgantown, West Virginia, on
September 6, 1990.
DISCUSSION
Under the Act, a complaining miner has the burden to prove
that he engaged in a protected activity, and that the adverse
action complained of was motivated in any part by that activity.
Boich v. FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1984).

1 complainant reported to his employer that he was injured
when a conveyor belt was started without warning.

2563

For the reasons shown below, I find that the reliable
evidence does not sustain Complainant's allegations of
discrimination.
·
After Complainant requested MSHA to investigate the May 7,
1989, accident under§ 103(g) of the Act 1 MSHA investigated, and
issued a citation for activating the conveyor belt without
adequate warning. Respondent challenged the citation as to its
"gravity" findings. At a conference between MSHA and Respondent,
concerning the citation, Respondent contended that Complainant
did not have a witness to his alleged injury and was not a
reliable witness himself.
During the conference, Respondent's
accident prevention officer, Wesley Dobbs, stated or implied to
MSHA that Complainant had some 40 accidents or injuries in the
past and was not "much account" as a worker or a witness.
I find
that Respondent's remarks about Complainant as a worker and as a
witness were part of a settlement discussion, and were not
discriminatory because of Complainant's § 103(g) request.
It was
part of Respondent's factual contention for requesting MSHA to
reduce the degree of gravity alleged in the citation.
Complainant testified that he had heard that Respondent's
representative, Wesley Dobbs, used profanity in his description
of Complainant to MSHA. However, the evidence does not sustain
this hearsay.
The reliable evidence does not show that Complainant's
workers' compensation was cut off. He was paid in full under
workers' compensation. Although there was some delay in making
some of the payments, the evidence does not show that the delays
were discriminatory.
Finally, the evidence shows that at the time of the accident
Complainant was already in step three of the employer's absentee
control program. Respondent did not change his status or take
adverse action against him under this program after his § 103(g)
request for an investigation.
On balance, I find that Complainant has not met his burden
of proof to show a violation of § 105(c) of the Act.
ORDER
WHEREFORE IT IS ORDERED that this proceeding is DISMISSED.

tJ.il~ -;r.MA.V~

William /a~~er
Administrative Law Judge

Distribution:
Daniel V. Lane, Esq., 123 East Main Street, Salem, WV 26426
(Certified Mail)
Joseph M. Price, Esq., Robinson & McElwee, Post Office Box 1791,
Charleston, WV 25326 (Certified Mail)
2564

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

DEC 61990
BLUE DIAMOND COAL COMPANY,
contestant

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

CONTEST PROCEEDINGS
Docket No. KENT 89-258-R
. Order
No. 3370844; 8/16/89
Docket No. KENT 90-68-R
Order No. 3372825; 12/l.l/89
Docket No. KENT 90-79-R
Order No. 3372824: 12/11/89
Docket No. KENT 90-80-R
Order No. 3372827; 12/12/89
Docket No. KENT 90-81-R
Order No. 3372371; 12/12/89
Scotia Mine
Mine ID 15-02055

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

v.
BLUE DIAMOND COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 90-67
A.C. No. 15-02055-03658
Docket No. KENT 90-170
. A.C.
No. 15-02055-03669
Scotia Mine
DECISION

Appearances:

Randall s. May, Esq., Barret, Haynes, May, Carter
& Roark, P.s.c., Hazard, Kentucky, for the
Contestant/Respondent;
Joseph B. Luckett, Esq., u.s. Department of Labor,
Office of the Solicitor, Nashville, Tennessee, for
the Respondent/Petitioner.

Before:

Judge Maurer

2565

STATEMENT OF THE CASE
Contestant, Blue Diamond Coal Company (Blue Diamond), has
filed notices of contest challenging the issuance of
section 104(d) (1) Order No. 3370844 (Docket No. KENT.89-258-R),
section 104(d) (2) Order Nos. 3372825, 3372824, and 3372827
(Docket Nos. KENT 90-68-R, -79-~, and -80-R, respectively) and
section 107(a) Order No. 3372371 (Docket No. KENT 90-81-R) at its
Scotia Mine. The Secretary of Labor (Secretary) has filed a
petition seeking civil penalties in the total amount of $4000 for
the violations charged in the above four contested "d" orders.
No penalty was assessed, of course, for the section 107(a) order.
Pursuant to notice, these cases were heard in London,
Kentucky on May 30, 1990 (Docket Nos. KENT 89-258-R and KENT
90-67) and August 7, 1990 (the other five).
They are
consolidated here for purposes of decision as they are related
matters, particularly with respect to the applicability of the
"d" chain.
At the hearing on August 7, 1990, Blue Diamond moved to
withdraw its application for review in Docket No. KENT 90-81-R.
There was no objection heard from the Secretary and thus I
approved that withdrawal on the record. That proceeding is
therefore dismissed without further consideration. The
section 107(a) order will, of course, be affirmed.
STIPULATIONS
The parties have agreed to the following five stipulations,
which I accept (Gov't Ex. No. 1):
1. The operator produced approximately 1,315,000 tons
of coal at the Scotia .Mine in 1989.
2. The operator employed approximately 300 workers at
the Scotia Mine during the final quarter of 1989.
3. The civil penalty assessment will not affect the
operator's ability to continue in business.
4. The operator has another mine of approximately the
same size as the Scotia Mine.
5. The presiding administrative law judge has
jurisdiction to hear and decide this case.
I.

Docket No. KENT 89-258-R; Order No. 3370844

on August 16, 1989, Order No. 3370844 was issued pursuant to
section 104(d) (1) of the Federal Mine Safety and Health Act of

2566

1977, 30 u.s.c. § 801 et~ (the Act) and alleges a violation
of the regulatory standard at 30 C.F.R. § 75.220(a) (1) and
charges as follows (Government Ex. No. 4):
The approved roof control plan for the mine, revised
05-23-89, which requires that if travel is blocked from
the longwall section to the tailgate entry, the miners
will be notified and re-instructed regarding escape
procedures in the event of an emergency, and location
and availability of self-contained self-rescue devices,
is not being complied with in the MMV, 040-0 longwall
shear section. Access to the tailgate entry is blocked
as a result of the longwall face conveyor being off
center. The tailgate is located approximately 5 feet
outby the solid coal rib line, and as mining progresses
the crushed coal and other material is being left
behind preventing access to the tailgate entry.
According to the Section Foreman, Bill Vann, the miners
have not been notified and instructed as required b.Y
the roof control plan.
The crux of the matter is that the inspector states that
passage from the longwall face area to the tailgate entry was
blocked. He maintains that coal was "stacked in" from the floor
to the roof. There was no access into the tailgate entry, except
a small opening up near the face of the wall, about 12 by 14
inches.
The fact that a tailgate entry is blocked does not in and of
itself violate the regulations. The alleged violation herein is
a failure to comply with the roof control plan. More
specifically, a provision of the plan requires that where travel
out of the section through the tailgate side of the longwall
section is prevented by a ground failure, the operator must take
several steps. Among them are to notify the affected miners that
the travelway is blocked and re-instruct these miners regarding
escapeways, escape procedures and the availability and location
of self-contained self-rescue devices. The complete list is
contained on page 15, item 6 of Government Ex. No. 2.
This case turns on the condition precedent to the above roof
control plan provision. Did the operator have a duty to perform
these functions? Was the tailgate entry blocked? The answer
depends on the assignment of credibility to the various
witnesses. The Secretary's witnesses state it was definitely
blocked. The operator's witnesses state just as definitely that
it was not.
Inspector Davis, who wrote the order, of course testified to
the effect that with the exception of the small opening alluded
to earlier, the tailgate entry was blocked and travel out into
the tailgate entry was therefore precluded.
However, his

2567

testimony is weakened somewhat by his own admission that he made
this observation from a distance of approximately fifteen feet
away, at shield 141. There are 144 longwall shields, each five
feet wide, to hold up the roof across the face area.
Photographs of the area in question introduced by Blue
Diamond through the testimony of Mr. Childers, who was and is the
longwall coordinator, depict the impossibility of seeing the
clearance the company says was there from too far away.
Mr. Childers testified using one of these photos at Tr. 147:
A. Okay. This photograph here is inside the shield
line looking out into the tailgate entry.
MR. LUCKETT:

And that is marked BD Exhibit 5.

(BY MR. MAY) So for the judge's edification,
Mr. Childers, if one were 15 feet back up in here, this
pretty clearly shows the view how one would not be-able
to determine access into the tailgate entry if you
didn't go any further?
A.
If you didn't go any further to look at, you
couldn't, because the way the shields are, the shield
range--they start out here, and they're about 6 inches
thick. They go right on down to maybe a foot thick at
the back ends of •em. If they have any material at all
on top of them, they are lower than the roof line. And
when the shear cuts out and piles the coal up, if you
look--just stand back there and look straight down like
you're looking out into the tail entry, you'll just see
a pile of coal. If you don't go to the end of the
shields, you can't see over the top of the coal that's
been piled up.
Mr. Tommy Engle, a field office supervisor and a former
underground coal mine inspector, also testified on behalf of the
Secretary. He also, like Inspector Davis, was on the subject
longwall section on August 16, 1989. He states that coal had
accumulated in the area of the tailgate entry to the point it had
totally blocked passage into the tailgate entry. The coal was
packed from the mine floor to against the roof, with a slight
opening near the roof at the end of the longwall face.
This
opening was approximately twelve by twelve inches. This
testimony is perfectly congruent with that of Inspector Davis.
There is some discrepancy in Mr. Engle's testimony, however,
as to where he made this observation from. At trial, he
emphatically stated that he went up to the last shield, up to the
accumulation and even tried to push his way through the
accumulation. However, his deposition testimony, given on May 2,
1990, was to the effect that he stopped 14 feet from the area

2568

where MSHA alleges the tailgate entry was blocked, stood there
for three or four minutes evaluating whether he could see over
the top of the accumulation and then turned around and went back
towards the headgate entry. It was while he was there in that
position that he determined that the coal was stacked to the roof
and the travelway was totally blocked off (Engle Deposition
Tr. 6-7). Therefore, I find Mr. Engle's trial testimony on this
point to be impeached by his prior inconsistent statement.
Mr. Billy Vann, a longwall production foreman, testified
that he took a spad measurement and a.methane reading out in the
tailgate entry at approximately 1:45 a.m. on August 16, 1989. At
that time he had between 2 and 3 feet of clearance between the
loose coal and the roof going into the tailgate entry. Mr. Vann
was again at the tailgate exit area at approximately 6:00 a.m.
At that time, only one pass or cut-out of coal had been done by
the longwall. Vann stated that at this time the tailgate entry
was not blocked and was accessible, there still being
approximately 2 to 3 feet of clearance.
The subject order was issued at 8:35 a.m. and Vann testified
that he informed Inspector Davis at 8:45 a.m. that the tailgate
entry was not blocked in his opinion but that Davis said he
thought it was and turned and asked Supervisor Engle his opinion.
Engle stated that he felt the same way as Davis even though all
of this conversation took place at approximately 8:45 a.m. in the
headgate entry area and Engle had not even been to the tailgate
entry area yet. He didn't go there until approximately 9:15 a.m.
Mr. Vann also opined that if one merely stopped at shield
141 and looked as Inspector Davis did, the bottom of the shield
would have been just about even with the loose coal and the
clearance would not have been visible from there.
James S. Owens was a repairman on the longwall section on
August 16, 1989. He, along with fellow repairman, Rex Conley,
did repair work in the tailgate exit area until approximately
4:00 a.m. that morning. They both saw Bill Vann go over into the
tailgate entry to take his measurements and methane check that
morning. They testified to the effect that Vann had no trouble
going into the tailgate entry and that it was not blocked. They
also both indicated that they likewise would have had no
difficulty getting in the tailgate entry if there had been any
need.
Donald Walker was the tailgate shear operator on the
longwall on August 16, 1989. Walker testified that one pass or
cut-out was made by the longwall the entire third shift and he
was right at the tailgate entry area at approximately 6:00 a.m.,
after the one cut-out or pass had been made. At this time and
until 8:00 a.m., Walker stated the tailgate entry was never

2569

blocked and that it was accessible without the necessity of
shoveling.
Ricky Campbell was the headgate shear operator on the
longwall on August 16, 1989, working the third shift. Campbell
first went to the tailgate exit side of the longwall at
approximately 6:00 a.m. At that time one pass or cut-out had
been done and Campbell stated he could see that the tailgate
entry was not blocked and he could have gotten over into the
entry.
Sam Foutch was a shield puller working the day shift
(7:00 a.m. to 5:00 p.m.) on August 16, 1989. Foutch explained
that a shield puller advances the shields on the longwall as the
pan advances. On August 16, Foutch worked on pulling shields 96
to the end of the tailgate, or shield 144. He was performing
this work at approximately .9:00 a.m., around shield 144 next to
the tailgate entry, and he states that the tailgate entry was not
blocked at this time. This is some 25 minutes after the order
was written. In fact, Foutch stated that he shoveled loose coal
and rock off the pontoons of the shields over into the tailgate
entry and thus, he knows the tailgate entry could not have been
blocked. This witness also stated he saw Bob Childers go over
into the tailgate entry at approximately 9:00 a.m. to get a
measurement to see how the longwall was running.
Doyle Cornett was a production foreman on the longwall face
August 16, 1989, working the day shift. Cornett first got to the
section around 8:00 a.m, accompanied by Inspector Davis. He
reaffirmed that Davis only went as far as shield 141 and did not
go on down to the last shield by the tailgate entry which would
have been 15 to 18 feet away in his estimation. Cornett also
opined that one could not see behind the shields into the
tailgate entry from that position.
James Robert (Bob) Childers was the longwall coordinator on
August 16, 1989, working the day shift. Childers was accompanied
underground at approximately 7:15 a.m., by Inspector Davis and
Supervisor Engle. He stayed at the headgate area of the longwall
with Engle while Davis and Doyle Cornett travelled toward the
tailgate exit area at approximately 8:00 a.m. Between 8:45 a.m
and 9:00 a.m., Childers went to the tailgate exit area himself
after the order had been issued. Childers explained that he went
to check the tailgate entry himself because he had been told that
Inspector Davis didn't go all the way to the end of it. He
stated that his own examination revealed that the tailgate entry
was not blocked and was accessible and he even went out into the
entry himself through a 4 foot by 2 foot clearance.
While heading back toward the headgate area after his
examination he ran into Engle coming.down the panline. Together
they went back toward the tailgate entry. Engle stopped at

2570

shield 141 according to Childers and never went further.
Childers stated that Engle never was out of his sight during this
time and that Engle did not go to the tailgate entry and try to
push his way through as Engle has testified to.
Before leaving the stand, Childers also reiterated the
almost universally held position that one would not be able to
determine if the tailgate entry was blocked or not from shield
141 or 15 feet away because of the obstructed view and line of
sight.
Based on my thorough review of this trial record once again,
I find the evidence to be simply overwhelming in favor of Blue
Diamond's position on the ultimate factual issue. I likewise
make the credibility choices in their favor and I find as a fact
that the tailgate entry was not blocked; it was at the time the
order was issued, open and passable, accessible to the affected
miners.
It therefore follows that Blue Diamond did not violate
30 C.F.R. § 75.220 (a) (1) as charged and Order No. 3370844 will
accordingly be vacated.
II.
Docket Nos. KENT 90-68-R, -79-R AND -80-R; Order
Nos. 3372825, 3372824 and 3372827
All three of these orders were issued pursuant to
section 104(d) (2) of the Act. However, because I informed the
parties that I was going to vacate section 104(d) (1) Order No.
3370844, the Secretary, at the hearing on August 7, 1990 moved to
convert Order No. 3372824 to a section 104(d) (1) Citation, Order
No. 3372825 to a 104(d) (1) Order and Order No. 3372827 would
remain a (d) (2) Order. This would have the effect of re-starting
the 11 d 11 chain on December 11, 1989.
Order No. 3372824 alleges a violation of the mandatory
standard found at 30 C.F.R. § 75.400 and charges as follows
(Government Exhibit No. 3):
Loose coal and fine dry coal dust have been permitted
to accumulate 3 11 to 9 11 inches in depth, (as measured
with a standard measuring tape) in the Nos 2, 3 and 4
entries of the MMV 032-0 beginning at the section
loading point and extending inby for a distance of
approximately 180 feet. The accumulations are
intermittent and the coal has been crushed and
pulverized by the 105C Joy Shuttle Cars during haulage
operations.
Inspector Davis was again the inspector who found this
violation and he testified to the effect that he observed

2571

accumulations of loose coal and fine, dry coal dust in the
roadways from rib to rib in Nos. 2, 3 and 4 entries. He measured
these accumulations and found them to be 3 to 9 inches in depth
beginning at the section loading point and extending inby for a
distance of approximately 180 feet. These black accumulations
were intermittent and were pulverized by the shuttle cars
traveling in the roadways.
He also testified that the danger presented by these
accumulations is a mine fire or a mine explosion. Furthermore,
where you have accumulations of combustible materials, there is
always the possibility that you will have a methane ignition in
the face area and these accumulations would cause the ignition to
probably spread or propagate into other areas of the mine,
depending how fine, dry and pulverized the accumulations are.
There was a lot of electrical equipment on the section at the
time as well. A power center was located just 30 feet from the
accumulations. He felt that serious injuries were reasonably
likely to occur to the section crew such as smoke inharation in
the event of a mine fire, which occurrence he also believed to be
reasonably likely. He further opined that if you had a methane
ignition which propagated into a mine dust explosion, then it
could be fatal.
Therefore, he believed the violation was
"significant and substantial".
He also marked the negligence as "high". He felt this was
an "unwarrantable" violation as well as "S & S". He estimated
the accumulations had been there for at least two production
shifts based on the pulverized condition of the accumulations and
their depth. However, when directly asked on cross-examination,
he had to admit that he did not know how long the accumulations
had been in the roadways.
Inspector Carlos Smith corroborated Davis' factual testimony
regarding the description of the accumulations, estimating the
depth as between 8-10 inches of loose, pulverized coal. But he
likewise couldn't say for sure how long these accumulations had
existed, but he estimated that they had been there for a shift or
two.
There is no doubt that a violation of 30 C.F.R. § 75.400
existed as the inspectors described it. Furthermore, I also
believe the violation was "significant and substantial" (S & S).
A "significant and substantial" violation is described in
section 104(d) (1) of the. Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or

2572

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 explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
(1)
the underlying violation of a mandatory safety
standard; (2) a 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.
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129 (August 1985), the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc, 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
In this regard, I fully credit the unrebutted and
essentially unopposed testimony of Inspector Davis on the issues
of gravity, seriousness and S & s.
In several relatively recent decisions concerning the
interpretation and application of the term "unwarrantable
failure," the Commission has further refined and explained this
term, and concluded that it means "aggravated conduct,
constituting more than ordinary negligence, by a mine operator in
relation to a violation of the Act." Emery Mining Corporation,
9 FMSHRC 1997 (December 1987); Youghiogheny & Ohio Coal Company,

2573

9 FMSHRC 2007 (December 1987); Secretary of Labor v. Rushton
Mining Company, 10 FMSHRC 249 (March 1988). Ref erring to its
prior holding in the Emery Mining case, the Commission stated as
follows in Youghiogheny & Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that is
"inadvertent, " "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable". Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more than ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the Act's enforcement scheme.
Although I find the allegation at bar to be an S & S
violation of the mandatory standard charged, I cannot go along
with the inspector's alleged finding of "unwarrantability. 11 His
finding is based almost solely, if not entirely on the_measured
depth of the accumulations. He himself admits he doesn't know
how long they were there. That is the government's only evidence
on the issue of negligence and unwarrantability. I find that to
be insufficient to sustain the Secretary's burden of proof on
this point. Accordingly, the proposed section 104(d) (1) Citation,
nee 104(d) (2) Order No. 3372824, will be modified to and affirmed
as ans & s section 104(a) citation.
If Order No. 3372824 cannot be converted into a "d" citation
and becomes an "a" citation, as it has, then proposed Order Nos.
3372825 and 3372827, being non-s & s allegations to begin with
also become section 104(a) citations, wherein the only issues are
the fact of violation and the civil penalty to be assessed, if
any violation(s) is/are found.
·
Order No. 3372825 alleges a non-S & S violation of the
mandatory standard found at 30 C.F.R. § 75.316 and charges as
follows (Government Exhibit No. 5):
The approved ventilation system and methane and dust
control plan for the mine, which requires that the line
of permanent stopping separating the intake and return
aircourses shall be maintained up to and including the
3rd connecting crosscut outby the faces, is not being
complied with in the MMV 032-0 working section. The
line of permanent stopping separating the Nos. 1 and 2,
intake and return aircourse entries is only being
maintained up to and including the fourth connecting
crosscut outby the faces. The quantity of air passing
through the last open crosscut outby the faces is
42,826 cfm. The maximum amount of CH4 detected was
0.2%.

2574

Inspector Davis testified that he observed a violation of
the approved ventilation plan for the mine which requires that
they {the operator) maintain the line of permanent stopping
separating the intake and return air courses up to and including
the third connecting crosscut outby the working faces.
The line
of permanent stopping providing this separation in the affected
section he found was only being maintained up to and including
the fourth connecting crosscut outby the faces.
The foregoing establishes a non-S & S violation to my
satisfaction and after modification, section 104{a) Citation
No. 3372825 will be affirmed as modified.
Order No. 3372827 alleges a non-s & s violation of the
mandatory standard found at 30 C.F.R. § 75.1105 and charges as
follows {Government Ex. No. 7):
An energized 480 Volt A.C. battery charger located
adjacent to the return aircourse stopping line at ~
point approximately 20 feet inby station spad No.
15325, is being used to recharge the batteries on an
Eimco coal scoop in the MMV 032-0 working section, and
the battery charger is not being ventilated into the
return aircourse. The newly constructed permanent type
stopping located between the battery charger and the
return aircourse, is not provided with a ventilation
regulator, {opening) to permit direction of the air
current.
Inspector Davis once again testified on behalf of the
Secretary. On December 12, 1989, he found that a new stopping
had been constructed in the third connecting crosscut outby the
working faces to correct the previously discussed violation.
However, they {the operator) had an energized battery charging
station immediately in front of the stopping and had not provided
a means in the stopping or a regulator to direct the air current
directly into the return.
The cited regulation requires that battery charger stations
be ventilated directly into the return air course. Instead, the
inspector found that the air was going to the return aircourse in
a roundabout way. The air was not going across the charger.
There was nothing to direct it across the charger and there was
no regulator in the stopping to provide a low pressure drop
across the charging station, which would have been necessary in
order to ventilate this charging station directly to the return
aircourse.
The foregoing testimony establishes a non-S&S violation of
the cited standard and after modification to a section 104{a)
citation, Citation No. 3372827 will be affirmed as modified.

2575

With regard to the civil penalty assessments herein, I am
not bound by MSHA proposed civil penalty assessments, and once a
penalty is contested and Commission jurisdiction attaches, my
determination of the amount of the penalty is de novo, based upon
the statutory penalty criteria and the record developed in the
adjudication of the case. See: Sellersburg Stone Company,
5 FMSHRC 287 (March 1983), aff'd., 736 F.2d 1147 (7th Cir. 1984);
United States Steel Mining Co., Inc., 6 FMSHRC 1148 (May 1984).
On the basis of the foregoing findings and conclusions, and
taking into account the six statutory civil penalty assessment
criteria found in section llO(i) of the Act, I conclude and find
that the following civil penalty assessments are reasonable and
appropriate in the circumstances of this case:
Citation No.

Date

3372824

12/11/89

75.400

$400

3372825

12/11/89

75.316

-$150

3372827

12/12/89

75.1105

$100

III.

30 C.F.R. Section

Assessment

Docket No. KENT 90-81-Ri Order No. 3372371

Order No. 3372371 was issued pursuant to section 107(a) of
·the Act.
Contestant filed an application for review. However,
at the hearing on August 7, 1990, counsel for Blue Diamond stated
on the record at Tr. 100-101 that: "[M]y client has informed me
that the recommendations made pursuant to that order •.• were good
ones and that they are complying with that." Therefore, he
sought permission to withdraw their application for review.
There was no objection and the request was granted. The order
will be affirmed.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Order No. 3370844, contested in Docket No. KENT
89-258-R, IS VACATED.
2. Order No. 3372824, contested in Docket No. KENT 90-79-R
properly charged a violation of 30 C.F.R. § 75.400 and properly
found that the violation was significant and substantial.
However, the contested order improperly concluded that the
violation resulted from Consol's unwarrantable failure to comply
with the mandatory safety standard involved. Therefore, the
violation was not properly cited in a section 104(d) (2) order or

2576

as later proposed, a section 104(d) (1) citation. Accordingly,
Order No. 3372824, IS HEREBY MODIFIED to a § 104(a) citation, AND
AFFIRMED.
3. Modified Citation No. 3372825, contested in Docket No.
KENT 90-68-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R.
§ 75.316.
4. Modified Citation No. 3372827, contested in Docket
No. KENT 90-80-R, IS AFFIRMED as a non-S&S violation of 30 C.F.R.
§ 75.1105.
5. Order No. 3372371, contested in Docket No. KENT 90-81-R,
IS AFFIRMED.
6. The Blue Diamond Coal Company IS HEREBY ORDERED TO PAY a
civil penalty of $650 within 30 days of the date of this
decision.

4VtA~/
MJurer
ttative Law Judge

•

Distribution:
Randall Scott May, Esq., 113 Lovern street, P.O. Drawer 1017,
Hazard, KY 41701 (Certified Mail)
Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
/ml

2577

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

DEC 1 O1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-228
A. C. No. 46-06647-03552
No. 1 Deep

BETHEL FUELS INCORPORATED,
Respondent
ORDER VACATING DEFAULT
ORDER OF ASSIGNMENT

Before:

Judge Merlin

This case is now before me pursuant to Order of the
Commission dated December 4, 1990.
It appears from the file that the operator served a timely
answer to the penalty proposal on the Solicitor, but failed to do
so with the Commission. Bearing in mind the Commission's
repeated admonition that default is a harsh remedy and since the
operator appears pro se, I conclude that relief from default is
warranted. Amber Coal Co., 11 FMSHRC 131 (February 1989).
See also unpublished decisions, Hickory Coal Company, Docket
No. PENN 90-49, June 19, 1990 (Chief Administrative Law
Judge Merlin); Bentley Coal Company, Docket No. WEVA 90-36,
June 19, 1990 (Chief,Administrative Law Merlin) (copies
attached).
Accordingly, it is ORDERED that the default dated
November 6, 1990, be and is hereby VACATED.
It is further ORDERED that this case be assigned to
Administrative Law Judge George A. Koutras.
All future communications regarding this case should be
addressed to Judge Koutras at the following address:

2578

Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone No. 703-756-6232

Paul Merlin
Chief Administrative Law Judge
Attachments
Distribution:
Pamela s. Silverman, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA
22203
(Certified Mail)
Mr. Charles Myers, Superintendent, Bethel Fuels, Inc., Route 7,
Box 510, Morgantown, WV 26505
(Certified Mail)

/gl

2579

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

DEC 131990
FEATHERLITE BUILDING PRODUCTS
CORPORATION,
Contestant

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

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

v.
FEATHERLITE BUILDING PRODUCTS
CORPORATION,
Respondent

.
.
.
.
.
.
.

.
.

.
.
.
.
.
.

CONTEST PROCEEDINGS
Docket No. CENT 88-113-RM
Cit./Order No. 3063548; 5/19/88
Docket No. CENT 88-114-RM
Citation No. 3063549; 5/20/88
Docket No. CENT 88-115-RM
Citation No. 3063550;-5/20/88
Laura Todd Pit and Plant
Mine ID 41-00267
CIVIL PENALTY PROCEEDING
Docket No. CENT 89-36-M
A.C. No. 41-00267-05520
Laura Todd Pit and Plant

...

DECISION
Appearances:

Steven R. Mccown, Esq., Jenkins & Gilchrist,
Dallas, Texas,
for Contestant/Respondent;
Mary E. Witherow, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Respondent/Petitioner.

Before:

Judge Cetti
Statement of the Proceedings

These consolidated proceedings concern Notices of Contest
filed by the Contestant', Featherlite Building Products Corporation
(herein Featherlite), pursuant to section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(d), challenging
the three captioned citations issued by the Federal Mine Safety and
Health Administration CMSHA). The civil penalty proceedings concern
proposals for assessments of civil penalties filed by MSHA seeking
assessments against Featherlite for the alleged violations charged
in the above-mentioned citations.

2580

Following its investigation of a fatal massive fall-of-ground
accident at the Laura Todd Pit, MSHA issued to Respondent Featherlite a number of citation/orders, some of which were accepted by
Featherlite. The three citation/orders contested herein by
Featherlite are as follows:
Citation/Order No. 3063548 in Docket CENT 88-113-RM alleges a
violation of 30 C.F.R. § 56.3131 under Sections 107(a) and 104(a) of
the Act, with a proposed penalty of $5000.
Citation No. 3063549 in Docket No. CENT 88-114, as amended,
alleges a violation of 30 C.F.R. § 56.3401 under Section 104(d)(l)
of the Act, with a proposed penalty of $1000.
Citation No. 3063550 in Docket No. CENT 88-115-RM alleges a
violation of 30 C.F.R. § 56.3200 under Section 104(d)(l) of the Act
with a proposed penalty of $5000.
Respondent timely contested each of the three alleged violations pursuant to 29 C.F.R. §2700.20(c).
The Secretary riled timely
answers pursuant to 29 C.F.R. § 2700.20(d). Later, the Secretary
filed her complaint proposing the above-mentioned penalties, respectively, for each of the three alleged violations. Respondent filed
a timely answer and the Contest Proceedings and the Penalty Proceeding were consolidated for hearing and decision.
Respondent's Answer does not deny jurisdictional facts alleged
by the complaint, as permitted by 29 C.F.R. 2700.5.
The Secretary
correctly asserts that jurisdiction over this proceeding is proper
and that the violations of the Act took place in or involve a mine
which has products which enter commerce or has operations or products which affect commerce.
After notice to the parties, the matter came on for hearing
on the merits before me at Dallas, Texas. Oral and documentary
evidence was introduced, post-hearing briefs were filed, and the
matters were submitted for decision. I have considered the arguments made on the record during the hearing in my adjudication of
these matters and the post-hearing briefs filed by the parties.
ISSUES
1. Whether Featherlite violated 30 C.F.R. § 56.3131 as
charged in Citation No. 3063548.
2. Whether Featherlite violated 30 C.F.R. § 56.3401 as
charged in amended Citation No. 3063549 under 104(d)(l) of the Act.

2581

3. Whether Featherlite violated 30 C.F.R. § 56.3200 as
charged in Citation No. 3063550 under 104(d)(l) of the Act.
4. Whether MSHA is estopped from asserting that Featherlite
has responsibility for compliance with the provisions of 30 C.F.R.
§§ 56.3131, 56.3200, or 56.3401 at the Laura Todd Pit, which was
leased by Featherlite.
5. The appropriate civil penalties, if any, to be assessed
taking into consideration the statutory civil penalty criteria
in section llO(i) of the Act.
STIPULATIONS
At the hearing, the parties entered the following stipulations,
which I accept:
1. The correct name of the legal entity that is the contestant in the above-captioned contest cases, as well as respondent in
penalty Docket No. Cent 89-36-M, is "Featherlite Building Products
Corporation."
2. There was a timely abatement of all violations by the permanent closure of the Laura Todd Mine.
3. The proposed civil penalties will not affect the ability of
Featherlite to continue in business.
The hearings on these consolidated matters were delayed as a
result of Fifth Amendment constitutional objections by Featherlite
and an independent counsel for certain individuals, who were said to
be essential witnesses for Featherlite.
After MSHA completed its criminal investigation of the accident
and advised that no criminal penalties would be pursued, the matter
was set for hearing in Dallas, Texas. At the consolidated hearing
on these matters, testimony was taken from the following witnesses:
1.

M. HAROLD ROBERTSON, MSHA Inspector

2.

WILLIAM WILCOX, MSHA Mining Engineer (now retired)

3.

JERRY DAVIDSON, MSHA's expert in geological studies and
mining techniques

4.

BOB CARROLL, owner of B.C. Construction Company

5.

EDWIN LUMMUS, former Featherlite Plant Manager

6.

MAX HENSON, Supervisor B.C. Construction Company

2582

Background Facts
Featherlite, at a plant in Ranger near Dallas, Texas, produces
a synthetic aggregate that is used in the construction of buildings
and highways.
In producing the synthetic aggregate, Featherlite
used shale rock mined at the Laura Todd Pit which is located approximately 1.5 miles from Featherlite's plant. Featherlite leased the
Laura Todd Pit and contracted with an independent contractor, B.C.
Construction Company C"B.C."), to perform the mining operations at
the pit.
(Government Exhibit 2). B.C. and Featherlite's contract
provided that B.C. was responsible for mining the shale, loading the
shale on the trucks, and delivering the shale to Featherlite's plant
in Ranger, Texas~ Featherlite, however, retained responsibility for
stripping the overburden in the mining areas at the pit and for
quality control.
The Accident
The accident which gave rise to the investigation and the issuance of the three citations may be succinctly stated as follows:
A
64-year old contractor shovel operator, with 15 years experience at
the Laura Todd Pit, was fatally injured when the power shovel he was
operating was covered by a massive fall of ground. Truck operation
problems were occurring at the pit due to an accumulation of mud and
water. The shovel was moved to another nearby location at the pit'
where the trucks could operate without getting stuck. This move
placed the shovel adjacent to a near-vertical, unstable portion of
the highwall with the unprotected operator's cab on the highbank
side close to the toe. After loading a truck, the victim moved the
shovel back about four to five feet and stopped. At this time, the
highwall failed and engulfed the cab of the shovel and the operator.
Following an attempted rescue operation, Federal Mine Inspector
William Wilcox and other MSHA personnel investigated the accident.
The investigation report received in evidence as Secretary's Exhibit
No. 2 states:
Grady Lee naughty, an employee of B.C. Construction,
was fatally injured at approximately 1:50 p.m. on
May 18, 1988, when the power shovel he was operating
was covered by a massive fall-of-ground from a 60-foot
highwall at the mine site leased and operated by the
Featherlite Building Products Corporation.

2583

Docket No. CENT 88-113-RM
Citation No. 3063548
Federal Coal Mine Safety and Health Inspector W.R. Wilcox,
after his investigation and inspection of Featherlite's Laura Todd
Pit and Plant charged Featherlite with the violation of 30 C.F.R.
§ 56.3131, which provides as follows:
§

56.3131

Pit or quarry wall perimeter.

In places where persons work or travel
in performing their assigned tasks, loose
or unconsolidated material shall be sloped
to the angle of repose or stripped back for
at least 10 feet from the top of the pit or
quarry wall. Other conditions at or near
the perimeter of the pit or quarry wall
which create a fall-of-material hazard to
persons shall be corrected.
Inspector Wilcox, in Citation Order No. 3063548, described the
alleged violative condition as follows:
"The mine operator (Featherlite) was responsible for the location of the areas to
be mined, the stripping of the overburden to
facilitate mining of the underlying desirable
shales and to insure that the overburden loose and unconsolidated material - would be
stable and not constitute a safety hazard
where the contractor mined the shale and
transported it from the mine-site. The overburden portion of the highwall which fell
onto the contractor's power shovel and resultted in the death of the shovel operator had
not been sloped to a natural angle of repose,
benched or in other manner stabilized. This
order is to prevent the entry of any person
into the affected area unless the proposed
procedures involved have been approved by MSHA
in advance. This includes the recovery of any
equipment, the stabilization of the high wall
or the backfilling of the uncompleted shale
mining cut."
On the day of the massive fall-of-ground accident, employees of
B.C. Construction were in the "west" cut, which was approximately 80

2584

feet wide digging east. Max Henson, B.C. Construction supervisor,
testified that he had been at the site on the day of the accident.
Henson stated he supervised the employees of B.C. that worked at the
Laura Todd Pitt.
B.C. had been working in this "west" cut for a
couple of months.
Prior to that time, they had been in the "east"
cut digging west, but had to move due to excessive water-soaked conditions.
The two cuts were separated by 25 feet of material which
was to be removed. Mr. Henson testified that the decision to move
from the "east" to the "west" cut was discussed with Mr. Parsons the
plant manager of Featherlite. Henson stated he never "made any
decisions such as to move anybody anywhere without consulting someone first."
Parsons told him, "Okay, let's move." Henson stated
that Jack Beardon, Featherlite's scraper operator had stated on the
morning of the accident that his plan at the pit was to "get the mud
and water pushed out of" the east side of the cut "and get it covered up, and cut through and use that as a road to get to the west
side of the west pit." Prior to that time, Henson believed they
were going to take the shale out of the west pit.
Henson observed
sloughing on the south wall while in the east cut.
The south wall was the wall involved in the fatal fall-ofground accident.
This wall was approximately 60 feet high.
The
south wall was composed of shale, original overburden and stockpiled
overburden.
The shale was approximately 20-30 feet in depth. Approximately 30 more feet of clay overburden sat on top of the shale.
On top of that was previously remmred overburden which had been
stockpiled by Featherlite on top of the natural structure.
William Wilcox, employed as an MSHA inspector for 18 years,
conducted the investigation and inspection of Featherlite following
the fatal accident. Mr. Wilcox has a B.S. in mining engineering
from the Missouri School of Mines and had 17 years of mining experience in private industry prior to working for MSHA.
Mr. Wilcox
did approximately 80 to 100 MSHA inspections per year.
Mr. Wilcox testified that the south wall area cited was an area
where persons worked or traveled.
The testimony at trial and
Exhibit G-26 clearly show that the pit's south wall was the area
where the fatal massive fall-of-ground occurred.
Mr. Wilcox stated that the south wall was composed of loose or
unconsolidated material, as was clearly evidenced by its failure.
This conclusion is also based on the sloughing observed on the wall,
the cracks parallel to the cut being developed, the water saturation
of the original topsoil, the relocated stripping, and the erosion
product coming down into the cut being developed.

2585

Jerry Davidson, a geologist with MSHA for 19 years in the
ground support division, was called by the Secretary as an expert
wi~ness.
Mr. Davidson has a B.S. in geology from the University of
North Dakota and had 10 years experience as a geologist in the mining industry prior to coming to MSHA. Mr. Davidson testified he was
an expert in mining techniques and geological studies. After reviewing the photographs CExs. G-4 through G-25), Mr. Wilcox's report
CEx.G-26), and listening to the testimony at the hearing, Mr. Davidson, under oath, gave his expert opinion on the degree of consolidation of the south wall. Mr. Davidson stated the shale was relatively consolidated, and that the overburden was relatively unconsolidated, as evidenced by the fact that it could be loaded out with a
self-loading scraper, as opposed to drilling or blasting, or other
such techniques.
The stockpiled overburden would be loose and
unconsolidated and the overburden was "structurally weak."
Mr. Wilcox stated that, although the south wall of the pit was
sloped at the west entrance of the cut, it was not as the cut progressed to the accident site where the angle of the pit wa~l was 75
degrees or steeper. Mr. Wilcox testified that there was no benching
or stripping at the accident site, although there was some in the
west cut a couple hundred feet from the accident site. Mr. Henson,
who had been at the sit on the morning of the accident, testified
the south wall went "fairly straight up" and was almost vertical.
Melvin Harold Robertson, an MSHA inspector for 16 years with 16
years prior mining experience, also stated the wall appeared to have
no slope and to go up at 90° angle.
Mr. Wilcox stated that, based on his expertise in mining, safety, and health, the conditions at the south wall in the area of the
fatal accident constituted a "very high-risk" hazard of a release of
hundreds of thousands of tons of rock and dirt entrapping and burying people. He stated that there was a very definite probability of
injuries occurring as a result of such hazard, and later made it
clear that, in his opinion, it was "highly likely" that the hazard
would result in an injury of a serious nature. He stated the types
of injuries occurring would certainly be fatal.
I credit the testimony of Messrs. Wilcox and Davidson and find that the violation is
significant and substantial.
A violation such as we have here is properly designated significant and substantial if it contributes to a safety hazard which
will reasonably likely result in a serious injury. cement Division,
National Gypsum, 3 FMSHRC 822 (1981); Mathies Coal Co., 6 FMSHRC 1
(1984).

2586

Mr. Wilcox rated the gravity of the violation as "occurred";
the types of injuries that could occur as "fatal"; and the operation's negligence as "high."
Inspector Wilcox rated the operator's negligence as high, based
on the operator's familiarity with the mining area and the benching
and sloping he observed in other parts of the mine site. He also
considered the custom and practice of the industry, and what a typical operator of this type of operation in this part of the country
would do.
I agree with Mr. Wilcox's evaluation of the operator's negligence, the gravity of the violation, and the likelihood of serious
injury. The violation contributed to a safety hazard which was reasonably likely and did, in fact, result in serious fatal injuries.
CENT 88-114-RM
Citation No. 3063549
This citation was issued by Inspector Wilcox originally for an
alleged violation of 30 C.F.R. § 56.18002.
Later, Inspector Wilcox
amended the citation by changing the standard allegedly violated
from 30 C.F.R. § 56.18002 to 30 C.F.R. § 56.3401. Section 30 C.F.R.
§ 56.3401 provides as follows:
§ 56.3401

Examination of ground conditions.

Persons experienced in examining and
testing for loose ground shall be designated by the mine operator. Appropriate
supervisors or other designated persons
shall examine and, where applicable, test
ground conditions in areas where work is
to be performed prior to work corrunencing,
after blasting, and as ground conditions
warrant during the work shift. Highwalls
and banks adjoining travelways shall be
examined weekly or more often if changin·g
ground conditions warrant.
Citation No. 3063549 reads as follows:
"A power shovel operator was fatally
injured when the overburden portion of
a highwall fell and entrapped the miner
within his machine. The mine operator

2587

did not examine mine work places for
safety hazards at least once each shift
(30 CFR 56.18002Ca)) and record such examinations (30 CFR.56.18002) He had recently been cited for the latter violation
(Nov. 17, 1987). The imminent danger of
the unstable overburden highwall was not
brought to the immediate attention of the
operator and all persons were not withdrawn from the area (30 CFR 56.18002c).
The accident was not prevented from
happening.
Mr. Wilcox testified that, when he asked if Featherlite was
complying with the requirements of the cited standards, Edwin Lummus, general manager of Featherlite stated something like, "Heck,
we're not doing that yet or at this time." Based on this statement,
and the existence of the obvious hazard, Mr. Wilcox concluded the
mine operator was not examining and testing for loose ground.
I
concur in Mr. Wilcox's conclusion.
Edwin Lummus admitted on cross-examination that Featherlite was
not inspecting the pit, nor was it conducting any inspections of
B.C. 's operations other than quality control.
This admission was made, even though it is undisputed that Featherlite scraper operator Jack Beardon worked at the pit every day
and another Featherlite employee worked at the pit in the stripping
area. Further testimony indicates that Ray Parsons and Ed Lummus,
Featherlite supervisors, were out at the pit occasionally.
In fact,
Max Henson spoke to Ray Parsons, Featherlite plant superintendent,
on the day of the accident. Mr. Parsons stated he had been to the
pit and left just before the accident. Mr. Parsons told Mr. Henson
he "didn't hardly have time to get to the gate" before the fatal
ground fall occurred.
Mr. Wilcox testified that the failure to inspect the ground
conditions constituted a hazard of sloughing or ground slide. Based
on his expertise as a safety professional, Mr. Wilcox stated that
the injury from such a hazard was "highly likely" and that such
injuries would be very serious, if not fatal.
I find that the
violation is significant and substantial since it contributed to a
safety hazard which was reasonably likely to result in a serious
injury. Cement Division, National Gypsum, supra, Mathies Coal Co.,
supra.
Mr. Wilcox rated the gravity as "occurred," the types of injuries as "fatal" and the operator's negligence as "high." I concur
in Mr. Wilcox's evaluation.

2588

Mr. Wilcox observed that a previous citation had been issued to
Featherlite for failure to inspect work places six months prior to
the fatality. Mr. Wilcox further observed that, based on the high
number of citations given Featherlite at its previous inspection,
and the hazardous conditions observed (and later cited) during the
investigation of the fatal massive ground-fall investigation, Featherli te did not have a great regard for safety.
Mr. Davidson, MSHA geological expert, stated that, based on the
evidence he had heard and read, the hazard was apparent or readily
discoverable. Mr. Davidson based this opinion on the evidence of
sloughing, the types of machinery used for excavation, the height of
the highwall, and the placing of the operator's cab next to the
highwall. Because the cab was next to the wall, the operator had
less room to maneuver or escape during ground slide. It would have
been safer to have the cab away from the highwall. Another important factor was the water problem caused by the rainfall. The
diversion ditches dug by Featherlite personnel indicate they knew
about the problem of standing water-~ When the earth material filled
up with water, it added weight and increased pore pressure within
the rock areas.
Mr. Davidson testified that the photographs CExs. G-4 through
G-25) showed tension fractures which should have been apparent. He
stated it would be highly unlikely that there wouldn't have been
tension fractures which were apparent or readily discoverable on top
of the south wall prior to the accident.
Tension fractures would be
readily discoverable during an inspection of the top of the pit
wall, since there was little vegetation on top of the wall. These
tension fractures indicate a failure surface has developed and is
propagating downward.
Mr. Davidson stated he was familiar with the custom and practice in the industry with regard to inspections of ground stability.
The conditions at the pit should have mandated a careful inspection.
The sloughing described indicated a need to inspect both the pit
floor and the crest area.
Featherlite knew, or should have known, of the hazardous conditions. They had been previously cited for failure to inspect every
workplace. They had their own employees working daily at the pit.
Management officials of Featherlite were at the pit regularly and
Ray Parsons had been there just prior to the accident.
Featherlite
knew it was not inspecting the pit and the obvious nature of the
hazard mandates it should have done so.
"Unwarrantable failure" means "aggravated conduct, constituting
more than ordinary negligence, by an operator in relation to a violation of the Act." Emery Mining Corp., 9 FMSHRC 1997, 2010 (1987)~

2589

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (1987).
In this case,
the evidence, summarized above, clearly shows that Featherlite's
conduct in violating the provisions of § 56.3401 was aggravated
conduct constituting more than ordinary negligence. The violation
was due to Featherlite's unwarrantable failure to comply with the
cited standard.
CENT 88-115-M
Citation No. 3063550
Inspector Wilcox issued Citation/Order No. 3063550 for an alleged violatiori of 30 C.F.R. § 56.3200, which provides as follows:
§ 56.3200

Correction of hazardous conditions.

Ground conditions that create a hazard
to persons shall be taken down or supported
before other work or travel is permitted-in
the affected area. Until corrective work
is completed, the area shall be posted with
a warning against entry and, when left unattended, a barrier shall be installed to
impede unauthorized entry.
Inspector Wilcox, in the citation, described the violative
conditions as follows:
The mine operator determined the plan
to be followed in the selected mining area
and conducted the stripping portion of that
plan prior to instructing a contractor to
mine the exposed shale. He failed to correct
the hazardous ground conditions to which the
latter's employees would be exposed before
instructing the contractor to begin shale
mining. He did not post and barricade the
area against entry by any person. He ordered
mining to proceed and a massive fall of
ground (overburden) occurred which resulted
in fatal injury to the contractor's power
shovel operator.
Mr. Wilcox testified that, based on the height of the wall, the
condition or composition of the soil, the slope of the wall prior to
the accident, the previous water condition requiring the digging of
ditches on top of the south wall, and the sloughing in the east cut,

2590

that the ground conditions of the south highwall constituted a hazard. These conditions were not taken down prior to work or travel
in the area, or supported as shown by testimony concerning the slope
of the wall at the time of the massive fall-of-ground.
It is also
clear that the area was not posted with a warning against entry or
barrier.
Mr. Wilcox stated that the ground conditions of the south highwall created a hazard of falling ground. Based on his opinion as a
safety professional, Mr. Wilcox rated the likelihood of injury as
"very definitely." The injuries that could occur would be fatal and
would be very likely to occur.
I credit the testimony of Mr. Wilcox
and find the violation is significant and substantial.
Since the
evidence established all the elements of the Mathies Coal Co., supra.
Mr. Wilcox rated the gravity as "occurred" and "highly likely.
He rated the types of injuries as "fatal and tne operator's neglinegligence as "great." Mr. Wilcox based the operator's negligence
on the operator's experience, work history, knowledge, 00ntractual
obligation, and obviousness of the hazardous condition. He further
stated that he judged the operation against the typical operator of
this type of work force.
Mr. Davidson, MSHA's expert in geological studies and mining
techniques, stated the ground conditions created a hazard that was
apparent or readily discoverable, based upon a careful inspection
that a reasonably prudent operator would have done, given these
conditions. Again, Featherlite knew, or should have known, of the
dangerous conditions.
As previously stated, "unwarrantable failure" means "aggravated
conduct constituting more than ordinary negligence, by an operator
in relation to a violation of the Act." Emery Mining Corp., supra~
Youghiogheny & Ohio Coal Co., supra. Featherlite's failure to address the cited conditions constituted more than ordinary negligence. The violation of § 56.3200 was due to Featherlite's unwarrantable failure to comply with the requirements of the cited
standard.
All three violations could have been prevented if Featherlite
had established a mining plan, removed the overburden, established
benches, and made daily inspections at every shift.
Estoppel Issue
Preliminarily, it is noted that there appears to be no real
dispute that the Secretary can cite the owner-operator, the independent contractor, or both, for violations committed by the independent contractor. This is supported by the language of the Act,

2591

its history, and applicable court precedent. The Secretary has wide
enforcement discretion and courts have traditionally not interfered
with the exercise of that discretion.
Intl. U., UMWA v. FMSHRC,
supra, 840 F.2d at 83; Brock v. Cathedral Bluffs Shale Oil Co.,
supra, 796 F.2d at 537-538; BCOA v. Secretary, supra, 547 F.2d at
246.
Respondent asserted that the Secretary should be estopped from
issuing the citations involved in this consolidated case.
It is
Featherlite's position that in the past MSHA had dealt with Feath~r
lite in such a manner to justify Featherlite's belief that it was
only responsible for mine safety violations at Featherlite's Ranger
Plant and not for violationg involving the mining operations of its
contractor B.C. at Featherlite's leased Laura Todd Pit. Although
MSHA inspected the Laura Todd Pit every six months, Featherlite asserts MSHA officials never discussed the pit with Featherlite officials.
Featherlite asserts that its belief that it was not_responsible
for mine safety violations at the Laura Todd Pit was justified based
on an MSHA inspector's prior termination of an earlier November
1987, citation.
(Featherlite Ex. 2). In November of 1987, MSHA inspector, Harold Robertson, issued Featherlite a Section 56.18002(b)
citation for failing to keep records of daily shift inspections.
B.C. Was operating at the Laura Todd Pit when Mr. Robertson made the
earlier November 1987 inspection. After receiving the citation,
Featherlite had a plant engineer design a form that was exclusively
devoted to recording inspections at Featherlite Ranger Plant. The
form made no mention of inspections at the Laura Todd Pit.
Mr. Robertson terminated the citation based upon his review of Featherlite' s forms that exclusively dealt with safety inspections at the
Ranger plant. Featherlite argues that Mr. Robertson's termination
of the citation, based on Featherlite's compliance which indicated
that Featherlite was only inspecting the Ranger plant area, justifiably reaffirmed Featherlite's belief that it was only responsible
for mine safety at the Ranger plant and that B.C. was responsible
for mine safety violations at the Laura Todd Pit.
Both the Secretary and Featherlite in their briefs state that a
party seeking to estop the government has a very heavy burden to
bear. Jones v. Dept. Health & Human Services, 843 F.2d 851 (5th
Cir. 1988 >.
The party cl.aiming the estoppel must at least demonstrate that the traditional elements of an estoppel are present in
order to prevail. Heckler v. Community Health Services of Crawford,

2592

467 U.S. 51, 104 S.CT. 2218, 81 L. Ed.2d 42 (1984). Those elements
are:
1) the party to be estopped must know the facts; 2) he must
intend his conduct be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; 3) the
latter must be ignorant of the true facts; and 4) he must rely on
the former's conduct to his injury." Scime v. Bowen, 822 F.2d 7, 9
n.l C2d Cir. 1987). The party "must have relied on his adversary's
conduct in such a manner as to change his position for the worse
•••• " That reliance must have been reasonable in that the party
claiming the estoppel did not know, nor should it have known, that
its adversary's conduct was misleading." Heckler, supra, 467 U.S.
at 59, 104 s.ct. at 2223.
"Those who deal with the government are expected to know the
law and may not rely on the conduct of governmental agents contrary
to the law"; therefore, courts will not find reliance was present if
the governmental agency did not have the authority to make the "misleading" pronouncements. Heckler, supra, 467 U.S. at 634, 104 s.ct.
at 2225. See, Long Island Radio Co. v. N.L.R.B., 841 F:2d 474 [2d
Cir. 1988 (holding the NLRB may not be estopped from enforcing a
deadline which the Board had no authority to extend)].
In addition, a party cannot raise an estoppel argument "without
proving that he will be significantly worse off" than if he had
never obtained the wrong information. Heckler, 467 U.S. at 63, 104
s.ct. at 2225.
In addition to showing that the traditional elements of estoppel are present, the party must show "affirmative misconduct" on the
part of the Government. Scime, 822 F.2d at 8-9, n.2 C2d Civ. 1987).
See, I.N.S. v. Hibi, 414 U.S., 5, 8-9, 94 s.ct. 19, 21-22, 38
L.Ed.2d 7 (1973).
"This affirmative misconduct suggestion must be
seen as an attempt to provide a limited measure of relief in exceptionally sensitive cases without exposing the government to openended liability for merely negligent or improper actions or omissions by its agent." Note, Equitable Estoppel of the Government,
79 Colum. Rev. 551, 560 (1976).
The Court of Appeals for the Tenth Circuit, in Emery Mining
Corporation v. Secretary of Labor, 3 MSHC 1585, affirmed the Cornmission' s decision at 5 FMSHRC 1400 (August 1983}, stating at 3 MSHC
1588:
Although the record reflects some confusion
surrounding MSHA's approval of Emery's training plan, as a general rule, "those who deal
with the Government are expected to know the

2593

law and may not rely on the conduct of government agents contrary to law" • • • •
I have considered the evidence and record as a whole and conclude that the Secretary is not estopped from issuing the citations
in question to Featherlite. Inspector Robinson in his earlier
November 1987 inspection of the Featherlite Ranger Plant and Laura
Todd Pit and Plant issued 52 citations. Mr. Robinson testified that
Ray Parson, Featherlite plant manager, accompanied him on the walk
around of the pit as well as the plant. Featherlite had employees
working at the pit on the day of that inspection just as they had
employees working at the pit every day. On the day of that inspection, the Featherlite road grater, water trucks, and scraper were
all working at the pit in the area where B.C. employees were mining.
Mr. Parsons was present when Mr. Robertson interviewed the two B.C.
truck drivers. Mr. Robertson discussed the hazardous practice of
mining with the shovel operator's cab next to the highwall with
Mr. Parsons.
Mr. Robertson issued Citation No. 3062555 alleging a violation
of 30 C.F.R. § 56.18002Cb) for not keeping records of inspections of
each working place at least once each shift. The citation specifically states that it is issued to the Laura Todd Pit and Plant and
served on Ray Parsons (Featherlite Plant Superintendent).
(Ex.
R-2).
Mr. Robertson discussed this citation wth Messrs. Parsons and
Lummus at the closeout conference specifying that they need to
inspect every workplace.
Approximately one month later, Mr. Robertson terminated the
citation based upon Mr. Parsons' representation that they were inspecting and the records shown to him that inspections were being
made and recorded. Petitioner asserts that Mr. Robertson did not
realize until the massive fall-of-ground accident that the records
shown to him were not for both the pit and the plant.
These facts do not warrant estoppel. Mr. Robertson believed,
based on Mr. Parsons' representation, that Featherlite was complying
with requirements of the cited safety standard. Mr. Parsons had
been with Mr. Robinson on the inspection of the pit area and had
been informed of Featherlite's independent contractor's violations.
Featherlite had employees working at the pit daily. The citation
was addressed to the Laura Todd Pit and Plant. Mr. Robertson stated
he made no direct statement indicating Featherlite that it did not
have to inspect the pit. I concur in Petitioner's assertion that it
simply was not reasonable for Featherlite to rely on what, in the
light most favorable to its position, was a mere oversight on the
part of Mr. Robertson.

2594

Moreover, when conducting the accident investigation,

Mr. Wilcox pointed out to Mr.· Lummus that they had been cited for
the failure to inspect before. Mr. Lummus stated, "Heck, we're not
doing tha yet or at this time." It is noted that Mr. Lummus did not
say, "MSHA told us we did not have to inspect the pit." He merely
indicated they hadn't started inspecting the pit.
The Commission in King Knob Coal Company, Inc., 3 FMSHRC 1416
(June 1981) pointed out that the Supreme Court has held that equilateral estoppel generally does not apply against the federal government. Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380,
383-386 Cl947); Utah Power & Light Co. v. United States, 243 U.S.
389, 408-411 (1917). In recent years, lower federal courts have
permitted estoppel against the government in some circumstances.
In King Knob Coal, supra, the Commission stated:
Even the decisional trend which recognizes
an estoppel defense refuses to apply the defense "if the government's misconduct [does
not] threaten to work a serious injustice and
if the public's interest would ••• be unduly
damaged by the imposition of estoppel" (emphasis added). United States v. Lazy F.C. Ranch,
481 F.2d at 989.
In view of the availability
of penalty mitigation as an evenue of equitable relief, we would not .be persuaded that
finding King Knob liable--would work such a
"profound and unconscionable injury" (Lazy F.C.
Ranch, 481 F.2d at 989) that estoppel should be
invoked.
The Supreme Court in a recent decision reversed the Court of
Appeals and again denied estoppel against the government just as it
has reversed every lower court decision granting estoppel that it
has reviewed.
(Office of Personnel Management v. Richmond, 110
s.ct. 2465 (1990), decided June 11, 1990). Insofar as it may be
pertinent to this case, the Court held that erroneous oral and
written information given by a Government employee to a benefit
claimant who relied, to his detriment, on the misinformation cannot
estop the Government from denying benefits not otherwise permitted
by law.
The court in its dicta also stated:
It ignores reality to expect that the
Government will be able to "secure perfect performance from its hundreds of

2595

thousands of employees scattered throughout the continent." Hansen v. Harris,
619 F.2d 942, 954 (CA2 1980) (Friendly,
J~, dissenting), rev'd sub nom., Schweitker v. Hansen, 450 U.S. 785, 101 S.Ct.
1468, 67 L.Ed.2d 685 (1981). To open the
door to estoppel claims would only invite
endless litigation over both real and
imagined claims of misinformation by disgruntled citizens, imposing an unpredictable drain on the public fisc.
Even if
most claims were rejected in the end, the
burden of def ending such estoppel claims
would itself be substantial.
The Court, however, refused to acquiesce to the Government's
request that the Court adopt a per se rule that estoppel will not
lie against the Government. Thus, the Court continued to leave open
the question of whether an estoppel claim could ever succe~d against
the Government.
CIVIL PENALTIES
In determining the amount of penalty to be assessed, Section
llOCi) of the Act requires consideration of the operator's previous
history of violations, the size of the operator, the negligence of
the operator, the effect on the operator to continue in business,
the gravity of the violation, and the good faith in attempting to
achieve rapid compliance.
The Secretary entered into evidence a certified copy of the
operator's assessed violation history as Exhibit G-1.
This report
indicates that, during the two-year period prior to the issuance of
the citations in question, respondent has been cited 60 times and
paid $4,251.00 in penalties. With respect to size, Respondent mined
approximately 200,000 cubic yards of usable shale material a year
and had approximately a total of 40 employees. Respondent stipulated at hearing that the payment of the proposed penalties would
not adversely affect Featherlite's ability to continue in business.
The negligence of the operator was high.
The evidence established that Respondent had been cited for failure to keep records of
inspected work sites six months before the issuance of the citation/
orders at bar. Further, the hazards were apparent or readily discoverable. Respondent's personnel were at the pit site every day
and had a degree of control over the areas to be mined.

2596

The gravity of the violation is serious. The injuries from a
high wall failure such as this would be reasonably likely to cause
serious injury or death to exposed miners.
Considering the statutory criteria in § llOCi) of the Act and
the availability of penalty mitigation as an avenue of equitable
relief for any possible confusion that may have been caused by the
way inspector Robinson abated the earlier November 1987 citation
{No. 3062555), I find and assess an appropriate civil penalty for
each of the violations as follows:
$3,000.00 for the violation of 30 C.F.R. 56.3131, as charged in
Citation No. 3063548.
$1,000.00 for the violation of 30 C.F.R. 56.3401 as charged in
Citation No. 3063549.
$3,000.00 for the violation of 30 C.F.R. 56.3200 as charged in
Citation No. 3063550.
Finding of Facts
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable, and
probative evidence establishes the following Findings of Fact:
1. Grady Lee naughty, an employee of B.C. Construction, was
fatally injured at approximately 1:50 p.m. on May 18, 1988, when the
power shovel he was operating was covered by a massive fall-ofground from an unstabilized 60-foot highwall at the mine site, the
Laura Todd Pit, leased and operated by the Featherlite Building
Products Corporation.
2. Following an attempted rescue operation, William Wilcox and
other MSHA personnel conducted a thorough accident investigation.
3. Lightweight aggregate was produced at the Featherlite plant
site from shale mined at the nearby pit complex, the Laura Todd Pit.
4. The 60-foot highwall involved in the fatality was composed
of shale covered by approximately 30 feet of undisturbed sandy-clay
overburden and stockpiled overburden. The latter material was
stripped by a self-loading type scraper and stockpiled both on mined
and unmined areas of the leased land by Featherlite personnel.
5. An independent contractor, the B.C. Construction Company,
had been retained to mine the shale exposed by the Featherlite
stripping program and to transport the shale to the plant site
crusher and primary storage facility.

2597

6. Activities at the pit were planned and administered by
Featherlite management on an informal basis; no maps or similar mine
planning program tools were evidenced.
7. Featherlite's stripping operation determined approximately
where shale was to be mined and the width and length of the mining
at hand. The depth of shale mining was detemined by the local
thickness of the formation and its freedom from inclusions as the
base of the formation was neared. Stripping was excluded from the
contractor's responsibilities.
8. The 60-foot pit wall involved in the fatality was a place
where persons worked or traveled. The wall was composed of loose or
unconsolidated material, and was not sloped to the angle of repose
or stripped back for at least 10 feet from the top of the pit wall.
This condition posed a reasonable likelihood of injuries of a reasonably serious nature.
9. The mine operator did not designate persons expe~ienced in
examining and testing for loose ground. The mine operator did not
test or examine loose ground where work was to be performed. This
condition posed a reasonable likelihood of injuries of a reasonably
serious nature.
Respondent knew, or should have known, of the hazardous
condition. Featherlite had previously been cited for failure to inspect every workplace. It had management officials at the pit regularly and employees there every day. Sloughing, standing water,
tension fractures, and the height of the wall were apparent or readily discoverable indicating the instability of the ground.
10. The ground conditions (specifically the 60-foot highwall)
were hazards and the wall was not taken down or supported before
work was permitted in the area. The area was not posted with a
warning sign against entry or barricaded when unattended. This condition posed a reasonable likelihood of injuries of a reasonably
serious nature. Respondent knew or should have known of this hazardous condition. Featherlite had management officials at the pit
regularly and had one official there 10 minutes prior to the fatality. Featherlite had employees at the pit every day. The sloughing, standing water tension fractures and height of the wall were
apparent or readily discoverable indicating the hazardous condition
of the pit wall.
11. The violation history of respondent indicates that during
the two years prior to the issuance of the citation/orders in question, respondent has been cited for 60 violations and paid $4,251.00
in penalties.

2598

12. With respect to the size of the operator, respondent mined
approximately 200,000 cubic yards per year of usable shale material
and had a total of approximately 40 employees.
13.

The negligence of the operator was high.

14. Respondent stipulated that the proposed penalties would
not affect its ability to continue in business.
15.

The gravity of the violations was serious and substantial.

16. All violations were timely abated by the permanent closure
of the Laura Todd Pitt.
Conclusions of Law
Jurisdiction
1.

Featherlite was at all times subject to the provisions of the
Federal Mine Safety and Health Act, and I have jurisdiction
over the parties and subject matter of this proceeding.

Violations
2.

3.

4.

a.

Respondent violated 30 C.F.R. § 56.3131 as alleged in
Citation No. 3063548.

b.

The violation is significant and substantial.

c.

A penalty of $3000 is assessed.

a.

Respondent violated 30 C.F.R. § 56.3401 as alleged in
Citation No. 3063549.

b.

The violation is significant and substantial.

c.

The violation constitutes an unwarrantable failure of the
operator to comply with the cited standard.

d.

A penalty of $1,000.00 is ASSESSED.

a.

Respondent violated 30 C.F.R. § 56.3200 as alleged in
Citation No. 3063550.

b.

The violation is significant and substantial.

c.

The violation constitutes an unwarrantable failure of the
operator to comply with the cited standard.

d.

A penalty of $3,000.00 is ASSESSED.

2599

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citation/Order No. 3063548, including its finding that the
violation was significant and substantial, is AFFIRMED. The Notice
of Contest, Docket No. CENT 88-113-RM, is DISMISSED.

2. Citation No. 3063549, including its findings that the
violation was significant and substantial and caused by unwarrantable failure, is AFFIRMED. The Notice of Contest, Docket No.
CENT-88-114-RM, i.s DISMISSED.
3. Citation No. 3063550, including its findings that the
violation was significant and substantial and caused by unwarrantable failure, is AFFIRMED. The Notice of Contest, Docket No. CENT
88-115-RM, is DISMISSED.

-

4. Respondent Featherlite Building Products Corporation shall
pay to the Secretary of Labor $7,000.00, within 30 days of this
Decision, as a civil penalty for the violations found herein.

~&

F. Cetti
istrative Law Judge

Distribution:
Steven R. Mccown, Esq., Jennifer A. Youpa, Esq., Jenkens & Gilchrist, 1445 Ross Avenue, Suite 3200, Dallas, TX 75202-2711
(Certified Mail)
Mary E. Witherow, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202-2711
(Certified Mail)

/ek

2600

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
COLONNADE CENTER
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

DEC 141990
JOE G. PINA,

DISCRIMINATION PROCEEDING
Complainant
Docket No. CENT 90-106-DM
SC-MD-90-06

v.
FEATHERLITE BUILDING PRODUCTS,
Respondent

Armadillo Quarry

DECISION
Appearances:

Ed Watson and Robert Copeland, pro se,
on behalf of Respondent.

Before:

Judge Morris

app~aring

This case is before me upon the complaint of Joe G. Pina
under Section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801, et seg. (the "Act"). Complainant alleges he was discharged by respondent in violation of Section
105(c)(l) of the Act.
A hearing in the case was scheduled in Austin, Texas, for
November 6, 1990. Complainant Pina was served by certified mail
with a copy of the notice of hearing.
Mr. Pina did not appear at the hearing nor has the Judge
been advised of any reason why he did not appear.
Accordingly, the case is DISMISSED for failure to prosecute.

~~
is
tive Law Judge
Distribution:
Mr. Joe G. Pina, Route 3, Box 61-A, Liberty Hill, TX 78613
(Certified Mail)
Mr. Ed Watson, General Manager, Featherlite Building Products
Corp., Texas Quarries, P.O. Box 820, Cedar Park, TX 78613

/ek

2601

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

DEC 141990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 90-17
A.C. No. 36-00929-03666

v.
Marion Mine
TUNNELTON MINING COMPANY,
Respondent
DECISION
Appearances:

Before:

Mark V. Swirsky, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Joseph A. Yuhas, Esq., Ebensburg, Pennsylvania,
for the Respondent.

Judge Fauver

The Secretary seeks a civil penalty for an alleged safety
violation, under § 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq.
The parties have submitted the case on a stipulated record.
The key issue is whether 30 C.F.R. § 75.202(a) applies to a
part of a coal mine (1) which is required to be traveled weekly
by a certified examiner and (2) in which miners other than
certified mine examiners are not normally required to work or
travel but may from time to time be required to do so, ~.g., for
rock dusting or for removing pumps or equipment.
rt is stipulated that unsupported loose roof was found in
the area cited in Citation No. 2894260, which charges a violation
of 30 C.F.R. § 202(a).
30 C.F.R. § 75.202(a) provides:
§

75.202 Protection from falls of roof, face and ribs.

(a)
The roof, face and ribs of areas where
persons work or travel shall be supported or otherwise

2602

controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock
bursts.
The regulation thus has three elements:
1.

An area where persons work or travel

2.

shall be supported or otherwise controlled

3.

to protect persons from falls of roof, face or

ribs.
The first element of the regulation is a coverage element:
"where persons work or travel." The parties have stipulated that
the area where loose roof was found "is required to be traveled
weekly by a certified examiner" (Stip. 19) and that other miners
"are not normally required to be in the cited area" but may work
there "in certain situations such as for rock dusting, ~nd for
pump and equipment removal" (Stip. 25).
Respondent contends that § 202(a) does not apply to the
cited area because it is not an "active working" within the
meaning of 30 C.F.R. § 75.2(g) (4), which defines "active
workings" as "any place in a coal mine where miners are normally
required to work or travel." However, § 202(a) does not limit
its protection to "active" or "inactive" places in a mine, but
simply applies to "areas where persons work or travel . . . . "
This plain meaning is also illustrated by the published
explanation of the rule, as follows:
For clarity, the final rule applies to all "areas where
persons work or travel" replacing the existing
requirement that this protection be afforded in all
"active underground roadways, travelways and working
places."
[53 Fed. Reg. 2355 (Jan. 27, 1988).]
The regulation for weekly examinations requires that the
certified examiner travel "in the return of each split of air
where it enters the main return . . . , in the main return, at
least one entry of each intake and return aircourse in its
entirety, idle workings, and, insofar as safety conditions
permit, abandoned areas." 30 C.F.R. § 75.305. Miners are not
permitted to travel under unsupported roof, by virtue of
§ 202(b), which provides:
"(b)
No person shall work or travel
under unsupported roof unless in accordance with this subpart."
The exceptions permitting working or traveling under unsupported
roof in Subpart c are not applicable to a man on foot, such as a
mine examiner.
The interpretation of § 202(a) urged by Respondent would
permit an examiner or other miner (who only occasionally works or

2603

travels in a given area) to work or travel under unsupported
roof, against the plain meaning of§ 202(a) and (b). Respondent
contends that a different regulation, instead of§ 202(a),
applies to· the cited area. It relies on 30 C.F.R. § 75.211(c),
which provides:
When a hazardous roof, face, or rib condition is
detected, the condition shall be corrected before there
is any other work or travel in the affected area. If
the affected area is left unattended, each entrance to
the area shall be posted with a readily visible
warning, or a physical barrier shall be installed to
impede travel into the area.
Sections 202(a) and 211(c) are not mutually exclusive. I
hold that the safety protection of § 202(a) applies equally to
certified weekly examiners and any other persons who "work or
travel" in any. area of an underground coal mine.
Citation No. 2894260 was properly issued. Considering all
the criteria for a civil penalty in § llO(i) of the Act, I find
that a penalty of $85 is appropriate for this violation.
ORDER
WHEREFORE IT IS ORDERED that:
1.

Citation No. 2894260 is AFFIRMED.

2. Respondent shall pay a civil penalty of $85 within
30 days of this decision.

~~~~

Administrative Law Judge

Distribution:
Mark V. Swirsky, Esq~, Office bf the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Joseph A. Yuhas, Esq., Tunnelton Mining Company, P.O. Box 367,
Ebensburg, PA 15931 (Certified Mail)
/fb

2604

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

DEC 1 71990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.
CORONA INDUSTRIAL SAND
PROJECT,
Respondent

CIVIL PENALTY PROCEEDINGS

.
.
..
.
....
.
:
:

.
.
.
...

Docket No. WEST 89-413-M
A.C. No. 04-04862-05510
Docket No. WEST 89-414-M
A.C. No. 04-04862-05511
Docket No. WEST 89-450-M
A.C. No. 04-04862-05512
Docket No. WEST 89-46'0-M
A.C. No. 04-04862-05513
Docket No. WEST 90-22-M
A.C. No. 04-04862-05514
Corona Industrial Sand
Project

DECISION
Appearances:

Eve Chesbro, Esq., Jonathan s. Vick, Esq., Office
of the Solicitor, U.S. Department of Labor, Los
Angeles, California,
for the Secretary;
Stanley D. Hendrickson, General Manager, Corona
Industr~al Sand Project, Corona, California,
pro ~·

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charges Respondent, Corona Industrial Sand Project (Corona), with violating regulations promulgated under the Federal Mine Safety and Health Act, 30 u.s.c.
§ 801, et~ Cthe Act).
After notice to the parties, a hearing on the merits was
held in Ontario, California, commencing on May 30, 1990.
The parties were granted leave to file post-trial briefs.
Subsequently, they withdrew their requests.

2605

STIPULATION
At the commencement of the hearing, the parties stipulated
as follows:
1.

Corona produced 389,687 tons of sand in 1989.

2.

The production was about the same in 1990.

3. A certified copy of Corona's assessed history can be
received in evidence.
CTr. 7; Ex. P-1).
WEST 89-413
ARTHUR S. CARISOZA, an MSHA inspector since 1975, is a
person experienced in mining.
(Tr. 11, 12).
Corona, a silica sand plant, processes various grades of
silica sand. The company runs three shifts and employs 40-45
people.
(Tr. 12, 13).
Citation No. 3296982
Mr. Carisoza issued this citation, which alleges Corona
violated 30 C.F.R. s 56.9300. 1/
The inspector observed a 200- to 250-foot roadway that ran
along a creek. There was no berm, guard, barrier, or railing to
protect from driving off the edge.
(Tr. 14, 15; Ex. P-2). The
incline (to the creek) averaged five to six feet.
(Tr. 15).
The inspector observed a front-end loader pushing sand over
the edge of the incline. The tracks of the loader, as well as
the tire marks of pickups and service trucks, were within five
feet of the edge.
(Tr. 2, 16; Exs. P-2, P-3, P-4). The night
shift would have used this roadway.
(Tr. 19).
Vehicles using the roadway would have occasion to back up
near the incline.
(Tr. 19-20). The majority of the vehicles
either back into the area or back out; no high speeds are
involved.
(Tr. 75).

1/

§

56.9300

Berms or guardrails.

Ca) Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists
of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.
2606

The operator had been previously
this area.
(Tr. 21).

c~ted

for lack of a berm in

The inspector further testified concerning the factors
involved in assessing civil penalties.
(Tr. 21, 22).
KEITH SPEAK, Corona's engineer, testified a nearby building
and the irregular creek were about 15 to 40 feet apart. The narrowest part of the area is a dead end.
(Tr. 107, 109).
Opposite the main entrance of the plant a sign designates a
speed limit of 5 to 10 miles an hour. From the witness's observation, vehicles in this area would travel two to three miles per
hour, or at a walking speed.
(Tr. 108).
Vehicles would get as close as three or four feet from the
edge.
(Tr. 108). The area was not considered hazardous, hence
no berm was installed at the creek.
(Tr. 109).
WILLIAM W. WILSON, MSHA's area supervisor for southern
California, is a person experienced in mining.
(Tr. 149).
Mr. Wilson was familiar with the area involving the lack of
berms and guard rails.
(Tr. 150). There was never a question of
a berm being required. He had never seen large equipment using
the area.
The present height requirement for a berm is mid-axle, but
in May 1988 there was no such requirement.
(Tr. 15).
DISCUSSION
§

The testimony of Mr. Carisoza establishes a violation of
56.9300.

Corona's witness basically affirms the Secretary's evidence. Exhibits P-2 and P-3 establish the hazardous condition
and the necessity for a berm adjacent to the edge.
The citation should be affirmed.
CIVIL PENALTIES
Section llOCi) of the Mine Act sets forth the criteria to be
considered in assessing a civil penalty.
The number of persons employed by Corona indicates it is a
small operator.

2607

STANLEY D. HENDRICKSON, general manager of Corona, is familiar with the financial affairs of the company. A letter from
the First Interstate Bank of Los Angeles outlines the status of
Corona's loan with the bank.
(Tr. 131; Ex. R-1).
The company is also engaged in a severe price war.
In addition, Corona is unable to make principal payments although interest payments have been timely.
(Tr. 133).
The severity of MSHA's inspections and their number are far
worse than normal.
(Tr. 133).
Mr. Hendrickson indicated the company had defaulted on its
credit agreement with First Interstate Bank.
(Exhibit R-1).
The above evidence warrants a reduction in the penalty.
However, to eliminate a penalty in the circumstances presented
here would not be in furtherance of the Mine Act.
The assessment of moderate penalties should not severely
affect the company's ability to continue in business. Although
Corona has defaulted on its credit agreement, it is current on
its interest payments.
In the two years ending May 31, 1989, Corona had 56 violations and paid $2,805 in civil penalties. These figures indicated Corona's prior history is average.
(Ex. P-1).
Corona was negligent since the unbermed creek was open and
obvious.
Further, the operator had been previously cited for the
lack of a berm.
The gravity is established, inasmuch as vehicles operate in
close proximity to the edge.
Good faith was established by the operator, promptly abating
the violative condition.
On balance, a civil penalty of $50 is appropriate for
Citation No. 3296982.

2608

Citation No. 3296996
This citation alleges a violation of 30 C.F.R. § 56.14107. ~/
During the inspection, Mr. Carisoza observed a small belt
drive, pulleys, and a V-belt powered by a conveyor belt. The
area is adjacent to a catwalk where workers travel. A worker
could come in contact with this unguarded machinery which was 12
inches from the outside frame.
(Tr. 23, 24, 79; Ex. C-5) If
this occurred, he could suffer a severe cut.
The Secretary has adopted § 56.14107 and it is published in
the Federal Register (Tr. 99; Ex. P-15).
DISCUSSION AND FURTHER FINDINGS
As a threshold matter, it is necessary to identify the regulation in effect when this citation was issued.
The citation was issued on June 21, 1989.
regulation cited in footnote 2 applied.

At that time, the

A degree of confusion has been caused by the Secretary's
1988 regulation governing moving machine parts, namely, 30 C.F.R.
§ 56.14001. ~/

~/

§ 56.14107.

Moving machine parts.

(a) Moving machine parts shall be guarded to protect
persons from contacting gears, sprockets, chains, drive,
head, tail, and takeup pulleys, flywheels, couplings,
shafts, fan blades, and similar moving parts that can
cause injury.
(b) Guards shall not be required where the exposed
moving parts are at least seven feet away from walking
or working surfaces.

21

This regulation provides as follows:
§ 56.14001

Moving machine parts.

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

2609

CHARLES G. INMAN, an MSHA inspector, is a person experienced
in mining.
He is stationed in San Bernardino, California.
(Tr.
136, 137).
The witness visited Corona's site in 1988.
the guards were discussed.
(Tr. 139).

At that time,

The Secretary changed the regulations between 1987 and the
present time. The principal change is to prevent any deliberate contact with moving machine parts.
(Tr. 140).
As to MSHA's citation, Corona cries foul:
The company
fully complied, at considerable expense and effort, with MSHA's
rules in 1987. However, MSHA changed those rules and Corona
finds itself cited by MSHA.
The uncontroverted testimony of plant engineer Speak estab1 ishes that, after MSHA inspected the plant in 1987, the equipment MSHA found objectionable was modified with additional guarding, reducing any openings to a 3-inch by 29-inch space.
(Tr.
102-106).
In adopting what was enacted as § 56.14107, MSHA reviewed
its statistics and concluded that most injuries were caused in
those instances where the persons were performing work-related
actions with the machinery.
(Ex. P-5). MSHA, therefore, considered it appropriate to require operators to totally enclose
self-cleaning tail pulleys.
(Pages 5 and 6 of Exhibit P-8 demonstrate MSHA's interpretation of the guarding now required.)
Corona's objections must fail.
MSHA has an obligation to
modify its regulations if such modifications will improve the
safe working conditions for miners.
Further, all operators are subject to any such changes.
However, Corona's actions, as hereafter noted, will reduce the
civil penalties.
Corona's size and its ability to continue in business, and
its previous history have already been discussed.
The operator was negligent.
revised guarding requirements.

It should have known of MSHA's

The gravity of the violation must be considered as less than
severe, since Corona, in 1987, fully complied with the requirements MSHA then believed constituted adeqaute guarding.
Under the broad umbrella of good faith, Corona abated the
violative conditions in 1987 and without any changes in those
conditions the company again abated in 1989.

2610

On balance, a civil penalty of $25 is appropriate for the
violation of Citation No. 3296996.
Citation No. 3466364
In this situation, the operator was charged with a violation
of 30 C.F.R. § 56.14107.
Inspector Carisoza observed that the guards on the equipment
did not meet MSHA's guarding standards. The open areas existing
in the guard presented a hazard.
{Tr. 29)
The openings measured 3 by 19 inches; the self-cleaning tail
pulley was approximately four ~nches from the opening.
{Tr. 30;
Ex. P-7).
Employees were generally working in close proximity to
this area.
{Tr. 3).
MSHA's guarding guidelines address the described condition.
{Tr. 32; Ex. P-8). The guards the company had installed were
adequate for a solid tail pulley but not for a self-cleaning tail
pulley.
{Tr. 32, 33).
During the initial inspection in November of 1988, the
guards, at MSHA's recommendation, were changed.
{Tr. 35; Ex.
P-7). The company was advised that the guards must be extended
so a person could not reach around and contact a moving part.
{Tr. 35).
In November 1988, the company was advised that MSHA
was revising the regulation. The citation in this case was
issued in June of 1989.
{Tr. 36).
DISCUSSION
For the reasons previously stated, this citation should be
affirmed and a civil penalty of $25 assessed.
Citation No. 3466365
This citation, an alleged violation of § 56.14107, was issued because the guarding on the c-19 conveyor belt had the same
hazards as in the previous citation {No. 4566364).
{Tr. 36, 37).
The opening measured. 3 by 2 9 inches.
The belts are below
waist height. Employees work in the vicinity when the units are
in motion.

2611

The rotating spurs can come in contact with a worker while
he is servicing the unit.
(Tr. 37).
DISCUSSION
The evidence is uncontroverted.
For the reasons previously
stated, this citation should be affirmed and a penalty of $25
assessed.
Citation No. 3466368
The inspector issued this citation alleging a violation of
30 C.F.R. § 56.14107.
He observed that employees could cross
directly under two unguarded return idlers adjacent to a conveyor
belt.
The idlers were low enough that a person could contact the
equipment.
(Tr. 38-44; Ex. P-9, P-10, P-11).
The openings located on the sides of the pulleys were about
3 X 29". The rollers were about 50-54 inches off the ground.
(Tr. 44).
The inspector testified as to matters relating to a civil
penalty.
(Tr. 45).
He further believed the violation was
significant and substantial.
(Tr. 46).
DISCUSSION
The testimony and the photographs CExs. P-9, P-10, P-11)
establish that the return idlers were unguarded. A worker could
contact the idlers.
Corona's negligence was high since the condition was open
and obvious.
Even though the idler was overhead, if a worker or
his tools became entangled, he could get injured.
Citation No. 3466368 should be affirmed and a penalty of $50
should be assessed.
Citation No. 3466370
While the inspector was conducting a noise and dust survey,
he noticed a feeder lacked guarding.
The rollers, head pulley,
and tail pulley were exposed. Workers in the area could contact
the exposed parts. As a result of the described condition, the
inspector issued Citation No. 3466370 alleging a violation of
§ 56.14107.
(Tr. 47-50; Ex. P-12, p. 13).

2612

The head pulley was 8 inches by 24 inches; the rollers were
about 3 by 24 inches.
The feeder sits above the tail pulley about waist high.
A person can easily contact the exposed parts on both sides.
(Tr. 52).
The inspector further testified as to gravity and negligence. In the inspector's view, this was an S&S violation.
(Tr. 54-56).
Witness Speak testified that the equipment involved in
Citation Nos. 3.~664 70 and 3466372 was built when the original
plant was constructed.
(Tr. 115).
After a CAV inspection, Peerless Conveyor fabricated brackets which were then installed.
(Tr. 116). The equipment remained in place until the date of the instant inspection.
~

The CAV inspection of October 7, 1987, resulted in written
notices.
(Tr. 117). Some of the notices refer to tail pulleys.
(Tr. 123).
The feeder and feed belt were not remodeled between the MSHA
inspections of November 1988 and June 1989.
(Tr. 118).
Robins Engineers and Constructors, originally Hewitt Robins,
is described as the premier designer of conveyors in the world.
(Tr. 127). The Robins Company agreed with the fix on the tail
pulleys.
(Tr. 128).
DISCUSSION
The factual situation here is similar to that involved in
the previous citation. The same reasoning applies.
This citation should be affirmed and a civil penalty of $25
assessed.
Citation No. 3466371
The feed conveyor, below the #1 feeder, carries material
from the feeder to the scalping screen. The tail pulley was
not covered. Employees could contact the exposed parts, thus
a violation of § 56.14107 was alleged.
The inspector estimated the size of the pulley to be around
13-27 inches. It was located about 12 inches above the ground.

2613

Access for cleaning was available from both sides.
Exs. P-13, P-14).

(Tr. 57-60;

There were no guards protecting the equipment although there
was a shield for dust purposes.
(Tr. 60, 61).
The inspector further testified as to gravity and negligence. In the inspector's opinion, the violation was S&S.
(Tr. 60-62}.
During the initial inspection in 1988, the unguarded tail,
head, and take-up pulleys were discussed.
(Tr. 63). At that
time, the operator was asked to totally enclose the tail pulleys.
(Tr. 63).
.
After a previous CAV, the operator reduced the size of some
openings; however, some of the openings remained.
(Tr. 64}.
Exhibit P-7 illustrates the partial guarding installed by
the operator on that particular moving part. Although the size
of the openings was reduced, the guards still didn't comply with
the MSHA regulations. At the initial inspection, the opening was
12 by 29 inches. It had been reduced to that size.
(Tr. 67).
Other conveyor openings had also been reduced in size.
(Tr. 68).
DISCUSSION
The factual situation here is basically the same as previously discussed.
The citation should be affirmed and a penalty of $25
assessed.
Citation No. 3296997
This Citation alleges a violation of 30 C.F.R. § 56.14109. ~/

!/

§ 56.14109

Unguarded conveyors with adjacent travelways.

Unguarded conveyors next to the travelways shall be
equipped with-(a) Emergency stop devices which are located so that
a person falling on or against the conveyor can readily
deactivate the conveyor drive motor; • • •

2614

Mr. Carisoza entered the area where the conveyor belt was
located. An area 3 to 3.5 feet long at the head pulley of the
conveyor belt was exposed.
It was lower than the waist-high
catwalk. The belt was moving at 200 to 350 feet per minute.
If a person fell on the belt he could not reach the stop cord.
(Tr. 25, 26, 85; Ex. P-6).
He would be carried into the head
pulley.
(Tr. 27).
The platform, where the unguarded section was located, is
basically used for maintenance purposes.
(Tr. 27; Ex. P-6).
The opposite side of the conveyor was equipped with all necessary
guards and pull cables.
(Tr. 84).
Witness Speak indicated there was a hand railing around the
platform.
However, there was no guarding between the platform
and the conveyor except at the head chute.
(Tr. 113).
The platform is designed purely for maintenance.
(Tr. 114).
Mr. Speak believes that conveyor idlers or rollers are not considered the same as head, tail, snub, or take-up pulleys. The
exposure along the belt was for two feet.
(Tr. 114).
According to Corona's witness Speak, the speed of the conveyor belt is monitored to detect any slippage of the belt.
(Tr. 110). The monitor device was in place at the time of a CAV
inspection.
(Tr. 110). A monitor of this type would not create
a hazard.
(Tr. 111).
DISCUSSION
The uncontroverted facts establish a violation of the regulation. A monitor to detect slippage of the belt, as discussed
by Mr. Speak, would not be equivalent to an "emergency stop
device," as required by the regulation.
The criteria for assessing a civil penalty has been generally discussed. However, in this case, the operator's negligence
and gravity are greater than in the other citations.
A civil penalty of $100 is appropriate.
WEST 89-414-M
The parties stipulated that the previous evidence of both
parties could be considered as applicable to Citation Nos.
3466372, 3466375, and 3466376. Further, the ruling on the citations in WEST 89-414 would be dispositive of these citations.
(Tr. 198, 201).
In addition, Exhibits P-17 and P-18 depict the
conditions described in Citation No. 3466372.

2615

On the basis of the stipulation, the three citations herein
should be affirmed and a civil penalty of $25 is assessed for
each violation.
WEST 89-450-M
Citation No. 3296989, issued by Mr. Carisoza, alleges a
violation of 30 C.F.R. § 14132Cb)(l). ~/
While on Corona's property, Mr. varisoza inspected a water
truck for a back-up alarm.
(Tr. 167). Mr. Speak stated the
company owned the vehicle.
Mr. Allen, the production supervisor, stated that the truck
lacked a back-up alarm.
(Tr. 168). The inspector found no alarm
on the vehicle and Mr. Allen agreed this was unsafe.
(Tr. 168,
180).
Mr. Eaton, general superintendent, and the inspector had a
heated discussion as to whether Corona was liable for the condition of a vehicle it did not own.
(Tr. 168).
The vehicle was operated in the plant area where people
traveled on foot. Also, the vehicle had a water tank at the back.
From inside the cab it was not possible to see the total area
behind the vehicle.
(Tr. 170). No observers had been used when
the truck was in operation.
(Tr. 171).
The inspector testified as to gravity and negligence.
(Tr. 172-174).
MICHAEL ALLEN, Corona's daytime production supervisor, testified.
(Tr. 181). He indicated the water truck is operated and
maintained by Mcclinton Trucking.
The witness was under the impression the truck was equipped
with a backup alarm.
(Tr. 182).

11

§ 56.14132

Horns and backup alarms.

(b)Cl) When the operator has an obstructed view to
the rear, self-propelled mobile equipment shall have-Ci) An automatic reverse-activated signal alarm; • • •

2616

The company electrician located an alarm on the rear axle
but it was faulty and was replaced.
(Tr. 183).
Except for one occasion, the witness had never observed the
truck backing up. All of Corona's equipment have backup alarms.
(Tr. 184-186).
DISCUSSION
The credible evidence establishes a violation of the regulation. I reject Michael Allen's somewhat hesitant explanation
that it was his "impression" that the vehicle had an alarm. Further, no defense is established merely because the truck was not
owned by Corona. It is clear that Corona's employees were exposed to the hazard presented by the lack of a backup alarm.
The Secretary alleges this condition was due to the unwarrantable failure of the operator.
The Commission has set forth the parameters of the unwarrantable failure doctrine, Emery Mining Corporation, 9 FMSHRC
1997 (197); Youghiogheny and Ohio Coal Company, 9 FMSHRC 2007
(1987); Rushton Mining Company, 10 FMSHRC 249 (1988).
The record here fails to establish such aggravated conduct
and the unwarrantable failure allegations are stricken.
Several facets of the civil penalty criteria have been
previously discussed.
Corona was negligent since it should have known the truck
lacked a backup alarm. The gravity is high since an employee in
the work area could have been injured.
On balance, a civil penalty of $75 is appropriate.
Citation No. 3296990
This citation alleges a violation of 30 C.F.R. § 56.14100. 6/

~/

The cited standard provides:
§ 56.14100

Safety defects; examination, correction and

records.
Cl) Self-propelled mobile equipment to be used during
a shift shall be inspected by the equipment operator before being placed in operation on that shift.

2617

According to the inspector, the plant supervisor admitted he
failed to conduct a safety inspection before he permitted the
truck to be.operated.
(Tr. 174, 175, 179).
DISCUSSION
The uncontroverted evidence establishes that the truck was
not inspected before it was placed in service.
The negligence of the plant supervisor is imputed to the
company. The gravity is also high.
On balance, a civil penalty of $75 is appropriate.
WEST 89-46-M
As to six of the citations in this case, the parties renewed
their agreement as they had expressed in connection with the previous self-cleaning type tail pulleys.
(Tr. 203). The remaining
citation is this case was litigated.
On the basis of the stipulation, I conclude that Citation
Nos. 3466361, 3466363, 3466366, 3466367, 3466369, and 3466374
should be affirmed and a civil penalty of $25 should be assessed
for each violation.
Citation 3466362
This citation alleges a violation of 30 C.F.R. § 56.5005Cb). ~/
(Tr. 205, 206, 210).

21

The relevant portion of the cited standard reads:
§ 56.5005 Control of exposure to airborne contaminants.

Control or employee exposure to harmful airborne contaminants shall be, insofar as feasible, by prevention of contamination, removal by exhaust ventilation, or by dilution
with uncontaminated air. However, where accepted engineering control measures have not been developed or when necessary by the nature of work involved Cfor example, while establishing controls or investigation), employees may work
for reasonable periods of time in concentrations of airborne
contaminants exceeding permissible levels if they are protected by appropriate respiratory protective equipment.
Whenever respiratory protective equipment is used a program
for selection, maintenance, training, fitting, supervision,
cleaning, and use shall meet the following minimum
requirements:
2618

In the presence of the MSHA inspector, Keith Speak directed
an employee to contact a certain individual in the company. Approximately. 90 minutes later, the inspector saw the same employee
in an affected area cleaning up silica sand spills. When questioned, the employee stated he had not been trained or fit-tested
in the use of the respirator. At that point, a 104(d) order was
issued and the employee was withdrawn until he was trained.
(Tr. 206, 207, 212; Ex. P-20).
Exhibit P-20, page 24, addresses procedures for use of the
respirator and proper test fillings.
(Tr. 209). The ANSI standard indicates training for an employee should take place where
respiratory protection is required.
(Tr. 209).
The dust exposure at the site was excessive.

(Tr. 215) •

In prior uncontested citations Corona's employees were exposed to .51 and 2.78 milligrams per cubic meter.
(Tr~ 217).
In June 1989 the inspector, in a usual check, found parts of
the system had been worn through.
In addition, in some places
material was spilling and leaking.
(Tr. 221).
KEITH SPEAK indicated that a labor agency provides laborers
to assist plant personnel.
(Tr. 224).
The MSHA inspectors and the new employee arrived together.
Mr. Speak sent the employee to the mainten~nce shop. He had no
way of knowing the employee would later be ~t the screen house
and untrained.
(Tr. 225). He had, not knowingly, sent the employee into an area under citation.
(Tr. 225). In short, he did
not believe the company's actions were unwarrantable.
(Tr. 226).
If the employee had arrived in normal circumstances, he would
have been trained by video tapes in Mr. Speak's possession.
(Tr. 227).

Cb) A respirator program consistent with the requirements of ANSI Z88.2-1969, published by the American National Standards Institute and entitled "American National Standards Practices for Respiratory Protection
ANSI Z88.2-1969, 11 approved August 11, 1969, which is
hereby incorporated by reference and made a part hereof.
This publication may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New
York, New York 10018, or may be examined in any Metal
and Nonmetal Mine Safety and Health District or Subdivision Office of the Mine Safety and Health Administration.

2619

Mr. Speak didn't direct the employee to stay in certain
areas, nor did he give any directions to the foreman.
(Tr. 228).
He was also aware that prior respirator citations had been issued
to the company.
(Tr. 229; Ex. P-22).
Exhibit P-22, a memorandum dated May 16 or 17, indicates
Corona was experiencing problems with employees fully complying
with respirator training of the silica dust program.
(Tr. 234).
However, Corona was having difficulty finding qualified people to
hire.
(Tr. 235). The company has a high turnover rate in its
workforce.
CTr. 237).
All of the areas in the plant are currently in compliance
in a recent dust sampling.
(Tr. 240).
DISCUSSION
The inspector's evidence establishes Corona violated the Act.
Corona's evidence does not establish a contrary view. The citation should affirmed.
I find Mr. Speak's testimony to be credible and no unwarrantable failure has been established as required by the Commission rulings. Such allegations are stricken.
The facts establish Corona was negligent, but the exposure
to the dust was only for a short time.
In view of the minimal
exposure, I consider the gravity to be low.
On balance, a civil penalty of $100 is appropriate.
WEST 90-22-M
§

Citation No. 3466380 alleges a violation of 30 C.F.R.
50.20.
At the hearing, petitioner moved to vacate the citation.
For good cause shown, the motion should be granted.

In view of the foregoing findings of fact and conclusions of
law, I enter the following:

2620

ORDER
The following citations are AFFIRMED and the penalties as
indicated are ASSESSED.
1.

2.

3.

4.

WEST 89-413-M
Citation Nos.

Penalty

3296982
3296996
3466364
3466365
3466368
3466370
3466371
3296997

$ so
$ 25
$ 25
$ 25
$ 50
$ 25
$ 25
$100

WEST 89-414-M
Citation Nos.

Penalty

3466372
3466375
3466376

$ 25
$ 25
$ 25

WEST 89-450-M
Citation Nos.

Penalty

3296989
3296990

$ 75
$ 75

WEST 89-460
Citation Nos.

Penalty

3466361
3466363
3466366
3466367
3466369
3466374
3466362

$ 25
$ 25
$ 25
$ 25
$ 25
$ 25
$100

2621

5.

WEST 90-22-M
Citation No. 3466380 and all penalties therefor are VACATED.

Law Judge

Distribution:
Eve Chesbro, Esq., Jonathan s. Vick, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1110,
San Francisco, CA 94105-2999
(Certified Mail)
Mr. Stanley D. Hendrickson, General Manager, 20125 Ternescal
Canyon Road, Corona, CA 91719
(Certified Mail)

/ek

2622

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

DEC 1 71990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.
.
.
.

Docket No. WEST 90-75
A.C. No. 05-00301-03732

0

:
MID-CONTINENT RESOURCES
INCORPORATED,
Respondent

Dutch Creek Mine

DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Esq., Delaney & Balcomb, P.C.,
Glenwood Springs, Colorado,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration {MSHA), charges respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 u.s~c. § 801, et seg. (the "Act").
After notice to the parties, a hearing commenced in Glenwood
Springs, Colorado, on November 14, 1990.
At the hearing, the parties announced they had reached an
amicable settlement of all issues not previously settled.
The citations, the original assessments, and the proposed
disposition of all matters in controversy are as follows:
Citation No.

Assessment

Disposition

3225328
3410961
9996381

$483
$295
$530

$100
Vacate
$295

Order No.

Assessment

Disposition

2931575
3410940

None
None

Vacate
Affirmed

2623

In connection with their settlement the parties further seek
to amend the "Significant and Substantial" allegations in
Citation No. 3225328.
In support of their motion the parties have further submitted information relating to the statutory criteria for assessing
civil penalties as contained in 30 u.s.c. § 820Ci).
I have reviewed the proposed settlement and I find it is
reasonable and in the public interest. It should be approved.
Accordingly, I enter the following:
ORDER
1.

The settlement agreement is APPROVED.

2. Citation No. 3225328 is AFFIRMED and a civil penalty of
$100 is ASSESSED.
3. Citation No. 9996381 is AFFIRMED and a civil penalty of
$295 is ASSESSED.
4.

Citation No. 3410961 is VACATED.

5.

Order No. 3410940 is AFFIRMED.

6.

Order No. 2931575 is VACATED.

7. Respondent is ORDERED to pay to the Secretary of Labor
the sum of $395 within 40 days of the date of this decision.

Law Judge
Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294
(Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, Drawer 790,
Glenwood Springs, CO 81602
(Certified Mail)
/ek

2624

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

December 18, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ON BEHALF OF
JOSEPH C. CULP,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEST 91-108-D
DENV-CD-90-13

v.

Dutch Creek Mine

MID-CONTINENT RESOURCES, INC.,
Respondent
DECISION
AND
ORDER OF TEMPORARY REINSTATEMENT
Appearances:

James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Complainant;
Edward Mulhall, Jr., and Timothy A. Thulson, Esq.,
DELANEY & BALCOMB, P.C., Glenwood Springs,
Colorado,
for Respondent.

Before:

Judge Cetti
Statement of the Proceeding

On November 28, 1990, the Secretary of Labor (Secretary),
pursuant to Section 105(c)C2> of the Federal Mine Safety and
Health Act of 1977 and Commission Rule 29 C.F.R. § 2700.44(a),
filed an application for an order requiring Respondent, MidContinent Resources, Inc., to reinstate Joseph c. Culp to his job
as maintenance foreman at Mid-Continent Resources, Inc., Dutch
Creek Mine, from which he was suspended from the payroll on
August 23, 1990. The application stated that the Secretary found
the complaint of discrimination indicating an adverse action of
suspension and discharge is not frivolous.
The application was
accompanied by copies of the complaint filed by the Applicant and
by an affidavit of Dennis M. Ryan of the Mine Safety and Health
Review Administration asserting that Respondent suspended and
later terminated complainant and has failed to recall him, and
concluding that the complaint filed by him is not frivolous.
The
application was accompanied by proof of notice to, and service
on, Mid-Continent Resources, Inc., by express mail, return receipt requested, on November 28, 1990.
Respondent, within 10 days following receipt of the Secretary's application for temporary reinstatement, requested a
hearing on the application pursuant to 29 c.F.R. § 2700.44Cb).

2625

On December 12, 1990, pursuant to Respondent's request, a
hearing was held before the undersigned Commission Administrative
Law Judge on the application for temporary reinstatement. The
scope of the hearing is limited to the single issue before me
which is whether Mr. Culp's complaint is frivolously brought.
Oral and documentary evidence was presented and the matter was
submitted for decision on this limited issue and a request for
an Order of Temporary Reinstatement.
The Testimony
At the hearing, Complainant presented the testimony (approximately 240 pages of as yet to be transcribed) of the Complainant
Joseph c. Culp and the testimony of Mr. Lee H. Smith, Supervisor
of Coal Mine Safety and Health Inspectors located at Glenwood
Springs, Colorado.
Undisputed evidence was presented that on August 16, 1990,
carbon monoxide ranging from 500 PPM to 660 PPM "and climbing"
was detected emanating from the 211 longwall gob. MSHA, on that
date, August 16, 1990, issued 103(b} Order No. 358626 to "assure
the safety of any person in the coal mine" until the source of
the carbon monoxide was found and extinguished or otherwise controlled.
The source was an unplanned ignition of methane in the
211 advancing longwall tailgate entry gob.
The 103(k) order,
with various amendments and modifications (Ex. R-2), was not
terminated until November 5, 1990, when it was determined that
the fire had been extinguished.
On August 18, 1990, a roaring fire with visible bright
orange flames was first observed on top of the 211 longwall gob.
Continuous unsuccesful attempts were made by Respondent to extinguish the fire with the use of water and dry chemicals.
On August 18, 1990, MSHA issued its 107(a} imminent danger
Order No. 3583688 which continued in effect with various modifications (Ex. R-1) until terminated on September 27, 1990.
The Complainant, Joseph c. Culp, testified that he had
worked as a coal miner in various mines for 10 years. On June 1,
1989, Respondent appointed Mr. Culp to the position of maintenance foreman in Respondent's Dutch Creek Mine.
He continued
working in that position until his suspension from the payroll on
August 23, 1990, followed by his discharge from the payroll on
October 15, 1990. His assigned work duties prior to the fire
included work on the surface as well as work duties underground.

2626

Mr. Culp testified that approximately "20 percent of the time or
less" he was assigned jobs involving work on the surface, such as
work on the belt system and ventilation fans.
The last day Mr. Culp worked at the mine was September 22,
1990. At that time, MSHA was allowing only 25 miners at any one
time to work underground in the mine.
Bill Porter, the acting
mine foreman, on September 22, 1990, assigned him to do maintenance work underground in support of the activity of the miners
who were fighting the fire.
Part of his work required him to be
at the fresh air base.
Mr. Culp's maintenance superintendent, Mr. Tuck, was not
underground on August 22, 1990, so Culp had to complete his shift
underground before he was able to go to the surface and talk to
Mr. Tuck.
He told Mr. Tuck of his safety concerns as well as
those of his wife's about being required to work underground during the mine fire.
Mr. Culp said it was unsafe, that no one
could guarantee that the mine is not going to blow up. Mr. Tuck
told him that his wife (Mrs. Tuck) was also concerned; £hat he
had seen the fire and that it "wasn't that bad." Mr. Culp did
not believe that it wasn't bad, in view of the mine's past history of explosions. He knew of the 1981 explosion at the mine
that killed 15 miners, including miners working outby the face as
well as inby. Mr. Culp was concerned for his safety and believed anything could happen.
He said he did not want to work
underground while the mine fire burned.
He asked to be assigned
to any work above ground.
He testified that there was work t6 be
done above ground that he had done in the past and that he was
able to do.
Work on the surface was refused. Mr. Culp asked, as
an alternative, to be allowed to go on vacation or to be laid off
without pay until the mine fire was extinguished or until he
could be assigned to work not requiring him to work underground
while the fire continued. These alternative requests by Mr. Culp
were refused.
He was told that all vacations were canceled,
except for employees already out of town, and that Respondent
needed him to do underground maintenance work in support of the
efforts of the miners fighting the underground fire.
Mr. Culp
told Mr. TUck that he liked his job and that he did not want to
quit. Mr. Tuck told him "I understand your concerns" and "you
have to do what you have to do, and I have to do what I have to
do."
Mr. Culp was scheduled to report to work the next morning,
August 23, 1990. Early that morning, he called the mine and
talked to the acting foreman Mr. Scott Jones, who told him the
fire in the mine was continuing. Mr. Culp asked him to inform
Mr. TUck that he "reported off," which is the standard procedure
required of a miner who is not coming in on a scheduled workday.

2627

Mr. Culp then got a phone call from Mr. Tuck. Mr. Culp reminded
Mr. Tuck of what he told him in their talk at the end of the
shift on August 22, 1990. Mr. Tuck acknowledged their talk but
said, "You have to come to work or be terminated." Mr. Tuck
indicated to him that all salaried employees were needed to fight
the fire, that Mr. Culp's only alternatives were to work, quit,
or be fired.
Mr. Culp testified that he did not quit his job
and, because of his concern for his safety, refused only underground work while the mine fire continued.
Mr. Tuck told Mr. Culp that he wanted him to talk to
Mr. Myers, the Personnel Director. Mr. Culp talked to the Personnel Director and told him what the situation was and of his
and his wife's safety concerns and that he did not want to quit.
He asked for work on the surface while the fire inside the mine
was continuing. Mr. Myers got back to him a few days later and
told him he was suspended without pay as of August 22, 1990.
Later he received the letter from Mr. Myers, dated September 4,
1990 (Ex. G-1), advising him that he was suspended fro~ the payroll as of August 22, 1990, pending a hearing with management.
On September 12, 1990, he had a hearing before Mr. M.J. Turnipseed, Respondent's Vice President of Operations. After the hearing, he received Mr. Turnipseed's letter dated October 11, 1990
(Ex. G-3), advising him that his (Mr. Culp's) actions "constituted a voluntary relinquishment of his position" and the severance of the employment relationship was to be effective October 15, 1990.
Mr. Lee A. Smith called by Complainant stated that since
March 12, 1990, he has been the supervisory of the coal mine
safety and health inspectors located at Glenwood Springs. He is
familiar with the mine fire in question.
The fire was under his
jurisdiction, and he was one of the coal mine inspectors at the
mine during the fire.
He was aware of the 103(k) order issued
August 16, 1990, and the 107(a) imminent danger order issued
November 18, 1990. However, no Section 103Cj) Order was ever
issued. With respect to the mine fire, the Respondent would make
proposals and MSHA would either approve the proposed plan or disapprove it. MSHA would either say "Yes" or "No." MSHA never
supervised the fire-fighting efforts but was observing it.
Respondent continued t~ be in c6ntrol of the mine.
Mr. Lee Smith stated that when he observed the fire, the
flame was bright orange, about 14.5 feet long, and 12 feet wide.
Within a limited area in the 211 longwall gob, the fire moved
around. Sometimes there was a single flame and at other times
there were multiple flames.

2628

Methane is an explosive gas. The mine had a history of liberating large quantities of methane gas and, in the past, has
been and continues to be subject to an MSHA spot inspection every
five working.days under Section 103(c} of the Act.
There have
been three mine explosions in the past. The April 15, 1981, explosion resulted in the death of 15 miners, some outby the face
area. The December 1986 explosion resulted in the death of nine
miners. There was a third explosion which fortunately did not
result in any deaths. Mr. Culp's safety concerns and belief that
working underground in the mine was hazardous while the mine fire
continued was a reasonable belief.
Documentary Evidence
The following documents were tendered by the Secretary on
behalf of Complainant and received in evidence.
1. Exhibit G-1 is a copy of a letter dated September 4,
1990, by Respondent's Personnel Director advising Mr. Ct!_lp he was
suspended from the payroll August 22, 1990, pending a hearing
with management.
2. Exhibit G-2 is a copy of a letter dated Septmber 7,
1990, notifying Mr. Culp of his hearing with management to be
held September 12, 1990, regarding his suspension.
3. Exhibit G-3 is a copy of a letter dated October 11,
1990, by Respondent to Mr. Culp incorporating management's review
of the evidence presented at the September 12, 1990, hearing.
4. Exhibit G-4 is a copy of a page from Respondent's
"Salaried Employee Handbook" given to Mr. Culp stating
No employee will be required to work under
conditions which he reasonably believes to be
dangerous beyond the normal hazards inherent
in underground mining.
5. Exhibit G-5 is a diagram showing a plan view of the
location of the 211 longwall fire.
The following documents were tendered by Respondent and,
except for Exhibit R-4, received into evidence.
1. Exhibit R-1 is MSHA's 107(a} Imminent Danger Order re
the 211 longwall fire issued August 18, 1990, and its various
modifications through September 27, 1990.

2629

2. Exhibit R-2 is MSHA's 103Ck) Order issued August 16,
1990, and its various modifications through November 5, 1990.
3. Exhibit R-3 is Respondent's summaries of MSHA's 103(k)
and 107(a) orders and their various modifications.
4. Exhibit R-4, marked for identification only, not received into evidence, consists of 200 loose pages entitled MSHA
PERSONNEL AND ACTIVITY.
5. Exhibit R-5 is a chart prepared by Respondent showing,
for the period August 16, 1990, to November 5, 1990, time lines
relating to the 211 longwall fire and MSHA's 103(k) and 107Ca)
Orders and their modification.
DISCUSSION
Under 29 C.F.R. § 2700.44(c) (1986), 30 u.s.c. § 815(C)(2)
the scope of a temporary reinstatement hearing is limited to a
determination as to whether the miner's discriminatory-complaint
is frivolously brought. Secretary of Labor on behalf of Yale E.
Hennessee v. Alamo Cement Company, 8 FMSHRC 1857-1858 (December 8, 1986).
Webster's New Collegiate Dictionary 1979 defines "frivolous"
as follows:
1

.. of little weight or importance

2 a:

b:

lacking in seriousness; irresponsibly selfindulgent
marked by unbecoming levity

Black's Law Dictionary; Revised Fifth Edition, 1979, defines
the term "frivolous" and "frivolous appeal" as follows:
Frivolous. Of little weight or importance. A pleading
is "frivolous" when it is clearly insufficient
on its face, and does not controvert the material
points of the opposite pleading, and is presumably interposed for mere purposes of delay or to
embarrass the opponent.
Frivolous appeal. One in which no justiciable question
has been presented and appeal is readily recognizable as devoid of merit in that there is little
prospect that it can ever succeed.

2630

I have carefully reviewed and considered the testimony of
Mr. Joseph c. Culp and Mr. Lee A. Smith summarized above and the
documentary evidence. I find that the record clearly raises a
non-frivolous issue as to whether Mr. Culp's discharge was in
violation of the Mine Act. I credit Mr. Culp's testimony, as
well as the testimony of Mr. Lee Smith. A viable issue was
raised as to whether Mr. Culp's refusal to work underground while
the 211 longwall gob fire continued to burn was based in part on
Mr. Culp's reasonable good faith belief that such work was hazardous or that it exposed him to the danger of serious injury or
death.
Mr. Culp's complaint is not frivolously brought. The Secretary on behalf of Mr. Culp has carried its burden of proof.
The
application for temporary reinstatement should be granted.
FINDINGS AND CONCLUSIONS
1. At all relevant times Respondent, Mid-Continent Resources, Inc., did business and operated its Dutch Creek Mine
in the production of coal and therefore is an operator within
the meaning of Section 3Cd) of the Act;
2. At all relevant times Joseph c. Culp was employed by
Respondent as maintenance foreman at Respondent's Dutch Creek
Mine, and was a miner, as defined by Section 3{g) of the Act;
3. Respondent's Dutch Creek Mine, located near Redstone;
Pitkin County, Colorado, is a mine, as defined in Section 3Ch) of
the Act, the products of which affect commerce;
4. On August 22, 1990, Joseph c. Culp had complained to
Respondent about unsafe mining conditions and practices at the
Dutch Creek Mine, specifically being required to work underground
during a mine fire, and asked to be assigned to work at the surf ace until the mine fire was extinguished;

S. Respondent, through its maintenance superintendent and
mine foreman, Robert E. Tuck, was unresponsive to these safety
complaints and, in fact, stated that it was "not all that bad";
6. Mr. Culp's requests for an alternative to working
underground in the mine while the mine fire continued, such as
working on the surface, vacation, temporary layoff without pay,
were all refused by Respondent.
7. On August 23, 1990, Joseph c. Culp was suspended from
the company payroll. He later received written notice from
Mid-Continent that his employment with Respondent was terminated
on October 15, 1990;

2631

8. Based on the evidence presented at the hearing and the
record as a whole, I find that a "viable issue" was raised as to
whether Mr. Culp's refusal to work underground in the mine that
preceded his discharge, was based in part on his reasonable good
faith belief that working underground in the Dutch Creek Mine
while the mine fire continued would expose him to an injury,
danger, and hazard.
ORDER
The application for an order of temproary resintatement of
Mr. Joseph C. Culp is GRANTED. Respondent is ORDERED to immediately reinstate. Mr. Culp to his position as maintenance foreman,
from which position he was discharged, at the same rate of pay,
and with the same or equivalent duties assigned to him immediately prior to his discharge.
As previously stated in the body of this decision, the scope
of this temporary reinstatement hearing is limited to my determination as to whether Mr. Culp's discrimination complaint is frivolously brought. The respondent will have a full opportunity to
respond, and the parties will be afforded an opportunity to be
heard on the merits of any discrimination complaint filed.
The
parties will be notified further as to the time and place of any
hearing requested.

Distribution:
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mr. Joseph C. Culp, P.O. Box 1206 (79 Clearwater Dr.), Carbondale
CO 81623
(Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, P.C., Drawer 790,
Glenwood Springs, CO 81602
(Certified Mail)
Mid-Continent Resources, Inc., P.O. Box 500, Carbondale, CO 81623
(Certified Mail)
/ek

2632

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

20006

December 20, 1990

LEO SLONE & 180 MINERS,
Complainants

COMPENSATION PROCEEDING
Docket No. KENT 90-122-C

v.
No. 1 Mine
SUN GLO COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER OF DISMISSAL

Before:

Judge Merlin

By order dated October 23, 1990, the operator's "Agreed
Order Settling" this complaint was disapproved and the operator
was ordered to file additional information in order to have the
settlement approved. As set forth in the order, the operator was
directed to provide the names of all affected miners; the number
of hours for which each of them were being compensated: the
amount of compensation paid to each miner; and signatures to the
agreement by the duly authorized representatives of the miners
and operator. On December 7, 1990, the operator filed another
"Agreed Order Settling" which sets forth the details of the
settlement as follows:
The shutdown [of the mine] at issue occurred on
March 20, 1990 at approximately 2:30 P.M. All miners
were sent home. The mine reopened at 4:00 P.M. on
March 21, 1990. The lost hours were the remainder of
the day shift on the 20th, the full evening shift on
the 20th, the full night shift on the 21st and the full
day shift on the 21st. The Complainants represent that
the stated payments fully reimburse each affected
employee for all hours lost on their scheduled shift,
including overtime. There was no reduction in the
hours payable negotiated between the parties as a
function of the settlement. Each Complainant represents that he/she ha~ beeri fully satisfied and made
whole by the Respondent's payment as described in
Exhibit A, and that this action may be dismissed.
A list of miners containing the hours and monetary
amounts of compensation was attached and both parties signed
the agreement.

2633

The order of October 23, 1990 having been complied with, I
accept the foregoing representations and approve the recommended
settlement.
Accordingly, it is ORDERED that the proposed settlement be
APPROVED and that this case be DISMISSED.

- \
\

Law Judge
Distribution:
Mr. Leo Slone, Chairman, Mine committee, 101 Jackson's Branch,
Elkhorn City, KY 41522
(Certified Mail}
Mr. c. Torn Anderson, President, Sun Glo Coal Company, Inc., P. o.
Box 280, State Route 197, Ash Camp, KY 41512
(Certified Mail}
/gl

2634

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

DEC 201990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
MICHAEL L. PRICE AND
JOE JOHN VACHA,
Complainants
and
UNITED MINE WORKERS OF
AMERICA (UMWA) ,
Intervenor

.
..
.

DISCRIMINATION PROCEEDING
Docket No. SE 87-128-D
No. 4 Mine

.

v.
JIM WALTER RESOURCES, INC.,
Respondent
.DECISION ON REMAND

Before:

Judge Broderick

STATEMENT OF THE CASE

On July 13, 1988, I issued a decision on the merits in this
case in which I conclu4ed (1) Section IIE of JWR's Drug Abuse and
Rehabilitation Control Program was on its face in violation of
section 105(c) of the Act.
I further concluded (2) that the
discharge of Price and Vacha was motivated in part because of
activity protected under the Act, but that JWR established that
they would have been discharged for unprotected activity alone
and that the drug testing program was not discriminatorily
applied to Price and Vacha. 10 FMSHRC 896 (1988). On August 20,
1990, the Commission reversed my determination that the drug
program was facially discriminatory under the Mine Act. It
affirmed my cc~clusion that Price and Vacha established a prima
facie case of discriminatory discharge. However, the Commission
determined that my decision did not fully examine and explain the
impact on JWR's affirmative defense of the evidence concerning
the pre-testing supervisory joking directed at Price and Vacha,
and the differences in procedures followed in testing Price and
Vacha from those followed at other mines. The case was therefore
remanded to me to analyze and explain the impact of this
evidence.
12 FMSHRC 1521 (1990). On August 27, 1990, I issued
an order to the parties to file briefs directed to the question
whether JWR's drug program was discriminatorily applied to Price

and Vacha.
In the meantime, JWR filed a Motion for
Reconsideration of the Commission's decision which was denied by
order issued November 28, 1990. All parties have now filed
briefs in response to my order of August 27, 1990.
FACTUAL ANALYSIS
I

JWR instituted its Substance Abuse Program on
January 1, 1987. By its terms it applied to all hourly and
salaried employees in JWR's Mining division. However, the drug
testing aspect.of the program was directed first to (a) employees
demonstrating a reasonable cause for testing and (b) employees
whose duties, "whether by job title or by reason of elected
office," involve safety.
In my decision of January 13, 1988, I
concluded that the program was not designed or intended to
interfere with safety committee members including Price and
Vacha, even though it impinged particularly on such miRers'
representatives. JWR's motive in setting up the program was not
to retaliate against Price and Vacha or other safety committee
persons, or to limit their safety rights and responsibilities.
II

The evidence shows that Price and Vacha were, and had the
reputation of being, safety activists. Both filed a number of
safety grievances, and both have had serious disputes with JWR
management over safety issues. 10 FMSHRC 903.
In the opinion of
the International Health and Safety Representative of the UMWA,
the No. 4 Mine Safety Committee was the "most active committee"
in the State of Alabama, which includes other Jim Walter mines.
III

Prior to the date that paragraph IIE was implemented
(March 2, 1987), Price and Vacha were subjected to kidding and
joking by supervisory employees in the mine safety office about
the impending drug testing.
In part this apparently resulted
from the fact that Price told the JWR safety inspectors that he
had difficulty urinating in front of others. Rayford Kelly,
JWR's industrial relations supervisor at the subject mine, was
aware of some of this.
10 FMSHRC 900. This joking was directed
at Price and Vacha because they were going to be tested. They
were going to be tested because they were safety committee
members. Whether or not the joking was intended to affect their
ability to submit the requested urine samples, the evidence
establishes that it had such an effect. There is no evidence in
the record as to any joking or harassment directed to other
safety committee members on other shifts or in other mines.

2636

IV
The urine samples program at the No. 4 Mine where Price and
Vacha worked was conducted under the supervision of the mine
safety department--by Wyatt Andrews and Bob Hendricks. Andrews
and Hendricks were of course involved in mine safety matters with
Price and Vacha in the normal course of their duties. Andrews
and Hendricks had been involved in the pre-testing joking
directed at Price and Vacha related to their claimed inability to
urinate in public described in III, above.
In the other JWR
mines, the samples were taken under the direct supervision of the
industrial relations office, and not by JWR safety personnel.
The record does not indicate the reason for this difference.

v
On March 2, 1987, Price and Vacha were informed that they
would have to provide urine samples at the end of the shift,
which extended from 7:00 a.m. to 3:00 p.m.
Price was told at
about 8:00 a.m. and Vacha at about 11:30 a.m. Andrews and
Hendricks accompanied Price and Vacha to the bathroom as they
were instructed to do, to witness the collection of the samples.
This procedure was not followed in all the other mines, in some
of which those tested were permitted to produce specimens without
an observer being present. Price and Vacha attempted to produce
a specimen on a number of occasions between 3:00 p.m. and
7:00 p.m.
Price offered to go into the bathroom naked if he
could go alone, but this offer was refused.
Price and Vacha
asked whether they could return the next morning to give the
samples, but JWR refused. At 7:30 p.m., they were formally
suspended with intent to discharge because of insubordination.
In another mine, a committeeman who was unable to produce a
sample when requested was permitted to return at the end of his
shift to do so.
In another instance, a miner being tested for
cause was permitted to return the next day to give a sample.

VI
Price and Vacha were made to feel nervous and upset by the
manner in which the testing was conducted. They did not refuse
to submit the samples but were physically or psychologically
unable to do so.
I conclude that the fact that the procedure was
supervised by those who often had an adversarial relation to them
in safety disputes, contributed to their discomfort.
I also
conclude that the past safety activities of Price and Vacha were
part of the motivation of these supervisors in their conduct of
the drug testing program.

VII
The evidence establishes that JWR's drug testing program
included a specific proviso that failure to submit urine samples

2637

when requested would result in discharge.
to all who came under the program.

This proviso applied

VIII
Price and Vacha were discharged by Rayford Kelly, Industrial
Relations Supervisor. Kelly believed that Price and Vacha
deliberately refused to provide the specimens--that they were
"playing games." Kelly was aware of the fact that the testing
was conducted by safety department supervisors, and that both
Price and Vacha claimed inability to produce specimens while
being observed. Kelly refused to permit Price to attempt to
provide a specimen without being observed by going into the
bathroom naked. He refused to accept the offer of Price and
Vacha to return the following morning to give the samples. He
was aware of at least some of the prior joking and harassment of
Price and Vacha in which Andrews and Hendricks were involved.

ISSUE
Whether the JWR Substance Abuse Program as applied to
Complainants Price and Vacha resulting in their discharge was in
violation of their rights under section 105(c) of the Mine Act?

CONCLUSIONS OF LAW
I

My conclusion in the decision issued July 13, 1988, that
Price and Vacha established a prima facie case of discriminatory
discharge was based in part on the fact that JWR sought to test
Price and Vacha because they were safety committeemen and
therefore representatives of miners, and in part on the evidence
of disparate treatment in the testing procedures shown in the
Findings of Fact III, IV, V and VI above. My conclusion that a
prima facie case of discrimination was made was affirmed by the
Commission.

II
The evidence does not establish that the pre-testing joking
and harassment directed toward Price and Vacha were related to
their safety positions or safety activities. The joking and
harassment did result in part from their claimed inability to
urinate in public, and in turn contributed to their inability to
produce the urine samples involved in this proceeding.

III
The procedures followed in testing Price and Vacha which
differed from those followed in other mines contributed to their
inability to comply with the request for urine samples. They

2638

were in part related to Price and Vacha's prior safety activities
in that they were conducted by those who bore an adversarial
relationship to Price and Vacha in mine safety matters.

IV
There is no evidence of a motive for the challenged
discharges unrelated to the drug testing matter involved in this
case. Therefore, this is not a truly "mixed motive" case. Cf.
Eastern Assoc. Coal v. Federal Mine Safety and Health Review
Commission, 813 F.2d 639, 643 (4th Cir. 1987). My prior decision
erroneously treated the case as a mixed motive case when I
concluded that JWR would have discharged Price and Vacha "for
violating a work order (not protective activity) in any event."
10 FMSHRC 910. My conclusion that the drug testing program was
not discriminatorily applied was contrary to the evidence and
erroneous. Price and Vacha were discharged for failing to comply
with JWR's drug testing program. The implementation of that
program was discriminatorily applied to Price and Vacha-.in part
because of their prior safety activities. JWR has not established
that it would have discharged Price and Vacha for unprotected
activity alone, i.e., without reference to the implicated drug
testing program. Therefore their discharges were in violation of
section lOS(c) of the Mine Act.
ORDER

Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Respondent shall permanently reinstate Michael L. Price
and Joe John Vacha to the positions from which they were
discharged on March 2, 1987.
2. Respondent shall pay Complainants Price and Vacha within
30 days of the date of this decision all back wages and other
benefits from March 3, 1987, until the date of their
reinstatement, with interest thereon in accordance with the
Commission decision in Local Union 2274, UMWA v. Clinchfield Coal
co., 10 FMSHRC 1493 (1988) calculated proximate to the time
payment is actually made.
3. Respondent shall expunge from its personnel records all
references to the discharges of Price and Vacha on March 2, 1987.
4. Respondent shall restore to Price the three days of
graduated vacation pay he took to attend the hearing.

2639

5. Respondent' shall pay to the Secretary within 30 days of
the date of this decision the sum of $500 as a civil penalty for
the violation found herein.

f

'

j

I

df/vt.L!>

.-• . '

.. · /

·'

;

.-;,

/~/_;;?,(_£/{.,I./[:!__.
~

•-'/

.

James A. Broderick
Administrative Law Judge

Distribution:
Colleen A. Geraghty, Esq., U.S. Department of Labor, Office of
the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
Robert K. Spotswood, Esq., John W. Hargrove, Esq., Bradley,
Arant, Rose & White, 1400 Park Place Tower, Birmingham, AL 35203
(Certified Mail)
Patrick K. Nakamura, Esq., Longshore, Nakamura & Quinn, 2101 City
Federal Bldg., Birmingham, AL 35203 (Certified Mail)
Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, D.C. 20005 (Certified Mail)
slk

2640

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

22041

OEC 201990
COMPENSATION PROCEEDING

ROY FARMER AND OTHERS,
Complainants

v.

Docket No. VA 91-31-C

ISLAND CREEK COAL COMPANY,
Respondent

VP-3 Mine

ORDER OF DISMISSAL
Before:

Judge Broderick

on November 2, 1990, Applicant Roy Farmer, Miner
Representative, filed on behalf of himself and some 275 other
miners at the Virginia Pocahontas No. 3 Mine of Respondent a
claim for compensation under section 111 of the Mine Act. The
claim covers the period April 17 through April 20, 1990, when the
employees were said to have been idled fqllowing a section 107(a)
imminent danger withdrawal order accompanied by a section 104(a)
citation charging a violation of a mandatory health and safety
standard. Copies of the order and citation accompanied the claim
for compensation.
Island Creek filed an Answer on November 28, 1990, and a
Motion to Dismiss on November 30, 1990.
The Motion to Dismiss argues that the case should be
dismissed because it was filed 198 days from the date of the
claimed entitlement, and Commission Rule 35, 29 C.F.R. § 2700.35
requires that a complaint for compensation shall be filed within
90 days after the co:rnritencement of the period the Complainants are
idled or would have been idled as a result of the order which
gives rise to the claim.
Complainants have not replied to the Motion.
Because the complaint appears to have been filed
substantially later than.Rule 35 permits, and Complainants have
not advanced any excuse or justification for the late filing, I
conclude that the motion should be granted.

2641

Therefore, IT IS ORDERED that the claim for compensation and
this proceeding are DISMISSED.
1

.(•)

!: - ,'

,
:
,..:/! • ,,,. r ·"
11(,,-:,:i...,;;'
.:;, • 'rf-.,
~- : _.,· ,_._.. i,·C(z_
James A. Broderick
Administrative Law Judge
I

•

,

Distribution:
Mr. Roy Farmer, Miner Representative, Island Creek Coal Company,
P.O. Box 63, Swords Creek, VA 24649 (Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail)
Island Creek Coal Company, Drawer L, Oakwood, VA 24631 (Certified
Mail)
Marshall s. Peace, Esq., Island Creek Coal Company, P.O. Box
11430, Lexington, KY 40575 (Certified Mail)
slk

2642

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

22041

DEC 201990
CONTEST PROCEEDING

CONSOLIDATION COAL COMPANY,
Contestant

v.

Docket No. WEVA 91-56-R
Citation No. 3306262;
10/15/90

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

Blacksville No. 2 Mine
Mine I.D. 46-01968
DECISION

Appearances:

Before:

Walter J. Scheller, III, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania, for the
Contestant; Glenn Loos, Esq., U.S. Department of
Labor, Office of the Solicitor, for the Respondent.

Judge Weisberger

This case is before me based upon a Notice of Contest and
Application for Extension of Abatement, and a Motion for
Expedition of Proceedings all of which were filed by the Operator
(Contestant) on November 15, 1990. Pursuant to telephone
conference calls between the undersigned and counsel for both
Parties on November 15 and November 16, 1990, this case was
scheduled for hearing and was subsequently heard on November 20,
1990, in Morgantown, West Virginia. At the hearing, Spencer
Allan Shriver and Paul Michael Hall, testified for the Secretary
(Respondent), and Robert Church, Charles E. Bane, Sr., and John
F. Burr, testified for Contestant. At the conclusion of the
hearing, counsel for Contestant requested an allowance of 7 days
subsequent to the receipt of the transcript to file a brief.
Subsequent to a discussion, it was agreed that the Parties would
file Briefs by December 6, 1990, and Briefs were timely filed by
the Parties. The Parties waived the right to file a Reply Brief.
FINDINGS OF FACT AND DISCUSSION
I.

Spencer Allan Shriver, an electrical engineer employed by
MSHA, testified that he had visited the subject mine on
October 12, 1990, to investigate an accident. Upon
investigation, Shriver was informed that a short circuit had
occurred in the controller box of a locomotive at the mine,

2643

burning a hole in its steel cover and blowing out some hot gases
that burned the locomotive operator, Robert Fetty. Charles Wise,
who was in the locomotive compartment along with Fetty, told
Shriver that he had removed the fuse from its holder on the
trolley pole, and installed a spare 300 ampere (amp) fuse that he
had located in the trolley. According to Shriver, Wise then
replaced the trolley pole on the wire, its power source, thus
enabling him to operate a radio. Wise next notified the traffic
dispatcher that Fetty had been injured and that the locomotive
was disabled. Wise then proceeded with the locomotive to the
bottom. When he was about 100 yards from the bottom he put the
locomotive onto a spur, at which time a second short circuit
developed.
According to Shriver, and not contradicted by Contestant,
Wise had indicated to Shriver that he (Wise) was not a certified
electrician. Shriver then issued a Section 104(a) alleging a
violation of 30 C.F.R. § 75.511 which repeats the language of
Section 305(f) of the Federal Mine Safety and Health AGt of 1977
(the Act), which, as pertinent, provides:
No electrical work shall be performed on low-,
medium-, or high-voltage distribution
circuits or equipment, except by a qualified
person or by a person trained to perform
electrical work and to maintain electrical
equipment under the direct supervision of a
qualified person.
It is undisputed that Wise was not a qualified person, as
defined by the Regulations (30 C.F.R. § 75.512), nor a person
trained to perform electrical work, and that Wise in fact did
remove a blown fuse and replace it with an unblown fuse.
Thus
the issue for resolution is whether § 75.511, supra, applies to
the facts presented herein.
In other words, it must be resolved
whether "electrical work" encompasses the changing of a fuse on a
trolley pole.
For the reasons that follow I conclude that it
does not.
II.
The physical acts involved in removing a fuse and replacing
it with another one is depicted in a video that was shown at the
hearing.
(Operator's Exhibit 3). Essentially, in replacing a
fuse, the first step is to remove the trolley boom from the power
line, its sole power source. This act is performed regularly by
operators of trolleys who are not qualified electricians. The
next step is to unwrap the tape which holds the fuse holder to
the boom.
The cover cap is then unscrewed from the fuse holder

2644

revealing the fuse connector and the fuse.
These two items are
pulled apart, and the fuse is then pulled out and replaced with
another fuse. A fuse with an amperage rating which is not the
same as the ~ne that had been replaced, will not fit in the same
fuse holder.
The term "electrical work", is defined in neither the Act
nor in the appropriate Regulations (30 C.F.R. et. ~),
Respondent's and Contestant's witnesses essentially agreed that
there is no recognized definition in the mining industry of the
term "electrical work", and that it has usually been defined by
example.
Section 48-7-2.l(b) (14) of Title 48 of the Code of State
Rules of West Virginia (48 C.S.R. § 48-7-2.l(b) (14)), in
interpreting West Virginia Code § 22A-2-40(19) which contains the
same language as Section 75.511, supra, lists as an example of
work that is not required to be perf orrned by an electrician or
apprentice electrician as follows:
"Replace blown fuses on
trolley poles and nips." On the other hand, an MSHA publication,
Coal Mine Inspection; Underground Electrical Inspections,
effective June 1, 1983, sets forth as an example of work required
to be performed by a qualified person or a person trained to
perform electrical work, the following:
1. 11 1.2 Replacing blown
fuses;" (Govt. Exhibit 7, pg. 3). Also, the MSHA Program Policy
Manual, dated July 1, 1988, contains the same example (Govt.
Exhibit 6). Although weight is to be accorded the Secretary's
interpretation of Regulations, 1; the interpretation clearly is
not binding where it is not reasonable 2 ; especially in light of
the fact that a prior Manual dated March 9, 1978, did not include
the changing of fuses as an example of electrical work (Exhibit
0-14).
In the same fashion, a letter dated October 25, 1979,
from Joseph O. Cook, Administrator for Coal Mine Safety and
Health, MSHA, to District Managers, Coal Mine Safety and Health,
indicates that the letter was written in response to request for
an interpretation of "electrical work," and advises that
"electrical work'' is generally considered to be the work required
to install or repair electric equipment or conductors. The
changing of fuses is not listed among the examples of electrical
work set forth in the memorandum.
(Exhibit 0-8).

1;
See the legislative history and cases cited in
Respondent's Brief at pages 15~16.

2;
See, Miller v. Bond 641 F 2d 997, 1002 (D.C. Cir. 1981);
See also, King Knob Coal Co., 3 FMSHRC 1417, 1420 n.3 1981).

2645

III.
In evaluating whether electrical work encompasses replacing
blown fuses on trolley poles, an inquiry is appropriate as to
what a reasonably prudent person familiar with the mining
industry and the protective purpose of this section would have
concluded with regard to its applicability.
(See, Ideal Cement
Company, Docket No. WEST 88-202-M, 12 FMSHRC
(slip op.,
November 27, 1990.)) This inquiry requires, as a first step, an
analysis of the hazards, if any, involved in allowing
nonqualified personnel to change blown fuses on trolley poles.
According to Shriver, if a fuse blows, it is reasonably
likely that a short circuit had occurred in the equipment
protected by the fuse. Accordingly, if an uncertified person
replaces the fuse and reenergizes the circuit without inspecting
the protected equipment, a short circuit may reoccur causing an
injury due to the extremely high temperature of an electrical
arc. He thus concluded that changing fuses is to be considered
electrical work, as the equipment protected by the fuse should be
evaluated by a certified person before the fuse is replaced, in
order to avoid the possibility of an injury.
However, as he
conceded upon cross examination, there are no regulatory
requirements requiring a certified electrician to examine
effected equipment to determine the cause of a blown fuse.
Indeed Shriver conceded upon cross examination that a
nonqualif ied electrician would not be performing electrical work
if he were to remove a trolley pole from its wire, remove its
fuse, give it to a mechanic and then replace it upon being
advised that the fuse is still good. He also conceded that
placing a fuse in an empty fuse holder is not electrical work.
Thus, as per Shriver's testimony, the act of replacing a blown
fuse can be performed by a noncertif ied as well as a qualified
electrician.
Also, Shriver indicated, in essence, that a circuit breaker,
which performs the same function as a fuse, can be reset by a
nonqualified person. Hence, according to Shriver's testimony,
the resetting of the breaker is not electrical work. Shriver
distinguished a circuit breaker from a fuse by indicating that a
fuse can carry more than a hundred percent of its amperage rating
for a few minutes. Thus an injury is possible, if a fuse is
replaced without first checking the equipment for a short
circuit. Shiver explained that, in contrast, a circuit breaker
can tolerate amperage only a few percents above its rating and
then will immediately operate and shut off power. However, the
effect of this distinction is diluted, inasmuch as Shriver
conceded that, essentially, in some conditions a breaker can be
reset, and yet power would still remain on, resulting in a
situation that could cause a cable to blow up.

2646

Paul Michael Hall, the Chief Engineer of MSHA District 3,
essentially agreed with the assessment of Shriver that a
nonqualified electrician could, by mistake, replace a blown fuse
with a fuse of the wrong size which would result in inadequate
overload and short circuit protection. He explained that, should
this occur in the event of an overload, there would be a
possibility that high amounts of current would continue to flow,
causing a fire.
However Respondent did not impeach or rebut the
testimony of Robert Church, Contestant's Safety Supervisor, that,
in essence, it would not be physically possible for a
nonqualified person to place a wrong fuse in the fuse holder on
the trolley pole. He indicated that a smaller sized fuse would
go into the holder, but would not make a ground contact. He also
indicated that larger fuses, such as those rated for 60 or 90
amps, would not fit into the connector for the trolley fuse due
to their size or configuration. Further, he indicated that
although a 100 amp fuse is the same dimension as the 300 amp fuse
in issue, they are clearly not interchangeable as, according to
his uncontradicted testimony, the ends of the fuses are~
different, i.e., the 100 amp is round and the 300 amp fuse in
question contains a metal part that protrudes from its end. 3/
In essence, Hall opined that a qualified electrician is
required to replace a fuse 11 • • • to assure that equipment was
II
going to be maintained in a safe operating condition, . • .
(Tr. 103). He further indicated that if a short circuit in the
controlle~ occurs and a fuse blows, the controller should be
repaired by qualified personnel before the blown fuse is
replaced. However, upon cross examination, he indicated that
resetting a circuit breaker is not electrical work, and, in
essence, had the trolley pole in issue contained a breaker rather
than a fuse, a qualified person would not have been required to
reset the breaker in spite of the fact that there was a short
circuit in the controller. Hence, I find that it is totally
inconsistent for Respondent to maintain that (1) replacing a
blown fuse is electrical work on the ground that the controller
containing a short circuit must first be repaired, but on the
other hand (2) had a circuit breaker been used, resetting it
would not have been considered electrical work, even though the
controller should be examined and repaired.
In other words, if,
in the circumstances presented herein, resetting a circuit

3;
See, for illustrative purposes, a comparison between
Exhibits 0-7 and 0-8.

2647

breaker is not considered electrical work, then similarly,
replacing a blown fuse, in the same circumstances, should also
not be considered electrical work.
Hall opined that the replacing of fuses is hazardous in a
situation where more than one type of fuse is contained in a box
and one is replaced while the other still is live. Not much
weight is accorded this opinion, as it is not relevant to the
situation herein, which involves a single fuse holder containing
one fuse.
In essence, Hall asserted that a qualified person would
generally be more aware of the hazards in replacing a fuse.
However, in weighing the hazards of a possible electrical shock
to a nonqualified person, it is significant to note, as explained
by Church, that the hazard of an electrical shock attendant upon
the act of changing a fuse, is the same as that involved in
placing a trolley pole off or on the trolley wire, its power
source. As indicated by John F. Burr, Respondent's manager of
maintenance, this is a task performed regularly by trolley
operators upon reversing direction. Hence, to have such a person
replace a blown fuse would not expose him to any additional
hazard.
Specifically, Hall indicated a qualified person would be
more aware of the need to ensure that the pressure plates
containing the fuse would exert the proper pressure on the fuse.
However, both the Program Policy Manual,
and the Coal Mine
Inspection Manual: Underground Electrical Inspections, (Govt.
Exhibits 6 and 7), list as electrical work "replacing blown
fuses."
(Emphasis added.) Accordingly, as conceded by Shriver
upon cross examination, inserting an unblown fuse into an empty
holder, or removing an unblown fuse, examining it, and replacing
it, would not be considered electrical work. Hence, the
distinction between the electrical work and nonelectrical work,
with regard to replacement of fuses, cannot stem from the hazards
dependent upon the physical acts in replacing a fuse, as these
are the same whether the fuse is blown or unblown.
I thus conclude that the record fails to establish the
existence of hazards, of more than a minor degree, attendant upon
a nonqualified person being permitted to change a fuse.
Accordingly, the record is insufficient to support a finding that
a reasonably prudent person would have concluded that this work
is "electrical work."
IV.
In evaluating whether a reasonably prudent person would
consider the changing of a blown fuse on a trolley pole to be
nonelectrical work, and allow a nonqualified person to change the
fuse, an analysis must be made of the hazards attendant upon

2648

requiring such an action to be taken only by a qualified
person. 4 ;
If a fuse on a trolley is blown, electricity from the
trolley wire would not be available to the trolley. Hence, the
trolley phone which gets its power from the trolley wire, would
be inoperable. Accordingly, communication from the trolley to
the dispatcher would not be possible. Hence, if the trolley
operator, a nonqualified person, could not change the blown fuse,
he would be forced to abandon the vehicle and walk up to a mile
to find a telephone to call for a qualified person to change the
fuse. A trolley which has been so abandoned would be without
power and accordingly, would not have any lights on. 5 Hence, a
4;
I am not unmindful of the diminution of safety cases
relied upon by the Respondent at pages 10-12 of its' Brief.
I
find they are inapplicable, as in each case the operator sought
to be relieved from complying with a mandatory standard on the
ground that an action explicitly required by a standard would
lead to a diminution of safety.
In contrast, in the present case
the issue is whether a standard, whose terms are not totally
unambiguous, is to be applied to the specific situation presented
herein.
In resolving this issue, an inquiry must be made as to
whether the terms of the standard encompass the alleged violative
practice. Specifically, it must be resolved whether "electrical
work" encompasses the act of replacing a blown fuse on a trolley
pole. Certainly one of the factors that can be taken into
account, in this contest proceeding, is an analysis of the
hazards attendant upon the placement of this act within the
purview of electrical work.
In contrast, in Pennsylvania
Allegheny Coal Company, Inc., 3 FMSHRC 1392 (1981), the sole
basis for the Operator's position that it was not liable for
violating a mandatory standard, was an assertion of diminution of
safety. The Commission held that inasmuch as the Operator has
not sought modification under Section lOl(c) of the Federal Mine
Safety and Health Act of 1977 (the Act), that it was precluded
from raising a defense of diminution of safety in an enforcement
proceeding.
In the instant case, Contestant has filed a petition
for modification which has not yet been resolved. Accordingly,
in considering whether the undefined, and thus not unambiguous
terms of the standard at issue are to be applied to the acts in
issue, it must be determined if such an application is
reasonable.
In making such a determination, one of the factors
to be considered is the hazard attendant upon such an
application.
Further, this factor can clearly be considered as
the Petition for Modification has not yet been resolved.
(See,
Sewell Coal Company, 5 FMSHRC 2026 n.3, (1983)).
5;
Contestant's transportation vehicles are equipped with
reflectors, that, if clean, can be seen for 700 to 800 feet along
a straight track. However, in the mine in question, the track
contains curves, and according to Charles E. Bane, Sr.,

2649

vehicle traveling behind the trolley, such as one carrying cars
filled with coal, would run a risk of crashing into the
nonoperative trolley and possibly derailing it, which could cause
roof supports to be knocked out. Moreover, if the trolley was
being used to transport an injured miner, medical treatment would
be delayed, by requiring the nonqualified operator to wait for a
qualified person to change the fuse.
Hence, I find that a reasonable prudent person familiar with
the mining industry and protective purposes of the Act, would
conclude that the hazards attendant upon requiring only a
qualified person to change a blown fuse on a trolley pole
outweighs the hazards involved in allowing such a person to
perform this task.
For all the above reasons, it is concluded that having a
nonqualif ied person replace a blown out fuse on a trolley pole
does not violate Section 75.511, supra. 6;
Thus the Notice of
Contest is SUSTAINED and IT IS ORDERED that Citation No. 3306262
be DISMISSED.

~ei~

Administrative Law Judge

Distribution:
Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol
Plaza, Pittsburgh, PA 15241-1421 (Certified Mail)
Glenn M. Loos, Esq., Office of the Solicitor, U. s. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
dcp

Contestant's Regional Manager of Safety, the Morgantown mines
have grades of up to 2 to 3 percent. Also the main line in the
mine in question is not lit.
6;
In light of this conclusion, it is not necessary to
decide whether the time for abatement can be extended.

2650

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

DEC 2 71990

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 90-21-M
A.C. No. 41-03425-05506

v.
C & C CRUSHED STONE, INC.,
Respondent

Docket No. CENT 90-68-M
A.C. No. 41-03425-055o.:7
C & C Quarry
DECISION

Appearances:

Sarah D. Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for the
Petitioner;
Mr. Carl Chaney, C & C Crushed Stone, Inc.,
Route 1, Box 16, Burton, Texas, for the
Respondent.

Before:

Judge Fauver

The Secretary seeks civil penalties for eight alleged safety
violations under § llO(a) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Findings of Fact
and additional findings of fact in the Discussion below:
FINDINGS OF FACT
1. Respondent owns and operates a quarry and plant, known
as C & C Quarry, in Washington County, Texas, where it mines,
processes and sells crushed stone with a regular and substantial
effect on interstate commerce.
2.

Respondent is a small size mine operator.

2651

August 9, 1989, Inspection
3.
Federal Mine Inspector Robert R. Lemasters inspected the
quarry and plant around 8:30 a.m., August 9, 1989. When he
reached the scale house, the plant was operating, producing
crushed stone.
In a few minutes, the plant conveyor and crushing
operation was turned off. When Inspector Lemasters reached the
conveyor and stone-crushing operation at the plant, he found that
the guards for the tail pulley on the main feed conveyor, for the
tail pulley on the sand belt, for the V-belt drive on the
stockpile belt, and for the conveyor to the shaker, were removed
from the machinery. They were nearby, but had been removed and
not reinstalled.
4.
Because of the missing guards, Inspector Lemasters
issued citation Nos. 3282571, 3282572, 3282573, and 3282574, each
charging a violation of 30 C.F.R. § 56.14112(b), which provides:
(b)
Guards shall be securely in place while
machinery is being operated, except when testing or
making adjustments which cannot be performed without
removal of the guard.
5. The missing guards were designed to guard pinch points
of moving belts, axles, and other moving parts. Employees
regularly cleaned up spillage in close proximity to the pinch
points while the machinery was running. Without the guards, the
employees were exposed to a substantial and significant hazard of
becoming entangled in the moving parts or coming into contact
with them, with a reasonable likelihood of serious injury.
6. Respondent's president, manager and principal owner -Mr. Carl Chaney -- knew about the requirements of 30 C.F.R.
§ 56.14112(b), and in prior inspections had been cautioned by
MSHA inspectors to keep the guards on the machinery whenever the
machinery was operating.
7. The plant had recently been shut down for repair of an
engine, but the repair work had been completed before August 9,
1989, and the plant was operating on August 9, 1989.
8. When Inspector Lemasters saw the plant operations on
August 9, 1989, Respondent was not running the conveyor and
crusher operation in order to test or adjust the equipment, but
was running it to produce crushed stone.
9.
Inspector Lemasters observed that the Euclid R-25 end
dump truck No. 1 did not have adequate brakes. He issued
Citation No. 3282575 for this condition, charging a violation of
30 C.F.R. § 56.14101(a), which provides:

2652

§

56.14101

Brakes

(a) Minimum requirements.
(1)
Self-propelled
mobile equipment shall be equipped with a service brake
system capable of stopping and holding the equipment
with its typical load on the maximum grade it travels.
This standard does not apply to equipment which is not
originally equipped with brakes unless the manner in
which the equipment is being operated requires the use
of brakes for safe operation. This standard does not
apply to rail equipment
(2)
If equipped on self-propelled mobile
equipment, parking brakes shall be capable of holding
the equipment with its typical load on the maximum
grade it travels.
10. The dump truck was used on a steep ramp and other
grades.
Its defective brakes created a serious hazard to the
driver and others.
11. Inspector Lemasters observed that Euclid R-25 end dump
truck No. 2 did not have an operable backup alarm. This defect
created a serious hazard of striking a pedestrian or vehicle
while operating the dump truck in reverse. The inspector issued
Citation No. 3282576, charging a violation of 30 C.F.R.
§ 56.14132(b), which provides that, when the driver has an
obstructed view to the rear, self-propelled mobile equipment
shall have an audible backup alarm or an observer to signal when
it is safe to backup. The dump truck had a substantial area of
obstructed view to the rear, and Respondent did not use an
observer to signal the driver when operating in reverse.
December 13, 1989, Inspection
12. Federal Mine Inspector Steven R. Kirk inspected the
quarry and plant around 1:30 p.m. on December 13, 1989. He
observed the conveyor and crusher operating and producing crushed
stone. Guards were missing for the tail pulley on the twin jaw
crusher return conveyor and for the tail pulley for the discharge
conveyor belt. The inspector issued Citation Nos. 3445581 and
3445582, charging violations of 30 C.F.R. § 56.14112(b).
13. The missing guards were designed to guard pinch points
of moving belts, axles, and other moving parts. Employees
regularly cleaned up spillage in close proximity to the pinch
points while the machinery was running. Without the guards, the
employees were exposed to a substantial and significant hazard of
becoming entangled in the moving parts or coming into contact
with them, with a reasonable likelihood of serious injury.

2653

DISCUSSION WITH FURTHER FINDINGS
Mr. Chaney was not at the plant when Inspector Lemasters
observed the plant operating and observed the missing guards on
August 9, 1989. He suggested at the hearing that the plant was
in the process of starting up on August 91 and was not
operational on that date. However, he did not present any
witnesses to prove that contention and Inspector Lemasters gave
eye-witness testimony that the plant was operating and producing
crushed stone.
The inspector's testimony is supported by the undisputed
evidence that in the next inspection, on December 13, 1989, the
plant was operating and guards were missing, indicating a pattern
that Respondent was not careful about keeping the guards
installed when the plant was operating.
Respondent has demonstrated a poor safety attitude
respecting the guard safety standard in 30 C.F.R. § 56.14112(b).
Mr. Chaney's attitude appears to be that the guards are not
necessary because his employees are not "so ignorant that they
would put their fingers in moving parts." This opinion overlooks
the serious risk of an employee falling or otherwise accidentally
coming into contact with an exposed moving part. Accidents are
not simply a test of alertness, but may happen to anyone if
safety standards are not followed.
Considering the prior notice given to Mr. Chaney concerning
the guard safety standard in inspections before August 9, 1989,
and considering all of the criteria for civil penalties in
§ llO(i) of the Act, I find that the government's proposed
penalties for the August 9, 1989, violations of 30 C.F.R.
§ 56.14112(b) are reasonable.
The violations of vehicle safety standards on August 9,
1989, i.g., the defective brakes and backup alarm, are serious
and due to plain negligence.
Both violations were readily
detectable by ordinary care in checking the vehicles. The
penalties proposed by the government for these violations are
reasonable.
The two remaining violations -- missing guards on tail
pulleys on December 13, 1989 -- reflect a very poor safety
attitude by the operator concerning the safety guard standard.
Al though Respondent may not agree with the wisdom of the. statute
or of this particular safety standard, it is not at liberty to
violate the guard safety standard in a "catch as catch can"
approach to MSHA inspections.
It must be deterred from violating
the safety standards when an MSHA inspector is not on the scene.
The unnecessary and unjustified risk to its employees in this
case warrants a deterrent penalty higher than the penalties
proposed by MSHA.
Considering this and all the criteria for

2654

civil penalties in § llO(i) of the Act, I find that a civil
penalty of $200 for each of the two December 13, 1989, violations
is appropriate.
In summary, Respondent is assessed the following civil
penalties:
Citation

civil Penalty

$ 74
$ 74
$ 74
$ 74
$ 91
$ 91

3282571
3282572
3282573
3282574
3282575
3282576
3445581
3445582

$200
$200
$878
CONCLUSIONS OF LAW

1.

The judge has jurisdiction in these proceedings.

2.
Respondent violated the safety standards as alleged in
Citation Nos. 3282571, 3282572, 3282573, 3282574, 3282575,
3282576, 3445581, and 3445582.

ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the above
civil penalties of $878 within 30 days of the date of this
decision.

tJ;;J,.,.,;.,.7~ . . . . . . .

William Fauver
Administrative Law Judge

Distribution:
Sarah D. Smith, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Carl Chaney, C & C Crushed Stone, Inc., Route 1, Box 16,
Burton, TX 77835 (Certified Mail)
/fb

2655