OCTOBER 1986
COMMISSION DECISIONS
10-14-86

Fife Rock Products Company, Inc.

WEST 85-141-M

Pg. 1503

Beth Energy Mines, Inc.
PENN 86-162
Krieger Coal, Inc.
PENN 86-197
United States Steel Mining Co.
PENN 86-214
Sec. for Andrew Dubetsky v. Barnes & Tucker Co. PENN 86-227-D
Allentown Cement Company, Inc.
PENN 86-229-RM
Consolidation Coal Company
WEVA 86-112
Peabody Coal Company
LAKE 83-73
Columbia Portland Cement Co.
LAKE 86-38-M
Dennis Ayres v. Fairpoint Coal Co.
LAKE 86-65-D
K C Mining Company
SE
86-62
Brubaker-Mann Incorporated
WEST 85-157-M
Amax Chemical Corporation
CENT 84-68-M
Greenwich Collieries
PENN 85-204
PENN 86-287-R
Bethenergy Mines, Inc.
Sec. Labor for DuWayne Schafer v. Consolidation CENT 85-89-D
Coal Company
Lonnie Smith v. Reco, Inc. & Dillard Smith v.
VA 86-7-D
Reco, Inc.
VA 86-9-D
River Cement Company
CENT 86-91-M
River Cement Company
CENT 86-127-M
Helvetia Coal Company
PENN 86-193
Sec. Labor for John Bushnell v. Cannelton
WEVA 85-273-D
Industries, Inc.
Tony Wiley v. Samoyed Energy Co., Inc.
KENT 86-99-D
Jim Walter Resources, Inc.
SE
86-111
Sanders Construction, Inc.
WEST 86-86-M

Pg. 1507
Pg. 1509
Pg. 1511
Pg. 1512
Pg. 1513
Pg. 1519
Pg, 1521
Pg. 1522
Pg. 1523
Pg. 1527
Pg. 1529
Pg. 1533
Pg. 1535
Pg. 1567
Pg. 1568

ADMINISTRATIVE LAW JUDGE DECISIONS
10-01-86
10-01-86
10-01-86
10-01-86
10-01-86
10~01-86

10-02-86
10-03-86
10-09-86
10-09-86
10-09-86
10-16-86
10-16-86
10-16-86
10-17-86
10-17-86
10-20-86
10-20-86
10-21-86
10-21-86
10-24-86
10-24-86
10-31-86

Pg. 1592
Pg. 1599
Pg. 1602
Pg. 1605
Pg. 1607
Pg. 1611
Pg. 1616
Pg. 1618

OCTOBER 1986
The following case was granted for review during the month of October:
Martha Perando v. Mettiki Coal Corporation, Docket No. YORK 85-12-D.
(Judge Melick, September 9, 1986)
Secretary of Labor, MSHA v. Fife Rock Products Co., Inc., Docket No.
WEST 85-141-M. (Judge Morris, Default Decision, September 15, 1986)
Review was denied in the following case during the month of October:
Secretary of Labor on behalf of Ronnie Beavers, etc. v. Kitt Energy
Corporation , Dodket No. WEVA 85-73-D. (Judge Maurer, September 10, 1986
decision pending final order. Petition was ruled premature).

COMMISSION DECISIONS

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

October 14, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 85-141-M

v.

FIFE ROCK PRODUCTS COMPANY,
INCORPORATED

BEFORE:'

Ford, Chairman; Doyle and Lastowka, Commissioners
ORDER

BY THE COMMISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982), Commission
Administrative Law Judge John J. Morris issued "ii'"""decision on September 15,
1986, finding Fife Rock Products Co., Inc. ("Fife") in default, affirming
a citation issued for an alleged violation of 30 C.F.R. § 56.5-7 (1984),
and assessing a civil penalty of $600. After the judge's decision was
issued, Fife filed with the judge a request that the decision be stayed
and the matter be reheard. We deem Fife's request to constitute a
petition for discretionary review which we hereby grant. For the reasons
that follow, we vacate the judge's decision, and remand for further
proceedings.
The case commenced when the Secretary of Labor filed a Proposal for
Penalty proposing that Fife be assessed a civil penalty of $600 for an
alleged violation of section 56.5-7. The matter was assigned to Judge
Morris. After unsuccessful settlement negotiations between the Secretary
and Fife, the judge issued a Notice of Hearing on June 2, 1986, setting
a hearing for August 12, 1986, in Salt Lake City, Utah. When Fife did
not attend the hearing, the judge orally found Fife in default and
assessed a penalty of $600 for the violation. In his written decision
of September 15, 1986, the judge confirmed his ~ntry of default and his
penalty assessment. Subsequently, on September 22, 1986, Clifford P.
Woodward, Fife's General Manager, sen.t to Judge Morris a letter that
stated in part: "Having received a copy of your 'Decision and Order'
dated September 15, 1986, it is apparent to us that we were not aware of

1503

the hearing set for August 12, 1986." Fife requested that "the decision
be stayed and that all parties ••. be heard through a rehearing of
the case." By letter dated September 25, 1986, Judge Morris informed
Fife that his jurisdiction had terminated and forwarded Fife's request
to the Commission. Fife's letter was received by the Commission's
Docket Office on September 29, 1986.
The judge correctly indicated that his jurisdiction in this matter
terminated when his decision was issued on September 15, 1986. 29 C.F.R.
§ 2700.65(c).
The Commission has observed repeatedly that default is a
harsh remedy and that if a defaulting party can make a showing of adequate
or good cause for a failure to respond to an order or notice, the failure
may be excused and appropriate proceedings on the merits permitted. See
M.M. Sundt Construction Co., 8 FMSHRC
, No. CENT 86-6-M, slip op. a~
3. (September 15, 1986), and authorities cited. Fife has alleged that
it did not receive the judge's June 23, 1986 notice of hearing and was
unaware of the August 12, 1986 hearing. 1/ Fife is also proceeding
without benefit of counsel. We conclude-that in the interest of justice,
Fife should have the opportunity to present its position to the judge.
M.M. Sundt, supra, slip op. at 2-3.

1/
The June 2, 1986 notice of hearing claimed not to have been received
appears to have been mailed to the parties by regular first class mail.
The Commission's procedural rules do not mandate service of a notice of
hearing by registered or certified mail, return receipt requested.
However, in view of the recent questions raised both here and in M.M.
Sundt Construction Co., regarding whether proper service has occurred,
the Commission's judges should consider the advisability of serving
notices of hearing and orders to show cause issued pursuant to Commission Procedural Rule 63(a), 29 C.F.R. § 2700.63(a), either by registered
or certifi~d mail, return receipt requested, or by both regular first
class mail and registered or certified mail, return receipt requested.

1504

Accordingly, the judge's decision is vacated and this matter is
remanded for further proceedings consistent with this order. 2/

2/
Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves a panel of three members to exercise the·
powers of the Commission in this matter. Further, Fife is reminded to
serve the Secretary with copies of all its correspondence and other
filings in this matter. 29 C.F.R. § 2700.7.

1505

Distribution
Clifford P. Woodland, Gen. Mgr.
Fife Rock Products Co.
P.O. Box 479
Brigham City, Utah 84302
Margaret A. Miller, Esq.
Office of the Solicitor
U.S. Department of Labor
1585 Federal Bldg.
1961 Stout St.
Denver, Colorado 80294
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
40.15 Wilson B.lvd.
Arlington, VA 22203
Administrative Law Judge John Morris
Federal Mirie Safety and Health Review Commission
333 West Colfax Avenue, Suite 400
Denver, Colorado 80204

1506

ADMINISTRATIVE LAW JUDGE DECISIONS

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

October 1, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

.

Docket No. PENN 86-162
A.C. No. 36-00840-03579

v.
Cambria Slope Mine 33

BETH ENERGY MINES, INC.,
Respondent

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement
of the one violation involved in this case. The originally
assessed penalty was $259. The proposed settlement is for
$125.
The Solicitor's motion discusses the violation in light
·of the six criteria set forth in section llO(i) of the
Federal Mine Safety and Health Act of 1977. Order No.
2688594 was issued for violation of 30 C.F.R. § 75.303(a)
because the No. l Bleeder Room had not been examined within
three hours before the start of a shift, as required by the
operator's ventilation plan. The Solicitor represents that
a reduction in the proposed penalty is justified because
both gravity and negligence were less than was originally
thought. The ventilation plan required that all active
workings and all adjacent places receive preshift examinations.
The Solicitor maintains that the No. 1 Bleeder Room was an
"adjacent place," while the operator maintains it was not.
However, the Solicitor admits that the term "adjacent place"
is ambiguous. Therefore, the negligence involved was reduced.
The Solicitor also represents that the No. 1 Bleeder Room
·
had been examined four hours before the start of the shift,
that no miners, equipment, methane or other hazards were
present in the room. Therefore, gravity was reduced.
The representations and recommendations of the Solicitor
are accepted.
Accordingly, the motion to approve settlement is GRANTED
and the operator is ORDERED TO PAY $125 within 30 days of
the date of this decision.

~cJ-.

Paul Merlin
Chief Administrative Law Judge
1507

Distribution:
William T. Salzer, Esq., Office of the Solicitor, U.S. Department
of Labor, Rm 14480-Gateway Bldg., 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
R. Henry Moore, Esq., 900 Oliver Building, Pittsburgh, PA
15222-5369 (Certified Mail)
J. M. Gallick, Director/Safety & Env. Health, Beth Energy
Mines, Inc., PA Div., Box 143, Eighty-Four, PA 15330
(Certified Mail)

/sc

1508

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

October·1, 1986

CIVIL PENALTY PROCEEDING

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

.

Docket No. PENN 86-197
A. C. No. 36-02735-03501
Krieger Coal, Inc.

v.
KRIEGER COAL, INCORPORATED,
Respondent

.

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of
the one violation involved in this case. The proposed settlement
is for $30.
The Solicitor's motion discusses the violation in light of
the six criteria set forth in section llOCi) of the Federal Mine
Safety and Health Act of 1977. The operator was cited for violation of 30 C.F.R. § 48.8 because two miners were at work without having received annual refresher training. The Solicitor
represents that a reduction in the proposed penalty is justified
because of the precarious financial condition of the operator.
According to the documents submitted with this motion, the
operator lost more than $106,000 in 1985 and has mined no coal
during 1986. The parties assert that payment of the originaliy
assessed penalty would hamper the operator's efforts to remain in
business.
The representations and recommendations of the Solicitor are
accepted. However, in the future, necessary training must be
provided. Such a low penalty cannot 'be routinely approved for
this type of violation regardless of the operator's financial
condition.
Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $30 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
1509

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, u. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 {Certified Mail)
Mr. James Krieger, President, Krieger Coal Inc., R.D., Saxton, PA
16678 (Certified Mail)
/gl

1510

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

1, 19 86

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 86-214
A.C. No. 36-05018-03604

v.
UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Respondent

Cumberland Mine

ORDER OF DISMISSAL
Before:

Judge Merlin

The Solicitor has filed a motion to withdraw his penalty
petition in this case. The Solicitor represents that the
two citations involved were withdrawn by MSHA on August 11,
1986. Both citations were issued for violations of 30 C.F.R.
§ 75.503 because, in the opinion of the inspector, the
battery lids on two scoops were not properly fastened.
The
facts presented by these citations are almost identical to
those in two previous cases in which no violation was found.
Secretary of Labor v. United States Steel Mining Co., Inc.,
6 FMSHRC 155, 156 (1984); Secretary of Labor v. United
States Steel Mining Co., Inc., 6 FMSHRC 1510, 1518 (1984).
Therefore, the withdrawal of the two citations and the
penalty petition ts proper.
Accordingly, the motion to withdraw the penalty petition
is GRANTED and this case is DISMISSED.

Paul Merlin
Chief Administrative Law Judge
Distribution:
James E. Culp, Esq., Office of the Solicitor, U.S. Department
of Labor, Rm. 14480-Gateway Bldg., 3535 Market Street, Philadelphia,
PA 19104 {Certified Mail)
Billy M~ Tennant, Esq., 600 Grant Street, Room 1580, Pittsburgh,
PA 15230
(Certified Mail)
Mr. Samuel L. Cortis, Safety Manager, U.S. Steel Mining Co.,
Inc., Cumberland Mine, 351 West Beau Street, Washington, PA 15301
(Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W., Washington,
D.C.
20005 (Certified Mail)

/sc

1511

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

October 1 1 1986
SECRETARY OF LABOR,
.MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ANDREW J. DUBETSKY,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 86-227-D
PITT CD 86-6
Lancashire No. 20 Mine

v.
BARNES & TUCKER COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Merlin

The miner-complainant has reached a settlement with the
operator, has accepted a lump sum payment and has elected to withdraw his complaint. The Solicitor concurs with the settlement
and supports the motion to withdraw. Upon independent review of
the record, it is found that the settlement is fair and in accord
with the Act.
Accordingly, the motion to withdraw is GRANTED and this case
is DISMISSED.

Law Judge
Distribution:
Frederick w. Moncrief, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Thomas J. Jennings, Esq., Alco Standard Corporation, P.
834, Valley Forge, PA 19482-0834
(Certified Mail)

o. Box

Mr. Gerald P. Scanlon, Vice President, Barnes & Tucker Company,
1912 Chestnut Avenue, Barnesboro, PA 15714
(Certified Mail)
Mary Lu Jordan, Esq., UMWA, 900 15th Street, N.W., Washington, DC
20005
(Certified Mail)
/gl

1512

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

D.C.

20006

October 1, 1986

ALLENTOWN CEMENT COMPANY,
INC.,
Contestant

.

CONTEST PROCEEDINGS
Docket No. PENN 86-229-RM
Citation No. 2625709; 5/12/86

v.
Docket No. PENN 86-230-RM
Citation No. 2625710; 5/12/86

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

Docket No. PENN 86-231-RM
Citation No. 2625712; 5/12/86
Docket No. PENN 86-232-RM
Citation No. 2625713; 5/13/86
Docket No. PENN 86-233-RM
Citation No. 2625714; 5/13/86
Docket No. PENN 86-234-RM
Citation No. 2625715; 5/13/86
Docket No. PENN 86-235-RM
Citation No. 2625716; 5/13/86
Docket No. PENN 86-236-RM
Citation No. 2625717; 5/14/86
Docket No. PENN 86-237-RM
Citation No. 2625718; 5/14/86
Docket No. PENN 86-238-RM
Citation No. 2625719; 5/14/86
Docket No. PENN 86-239-RM
Citation No. 2625720; 5/15/86
Docket No. PENN 86-240-RM
Citation No. 2625650; 5/12/86
Docket No. PENN 86-241-RM
Citation No. 2625651; 5/12/86
Docket No. PENN 86-242-RM
Citation No. 2625652; 5/12/86

1513

Docket No. PENN 86-243-RM
Citation No. 2625653; 5/12/86
Docket No. PENN 86-244-RM
Citation No. 2625654; 5/12/86
Docket No. PENN 86-245-RM
Citation No. 2625655; 5/13/86
Docket No. PENN 86-246-RM
Citation No. 2625656; 5/13/86
Docket No. PENN 86-247-RM
Citation No. 2625657; 5/13/86
Docket No. PENN 86-248-RM
Citation No. 2625658; 5/13/86
:

Docket No. PENN 86-249-RM
Citation No.
2625659; 5/13/86
Docket No. PENN 86-250-RM
Citation No. 2625660; 5/13/86
Docket No. PENN 86-251-RM
Citation No. 2626521; 5/14/86
Docket No. PENN 86-252-RM
Citation No. 2626522; 5/14/86
Docket No. PENN 86-253-RM
Citation No. 2626523; 5/14/86
Docket No. PENN 86-254-RM
Citation No. 2626524; 5/14/86
Docket No. PENN 86-255-RM
Citation No. 2626525; 5/14/86
Docket No. PENN 86-256-RM
Citation No. 2626526; 5/15/86
Docket No. PENN 86-257-RM
Citation No. 2626527; 5/19/86
Docket No. PENN 86-258-RM
Citation No. 2626532; 5/13/86
Evansville Quarry & Mill

ORDER OF DISMISSAL
Before:

Judge Merlin

1514

The operator filed the above-captioned thirty notices of
contest on July 28, 1986. The contests seek review of citations
issued from May 12, 1986 to May 19, 1986.
The Solicitor has filed a motion to dismiss on the ground
that the notices of contest are untimely filed.
The operator has
opposed the motion. Both parties have filed memoranda in support
of their positions.
The operator contends that its notices of contest are timely
because they were filed within thirty days of the MSHA's notification of the proposed penalty assessments.· The operator has
failed, however, to submit copies of the notifications it alleges
it received from MSHA or even to give their dates.
In no event,
could the operator's opposition to the Solicitor's dismissal
motion be sustained without the necessary documentary support.
In .any event, in order to expedite consideration of these cases
it will be assumed that the notices of contest were filed within
30 days of the operator's notification of the proposed
assessments.
Section 105(a) of the Act, 30
pertinent part:

u.s.c. 815(a) provides in

Sec. 105(a) If, after an inspection or
investigation, the Secretary issues a citation or order under section 104, he shall,
within a ~easonable time after the termination of such inspection or investigation,
notify the operator by certified mail of the
civil penalty proposed to be assessed under
section llO(a) for the violation cited and
that the operator has 30 days within which to
notify the Secretary that he wishes to contest the citation or proposed assessment of
penalty . . • If, within 30 days from the
receipt of the notification issued by the
Secretary, the operator fails to notify the
Secretary that he intends to contest the
citation or the proposed assessment of
penalty, . . . the citation and the proposed
assessment of penalty shall be deemed a final
order of the Commission and not subject to
review by any court or agency • . . •
Section 105(d) of the Act, 30
pertinent part:

u.s.c. 815(d), provides in

Cd) If, within 30 days of receipt thereof, an operator of a coal or other mine notifies the Secretary that he intends to contest
the issuance or modification of an order
1515

issued under section 104, or citation or a
notification of proposed assessment of a
penalty issued under subsection (a) or {b) of
this section, . • • the Secretary shall
immediately advise the Commission of such
notification, and the Commission shall afford
an opportunity for a hearing (in accordance
with section 554 of title 5, United States
Code, but without regard to subsection (a)(3)
of such section), and thereafter shall issue
an order, based on findings of fact,
affirming, modifying, or vacating the Secretary's citation, order, or proposed penalty,
or directing other appropriate relief . • • •
The foregoing statutory sections as implemented by Commission regulations establish parallel procedures for the various
types of actions an operator can challenge. With respect to each
of them there is a filing requirement of 30 days.
If an
operator desires to challenge the issuance of a citation or
order, it must file its notice of contest within 30 days of its
receipt of the citation or order. See 29 C.F.R. § 2700.20 et
seq. under the heading "Contests of Citations and Orders." I f an
operator wants to question a penalty assessment, it may do so
within 30 days from its receipt of the notification of proposed
assessments. See 29 C.F.R. § 2700.26 et seq. under the heading
"Contests of Proposed Assessment of Penalties." By separating
notices of contest regarding citations and orders from contests
of proposed penalty assessments, the regulations require that
citations and orders be contested within 30 days of their receipt
by an operator and that likewise, proposed penalty assessments be
contested within 30 days of notification by an operator. The
regulations do not contemplate that contests of citations be
filed within 30 days of proposed penalty assessments. On the
contrary, the regulations specifically provide that an operator's
failure to file a notice of contest shall not preclude it from
challenging the citation in a penalty proceeding.
29 C.F.R.
§ 2700.22.
If the operator could file its notice of contest when
it receives the penalty proposal, section 2700.22 of the
regulations would be unnecessary.
The operator seeks to rely upon certain language in section
105(a) regarding notification by the Secretary of Labor to the
operator of a proposed penalty and contest by the operator within
30 days of the citation or proposed assessment. Section 105(a)
is principally. concerned with notifications by the Secretary to
the operator, whereas 105(d) lays down the conditions precedent
to hearing and review by the Commission. Giving proper effect to
section 105(d) requires a 30~day filing period for notices,
orders and proposed penalty assessments respectively, in
accordance with Commission regulations, supra.

1516

Applicable Commission pre.cedent also demonstrates that a
notice of contest of a citation must be filed within 39 days of
its issuance.
In Energy Fuels Corporation, 1 FMSHRC 299 (May
1979) the Commission considered whether a notice of contest of a
citation could be filed within 30 days of the issuance of a
citation and before the Secretary proposes a penalty. Under the
prior 1969 Mine Safety Act such immediate reviews of abated citations (as opposed to withdrawal orders) had not been allowed.
The Commission decided that under the 1977 Act immediate review
of citations was available, explaining why it was necessary in
many situations such as expensive abatement, special findings of
unwarrantable failure, etc. Since under Energy Fuels the
operator has the right to contest a citation immediately upon its
issuance, giving it the right also to file the same contest later
when the Secretary brings the penalty case, would be redundant.
The Commission has left open the issue whether an operator who
does not file an immediate notice of contest from a withdrawal
order can later challenge special findings in a subsequent
penalty proceeding, Black Diamond Coal Mining Company,
7 FMSHRC 1117, 1122, n. 7 (Aug. 1985). 1/ Admittedly, Black
Diamond concerned a withdrawal order, but that makes no
difference. Since the Commission in Energy Fuels gave the same
right of immediate review to citations as previously had existed
with respect to withdrawal orders, there is no reason now to give
an additional right of belated review such as that argued for by
this operator with respect to the contest of citations. Also,
although the Commission reserved the question in Black
Diamond, it has decided penalty cases which involved the special
finding of "significant and substarttial." Cement Division,
National Gypsum Company, 3 FMSHRC 822 (1981); u. S. Steel Mining
Co., Inc., 6 FMSHRC 1834 (1984); See also, C.D. Livington, 8
FMSHRC 1006, 1007, n. 2 (1986).
That the operator has no right to file a contest from a
citation within 30 day$ of the proposed assessment notification
also is clear from the Commission's decision in Old Ben Coal
Company, 7 FMSHRC 205 (Feb. 1985). In that case the operator
filed an immediate notice of contest of a citation within 30 days
from issuance of the the citation but it did not pursue the subsequent penalty case. The Commission held that the failure to contest the penalty extinguished the operator's right to continue
with the contest case. The earlier contest in effect, merges
with the subsequent penalty. Under such circumstances existence
of a right to file a contest when the penalty case begins would
make no sense.

±I

In this case the operator has not raised the issue of
special findings.

1517

If the operator has timely contested the civil penalties
proposed £or these citations and requested a hearing, then it
will be able to contest the validity of the citations in the
civil penalty proceedings.
Accordingly, the Solicitor's motion is GRANTED and these
cases are DISMISSED.

Law Judge
Distribution:

J. Anthony.Messina, Esq., Robert S. Hawkins, Esq., Pepper,
Hamilton & Scheetz, 2001 The Fidelity Building, 123 South Broad
Street, Philadelphia, PA 19109
(Certified Mail)
Covette Rooney, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
(Certified Mail)
Mr. Lawrence Beeman, Director, Office of Assessments, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

1518

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

October 1, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 86-112
A. C. No. 46-01438-03631

v.

Ireland UG Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of
the one violation involved in this case. The originally assessed
penalty was $750. The proposed settlement is for $250.
The Solicitor's motion discusses the violation in light the
six criteria set forth in section llO(i) of the Federal Mine
Safety and Health Act of 1977. Order No. 2714192 was issued for
violation of 30 c:F.R. § 75.902 because of the inoperative state
of the failsafe ground check circuit. A back-up ground check
system was not functioning due to a manufacturer's defect.
The
Solicitor represents that a reduction in the proposed penalty is
justified because the negligence of the operator was less than
was originally thought. The company was not aware that the
circuit and back-up system were not working. The parties had
proposed a settlement of $100. Because of the seriousness of the
violation, the initial proposed settlement was rejected and the
parties were advised to reconfer. A settlement in the amount of
$250 was then proposed.
The representations and recommendations ~f the parties are
now accepted. However, the operator should take whatever action
is necessary including discipline, if appropriate, to prevent any
recurrence of such an incident.

1519

Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $250 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, u. ·s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104
(Certified Mail)
Michael R. Peelish, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Safety Department, Consolidation Coal Company, 450 Racetrack
Road, Washington, PA 15301 (Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th Street, N.W.,
Washington, DC 20005
(Certified Mail)
/gl

1520

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

22041

OCT 2 1986

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 83-73
A.C. No. 11-00598-03524

v.

Eagle No. 2 Mine

PEABODY COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

This case is before me upon a petition for assessment
civil penalties under section lOS(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801, et seq.
Petitioner has filed a motion to approve a settlement agreement
and to dismiss the case. Respondent has filed a response
thereto.
I have considered the representations and documentation
submitted by both parties and I conclude that the proffered
settlement is consistent with the criteria in section llO(i) of
the Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalties in the amount of $3,000.00 within 30 days of this
Decision. Upon such payment this proceeding is DISMISSED.
This Decision and Order were read to counsel for the
parties October 2, 1986; and were approved by them before
signing below.

! J "/.. '
' ;·
.
·(...-;.,'.~ ~v~

J
_,...~...,.-~}

William Fauver
Administrative Law Judge
Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Cer
ied
Mail)
Michael o. McKown, Esq., P.O. Box 235, St. Louis, MO 63166
(Certified Mail)
Mr. Parvin E. Koker, General Delivery, New Burnside, IL 62967
(Certified Mail)
kg
1521

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

October 3, 1986
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
Mine Safety and Health
Administration (MSHA) ,
Petitioner

Docket No. LAKE 86-38-M
A.C. No. 33-03990-05507

v.
COLUMBIA PORTLAL~D CEMENT CO.,
Respondent

Jonathan Limestone Mine

ORDER OF DEFAULT
Before:

Judge Merlin

On February 14, 1986, the Secretary of Labor filed a
proposal for a penalty against you, the mine operator, for
an alleged violation of the Federal Mine Safety and Health
Act of 1977. On July 7, 1986., you were ordered to
le your
Answer to the Proposal or show good reason for not doing so.
You have done neither.
Judgment by default
Secretary. As a
sum of $2,000.00

the

Paul Merlin
Chief Administrative Law Judge
Distribution: by certified mail
Marcella L. Thompson, Esq., Off
of the Solicitor, U.S.
Department of Labor, 881 Federal Bldg., 1240 East Ninth St.,
Cleveland, Ohio 441~9
Mr. Charles Kuhn, Manager, Columbia Portland Cement Co.,
P.O. Box 1531, Zanesville, Ohio 43701
jhe

1522

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

OCT 9 1986
DENNIS AYRES,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. LAKE 86-65-D
MSHA Case No. VINC CD 86-2

FAIRPOINT COAL COMPANY,
Respondent

Fairpoint Strip Mine
DECISION

Appearances:

Dennis Ayres, Lantana, Florida, pro se;
Rodney D. Hanson, Esq., Thomas, Fregiato, Myser
& Hanson, Bridgeport, Ohio, for Respondent.

Before:

Judge Koutras
Statement of the Case

This is a discrimination proceeding initiated by the
complainant Dennis Ayres against the respondent pursuant to
section 105(c) of the Federal Mine Safety and Health Act of
1977, alleging that the respondent discriminated against him
by discharging him for exercising certain rights afforded him
under the Act. Mr. Ayres' initial complaint was investigated
by MSHA, and it declined to file a formal complaint with this
Commission. Mr. Ayres subsequently filed this action with the
Commission pro ~·
A hearing was held in Wheeling, West Virginia, on
August 26, 1986, and the parties appeared and participated
fully therein. At the close of the complainant's case, the
parties agreed to settle this dispute, and they have filed
sufficient information in this regard to enable me to dispose
of the matter.
Discussion
Mr. Ayres testified that he worked for the respondent off
and on since May, 1978, and during intervening periods of
lay-offs. He was last employed as a dozer operator on
October 14, 1985. Except for two weeks between jobs, he has

1523

been steadily employed since leaving the respondent's employ in
various construction jobs in Florida. He testified as to the
circumstances surrounding his complaint, and he believed that
he was discriminated against by the respondent because he was
concerned about operating equipment which he believed to be
unsafe. He te
ied about certain events concerning a portion
of a highwall which fell on his dozer on October 14, 1985, and
his dispute over that incident. Mr. Ayres believed that the
incident resulted from the failure of the machine reverse gear
to engage properly, and he stated that he had reported this
condition to mine management and nothing was done about it
(Tr. 8-12, 14
)•
Mr. Ayres testified that on October 14, 1985, shortly after
the highwall incident, he went to the mine office and informed
a secretary that November 14, 1985, would be his last day of
work. He also told the secretary that if he were further
"hassled," he would quit that same day, and even
he were not
further "hassled," he was giving notice that November 1, 1985,
would be his last day of work (Tr. 12). Later that day, he was
confronted by mine foreman Louis Zaccagnini, who purportedly
told him "You don't tell me when you're going to quit; I tell
you when" (Tr. 13). Mr. Zaccagnini then gave him his paycheck
and "it was all over" (Tr. 13-14) . Mr. Ayres confirmed that
Mr. Zaccagnini did not use the words "you're fired," and~simply
stated "you're done" (Tr. 14).
Mr. Ayres confirmed that while he was aware of the condition of his machine for 3-weeks prior to the highwall incident
on October 14, and was aware of his right not to operate unsafe
equipment, he nonetheless operated the machine and never refused
to operate it because he believed
was unsafe. He did so
because he was
he would be £ired if he refused to operate
the machine (Tr. 17-18). He also confirmed that Mr. Zaccagnini
accused him of causing the highwall incident which resulted in
damage to the machine, but Mr. Ayres took the position that if
the reverse gear were operating properly, he could have backed
away from the highwall and avoided the falling material (Tr.
18-19).
Mr. Ayres confirmed that prior to his purported.discharge,
he filed no complaints with MSHA, but did report the condition
his machine to mine management (Tr. 20). He conceded that
management dispatched a mechanic to look at the machine the
same day that he complained, and he believed that management's
response was appropriate (Tr. 21). He also conceded that Mr. Zaccagnini did not tell him that he was fired because of his
complaints about the_ machine, or that if he did not operate the

1524

machine in the condition that it was in, that he would be fired
(Tr. 21}. Mr. Ayres confirmed that after the mechanic looked at
the machine, he did not inform Mr. Zaccagnini that he was still
having a problem, and made no further complaints to anyone
(Tr. 22).
Mr. Ayres conceded that operator error may cause the type
of incident which occurred at the highwall in question. He also
conceded that he operated the machine for approximately an hour
and a half prior to the incident in question, did not believe
that he could get.hurt, and that he could run the machine "the
best I could with the machine I had" (Tr. 27). He confirmed that
after the highwall fall, his supervisor Bill Simmons instructed
him to work with the mechanic to get it ready to operate, and no
one told him to operate it in an unsafe condition (Tr. 28). He
also confirmed that after thinking about it further, he became
angry and decided to inform management that he quit his job (Tr.
28) • He conceded that had he not been terminated earlier by
Mr. Zaccagnini, November 1, 1985, would have been his last day
of work, and he would have quit that day (Tr. 30-31}. He also
conceded that he did not inform the secretary of any reasons for
giving notice that he would quit (Tr. 31.).
Mr. Ayres confirmed that he had in the past engaged in a dispute with mine management over an incident concerning his wearing
of short pants on the job, but he denied cursing or threatening a
foreman. He also confirmed that he was sent home on September 9,
1985, because of this dispute, but was not fired or threatened
with termination {Tr. 32-36). Mr. Ayres stated that he got along
well with mine management, was never disciplined, and that he had
a good attendance record (Tr. 39-40).
At the close of his case, Mr. Avres indicated to the court
that he would be rec~ptive to a settlement of his dispute with
the respondent. The parties were afforded an opportunity to
explore this further, and they agreed that Mr. Ayres would be
paid for 2-weeks pay from October 14, 1985 to November 1, 1985,
in the gross amount of $760, subject to the usual deductions,
and Mr. Ayres would execute a release and his complaint would be
dismissed (Tr. 42-43). Mr. Ayres stated that he was sati ied
with this settlement of his complaint (Tr. 44).
Conclusion
The parties have now finalized their agreed-upon settlement disposition of the complaint filed in this case. Mr. Ayres
has received a cashier's check from the respondent in the net

1525

amount of $556.35, after appropriate social security and income
tax deductions, and he has executed a release and agreement
dismissing his complaint with prejudice. Under the circumstances,
I am satisfied that the agreement is reasonable and in the public
interest and in accord with the intent and purposes
the Act.
I see no reason why this matter should not now be dismissed.
ORDER
In view of the foregoing settlement disposition of this
matter, and having concluded that the parties have complied
with the terms of their agreement, this matter IS DISMISSED.

ib~lliW~
Administrative Law Judge

Distribution:
Mr. Dennis Ayres, 1441 W. Jennings Street, Lantana, FL 33462
(Certified Mail)
Rodney D. Hanson, Esq., Thomas, Fregiato, Myser & Hanson,
320 Howard Street, Bridgeport; OH 43912-1197 (Certified Mail)
/fb

1526

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

OCT 9 1986
CIVIL PENALTY PROCEEDING

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

Docket No. SE 86-62
A. C. No. 40-02876-03503
No. 1 Mine

·v.
K C MINING COMPANY,
Respondent

DECISION
Appearances:

Mary Sue Ray, Esq., Of ce of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner;
Archie Ketchersid, Whitwell, Tennessee, for
Respondent.

Before:

Judge Maurer

This case is before me upon a petition for assessment of
a civil penalty under Section 105(d} of the Federal Mine
Safety and Health Act of 1977 (the Act). On the record at the
hearing on September 18, 1986, at Nashville, Tennessee, the
parties jointly moved for approval of a settlement agreement
and dismissal of the case. The violation in this case was
originally assessed at $478 and the respondent has agreed to
remit the full amount in installments of $150, commencing on
October 1, 1986, with a second $150 installment on November 1,
1986, a third on December 1, 1986, and a final payment of $28
on January 1, 1987.
I have considered the representations and documentation
submitted in this case, and I conclude that the proffered
settlement is appropriate under the criteria set forth in
Section llO(i) of the Act.
WHEREFORE, the motion for approval of a settlement is
GRANTED, and it is ORDERED that respondent pay a penalty of
$478 as set out above.
Upon payment in full, this proceeding is DISMISSED.

1 .S?7

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department
of Labor, 801 Broadway, Rm. 280, Nashville, TN 37203
(Certified Mail)
Archie Ketchersid, KC Mining Co., Route 2, Box 337-A, Whitwell,
TN 37397 (Certified Mail)

yh

1528

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

OCT 9 1986

333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-157-M
A.C. No. 04-00030-05503

v.

Brubaker-Mann

BRUBAKER-MANN INCORPORATED,
Respondent
AMENDMENT TO DECISION
Comes now John J. Morris, Administrative Law Judge in the
above case, and states that the above decision was issued on
September 30, 1986. Further, the Commission has not yet directed
this decision for review.
Pursuant to Commission Rule 65(c), 29 C.F.R. § 2700.GS(c),
the judge amends said decision by striking all of the decision
beginning with "Summary of the Evidence" and substituting a new
portion therefor.
This. amendment is necessary to correct a clerical mistake
that occurred when the text from WEST 85-177-M was erroneously
transposed to this case.
The full text of the amended decision is

~ttached

hereto.

Law Judge

Distribution:
Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department
of Labor, 3247 Federal Building, 300 North Los Angeles Street,
Los Angeles, CA 90012
(Certified Mail)
Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura, CA
93003
(Certified Mail)

/ot
29

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE "00
DENVER, COlORADO 8020"

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

OCT 9 1986

CIVIL PENALTY PROCEEDING
:
:

v.

Docket No. WEST 85-157-M
A.C. No. 04-00030-05503
Brubaker-Mann

BRUBAKER-MANN INCORPORATED,
Respondent
AMENDED DECISION
Appearances:

Rochelle Ramsey, Esq., Office of the Solicitor,
U.S. Department of Labor, Los Angeles, California,
for Petitioner:
Steve Pell, Esq., Ventura, California,
for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, (MSHA), charges respondent with violating
a safety regulation promulgated under the Federal Mine Safety and
Health Act, 30 u.s.c. § 801 et seq., (the Act).
After notice to the parties a hearing on the merits commenced in Los Angeles, California on June 11, l986.
The parties filed post-trial briefs.
Issues
Certain threshold issues were discussed and ruled contrary
to respondent's contentions in WEST 84-96-M.
Stipulation
The parties stipulated that respondent is a small operator.
Further, respondent is subject to the Act unless MSHA's jurisdiction is pre-empted by the Californ~a Occupational Safety and
Health Administration (Tr. 191, 249).
Citation 2364576
§

This citation charges respondent with violating 30 C.F.R.
56.6005 which provides as follows:
§ 56.6005
Areas around storage facilities.
Areas surrounding magazines and facilities for the.storage

1530

of blasting agents shall be kept clear of rubbish, brush,
dry grass, or trees {other than live trees 10 or more feet
tall), for a distance not less than 25 feet in all
directions, and other unnecessary combustible materials
for a distance of not less than 50 feet.
Summary of the Evidence
MSHA Inspector Ronald Ainge issued this citation when he
found two pieces of lumber within six feet of a power magazine.
In addition, there were railroad ties within 20 feet of the
magazine (Tr. 58, 129).
In the inspector's opinion several
hundred railroad ties are unnecessary for a mining operation
(Tr. 125, 126). However, there were loading docks in the area
(Tr. 126) •
The railroad ties were higher than the nearby rock pile
(Tr. 124) .
While the inspector considered that an accident was unlikely
he believed a fire could involve the powder magazine with a resulting
explosion (Tr. 58, 125).
.
Powder magazines also fall under the jurisdiction of other
federal, state and county authorities (Tr. 127, 128, 215).
Mr. Mann testified that the area met the requirements of the
federal firearm and explosives representatives (Tr. 243, 244).
These authorities required the company to install a stone berm
approximately 10 fe~t high and the company complied (Tr. 244).
Evaluation of the Evidence
The facts establish a violation of the regulation. There
were two pieces of timber and several hundred railroad ties within
20 feet of the powder magazine.
I concur with the inspector's
view that such a large number of ties constitute 11 unnecessary combustible material" as prohibited by the regulation.
Concerning Mr. Mann's testimony:
I accept his statements
that other federal authorities required a stone berm. But I do
not find i t credible that they would also require railroad ties
in such close proximity to the magazine.
Citation 2364576 should be affirmed.
Civil Penalty
The statutory mandate to assess civil penalties is contained
in section llO{i) of the Act, now codified 30 u.s.c. § 820(i).
Concerning prior history: the computer printout (Ex. P34) shows
that respondent had no violations in the two-year period ending
March 5, 1985. The printout shows two violations before March 6,
1983. But, as the respondent contends, these would appear to be
1531

the two citations vacated in Brubake·r-Mann, 2 FMSHRC 227 (1980).
Accordingly, I conclude that the Secretary has failed to prove
any adverse history on the part of respondent. The parties have
stipulated that the operator is a small company. The penalty
appears appropriate in relation to a small operator and it should
not affect the ability of the company to continue in business.
Concerning the negligence of the operator: the condition
around the powder magazine was obvious. Several hundred railroad
ties are readily apparent. Accordingly, the operator must be
considered to be negligent. The gravity is minimal since it is
not likely that an explosion would occur. Finally, the operator
is credited with statutory good faith since the company abated
the violative condition.
On balance, I consider that the proposed penalty of $20
should be reduced to $15.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered.

1.

The Commission has jurisdiction to decide this case.

2. Citation 2364576 should be affirmed and a penalty of $15
assessed.

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

1.

Citation 2364576 is affirmed.

2.

A civil penalty of $15 is assessed.

Law Judge
Distribution:
Rochelle Ramsey, Esq., Office of the Solicitor, U.S. Department
of Labor, 324 7 Federal Building, 300 Nor.th Los Angeles Street,
Los Angeles, California 90012
{Certified Mail)
Steve Pell, Esq., 3200 Telegraph Road, Suite 207, Ventura,
California 93003
(Certified Mail)

/ot
1532

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

October ,16, ,19 86

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

.

.

CIVIL PENALTY PROCEEDING
Docket No. CENT 84-68-M
A.C. No. 24-00174-05515

v.
AM~

CHEMICAL CORPORATION,
Respondent

.
..
:

Docket No. CENT 84-69-M
A.C. No. 29-00174-05516
.Amax Mine & Mill

ORDER LIFTING STAY
AND
DECISION APPROVING SETTLEMENT
Appearances:

Jack F. Ostrander, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas for Petitioner;
Charles c. High, Jr., Esq., Kemp, Smith, Duncan
& Hammond, El Paso, Texas, for Respondent.

Before:

Judge Melick

These cases are before me upon petitions for assessment
of civil penalty under Section llOCd) of the Federal Mine
Safety and Health Act of 1977 (the Act). Petitioner had
filed motions to approve settlement agreements and to dismiss
the cases proposing a reduction in penalties from $2,925 to
$445. These motions were denied by the undersigned and
hearings on the merits were held. Following those hearings
and the subsequent release by the Commission of the decision
in Secretary v • .Amax Chemical Corporation, 8 FMSHRC
(Docket No. CENT 84-91-M) the parties renewed their request
for settlement. I have considered the testimony and documentation submitted and I have evaluated the effect of the Commission's decision in Amax, supra, on these cases. Under the
circumstances I now conclude that the proffered settlement is
appropriate.
WHEREFORE, the Stay Orders issued June 18, 1985 are
lifted, the motions for approval of settlement are GRANTED,
and it is ORDERED that Respondent pay a penalty of $445
within 30 days of this order. The deletion of "significant

1533

and substantial" findings and the vacation of citations set
forth in the Motion for Settlement are accordi ly also
approved.

Distribution:
Jack F. Ostrander, Esq., Office of
ment of Labor, 555 Griffin Square
TX 75202 CCertif ied Mail)

U.S. Depart501, Dallas,

Charles c. High, Jr., Esq., Kemp, Smith, Duncan & Hammond,
2000 State National Plaza, El Paso, TX 79901 (Certified Mail)
rbg

1534

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

OCT 161986
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 85-204
A.C. No. 36-02405-03596

..
.: Greenwich No. 1 Mine
.

v.
GREENWICH COLLIERIES,
DIVISION OF PENNSYLVANIA
MINES CORPORATION,
Respondent

..
.

GREENWICH COLLIERIES,
DIVISION OF PENNSYLVANIA
MINES CORPORATION,
Contestant

:

CONTEST PROCEEDING

:

Docket No. PENN 85-114-R
Order No. 2255733-01: 1/17/85

v.
Greenwich No. 1 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

.
:

DECISIONS
Appearances:

Linda M. Henry, Esq., Office of the
Solicitor, U.S. Department of Labor,
Philadelphia, Pennsylvania, for
Petitioner/Respondent;
Joseph T. Kosek, Jr., Esq., Ebensburg,
Pennsylvania, for Respondent/Contestant.

Before:

Judge Koutras
Statement of the Proceedings

These consolidated proceedings concern a civil penalty
proceeqing initiated by MSHA against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act
of 1977, seeking a civil penalty assessment for an alleged
violation of mandatory safety standard 30 C.F.R. § 75.316, as
stated in a section 104(a) Citation No. 2255733, with special

1535

"significant and substantial" CS&S) findings, issued by an
MSHA inspector on January 16, 1985. The citation was subsequently modified by the inspector on January 17, 1986, to a
section 104(d)(2) Order No. 2255733-01. The contest was filed
by the contestant to challenge the legality of the order.
The cases were consolidated for hearing, and the parties
appeared and participated fully therein. Greenwich filed a
posthearing brief, but MSHA did not. However, I have considered its oral arguments made during the hearing.
Issues
The issues presented are whether or not the condition or
practice cited by the inspector constitutes a violation of
the cited mandatory safety standard, whether the alleged violation was "significant and substantial," and whether it constitutes an "unwarrantable failure" by the contestant to
comply with the requirements of the standard in question.
Additional issues raised by the parties are identified and
disposed of in the course of these decisions, including an
appropriate civil penalty assessment for the violation in
question.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
P.L. 95-165, 30 u.s.c. § 801 et seq.
2.

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

Stipulations
1. The Greenwich No. 1 Mine is owned and operated by
the respondent/contestant Greenwich Collieries.
2. Greenwich Collieries and the No. l Mine are subject
to the Act.
3. The presiding administrative law judge has jurisdiction to hear and decide these cases.
4. The subject order issued in these proceedings was
properly served on a representative of Greenwich Collieries
and may be admitted to establish its issuance and service.
5. Payment of the assessed civil penalty will not
adversely affect the respondent/contestant's ability to continue in business.

1536

6. The respondent/contestant's annual coal production
is approximately two million tons. Mine production for the
No. 1 Mine is approximately 877,000 tons annually. Greenwich
Collieries is a medium-to-large mine operator.
7.
The respondent/contestant exhibited ordinary good
faith in timely abating< the cited condition or practice.
8. Respondent/contestant's history of prior paid civil
penalty assessments consists of 245 paid assessments for the
first 9 months of 1985, 214 in 1984, and 155 in 1983.
9.
The 104(d) "chain" is properly established in that
no intervening "clean" mine inspections took place immediately
preceding the issuance of the subject contested section
104Cd)(2) order.
MSHA's Testimony and Evidence
MSHA Inspector Samuel Brunatti stated that he is a ventilation specialist, and he testified as to his experience
and training.
He confirmed that he issued a section 104(a)
Citation No. 2255733, on January 16, 1985, but that the conditions cited were previously observed by him when he was at
the mine on January 10, 1985. He explained that his supervisor instructed him to go to the D-9 area of the mine during
the midnight-to-8:00 a.m. shift on January 10, to examine the
area. The mine had experienced a large methane accumulation
and miners were withdrawn when he arrived at the mine.
Mr. Brunatti identified exhibit G-2, as a copy of a portion of the mine map depicting the area in question and he
confirmed that he made notations on the map on January 10,
depicting the direction of air flow, and his air and methane
readings.
He confirmed that he determined the direction of
air flow by means of a smoke test and observation (Tr. 17-23).
Mr. Brunatti confirmed that when he was at the mine on
January 10, there was no methane accumulation and he indicated
that he complimented the company for the job they did in clearing away the methane which prompted the withdrawal of miners.
He confirmed the prior methane accumulation by reviewing the
mine examiner and foreman books (Tr. 24). He also confirmed
that he issued no citations or orders on January 10, and that
he was at the mine in his capacity as the resident inspector
and was not at that time a ventilation specialist. He also
confirmed that he did not have the appropriate ventilation
plan with him on January 10, and had no knowledge of the ventilation system (Tr. 24).

1537

Mr. Brunatti stated that after completion of his inspection on January 10, his supervisor was concerned about the
methane incident and he asked to review his notes. After a
discussion with his supervisor and a review of his notes and
the appropriate ventilation plans, it was determined that the
conditions he observed on January 10, with regard to the
direction of the air flow constituted a violation of the plan
(Tr. 25).
Mr. Brunatti identified exhibit G-3 as the ventilation
plan for the D-9 area in question, which was approved by MSHA
on June 7, 1985. Exhibit G-3(a) is the August 1, 1984, plan
for ventilating the active section while producing coal, and
the direction of air flow over the gob into the bleeder
entries, and to the return. Both plan provisions are applicable in this case, and the June 7, provisions in no way changed
the,requirements of the plan reviewed on August 1 (Tr. 26).
Mr. Brunatti explained the ventilation plan requirements
for maintaining the direction of air flow over the cited D-9
area of the mine. He confirmed that the conditions he
observed on January 10, which he noted on exhibit G-2, reflect
that the air ventilating the section was escaping out of the
return instead of putting pressure on the gob area, thus creating, in his opinion, a methane build-up in the back end of the
gob area.
It was his view that had all of the available ventilation air been placed on the gob, and had proper air pressure
been maintained on the gob, the methane build-up previously
experienced would not have occurred. He confirmed that he
issued the citation because the air flow was misdirected in
violation of the ventilation plan because in two of the three
entries in the area, air was travelling inby, when in fact the
plan depicts the air flowing outby.
In support of the violation, Mr. Brunatti stated that
the ventilation plan provision shown on the second page of
exhibit G-3, at the upper left-hand corner, depicts a double
arrow pointing to the top of the page indicating the direction of air flow over the gob and exiting at the point marked
BE #58, which is the evaluation point for checking methane
liberation and air flow. At that point, the air then travels
down the three entries in the direction of the three double
arrows shown on the diagram and out the return.
In contrast
to these required air directions, on January 10, he found
that the air was travelling down the number one entry, but in
the opposite direction in the adjacent two entries CTr.~27-33).

1538

Mr. Brunatti confirmed that the section 104(a) citation
issued on January 16, was subsequently modified to a section
104(d)(2) order the next day. He confirmed that it was modified after some discussion with his supervisor, but that he
(Brunatti) made the decision to modify the citation to an
order. Mr. Brunatti stated that his notes for January 16,
reflect a conversation with company safety representative
Desalvo and mine foreman Richard Endler, during which they
stated that they believed that the direction of air flow as
found by Mr. Brunatti on January 10, was the way it was
depicted on the ventilation plan, but was contrary to the way
the company engineer submitted it on the plan. Mr. Brunatti
stated that mine management was ventilating the section one
way, but that the plan submitted by the engineer indicated
ventilation in a different way. Mr. Brunatti stated further
that he had the "impression" that Mr. Desalvo and Mr. Endler
were aware of the fact that the direction of air on
January 10, was different from that shown on the submitted
plan, but he conceded that he could not confirm that they had
actual knowledge of the plan requirements until he later
called it to their attention (Tr. 36).
Mr. Brunatti confirmed that the No. 1 Mine is on a section 103(i) 5-day spot inspection status because it has a
history of methane ignition, and that an explosion occurred
at the mine in February or January of 1984, resulting in the
death of three miners. The explosion was the result of an
ac.cumulation of methane (Tr. 37).
Mr. Brunatti confirmed that at the time he issued the
initial citation on January 16, he marked the citation form
to reflect "moderate negligence," and that he did so because
"I wasn't really aware of all that was involved, you know, as
far as the ventilation changes I'm sure" (Tr. 37). He also
stated that he was influenced by the fact that the company
had withdrawn the miners and had done a fine job in correcting
the methane problem. He later realized that mine management
should have been aware of the ventilation plan requirements
(Tr. 38).

Mr. Brunatti stated that the ventilation plan is designed
to prevent methane accumulations, and that "what could happen
here is a methane gas explosion." If the cited condition were
uncorrected, he believed it was highly likely that an
explosion would have occurred because the area was a pillar
area where the roof is constantly falling, and sparks from a
roof f'all would be an ignition source to ignite the methane.
He conceded that he had no knowledge of any such ignitions
from roof falls in the mine in question, but was aware of such

1539

an occurrence. in another mine <Tr. 4 0 > • Mr. Brun at ti confirmed that he indicated on the citation form that one miner
would be affected by a methane explosion because the area
where the air was misdirected was an outby area which was not
in an active working section (Tr. 39). He also conceded that
while the mine has experienced numerous roof falls, they are
planned falls connected with pillar recovery and the "majority
probably weren't violations" (Tr. 44). He pointed out, however, that the cited area was only required to be examined
once a week, and it was an area that was "coming of£ the gob"
(Tr. 45).
Mr. Brunatti stated that the mine had experienced problems in ventilating other gob areas, and that this was a contributing factor to the explosion which previously occurred.
He also indicated that had an explosion occurred in the
instant case, "the whole working section" would have been
affected because it was in close proximity to the cited area
(Tr. 46).
On cross-examination, Mr. Brunatti confirmed that at the
time he inspected the mine on January 10, and issued the citation on January 16, 1985, he was not a ventilation specialist,
and that the citation was issued as part of a regular mine
inspection (Tr. 48). He stated that he was the resident
inspector at the mine, and that he was at the mine during the
period from January 10 to January 16, but was not in the D-9
section (Tr. 53). He confirmed that while at the mine on
January 16, he did not conduct an inspection of the D-9 section, and simply issued the citation on the basis of the information that he had previously compiled when he was there on
January 10 (Tr. 54). The conditions described in the citation
were conditions which existed on January 10, and not on
January 16, and he did not know what the ventilation conditions were on January 16 (Tr. 56).
Mr. Brunatti stated that the methane accumulation on
January 9, 1985, was 4.2 percent, and that he confirmed this
information from a review of the mine books for that day. He
confirmed that he commended mine management for their reaction
to the methane accumulation and for the steps taken to protect
the miners, and respondent's counsel confirmed that the miners
were voluntarily withdrawn by mine management, and that management contacted MSHA and the appropriate state agency. Counsel
also asserted that at the time Mr. Brunatti was at the mine on
January 10, the methane had been dissipated and the mine was
back in production (Tr. 59).

1540

Mr. Brunatti stated that he took methane readings on the
morning of January 10, and detected no methane levels which
were in violation of the regulations. The mine was in compliance with the methane requirements, even though the ventilation air was flowing in the wrong direction (Tr. 62).
However, Mr. Brunatti believed that the prior methane reading
of 4.2. recorded in the mine books on January 9, was caused
by the air being coursed in the wrong direction, and that the
condition was corrected by making some adjustments to the
ventilation system (Tr. 63).
Mr. Brunatti stated that the ideal ventilation for any
mine is to insure the maintenance of air pressure on the gob
area so that the majority of air is coursed to the gob.
In
the instant case, the majority of air was escaping outby, and
only a minimal amount was coursed to the gob to dilute any
methane which may have been present. Since methane concentrations and liberation change because of roof falls or other
conditions, the ventilation plan is intended to control these
events (Tr. 64). Referring to exhibit G-2, Mr. Brunatti
explained the desirable and required methods for ventilating
the right and left entries while they were partially and
fully developed (Tr. 66-71).
Mr. Brunatti confirmed that when he was at the mine on
January 10, certain changes had been made to the ventilation
system, but he still had a problem with the direction of the
air flow. However, he stated that "at that time, I wasn't
aware that it was a problem" (Tr. 73). He confirmed that
during the period between January 10 through 17, he was not
aware of any additional methane build-up in the gob at the
back of the D-9 area, even with the ventilation air flow as
he found it (Tr. 73).
Mr. Brunatti confirmed that when he issued the citation
on January 16, he marked the "negligence block" on the form
as "moderate," and when he subsequently modified the citation
to a section 104Cd)(2) order on January 17, he did not change
his negligence finding (Tr. 72). He testified that he did
not believe that the company was indifferent to the requirements of the cited mandatory standard, but felt that there
may have been a miscommunication between mine management and
the company engiheer with respect to the ventilation plan
which had been submitted, and with respect to the actual ventilation in the area in question (Tr. 74).
Mr. Brunatti stated that he did not believe that the
violation in question resulted from the company's willful
intent to violate the law, or that it resulted from a serious

1541

lack of reasonable care on the part of the company (Tr. 74).
He confirmed that he modified the citation to an,order after
discussing the matter with his supervisor (Mr. Baesinger),
and he explained the reasons for his action as follows (Tr.
75-76):
A.
But basically, we discussed the ventilating
system, the type of changes that were made
which caused the air to flow in the wrong direction. And it was determined that mine management had to be directly involved in that.
I mean, to say this could have occurred without
them knowing, or should have knowing, however
you want to say it -- well, it just couldn't.
You know, the company is responsible -- mine
management is responsible for ventilation and
installing or removing ventilation controls
from the ventilating system.
Mr. Brunatti confirmed that the ventilation plan "Review
No. 26" as depicted on the first page of exhibit G-3, was not
applicable at the time of the violation, and that plan "Review
No. 25," exhibit G-3Ca), is the applicable plan provision in
this case (Tr. 79-80). MSHA's counsel stated that the plan
requirements as depicted in both exhibits were essentially the
same requirements, and that exhibit G-3 had not modified ·
exhibit G-3Ca) in any way for the purpose of the D-9 section
of the mine (Tr. 80).
In response to further questions, Mr. Brunatti stated
that his notes made on January 16, 1985, (exhibit G-4), confirm that mine management agreed with his observations that
the air was being coursed in the wrong direction, and that
there may have been miscommunication among those management
people who were in charge of the ventilation system. He also
stated that it is reasonable to expect a mine foreman to check
to see what the ventilation should be for a particular mine
section and to know what the plan provides in this regard.
He
also believed it was reasonable for those who designed the
system to communicate with the foreman concerning the plan
provisions (Tr. 82).
Mr. Brunatti explained the extent to which the cited
area in question had been developed when he went to the mine
on January 1 O, an.a he explained why the air should have been
directed in the manner that he required as follows (Tr. 86):

1542

Good ventilation is, you put the majority
of your air or positive pressure on your gob,
with just leaving a little bit amount to ventilate that section return to keep whatever
little bit of methane is being liberated in
that area off the ribs.
Positive pressure on the gob reduces the
methane and dilutes it and renders it harmless, taking it into the bleeder entries to
return to the fan and out of the mine, and
keeping it below an explosion mixture.
Mr. Brunatti stated that when he went to the mine on
January 10, he was there to determined whether the large
accumulation of methane still existed. When he determined
that it did not, he stated that "I was done with what I was
sent there to do" (Tr. 92). Although he made a determination
as to the direction of the air used to ventilate the area in
question, he did not at that time know whether it was right
or wrong, but later made this determination a day before he
issued the citation on January 16, after he and his supervisor
r~viewed the ventilation plan and determined that a violation
had occurred on January 10 (Tr. 93; 96-97). When asked to
explain the basis for his conclusion that the misdirected air
caused 4.2. methane accumulation on January 9, but did not
cause any accumulations on January 10, he replied in pertinent
part as follows (Tr. 94):
"I base that on some of my experience in and around the mine, based on other conditions of that
air, the system ventilating that area.
* * * I don't feel
that the ventilating system was rendering the methane constantly harmless."
Mr. Brunatti confirmed that even though miners were withdrawn as the result of the 4.2 methane accumulation on
January 9, MSHA did not conduct any investigation to determine the cause for this amount of methane.
In his opinion,
the high methane level was caused by inadequate ventilation,
and the misdirected air was one contributing factor (Tr. 95).
He confirmed that even though adjustments were made to the
ventilation system to dissipate the prior 4.2 level of methane, the continued misdirection of air did not result in
unusual or illegal methane accumulations (Tr. 96).
Mr. Brunatti stated that while the misdirected air condition which he found on January 10, was "questionable," he
could not· remember whether he discussed the condition with
mine management at that time (Tr. 98). He conceded that had

1543

his supervisor not raised a question concerning the ventilation, it was "very possible 11 that the citation would not have
been issued (Tr. 97). He reiterated that on January 10, he
made no determination that the direction of the air was in
violation of the ventilation plan <Tr. 98).
Mr. Brunatti stated that he had no knowledge as to how
the cited condition was abated because another MSHA inspector
terminated the order (Tr. 112). MSHA's counsel stated that
the order was terminated by MSHA Inspector Carl Sensibal on
January 21, 1985 (exhibit G-1), and the termination reads "as
determined with a chemical smoke cloud the air is now travelling in its proper course (outby). Ventilation adjustments
were made to assure proper air flow direction through the
affected bleeder entry in the D-9 butt area 11 (Tr. 113,
exhibit G-1).
Respondent' Testimony and Evidence
Richard Endler, mine foreman, testified as to his duties
and experience, (Tr. 117-121). He stated that he has taken
several training courses in mine ventilation and that he participates in the preparation and approval of the company's
6-month ventilation plans submitted to Federal and state
agencies. He confirmed that at the time of the violation,
plan "review 25" was in effect, and that he participated in
the preparation and approval of that plan (Tr. 122).
Referring to several exhibit overlays which were projected on a screen in the courtroom, Mr. Endler explained the
projected mining for the D-9 area at the time of the violation, the applicable ventilation plan provisions, the projected
method for developing the entries, the intended direction of
air through the areas in question, and the operation of the
ventilation system (Tr. 125-133; exhibits 0-2 through 0-8).
Mr. Endler disagreed with Inspector Brunatti's interpretation of the applicable ventilation plan, and insisted that the
direction of the air on January 10, was exactly the way the
applicable plan "review 25" (exhibit G-3(a)) was submitted and
approved.
That plan shows the air going up both entries in
the completed first butt heading that had been driven.
Mr. Endler explained that Mr. Brunatti believed that the arrow
depicted in the upper left-hand.corner of the plan sketch
depicted air flow down through all three entries, but
Mr. Endler could find nothing in the plan supporting
Mr. Brunatti's interpretation. Mr. Endler stated that no
changes were made in the ventilation depicted in the plan in
question which would have resulted in the air flowing down all

1544

three entries as interpreted by Mr. Brunatti. Contrary to
Mr. Brunatti's interpretation, Mr. Endler insisted that plan
"review 25" and exhibit 0-2 depict the air going ~ two
entries and down.the third one, and that this was precisely
how it was directed on January 10, when Mr. Brunatti tested it.
Mr. Endler believed that the dispute lies in the fact that
Mr. Brunatti believed the arrow at the top left-hand corner of
"review 25" reflects that the air should go down all three
entries (Tr. 135-137).
~~
Mr. Endler explained that in the development of a section, three entries are driven, and the belt is always the
middle entry. He explained that air is always going up the
middle belt entry, as well as up the right-hand entry, and
then down the left-hand entry. Any changes in the direction
of the air flow could only be made by submitting them to MSHA
for approval. He finds nothing in plan "review 25 11 to indicate any change in the direction of air down all three entries
(Tr. 146-148).
Mr. Endler confirmed that the order was terminated after
changes in the air flow direction were made to comply with
Mr. Brunatti's requirements, and he identified exhibit 0-8 as
the plan revision accepted by MSHA as part of "review 25."
He confirmed that at the time the order was issued,
Mr. Brunatti believed the direction of air flow should have
been as shown in the plan revision submitted to terminate the
order, and had it been that way, no citation would have been
issued (Tr. 148-151).
On cross-examination, Mr. Endler stated that exhibit 0-2
was submitted as part of the ventilation plan to depict how
the mining of the area would be developed, and that it does
not basically reflect how a gob area should be ventilated
during retreat mining CTr. 156-157). He confirmed that
"review 25," exhibit G-3(a), reflects how a gob area should
be ventilated. He explained that air would be directed up
and across the gob area by means of regulators and restricting the area on the return by use of canvass which forces the
air through the holes that are created. He confirmed that at
the time the violation was observed by Mr. Brunatti, retreat
mining was taking place in the cited area in question (Tr.
157-158).
Mr. Endler stated that the air in the back-end of the
D-9 area was being coursed in the direction depicted on
"review 25." He stated that Mr. Brunatti was concerned about
the direction of air flow in the adjacent panel that had been
driven, and that he did in fact determine that it was being

1545

coursed .!:!.£ two entries and down the third entry, 'but believed
that it should have been coursed down all three entries as
shown in the print submitted to abate the order, (exhibit
0-8; Tr. 160-161).
In response to additional questions, Mr. Endler confirmed
that at the time the citation was issued he and representatives of the company safety department discussed the plan provision found in "review 25" with Mr. Brunatti, and that there
was disagreement between the company and Mr. Brunatti as to
the significance of the arrow shown in the plan. His testimony in this regard is as follows (Tr. 165-171):

*

*

*

*

*

*

And I argued with Mr. Brunatti that that
arrow, to me, didn't designate that that air
was supposed to come down all three entries.
And he argued back that it meant that it was.
And naturally, they have more clout than what
I have, so the violation was issued. I lost
my case on that. But that arrow, to me, still
does not depict air flow in the adjacent panel.
No matter how many times I look at it, I can't
visualize how that depicts air flow down the
other three entries.
JUDGE KOUTRAS: Well, where would the air go,
after it -- with all these stoppings in place
here, then?
THE WITNESS: The air would go out the single
entry on the far left-hand side.

* * * As far as I'm concerned, the air, with

the ventilation that I know that we haQ in
there, the air would travel across these two
entries and proceed down the single entry.

*

*

*

*

*

*

*

JUDGE KOUTRAS: Okay. And where did the
inspector say that that would go?
THE WITNESS: The inspector said that it meant
that air was supposed to go down this entry.

154,6

JUDGE KOUTRAS: And you're saying, no, it just
goes across the top, because you have air
coming up there?
THE WITNESS:

Yes.

JUDGE KOUTRAS: And he said the air coming up
there was not in compliance with your plan?
THE WITNESS:

Yes, he did.

JUDGE KOUTRAS:
THE WITNESS:

*

*

And what did he base that on?
His opinion.

*

*

*

*

*

THE WITNESS: Okay, Once these connections
were made at the top, these two crosscuts were
put through up at the top, then you could
change the air around. But we did not have a
plan submitted in Review 25 that would have
permitted me to turn that air around in them
other two entries.
I had to keep that air
going that way.
JUDGE KOUTRAS: Again, on the 10th, how was
the air going in the air that he cited?
THE WITNESS':
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
it to go?
THE WITNESS:

It was going up the two entries.
Okay.

No dispute about that.

No.
And that's the way you intended
Yes, sir.

JUDGE KOUTRAS: And that's the way your plan
intended it to go?
THE WITNESS:

Yes, sir.

JUDGE KOUTRAS: And the dispute is that the
inspector says, "You're right, the air's going
that way, but under your plan it should be
going in the other direction?"

1547

THE WITNESS:

That's right.

JUDGE KOUTRAS: And you claim that that was
never the intent?
THE WITNESS:

No.

JUDGE KOUTRAS:
only --

And that that arrow at the top

THE WITNESS: That arrow at the top only
denotes air flow from the gob as proceeding
out through these other two crosscuts at the
top. It shows a movement at the back of the
gob to the adjacent entries that we had driven
up. That's all that arrow shows to me.
JUDGE KOUTRAS: How is the present plan now?
You still have the arrow at the top?
(Pause.)
THE WITNES:

Yes, sir.

JUDGE KOUTRAS: What's the difference between
the arrow at the top now under this plan and
the way it was on this other one, prior to the
citation?
THE WITNESS: These two arrows coming down the
other two entries. That's the difference. We
changed the air around to bring the air -- all
of the air that was coming through the gob now
came down these three entries and ventilated
this back here. Prior to that, I had this air
that was coming out here going up these two
entries, as per the plan.
·
JUDGE KOUTRAS: What have you accomplished now
that you didn't have before, from your point
of view, in terms of ventilation?
THE WITNESS: The ventilation is still the
same, as far as I'm concerned.
I still have
the same amount of air.
I didn't really
change any --

1548

JUDGE KOUTRAS:
Do you feel that the inspector
actually believed that your accumulation -that your methane problem that you had that
caused the withdrawal of miners was due to the
fact that you weren't ventilating this area in
the manner in which he felt your plan required
it to be ventilated?
THE WITNESS:
it occurred.

No, I don't believe that's why

JUDGE KOUTRAS:
Do you get the impression
·that's why he 'issued the citation in this
case?
THE WITNESS:

Yes, sir

JUDGE KOUTRAS:

Did he tell you that?

THE WITNESS: No -- maybe, you know. It's
possible that that discussion came up.

*

*

*

*

*

*

*

JUDGE KOUTRAS: Well, can I ask you something?
When this thing was submitted, G-3A was submitted, why wasn't it as explicit as it is -as it was made after it was -THE WITNESS:

I

JUDGE KOUTRAS:

Do you have any idea?

THE WITNESS: No. I mean, it was just drawing
the depicted air flow at the back-end of that
gob.
It didn't intend to show air flow in the
adjacent panel that was already driven,
because we had already shown how that was
going to be ventilated with the prior print,
that showed the air going up those two entries
and down the outside one. And really, all
that is showing is, the air that's coming
through the gob being carried away down the
other entry, the outside entry.
MR. KOSEK:

Your Honor, if I might

JUDGE KOUTRAS:

Yes?

1549

MR. KOSEK:
-- the reason we made the submission was so we wouldn't get any more viola-,
tions.
I don't know that Mr. Endler would
necessarily agree with that submission. But
obviously, in order to terminate the violation, that's what we did.
MSHA's Rebuttal Testimony
John A. Kuzar, MSHA Hastings, Pennsylvania, Field Office
Supervisor, testified as to his experience and background,
including 6 years as a ventilation specialist, and 3 years as
a mine inspector. He confirmed that he was not at the mine
in question when the citation and order was issued, and that
he last visited the mine sometime in 1982 (Tr. 174-176). He
also confirmed that he has no supervision over the No. 1 Mine,
but does supervise the inspections of the No. 2 Mine {Tr.
17 8 )'.
Mr. Kuzar confirmed that while he familarized himself
with plan "review 25" during the 2 days of hearings, he was
not familiar with the plan in 1985 when the citation and order
were issued (Tr. 179). MSHA's counsel conceded that Mr. Kuzar
had no personal knowledge as to what prompted Inspector
Brunatti to issue the citation (Tr. 181).
Ref erring to the right-hand portion of the sketch depicting plan "revision 25, 11 exhibit G-3{a), Mr. Kuzar described
it as follows (Tr. 182-183):
This face print that is in front of me
ght now shows a retreating -- first of all,
it shows a bleeder system established around
this gob.
Okay? It shows -- it says, "BE, 11
but in reality, it's an IE.

Ao

It 1 s a retreating inlet evaluation point to
assure that you've got positive pressure on
the inby end of this gob, which in turn -this is a bleeder system around the top.
You must maintain a bleeder around the gob
area to assure positive pressure on the gob,
and all the gases are diluted and swept out to
the return pull to the fan.
Now, as far as
what I'm seeing right here, this looks all
right.
But over here, on the other side --

1550

Q. Okay, Now, you were pointing originally
to the right side~
A.

Yes, ma'am.

Q.

Now, you're pointing over the left side?

A. That is correct, which is the table off
the diagram. This is where the problem is, I
guess, with which way the air was supposedly
going.

*

*

*

*

*

*

*

THE WITNESS:
If there was a regulator there
-- which I do not know -- and the regulator
was controlled, yes, it would shove air up
there. But if it was open, what it would be
would be a direct short to the return.
The problem we're addressing here is the fact
of 316 being direction of air flow or what
have you, where you have more of a problem
that apparently this had occurred, or the mine
wouldn't have been withdrawn.
It

329, in which 329 states that gob areas
bleeder entries shall be ventilated in such
a manner to prevent any of this occurring, any
of this methane gas being pushed back out.
When asked about the hazard presented by ventilating the
cited area in the manner in which it was being ventilated at
the time the citation issued, Mr. Kuzar responded "I wasn't
there. I don't know" (Tr. 188). He then proceeded to explain
"You have the possibility of that methane corning back over
that equipment, that section that was working" (Tr. 192>.
In
response to further questions, he stated as follows (Tr.
193-197):
JUDGE KOUTRAS: What's the significance of
that arrow at the top of the page there that
seems to be the focal point?
THE WITNESS:
JUDGE KOUTRAS:

This arrow?
Yes?

1551

THE WITNESS: This arrow here shows me everything going to return through my bleeder
entries, across the top. It shows me going -because, what I'm getting at, air doesn't -you don't take air to buck air. You're not
shoving air up and air coming down. It's got
to go to return someplace.
JUDGE KOUTRAS:

Okay.

BY MS. HENRY:
Kuzar, when you say, "You don'·t take
air to buck air," what is your understanding
of what the mine management has stated that
their intention was, in the way they were ventilating, the way this air was flowing?

Q.

Mr.

A. The way I understood mine management, the
air was coming up those other entries, and I
assume that it was joining with this return
coming across this bleeder system on the inby
end. That's what I believe them -- what they
were saying.
Q. And do you believe that, with your knowledge and looking at this ventilation plan,
with what they were saying, that that would
have been an adequate ventilation of that
mine, of this area, the way the map is showing
it should be ventilated?

A.

*

I would have to see it work that way.

*

*

*

*

*

*

Q. And what would be the effect of, as management has stated, their pushing the air up the
other way? And I realize I'm using simple
terms, but I'm trying to get sort of a layman's
understanding here. Of instead of the air
going down, the air flowing the way Mr. Brunatti
found it flowing?

A. Conditions could change that. It would
depend how much they had available for this
section, how much air was on this section
where they were mining.

1552

There's a lot of things are involved there.
What they had going out this bleeder,
quantity-wise; how much was going down the
split return. There's a lot of things have a
bearing on this, what could occur.

*

*

*

*

*

*

*

Q. Why would you consider
let me ask you
this. Would you consider the testimony you've
heard today from Mr. Brunatti about the condition from the mine management about the condition, and looking at the plans yourself, would
you consider this to be a significant and substantial violation?
A.

Yes, I would.

Q.

Why?

A

Because of what occurred.

Q.

Okay, could you explain?

A. The occurrence prior to the inspector
getting there, you had a methane build-up in a
gob area in that mine. And whether it be
the chances of that methane being pushed back
over this active section would be very slim,
being that the fan is over here.
But a change in a barometer -- various things
could govern on what that methane did. And
it's very unlikely that it would come back
over this active· section with the fan being
over here.

Q. Let me make sure I'm understanding what
you're saying. The way the air was flowing,
you're saying that the fan placed where it
was, it was unlikely that the methane would
leave would dissipate? Is that what you're
saying?
A. The way that the ventilation that the
inspector found with the location of the fan
Q.

Right?

1553

A.
-- all right? If they did not have a ventilation control that was mantained to assure
that air going up in there, the way the inspector cited it, you would have a methane build-up
in this gob.

Q.

Okay.

A.

And apparently, that's what.occurred.

Q. Do you have any reason in your knowledge
to believe that the way that air flow was
coursing would have contributed to the methane
build-up in that area, that caused the
withdrawal?
~.

No, because I don't know the condition of
the entries, the other entry that would be on
the far side that would be carrying this methane out of there and diluting it.
I don't
know the condition of the airways. There's a
lot of other things come into play.

*

*

*

*

*

*

*

JUDGE KOUTRAS: The question is, whether or
not the air being coursed in the way that
Mr. Brunatti thought it was coursed at the
time of the violation, whether that had any
direct nexus or relationship to the methane
accumulation. That's the question. You don't
know that?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
have.

I could have -- I don't know.
It could have
I wasn't there, but it could

The parties agreed that the prior 4.2 methane accumulation occurred in the D-9 standing room regulator area depicted
on exhibit G-3(a), in the upper right-hand corner of the
sketch where the statement "Regulator may consist of blocks
removed from walls as necessary" appears (Tr. 198-199). When
asked whether he found some connection with the way in which
the air was being directed at the time of the violation, and
whether this condition had any relationship to the methane

1554

accumulation, Mr. Kuzar responded "No," "Not outby, I don't,
in here, yes" (Tr. 199).
Mr. Kuzar stated that the method used to ventilate the
area, as explained by Mr. Endler, up two entries, and then
being melded with the air coming out at the top of the area
shown on exhibit G-3(a), and then down and out of the return,
was a wrong way to course the ventilating air because all of
the air pressure should be put on the gob, rather than out
the return (Tr. 200). Good ventilation practice ca1·1s for
keeping the majority of the air pressure on the gob to assure
that gases go out the bleeder system to the return, with a
limited amount down. the return that has to be travelled
weekly {Tr. 201-202).
On cross-examination, Mr. Kuzar confirmed that he first
reviewed exhibit G-3(a), on Monday prior to the hearing, and
was not previously familiar with plan "review 25" when the
violation was issued (Tr. 203). He also confirmed that he
had no knowledge as to how the prior 4.2 methane accumulation
got there (Tr. 203-204). When asked if he knew whether the
arrow that is shown at the top of the plan in question is
still in the current applicable plan, he responded "I do not
k'now what's in there at the present time. But if this is the
bleeder system, it better be there" (Tr. 204).
Inspector Brunatti was recalled in rebuttal and referring
to his notes made on the mine map, exhibit G-2, testified as
to certain air readings that he took in the area on January 10.
In his opinion, based on his air readings, the air that day
was coursing through several check curtains and by-passing the
gob area. He measured air quantities of 16,948 and 10,505
CFM's at two locations, and 5,000 CFM was ventilating the gob
area. In his opinion, 5,000 CFM for gob ventilation is not
positive pressure on the gob. The installation of permanent
stoppings rather than ventilation curtains, and the adjustment
of the regulator to control the air flow, would have put pressure on the gob. Had the gob area been adequately ventilated,
the air in the D-9 right butt section would have been coursing
down all three entries {Tr. 206-210). He also referred to two
additional air readings of 1,250 and 725 CFM's, which indicated that positive pressure was not maintained on the gob
{Tr. 212).
.
.
In response to further questions, Mr. Brunatti stated
that in his opinion there was no positive air flow on the gob
on January 10, and that this condition constituted a violation of the law. He confirmed that he did not issue a violation for this condition that day because he detected no

1555

methane over 2 percent. He also confirmed that the air readings he took that day were in compliance (Tr. 216), and that
there was a positive air flow coming out of the regulator
which is shown on the right-hand portion of the sketch containing his notes, exhibit G-2 (Tr. 219).
Respondent's Rebuttal Testimony
Richard Endler produced copies of several mine examiner
and foreman reports reflecting recorded air readings for the
D-9 intake and return on January 2, 9, and 10, 1985, indicating 29,880, 6,762, 10,080, 5,875, 26,460, 7,104, and 2,881
CFM's at the locations noted. Mr. Endler concluded that
there was "roughly" 13,000 CFM's of air available to ventilate the gob, and while he could not state that all of this
air was going through the gob, it was available for that purpose (Tr. 221-223, exhibits o-9 through 0-11). He confirmed
that the ventilation pattern for the area was the same on
January 2 and 9 (Tr. 224). He stated that the gob was being
positively ventilated (Tr. 227).
Mr. Endler explained the action taken by the company in
response to the 4.2 methane accumulation which was reported
on January 9. He stated that checks were installed at the
back end area to direct the air coming up the two entries
around to flush out the methane. The methane level then
decreased to 1.2 percent, and it was then determined that it
was safe for the men to go back to work (Tr. 224-225;
230-234). After the methane was flushed out, the checks
"were taken down and put it back to the original way. And
the methane did stay down" (Tr. 247). Mr. Endler stated that
the amount of air necessary to dilute any methane in the gob
varies, and that it did so during the week prior to the
violation (Tr~ 247).
Mr. Endler identified exhibit G-5, as a plan submitted
by the company for the pillar mining of rooms off the left of
the D-9 area, and that it does not reflect mining on the
right-hand side at that point in time.
In his view, that
plan has nothing to do with this case (Tr. 226).
Findings and Conclusions
The condition or practice cited by Inspector Brunatti as
an alleged violation of 30 C.F.R. § 316, and the respondent's
approved ventilation plan, is described as follows in section
104(a) "S&S" Citation No. 2255733, issued on January 16, 1985
(exhibit G:...l) :

The approved ventilation and methane and
dust-control plan was not being complied with
in the D-9 area of the mine in that two of the
three entries (bleeder) in the 1st Rt Butt
area were letting air go inby. The plan
depicts only air coming outby from this area.
With the ventilation this way the air ventilating D-9 section was escaping out the return
instead of putting all the pressure on the gob
area thus creating a methane build-up in the
back end of the gob.
Inspector Brunatti modified the citation on January 17,
1985, by a "subsequent action" which modified the citation to
reflect that it was changed to a section 104Cd)(2) Order
No. 2255733-01. The modification also included references to
a previously issued Order No. 2110076, March 10, 1984, which
are incorporated by reference in items No. 14, No. 15, and
No. 16 on the citation/order form.
30 C.F.R. § 75.316, provides as follows:
A ventilation system and methane and dust
control plan and revisions thereof suitable to
the conditions and the mining system of the
coal mine and approved by the Secretary shall
be adopted by the operator and set out in
printed form on or before June 28, 1970. The
plan shall show the type and location of
mechanical ventilation equipment installed and
operated in the mine, such additional or
improved equipment as the Secretary may
require, the quantity and velocity of air
reaching each working face, and such other
information as the Secretary may require.
Such plan shall be reviewed by the operator
and the Secretary at least every 6 months.
The testimony and evidence adduced in these proceedings
establishes that on January 9, 1985, a methane accumulation
of approximately 4.2 percent occurred in the D-9 section of
the mine. Greenwich notified MSHA and the appropriate state
agency of the accumulation, and withdrew the men from the
mine. After corrective measures were taken and the methane
cleared up, the miners were permitted to go back to work.
As a result of the reported methane accumulation, Inspector Brunatti was contacted at his home by his supervisor and
was instructed to go to the mine to examine the affected area.

Mr. Brunatti went to the mine on the midnight shift of
January 10, 1985. The miners had been withdrawn, no unusual
methane accumulations were detected, and Mr. Brunatti complimented mine management for their efforts in clearing up the
methane problem. Mr. Brunatti confirmed the prior methane
accumulation by reviewing the mine examiner's books. He also
made some notations concerning the direction of air flow, air
velocity, and methane present in the D-9 section, and the
notations were made on an enlarged portion of the mine map
(exhibit G-2). Mr. Brunatti confirmed that he determined the
direction of the air flow by means of a smoke test and by
visual observation. He determined that the air was flowing
up two of the entries, and down the third entry as shown by
the arrows on exhibit G-2.
After completing his examination of the D-9 section on
January 10, 1985, Mr. Brunatti issued no citations and made
no determination as to whether any violations existed at that
time: He confirmed that he did not have the appropriate ventilation plan with him, and also confirmed that he did not at
that time have any knowledge of the mine ventilation system.
He testified that he was directed to go to the mine to determine whether any large accumulations of methane still existed,
and that is what he did.
With regard to his notations concerning the direction of
air flow on the three entries in question, Mr. Brunatti testified that he had "a problem" with the air direction and considered it "questionable," but made no determination on
January 10, that it was a violation of the ventilation plan.
He could not recall discussing the matter with mine management, and confirmed that he did not know whether the noted
air direction "was right or wrong" at that time.
During the period January 11 and 16, 1985, Mr. Brunatti
was at the mine performing his regular inspection duties, but
he was not in the D-9 section. He issued the contested citation while at the mine on January 16, and he based the citation on the notations he made with respect to the flow of air
on January 10, and his belief that the prior. reported methane
accumulation resulted from the misdirected air flow. He confirmed that on January 16, he did not visit the D-9 section
and did not know what the ventilation was that day. He also
confirmed that he made a finding of "moderate negligence,"
and so indicated by marking the appropriate block on the citation form. He explained that he made this finding out of
consideration of mine management's fine job in correcting the
methane problem, and because he was not totally aware of any
ventilation changes.

1558

Mr. Brunatti confirmed that the decision to issue the
citation on January 16, was made after a consultation with
his supervisor. His supervisor was concerned about the
reported methane accumulation and asked to review his notes.
During these discussions, Mr. Brunatti indicated concern that
changes were made in the ventilation system to cause the air
to flow in the wrong direction, and he believed that mine
management had to be involved in any such changes. After
further discussion and review of the ventilation plans with
his supervisor, it was concluded that the misdirected air as
noted by Mr. Brunatti during his mine visit of January 9,
constituted a violation of the ventilation plan and section
75.318.
On January 17, 1985, Inspector Brunatti modified the
section 104(a) citation to a section 104Cd)(2) unwarrantable
failure order, but he did not change or modify his moderate
negligence finding. The modification was made after further
discussions with his supervisor, and Mr. Brunatti admitted
that the decision to modify the citation and issue the order
was made prior to his going to the mine on January 17.
Inspector Brunatti testified that he did not consider
the action of Greenwich with respect to the violation to be
willful, nor did he consider it to be the result of indifference or a serious lack of reasonable care on the part of
Greenwich (Tr. 7~-74).
In its posthearing brief, Greenwich argues that the contested section 104(d)(2) order is invalid because it was based
on an investigation of a past methane accumulation incident
rather than a condition or practice detected by Inspector
Brunatti during the course of an inspection.
In support of
its argument, Greenwich cites the following cases in which six
Commission Judges decided the issue as argued by Greenwich:
Westmoreland Coal Company, Docket Nos. WEVA 82-34-R, et. al.,
(May 4, 1983), unreported, (Judge Steffey); Energy Mining
Corporation, 7 FMSHRC 1908, 1919 (Nov. 1985) (Judge Lasher);
Southwestern Portland Cement Company, 7 FMSHRC 2283, 2292
(Dec. 1985) (Judge Morris); Nacco Mining Company, 8 FMSHRC 59
(1986), review pending (Chief Judge Merlin}; Emerald Mines
Corporation, 8 FMSHRC 324 (1986), review pending (Judge
Melick; White County Coal Corporation, 8 FMSHRC 921 (June 9,
1986) (Judge Melick; and Greenwich Collieries, 8 FMSHRC 1105
(July.14, 1986) (Judge Maurer).
Greenwich points out that the inspector was dispatched
to the mine to look into a methane accumulation in the D-9

1559

area of the mine which occurred on January 9, and which was
reported by Greenwich. Upon his arrival at the mine on
January 10, the inspector visited the D-9 area, but issued no
violations. Subsequently, on January 16, when he issued the
section 104(a) citation, the inspector did not reenter the
D-9 section before writing the citation. Still later, on
January 17, the inspector modified the citation to a section
104(d)(2) order, and he did so on the basis of a conversation
with his supervisor without reentering the D-9 section. The
decision to issue that order was made prior to the inspector's arrival at the mine on January 17.
Greenwich points out further that the methane accumulation which occurred on January 9, 1985, was never observed or
detected by Inspector Brunatti, and that it was dissipated on
January 10, when he entered the D-9 section. Greenwich concludes that since no methane accumulation was in existence at
the time the initial section 104Ca) citation and the subsequent modification to a section 104(d)(2} order took place,
the order was invalid and should be dismissed.
Citing United States Steel Corporation, 6 FMSHRC 1423 at
1437 (June 1984), where the Commission held that an unwarrantable failure to comply may be established by showing tnat the
violative condition or practice was not corrected or remedied;
prior to the issuance of a citation or order, because of indifference, willful intent, or serious lack of reasonable care,
Greenwich asserts that there is no evidence in this case to
support an unwarrantable failure finding.
In support of this
conclusion, Greenwich relies on Inspector Brunatti's findings
of "moderate negligence" with respect to the citation and
order, and his testimony that he did not consider the alleged
violation to be due to "indifference, willful intent, or a
serious lack of reasonable care" on the part of Greenwich.
With regard to the alleged violation of section 75.316,
Greenwich submits that MSHA has failed to establish by any
credible evidence that Greenwich violated its ventilation
plan. Greenwich asserts that the testimony of foreman Endler
clearly indicated that the ventilation was in compliance with
plan review No. 25 which was in effect at the time of the
citation. Greenwich points out that Mr. Endler, using various
exhibits, clearly demonstrated that government Exhibit 3-A was
the same as operator's Exhibit 4. He indicated that operator's Exhibit 4 showed main intake air coming up the righthand entry, reduced air flow coming up the belt entry, and
return air going down the left-hand entry shown in Exhibit 4.
He further testified that the ventilation demonstrated in that
exhibit was the same ventilation as cited by Inspector

1560

Brunatti as not being in compliance with the ventilation plan.
The citation, later modified to an Order, was ultimately terminated when Greenwich submitted a print to MSHA which showed
ventilation going in the direction required in the citation
and order of January 16 and 17, respectively. Greenwich submits that no such submission to MSHA would have been necessary
had the original plan required ventilation in the D-9 area as
interpreted by Inspector Brunatti. Hence, Greenwich submits
that MSHA failed to show a violation of the ventilation plan.
With regard to Mr. Brunatti's allegations that the air
ventilating the D-9 section was escaping out the return
instead of putting all the pressure on the gob area, thus
creating a methane build-up at the back end of the gob,
Greenwich asserts that the testimony by foreman Endler clearly
revealed there was a positive flow of air on the gob in the
D-9 area. Greenwich points out that Mr. Endler's testimony
was based upon air readings taken in the area on January 2 and
9, and his personal observations of the area on January 9,
which indicated a positive flow of air on the gob in the D-9
area. Greenwich concludes that MSHA has failed to prove that
all available air positive pressure was not put on the gob,
thereby creating a methane build-up in the back end of the
gob.
In her closing oral arguments, MSHA's counsel relied on
the testimony of Inspector Brunatti and Supervisory Inspector
Kuzar to support a violation of the ventilation plan. With
regard to Mr. Kuzar's testimony, I have given it little or no
weight. Mr. Kuzar confirmed that he has no supervision over
the No. 1 Mine, was not.in it when the citation was issued,
and that he last visited it in 1982. His testimony in support
of the violation is based on his familiarizing himself with
plan review No. 25 .during the hearing, and MSHA conceded that
he had no personal knowledge as to what prompted Inspector
Brunatti to issue the citation. When asked about any hazard
involved in ventilating the area cited by the inspector in the
manner in which he claimed it was being ventilated when the
citation issued, Mr. Kuzar responded "I wasn't there.
I don't
know. 11
When asked about the manner in which Greenwich claims it
was ventilating the area in question, Mr. Kuzar stated that
he would have to observe it operating before he could comment
on it. When asked about the effectiveness of the air flowing
in the direction that Mr. Brunatti claimed it was flowing, on
January 9, Mr. Kuzar responded that "conditions could change
that 11 and that other variables have to be considered. When
asked whether he had any reason to believe that the air flow

1561

as found by Inspector Brunatti could have contributed to ·the
reported methane build-up in the D-9 area, Mr. Kuzar responded
"No, because I don't know the condition of the entries * * *
and airways, * * * and there's a lot of other things that come
into play." When directly· asked whether the air flow as found
by Inspector Brunatti had any direct relationship to the methane accumulation, Mr. Kuzar replied "I don't know. I wasn't
there, but it could have."
MSHA's counsel agreed that review 25 is the applicable
plan in effect at the time the citation was issued. However,
counsel took the position that exhibit G-3, which is "review
26," while not the official plan that was in effect at the
time in question, "makes it a little bit clearer," and that
the three arrows in the upper left-hand corner of page two of
"review 26" basically describe the direction of air coming
down all three entries (Tr. 141-142). Counsel asserted that
there is no dispute that the air was flowing in the direction
claimed by Mr. Brunatti, and that the disagreement lies in
the fact that the company believes that the direction of the
air was in compliance with the applicable plan, and that MSHA
believes that the direction of the air was out of compliance
(Tr. 142). Counsel agreed with Mr. 'Brunatti's interpretation
that the direction of air should have been down all three
entries, rather than up two and down the third (Tr. 145, 152).
When asked why the single arrow shown at the top lefthand corner of "review 25," .exhibit G-3(a), does not curve
around and come down the entry, MSHA's counsel responded "it
is MSHA's position that this is the only way, if the air is
going that way, the only way you can ventilate the mine * * *
is to get the air out again, is to go back down-- 11 (Tr. 154).
Counsel asserted that the air should have gone down all three
entries as shown in the plan print submitted to abate the
order, exhibit 0-8 (Tr. 162).
I take note of the fact that the citation issued by
Inspector Brunatti fails to include any reference to the particular ventilation plan provisions allegedly violated in
this case. I also note the fact that while in the D-9 section on January 10, the inspector did not have the ventilation plan with him, and he admitted that he was not at that
time a ventilation specialist and had no knowledge of the
mine ventilation system. His subsequent opinion that the
plan had been violated was based on a review of the ventilation plans and his notations made on a portion of the mine
map (exhibit G-2) while he was on the section on 'January 10.

1562

Inspector Brunatti's conclusion that the ventilation
plan was violated was based on his findings made on
January 10, that the air flow was misdirected in two of the
three entries on the D-9 section as noted on the face of his
citation. He found that in two of the entries the air was
travelling inby, when the ventilation plan depicted the air
flowing outby in all three entries. Mr. Brunatti also relied
on his notes made on January 16, which reflected that
Greenwich's safety representative and mine foreman Endler
stated that the direction of air flow as he found it on
January 10, was the way it was depicted on the ventilation
plan, but contrary to the way Greenwich's engineer submitted
it for approval.
Mr. Brunatti testified that the applicable ventilation
plan provision appears on the second page of exhibit G-3, at
the ·upper left-hand corner. The plan depicts three double
arrows showing the a.ir travelling down all three of the
entries after exiting at the point labeled BE# 58, and out
the return.
These are the same entries noted by the inspector when he made his notations on the mine map (exhibit G-2),
on January 10, showing the air travelling .'!:!.£two entries but
down the third one.
The plan is labeled "Review No. 26," and
i t reflects that it was submitted on February 15, 1985, and
revised on May 31, 1985, after the citation was issued.
Mr. Brunatti also testified that ventilation plan
Review 25, dated August 1, 1984 (exhibit G-3Ca)), is equally
applicable in this Gase and that it in no way changed the
requirements depicted in plan Review No. 26.
However, he
conceded that plan Review No. 26 was not in effect at the
time the citation issued, but that plan Review No. 25 was
CTr. 79-80, 87). MSHA's counsel asserted that Plan No. 26
was introduced to clarify Plan No. 25 and that it was a "more
helpful drawing of what was indicated in Government Exhibit
G-3 (a) , and that no change.s were made in the plans (Tr.
116-117).
Greenwich's counsel asserted that the critical issue in
this case focuses on the interpretation placed by Inspector
Brunatti on the significance of the double-headed arrow
depicted at the upper left-hand corner of ventilation plan
Review 25, exhibit G-3(a), the ventilation plan which was in
feet at the time the citation was issued on January 16.
Counsel argued that review 25 and exhibit 0-2, which is part
of a pri~t submitted at the time review 25 was submitted,
consistently show the direction of air flow going .'!:!.£ two
entries and down the third entry.
Counsel argued that these
exhibits show the direction of intake air coming in the

1563

right-hand entry, reduced air coming up the low-low belt
entry, and return air coming out the left-hand entry (Tr.
124, 139).
After careful review of all of the testimony and evidence
adduced in these proceedings, I cannot conclude that MSHA has
carried its burden of proof in establishing a violation of the
ventilation plan by a preponderance of the credible evidence
in support of its case. The ventilation plan provision relied
on by the inspector in support of his initial citation (review
No. 26), was not in effect at the time it issued, and the fact
that Greenwich's engineering department may have submitted a
subsequent revision depicting the direction of .air down all
three entries is irrelevant. · Any suggestion by MSHA that the
applicable plan No. 25, which was in effect at the time the
citation issued, must be interpreted to show the direction of
air down the three entries, as clearly shown in review No. 26,
is rejected.
I further find that Greenwich's testimony and evidence
is more credible, and that it has established that it was
following the applicable ventilation plan requirements of
ventilation review plan No. 25, August 1, 1984, as depicted
in exhibits G-3(a) and 0-2. Those exhibits clearly and consistently show the air flow going up two entries and down the
third, precisely as found by the inspector when he made his
notes on January 10, while on the D-9 section.
With regard to MSHA's allegations that Greenwich's failure to maintain positive air pressure on the gob contributed
to the methane build-up at the back of the gob, Inspector
Brunatti testified that when he tested the air in the D-9
area on January 10, he found quantities of 16,948 and
10,505 CFM's at two locations, and 5,000 CFM's ventilating
the gob area.
In his opinion, 5,000 CFM's is not positive
pressure on the gob. However, Mr. Brunatti confirmed that he
issued no citation on January 10, for lack of positive air
pressure on the gob even though he considered this condition
to be a violation of the law. He explained that he issued no
violation because he detected no methane over 2 percent. He
also testified that the air readings he took on January 10,
were in compliance and that there was in fact a positive air
flow coming out of the regulator.
Mine foreman Endler produced copies of several mine examiner and foreman reports reflecting recorded air readings for
the D-9 intake and return on January 2, 9, and 10, 1985, indicating 29,aso, 6,762, 10,080, 5,875, 26,460, 7,104, and
2,881 CFM's at the locations noted.
Mr. Endler concluded

1564

that there was "roughly" 13,000 CFM's of air available to
ventilate the gob, and while he could not state that all of
this air was going through the gob, it was available for that
purpose. He confirmed that the ventilation pattern for the
area was the same on January 2 and 9, and that the gob was
being positively ventilated. He also confirmed that the accumulated methane in question was flushed out after two checks
were installed at the back end of the gob and then taken down
after the methane was reduced to 1.2 percent. Inspector
Brunatti agreed that as long as the majority of air is coursed
to the gob, the ventilation is ideal.
I cannot conclude that MSHA has established that
Greenwich failed to maintain positive pressure on the gob,
thereby resulting in the build-up of methane. Aside from
Inspector's Brunatti's opinion that this was the case, I can
find no credible facts to support his speculative opinion.
In fact, Mr. Brunatti admitted that he issued no citation for
these alleged conditions, was unaware of any methane build-up
at the back end of the gob from January 10-17, found less
than 2 percent methane on January 10, while on the D-9 section, all of his air readings were within MSHA's requirements,
and he found positive air flow coming through the regulator.
In addition, he conducted no inspection of the D-9 section
subsequent to his visit there on January 10, when he made some
notes on a portion of the mine map, and he admitted that he
had no knowledge of the ventilation conditions on January 16.
With regard to Greenwich's arguments concerning the modification of the contested citation to an unwarrantable failure
order, I agree with the rationale of the cases cited in
support of the proposition that a section 104(d)(2) order may
only issue upon an inspection of the mine. However, on the
facts of this case, even if I were to find a violation of section 75.316, I would vaGate the inspector's unwarrantable
findings and modify the order to a section 104(a) citation,
and I would do so on the basis of a total lack of credible
evidence or facts to support any unwarrantable failure on
Greenwich's part. As noted earlier, Inspector Brunatti candidly admitted that he did not consider Greenwich's actions
to be willful, or the result of indifference or a serious
lack of reasonable care.
ORDER
In view of the foregoing findings and conclusions,
Greenwich's contest IS GRANTED, and the contested section
104(d)(2) Order No. 2255733-01, Janury 17, 1986, citing an

1565

alleged violation of 30 C.F.R. § 75.316, IS VACATED, and
MSHA's civil penalty proposal IS DISMISSED.

Distribution:
Linda M. Henry, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 14480 Gateway Building, 3535 Market
Street, Philadelphia, PA 19104 CCertif ied Mail)
Joseph T. Kosek, Jr., Esq., Greenwich Collieries, P.O.
Box 367, Ebensburg, PA 15931 (Certified Mail)

/f b

15·66

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

22041

OCT 161986

CONTEST PROCEEDING

BETHENERGY MINES, INC.,
Contestant

v.

Docket No. PENN 86-287-R
Citation No. 2695988; 8/20/86

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

Livingston Portal 84

ORDER OF DISMISSAL
Appearances:

Before:

R. Henry Moore, Esq., Rose, Schmidt, Chapman &
Hasley, Pittsburgh, Pennsylvania, for
Contestant1
Robert M. Cohen, Esq., Office of the Solicitor,
Department of Labor, Arlington, Virginia, for
Respondent.

Judge Melick

contestant requests approval to withdraw i~s Contest in
the captioned case. Under the circumstances he ein, permis~
sion to withdraw is granted.
29 C.F.R. § 2700. 1. The case
is therefore dismissed.

n

; .

~ ~ I

Gary
lick
/Admini trative

I

/
~w Judge

'

Distribution:

R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley,
900 Oliver Building, Pittsburgh, PA 15222-25369 (Certified
Mail)
Robert M. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
{Certif;ied Mail)
rbg

1567

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
DuWAYNE SCHAFER,
Complainant

OCT 171986

DISCRIMINATION PROCEEDING

.

Docket No. CENT 85-89-D
Glenharold Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Complainant;
.
Gregory Lange, Esq., Richardson, Blaisdell,
Isakson and Lange, Hazen, North Dakota,
for Respondents;
Deborah Fohr Levchak, Esq., Office of the General
Council, Basin Electrical Power Cooperative,
Bismarck, North Dakota,
for Respondents.

Before:

Judge Lasher

This proceeding was initiated on May 20, 1985, by the filing
of a discrimination complaint by William E. Brock, Secretary of
Labor, on behalf of DuWayne Schafer (herein "Schafer"). The
Secretary's complaint, as twice amended, alleges that Schafer was
reprimanded in violation of Section 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg., (Supp.
v., 198l)(herein "the Act") and seeks as a remedy therefor one
day's back pay with interest, and correction of Schafer's
employment record including removal of the reprimand.
In addition, the Secretary prays that a $2,000.00 civil penalty
be assessed against Respondent pursuant to Section 110 of the
Act.
PRELIMINARY FINDINGS
The preponderant reliable and probative evidence, based on
the testimony and documentary evidence received at the formal
adversary herein and pleadings, establishes the following:

1568

The Glenharold mine, a large surface coal mine CT. 366), in
November, 1984, and at all times material herein, while owned
by Respondent Basin Cooperative Services (herein "Basin") was
operated, supervised and controlled by Respondent Consolidation
Coal Co. (herein "Consolidation"). At the hearing, it was
conceded that both Respondents are subject to the Act and the
Commission's jurisdiction. Since Consolidation operated,
supervised and controlled the mine CT. 286) it was the "operator"
at the times pertinent herein, and as the record demonstrates,
directly responsible for any violation of the Act by its
management personnel which occurred during the period in
question. l; The superintendent of the mine in November, 1984,
and at alltimes material herein was Marvin Suess, an employee
of Consolidation CT. 416-418).
In November 1984, Schafer, an employee of Consolidation, was
a heavy equipment operator (sometimes referred to as a "blade
operator"), who regularly operated a Cat. No. 16 Motor Grader,
referred to in the record as the "G-4". At the times pertinent
here, the Glenharold Mine utilized three motor graders
("blades"); the one directly involved in this proceeding was a
standby for use when the other 2 were being repaired and is
referred to in Respondents's mining jargon as the "G-3"; it is
similar to that depicted in Exhibit 17 CT. 31-34). The G-3 has
disc brakes and can travel up to speeds of 7-8 MPH in fourth gear
CT. 123) and 28 MPH in eighth gear.
During the relevant time period the mine was operated around
the clock - three 8-hour shifts; the G-3 blade was subject to use
on each shift.
On November 12, 1984, Schafer's usual G-4 blade was being
repaired and his assigned task was to operate the G-3 grader on
the afternoon shift (4 .p.m. to midnight) doing reclamation work
on the surface ("top") of section 5 of the mine consisting of
removing overburden and dumping it in an area shown as the
"spoils" area on the depiction marked Exhibit 3-A. This required
him to operate his diesel-powered grader along a mile-long
inclined roadway CT. 45, 59, 191, 401-402, 414) between the
highwall on the south side of the pit and the spoils area. Other
vehicles, such as scrapers, pickups and haulage trucks, were also
traveling along the roadway. (T. 36-46, 58). It was very dark
(T. 46). There was a 4-block distance where there were no berms
with a 30-foot straight-down drop if the blade had gone over the
side CT. 55-57).

1/ 30 u.s.c. § 802(d); Consolidation Coal Company v. Secretary
(4th Cir., unreported decision; March 13, 1986).

1569

.

,

At the beginning of his shift on November 12, Schafer
performed his usual safety check of the blade and noticed some
lights thereon were not working and that a mirror was missing.
He called his foreman, Dean Bray CT. 61, 369) who sent out an
electrician who fixed the lights and brought out a mirror which
Schafer installed. When the electrician left, Schafer operated
the blade for about 3 hours CT. 61, 62) and noticed "the brakes
were not holding well" CT. 46, 136). The brakes were getting
worse each time he used the brakes, according to Schafer (T.
46-47). Schafer described the problem as follows:
"A. Well you would go to step on the brakes and, it would
take awhile before they would grab and then it wouldn't
stop like it should. Normally if you slam on the brakes, it
will stop.

x

x

x

x

x

x

x

A. You should be able to slide the tires on it.
Q. What does that mean?
A. Lock up the brakes so the tires don't go around on it.
You should be able to to stop down on the brakes and the
tires lock right up, they don't go around.

x

x

x

x

x

x

x

A. Well until the tires stop -- from the time you step on
the brakes until the tires stop turning, shouldn't be more
than one to two seconds.

x

x

x

x

x

x

x

Q. Now on November 12, what were the problems with the
brakes that you experienced?
A. They had -- I noticed that they were considerably worse,
so I run it that way for a part of the shift.
Q. What do you mean by considerably worse, what happened
when you stepped on the brakes?
A. It was -- the pedal would go to the floor and it was
taking considerably longer until they would grab. It was
taking approximately five seconds from the time you'd step
on the pedal until they would grab, and then you would only
coast to a stop, it wouldn't stop it like -- you know, or
lock up the wheels or anything. It would just kind of coast
to a stop.
Q. How far did you go from the time you stepped on the
brakes until the time the equipment stopped -- how much
time?
A. I would say on a flat surface with it warmed up and
everything, from the time they would actually start grabbing
-- it'd be five seconds from the time you'd step on the
brake approximately till they would grabi from the time it
would grab until it would stop, a minimum of 20 feet -minimum.
Q. That was on a level surface?
A. Right, in fourth gear, which is approximately seven miles
an hour.
I don't really know for sure, that's just my
guess.
Q. How fast were you traveling on that particular evening?

1570

A. Anywheres from -- depending on what type of situation I
was in, anywheres from second to fourth gear while I was
blading.
Q. And do you have any ideal how many miles per hour that
would be?
A. Well like I say, fourth gear I think is approximately
seven miles an hour, seven to eight." CT. 47-49).
On November 12, Schafer operated the G-3 from about 5 p.m.
to 8 p.m. during which time the last 4 transmission gears,
numbers 5 through 8, became inoperative and a ball joint on the
steering axle broke. CT. 62, 137). At approximately 9 p.m. he
tagged out the G-3 CT. 65, 66 171,; Ex. 8) and took it to the
repair shop after calling the shift foreman, Dean Bray and
telling him that the transmission was out, that the ball joint
had broken and that the brakes needed to be adjusted CT. 65, 138,
139). Bray told him to take it to the shop. At the shop,
Schafer reiterated to the shop foreman for that shift, Rich
Schneider, the three items which needed repair.
Tagging out equipment is an equipment operator's means of
alerting management that the equipment is unsafe
CT. 413).
Schafer's safety concerns as to the brakes were thus communicated
to management personnel both orally and in writing.
·
· ·At a speed of 7 MPH (approximately the top speed of the G-3
with the top 4 gears of the transmission out) the G-3 would
travel 20-40 feet over a 5-second period after the brakes were
applied before it would stop in some of the conditions Schafer
was operating in on November 12 depending on whether the roadway
was flat or inclined CT. 69, 140, 141). Part of the area of
roadway Schafer was working was inclined CT. 43-45, 58-59, 63,
68, 191, 195, 198-200).
Consolidation's Tag-out Procedure, reflected in a 2-page
memorandum from "Mike Quinn" to "all employees" dated January 8,
1981, as a "Safety Topic for the week of January 19, 1981" (Ex.
4), provides as follows:
"PROCEDURE FOR TAGGING OUT DEFECTIVE EQUIPMENT"

In order to insure that defective equipment is not operated
and that equipment is not needlessly taken out of service,
the following procedure should be followed when placing a
"DO NOT OPERATE" tag on a piece of equipment.

1.

Any individual can tag out a piece of equipment. However, the individual should know enough about the
machine to determine if it is safe.

2.

If you place a "DO NOT OPERATE" tag on equipment, you
must:
A. Immediately inform your foreman that you have done
so.

1571

,

B. Write on the· tag exactly why it should not be
oparated.
c. Put your name, the date, and the time on the tag.
D. Turn in a safety maintenance request and note that
the equipment has been tagged out of service.
3.

To remove a 11 00 NOT OPERATE 11 tag:
A. Anyone can remove the tag if the defect has been
fixed.
It should be noted on the copy of the safety
maintenance request sheet that it has been fixed.
B. The tag should not be removed until the defect is
fixed or it is determined by one of the following people
that the defect does not merit taking the equipment out
of service.
1.
2.
3.
4.

Safety Director
A member of the Safety Committee
The individual that placed the tag
A Foreman
a.
If a Foreman or the Safety Director removes the
tag prior to the repair of the defect, an explanation should be given to the person who
tagged the equipment out or a member of the
Safety Committee. If there is no mutual agreement that the tag should be removed, the issue
shall be considered a Health and Safety Dispute
under Article III, Section (0) of the Contract.

c. If the tag is removed prior to repair of the defect,
-it should be noted why and by whom on the safety maintenance request.
D. In some instances the use of a defective piece of
equipment is permissible if it is done under limited
circumstances and with an awareness of the defect. If
this becomes necessary, the circumstances and precautions taken should be noted. An Example: The brakes
don't work on the polecat. It is parked by bucket hardware that needs to be loaded onto the two ton truck.
Without moving the truck someone blocks the wheels and
used the hoist.
Company policy effective January 19, 1981.

s/

Marvin R. Suess
MARVIN R. SUESS
SUPERINTENDENT

1572

The frontside of the tag (Ex. 8) which Schafer placed on the
steering wheel of the G-3 at the time provided as follows:
"DANGER
EQUIPMENT NEEDS REPAIR
SIGNED BY
S/ DuWayne Schaf er
DATED 11-12-84
The back side of the tag provided:
"DANGER
DO NOT REMOVE THIS TAG
Left steering cylinder has broken ball joint
Brakes need adjusting
SEE OTHER SIDE"

(Note: The capitalized wording reflects the standard printed portion
of the tag form; lower case is the
part filled in by Schafer in his
handwriting)

Subsequently, in handwriting, the word "Repaired" was put in
by Lee Brown, repair shop foreman, behind the word "ball joint"
and behind the word "adjusting" the following note was made:
"Miles Dochtor checked out and they seemed safe to him. LB. 2;
11-13-84"
.
Miles Dochtor's testing of the brakes was performed on a
level surface CT. 338). Miles Dochtor's report back to Lee Brown
was that there was a "slight pause" on the brakes, "maybe a
couple of seconds or something". He did tell Mr. Brown how fast
he had driven the G-3. Dochtor indicated he thought the brakes
were safe and also that he believed the G-3's brakes needed
repair (T. 339, 340). Because Brown thought the G-3 was needed,
he did not then repair· the brakes but sent it back out for
operation (T. 340), removed the tag and gave it to his supervisor, Merle Anderson CT. 341, 391). According to Mr. Brown it
"very seldom" happens that he removes a tag b~fore all repairs
are completed (T. 342). In fact, the only tag Brown had even
taken off a machine was Schafer's first tag on the G-3 CT. 351).
This constitutes a change in Respondent's procedures which I find
Schafer could not have anticipated.

~/

The hand written initials of Lee Brown, the repair shop
foreman on the next shift, i.e. midnight to 8 a.m. on November
13, 1984 CT. 67, 306). Miles Dochtor was a repair shop mechanic
CT. 86, 334).
Neither Lee Brown or Dochtor were members of the
Safety Committee CT. 85, 86).

1573

After leaving the G-3 blade in the shop for repair, Schafer
operated a scraper for the rest of his November 12 shift (T. 68,
387).
On the following day, November 13, 1984, Schafer returned to
the mine to commence work on the 4 p.m. to midnight shift. .The
G-3 was at the job site and Schafer performed his usual safety
check, 3; drove the G-3, and "realized that the brakes were the
same as-they had been the night before." CT. 68, 142). He
called the shop foreman for that shift (T. 384), Rich Schneider,
on his radio and asked him if there was any plan to repair the
brakes. Schneider said that they didn't want to repair it until
after repairs on the G-4 were completed CT. 68, 477, 478).
Schafer asked what happened to the tag he had put on it the night
before and Schneider said he knew nothing about it CT. 68-70,
111, 146). Schneider didn't say, and Schafer did not know, when
the G-4's repairs were due to be completed CT. 146). Management
did have "plans" to repair the G-3's brakes CT. 147, 277) but did
not want to make such repairs until after the G-4's repairs were-completed (T. 68, 86, 365, 384-386, 477-478, 527-528) which was
anticipated to be on Wednesday, November 14 (T. 384).
Schafer than called Dean Bray, his foreman, at approximately
4:30 p.m. and asked him to bring him another tag for the blade.
Bray said nothing but after a while he came to where Schaf er was
and asked Schafer to take a pickup and go fuel a .light plant.
Bray told Schafer he would get him a tag later. Schafer then
fueled up the light plant, and found a tag in the pickup which he
then, about 5 p.m. (T. 172, 173), put on the G-3 blade between 7
p.m. and 8 p.m. CT. 109) Bray asked Schafer if the G-3 was in
too bad shape to take to the repair yard. Schafer said he could
bring it there (a distance of 5 or 6 miles) in slow speed (T.
70-72, 389, 390). Bray did not mention opposing putting a tag on
the blade at that time CT. 70-72) or that it wasn't company
policy to put a second tag on the machine CT. 72). When Bray
arrived for work on November 13, he did not ask anyone if the
blade had been repaired the night before, but "assumed that it
had been taken care of or it wouldn't be out there again" (T.
403-404).
The tag which Schafer put on the G-3 on November 13, 1984
(Ex. 9) was on the same printed tag form as Ex. 8 and provided on
the front side:
"DANGER
EQUIPMENT NEEDS REPAIR
SIGNED BY s/ D.M. Schafer
Date 11-13-84
7:00 p.m. II

1/

Employees were required to check their equipment before
operating it CT. 418-419).
1574

The rear side of the tag provided:
DANGER
DO NOT REMOVE THIS TAG
Brake [sic] do not
operate properly
Do not grab right
away or hold very well. ~/
SEE OTHER SIDE"
Schafer's reason for putting the second tag on the G-3 was
that he "felt that it was still as unsafe as it was before to
operate and they had done nothing about it to make it any
better." (T. 73). Schafer was aware at the time that the tags
prevented others from using the equipment (T. 73). If the
operator of a blade felt it was unsafe, the method used to alert
management was placing a tag on it CT. 413, 458).
At approximately 9 p.m., Schafer took the G-3 to the repair
shop and went into the "warehouse" where four foreman were
sitting having coffee, Rich Schneider, Larry Klinsworth, Dean
Bray and Kenny Redka, and told them that the "next time somebody
takes that tag off -- some foreman takes that tag off, some
foreman is going to be in trouble." CT. 76). 5/
.
At this point in time, no foreman or anyone in management
had told Schafer why the brakes had not been repaired, why the
tag had been removed, who had removed it (T. 77, 82, 104,
108-112, 308-310, 341, 358, 359, 463, 476, 477, 506-507) or given
any explanation other than Schneider's statement to him that they
did not want to fix the G-3 until the G-4's repairs had been
finished. CT. 77, 82,' 308-309, 312, 527). As noted previously,
the G-3's brakes were scheduled for repairs in "a day or so"
thereafter, after the G-4 blade came out of the repair shop CT.
308, 312-313) •
Schafer also had not been advised: (1) that a member of the
Safety Committee had reviewed the G-3's brakes as required by
Article III, Section (i) of the union contract (Ex. 19, T. 81,
82, 409), the pertinent portion of which is set forth subsequent-

4/ The wording of the handwritten part of this tag filled in by
Schafer does not reflect that he was aware that the first tag had
been removed by management or that management had checked the
brakes and found them satisfactory; nor does its tenor show
rancor or reflect any knowledge of any events concerning the G-3
after he left it at the repair shop the previous evening.
5/ This is Schafer's account. According to Dean Bray, the only
party to the conversation who testified besides Schafer, Schafer
said that if any of the foreman present had removed the tag it
"would be" their "ass" (T. 396). On this limited issue I credit
Bray's account as being the more likely in view of the overall
circumstances and Schafer's emotional state at the time.

1575

ly herein. Nor had Schafer been advised (2) that the G-3 was
safe to operate in particular areas of the mine or under
specified conditions CT. 77, 82, 308-311, 359, 407, 408, 464,
507).
In this connection it should again be noted that
Respondent's own procedure for tagging out Defective Equipment
{Ex. 4) provides:
"The tag should not be removed until the defect is fixed or
it is determined by one of the following people that the
defect does not merit taking the, equipment out of s~rvice.
1.
2.
3.
4.

Safety Director
A member of the Safety Committee
The individual that placed the tag
A Foreman
A.

If a Foreman or the Safety Director removes the
tag prior to the repair of the defect, an explanation should be given to the person who
tagged the equipment out or a member of the
Safety Committee. If there is no mutual agreement that the tag should be removed, the issue
shall be considered a Health and Safety Dispute
under Article III, Section (0) of the Contract."
(emphasis added}

After Schafer took the G-3 to the shop, he asked Dean Bray
who had removed the first tag. Bray said that he wasn't sure,
and told Schafer to eat his lunch CT. 407) and they would talk
about it after lunch. 6; Bray then discussed the matter with
Rich Schneider CT. 408) and "tried to find out just exactly what
had happened on graveyard shift when they fixed it the night
before" CT. 391). Schneider told him that foreman Lee Brown had
removed it and that Brown and Dochtor had "checked it out." Bray
then requested Schafer to run the G-3 since "there wasn't any
real hazard if he was blading and doing his job", and asked him
if "he didn't think he could run it for one more shift and then
by the next day G-4 would have been ready." Schafer refused to
operate it. (T. 391, 409). If the G-4 had not come out of the
repair shop at that point, it was management's "intention" to
"continue to use" the G-3 CT. 527-528).
During the lunch break, and before Bray asked Schafer to run
the G-3 for one more shift, Bray and Schneider tested the G-3's
brakes while running the G-3 in 4th gear and found that there was

~/

At this point, according to Mr. Bray, he "had no reason" to
believe the condition of the G-3's brakes "were any other" than
what Schafer told him they were (T. 407-408), that is, that the
brakes were not safe to operate CT. 408).

a 2 or 3 second hesitation before the brakes grabbed (T. 392)
with the G-3 traveling 10 to 20 feet before coming to a stop (T.
393-395, 412). Mr. Bray could render no opinion how far the G-3
would have traveled after application of the brakes had there
been no "hesitation" problem CT. 395). Again, there is no
evidence in the record that Schaf er was told at any time, that
the G-3 was considered safe to operate in certain specified
areas.
The conversation with Schafer after the lunch break, at
approximately 9:30 p.m. (T. 78, 83), was initiated when Mr. Bray
came up to Schafer and told him that "Schneider and I looked at
that blade and we decided the brakes aren't that bad and so
you'll have to run it" CT. 78, 83, 181-183). Schafer asked Bray
if anyone from the safety committee had looked at the G-3, Bray
said "no, Rich and I looked at it." Schafer said they needed
someone from the safety committee to look at it and that this had
been standard procedure in the past (T. 79, 80). Bray told
Schafer that he didn't "need any member of the safety committee,
that if a foreman tells you that its safe to operate, you have
to operate it" CT. 83). Schafer was familiar with the union
contract (Ex. 19) as he had been a member of the safety committee
for 2-3 years and had been chairman of the safety committee for
approximately one year. Schafer's understanding of the contract
safety procedure was as follows:
"The procedure was that if the safety committee decided
-- according to the contract, if the safety committee
decided it was okay, you should run it; if you didn't, then
you still have the option of calling in MSHA to check it
out. If at that point MSHA decided it was safe to run anyway, then you were subject to reprimand • . If they decided it
was unsafe, then they would have to repair it." CT. 80).
No member of the safety committee was advised or given an
explanatipn by management why the first tag was removed CT.
79-82, 84, 409}.
At the beginning of Lee Brown's shift on November 14th (at
approximately midnight), Schafer conversed with Brown about the
G-3. This occurred after Schafer's shift on November 13 and
after Schafer had put the second tag on the G-3. Brown advised
Schafer that Miles Dochtor had checked the brakes (after the
first tag) and that Miles had said the G-3 was safe to operate.
Brown had not called a member of the safety committee to check
the G-3 at this point CT. 347).
When he arrived for work on the midnight to 8 a.m. shift
(the shift following Schafer's) on November 14, 1984, Lee Brown
noticed the G-3 was in the shop again with a tag on it and he and
Mark Winn, a pit foreman, both test drove the G-3 CT. 343). Both
drove the G-3 on the haul road but again on flat level surfaces.
Neither were safety committee members. There again was 11 a slight

1577

pause 11 of "two or three seconds" after the brakes were applied
before they stopped the G-3, allowing the G-3 to travel more. than
10 feet CT. 343-345). The pause or delay in the brakes grabbing
was not a "common" symptom of brake wear (T. 363).
On November 14, after these tests by Brown and Winn, the
brakes on the G-3 were repaired CT. 348) by replacing all the
seals and discs thereon CT. 362). After such repair, the old
brakes are thrown away (T. 364). In the case of the G-3 some of
the brake pads which were removed were seen to have completely
worn away CTr. 365). Mine superintendent Suess was told that the
brakes "were worn but they weren't totally out"(T. 531).
Schafer's understanding of the safety procedure was based on
Article III, Section (i) of the union contract (Ex. 19) which is
entitled 11 Preservation of Individual Safety Rights" CT. 81). It
provides:
"(l) No employee will be required to work under conditions
he -has reasonable grounds to believe to be abnormally and
immediately dangerous to himself beyond the normal hazards
inherent in the operation which could reasonably be expected
to cause death or serious physical harm before such condition or practice can be abated. When an employee in good
faith believes that he is being required to work under such
conditions, he shall notify his supervisor of such belief.
Unless there is a dispute between the employee and management as to the existence of such condition, steps shall be
taken immediately to correct or prevent exposure to such
condition utilizing all necessary employees, including the
involved employee.
(2) If the existence of such condition is disputed, the
employee shall have the right to be relieved from duty on
the assignment in dispute. Management shall assign such
employee to other available work not involved in the dis-

pute and the employee shall accept such assignment at the
higher of the rate of the job from which he is relieved and
the rate of the job to which he is assigned. The assignment
of such alternative work shall not be used to discriminate
against the employee who expresses such belief. If the existence of such condition is disputed, at least one member
of the Mine Health and Safety Committee shall review such
condition with mine management within four (4) hours to determine whether it exists.
(3) If the dispute involves an issue concerning compliance
with federal or state mine safety laws or mandatory health
or safety regulations, the appropriate inspection agencies
shall be called in immediately and the dispute shall be
settled on the basis of the inspectors' findings, with both
parties reserving all rights of statutory appeal. Should

1578

the federal or state inspectors find that the condition complained of requires correction before the employee may return to his job, BCS shall take the corrective action indicated immediately. Upon correction, the complaining employee shall return to his job. If the federal or state
inspectors do not find a condition requiring correction,
the complaining employee shall return to his job immediately.
(4) For disputes not otherwise settled, a written grievance
may be filed,. and the dispute shall be referred immediately
to arbitration. Should it be determined by an arbitrator
that an abnormally unsafe or abnormally unhealthy condition
within the meaning of this section existed, the employee
shall be paid for all earnings he lost, if any, as a result
of his removing himself from his job. In those instances
where it has been determined by an arbitrator ~hat an employee did not act in good faith in exercising his rights
under the provisions of this Agreement, he shall be subject
to appropriate disciplinary action, subject, however, to his
right to file and process a grievance.
(5) None of the provisions of this section relating to compensation for employees shall apply where BCS withholds or
removes an employee or employees from all or any area of a
mine, or where a federal or state inspector orders withdrawal or withholds an employee or employees from all or
any area of a mine. However, this section is not intended
to waive or impair any right to compensation to which such
employees may be entitled under federal or state law, or
other provisions of this Agreement.
(6) The provisions of this section shall in no way diminish
the duties or powers of the Mine Health and Safety Committee. 11
(Emphasis supplied)
After Schafer finished his lunch on November 13, Bray
assigned Schafer to operate a scraper CT. 183) and Schafer did so
through the end of the shift. At the end of the shift, another
foreman, Mark Wynn, advised Schafer that it was Lee Brown, repair
shop foreman CT. 84, 305) for the shift following Schafer's, who
had removed the first tag. Schafer then spoke to Lee Brown and
asked him what he was doing taking the tag off. Brown told him
that he and Miles Dochtor had checked out the G-3 and decided it
was good enough to run. Brown indicated that the brakes could
not be fixed by "adjusting" them and that the brakes had to be
taken apart and new discs put in, and that they needed the G-3
until the other blade was repaired. Schafer had not seen it
occur before that a foreman simply removed a tag and he had not
previously seen Respondent's tag-out procedure (Ex. 4) CT. 87,
88, 93, 150, 156) nor had another miner, Edwin Whetham CT. 214).
The only procedure Schafer was aware of was Article III, Section
Ci) of the union contract CT. 95).

1579

The hazards which were posed by operating the G-3 with defective brakes in the area where Schafer was working on November
12 and November 13 were persuasively described by the Secretary's
witness, Edwin Whetham, a dozer operator who was employed at the
mine during the pertinent period and who actually observed CT.
199) the defective condition of the G-3's brakes:
"Q. What would you believe could happen if he wasn't able
to stop, what kind of things?
A. Well I think he could have gotten run into with a
scraper or if he would have tried to dodge off, he could
have went over the edge of the embankment, and if he had
tried, rather than stop and back up, tried to pull off the
~ide, he could have went over the edge and down the incline
,,or into a mudhole or whatever.
Q. And what kind of injury could result in going over the
incline or -A. Well he could have got rolled over and he could have got
injured pretty good in a roll over sliding down the incline.
That's pretty dangerous I would say.
Q. Is it possible he could have been killed?
A. Oh, yeah, it's possible, yeah."
(T. 201)

This description of the potential dangers posed by Schafer's
continued use of the G-3 with its defective brakes are generally
supported in the record and consistent with the conditions and
terrain in the area where Schafer was assigned to work during the
period in question.
On November 14, when Schafer arrived for work, the G-3 was
being torn apart for repairs and he operated the G-4 blade on
that date {T. 97, 184, 437-439). At the beginning of this shift
Rich Schneider and Dean Bray told Schafer that they felt he had
not followed procedure shutting the blade down and tagging it out
and that he would probably be reprimanded CT. 98, 415). Schafer
became aware at this time that on the preceding shift {day shift)
on November 14, members of the safety committee had checked out
the G-3 CT. 98, 434). This, of course, was after his second
tag-out CT. 526).
On the evening of November 14, Schafer asked Foremen Bray
and Schneider, after they had advised him he was to receive a reprimand, to drive him to the shop so that he could call MSHA.
After first refusing, Bray and Schneider relented and drove him
to the repair shop, telling him he would have to do it on his own
time. Schafer made several calls, and while he was doing so, Mr.
Suess arrived and told him it would be on his own time and that
he would have to pay for every phone call. When Schafer was
unable to reach the MSHA inspector at his home (T. 178) Suess
told him he would have to go home to make further phone calls,
and to either go back to work or go home. Schafer returned to
work. Subsequently, an hour's time was deducted from his

1580

paycheck for this period, amounting to $16.61 (T. 287), which is
the only pay Schafer lost from the entire episode CT. 100-103,
177).
On November 15, 1984, Mike Quinn, Respondent's safety
director, told Schafer he was to get a letter of reprimand, and
shortly thereafter Quinn came back with Marvin Suess and Suess
handed Schafer the reprimand (Ex. 11; T. 99-100). Although the
parties stipulated CT. 287) that the undated reprimand was issued
on November 16, the evidence shows it was delivered to him on
November 15.
On the morning of November 15, 1984, Schafer posted a copy
of Article I I I Ci) of the union Contract on the union bulletin
board CT. 479-481, 534; 537) (one of three) near the bath house
(T. 422) with the following notation which he had written at the
bottom thereof (Ex. 12; T. 540):
.. This shows Marv's policy on taking equipment out of service
contradicts this section of the contract. His policy is ~
joke and a scare tactic for those gullible enough to be
taken in by it.
Signed: a miner concerned for safety"
Schafer prepared and posted this document (T. 432-433; Exo
12) after he learned he was to be reprimanded CT. 530, 540),
after Mr. Suess had commenced the process of reprimanding him (T.
422, 443, 488, 494, 530, 540), and for the following reason:
.. I wanted to make everybody aware that it's not the way it
had been done and it was in violation of past practice and
custom and according to the contract; and not to be intimidated by it, because that's all I felt it was, was a way of
intimidating everybody and taking away their right to remove themselves from a dangerous situation or shut anything
down." CT. 53 7) •

·On November 15, 1984, Schafer received the following letter
of reprimand (Ex. 11) from Marvin R. Suess, Glenharold Mine
Superintendent:
Mr. DuWayne Schafer
Box 1253
Wilton, ND 58579
RE: Tag-out Procedures
DuWayne:
Safety rights of employees and the right to safe working
conditions are the highest priority items at Glenharold

1581

Mine6 but they must not be abused by either the employees or
the employero Consol and BCS have great respect for tag-out
procedures and have always wanted all equipment to be
operable and safe, but there comes a time when the operation
of equipment could be better, yet not unsafe to operate. If
there exists an unsafe condition it should be tagged-out
following the company procedures. At that point the
employee is saying that the equipment is abnormally
hazardous and could cause immediate danger to the operator.
No employee shall be discriminated against for utilizing ·
this procedure.
·
A memo posted on the bulletin board indicated "Marv's policy
is a joke"~ I 1 m not real sure what you were referring to
since an unsafe piece of equipment has always gotten
repair
when it was unsafe to operate or where it was
apparent it was dangerous to operate. We have had several
ca~es where an employee tagged-out equipment that was not
unsafe to operate and this must stop. Should this continue
then all respect for tagged equipment will be lost.
After a complete investigation of G-3 Motor Grader, which
you tagged-out twice on November 12th and 13th, your local
union Safety Committee, Mike Quinn, several additional
mechanics, several foremen, and I concluded that G-3 was not
unsafe to operate. It was explained to you that G-3, our
spare motor grader, was to be used until G-4 was repaired at
which time the reclamation blade operators would again
operate G-4 full-time. The areas in which G-3 were to be
used were safe areas to operate such a blade.
rom ::iur investigationQ we have concluded that you have
our procedure
tagging equipment, and you have
... led to follow the guidelines of the BCS-UMWA Agreement of
You did not act in good faith in exercising your
~
and are therefore issued this written reprimand for
t
orementioned items.
abuseL~'.

:::::6er t.o provide a

:: ::-Jm

e worlc place I ask that you refrain
suse of company tag-out procedures, refrain from

1582

posting memos that are false, and abide by the rights
provided in the Surf ace Coal Wage Agreement of 1984 to
resolve any problems you may believe exist.
Regretfully submitted,
s/ Marvin R. Suess,
Glenharold Mine Superintendent"

"!./

Marvin Suess, in his position as mine superintendent,
initiated, drafted, signed and issued the reprimand to Schafer,
and was the official in Respondent's management hierarchy
primarily and effectively responsible for determining that
Schafer should be reprimanded (T. 418, 441-446, 499, 508-511).
The decision to reprimand Schafer was made on November 14, 1984,
in the late afternoon (T. 442, 443, 530). Mr. Suess could not
say whether it was on November 14 or November 15 that he became

7/ (a) It should be noted that the phrases "abnormally hazardous"
and immediate danger" used by Mr. Suess in the first paragraph of
this undated reprimand letter CT. 521-523), while possibly
recognizable as established mine safety concepts and jargon,
appear to invoke the language of Article III, Section (i)(l) of
the contract Grievance Procedure (Ex. 19) set forth above.
In
its landmark Pasula case, infra, the Federal Mine Safety and
Health Review Commission noted with respect to what I believe and
conclude are analogous and applicable "refusal to work"
principles that such contractual language permits refusals to
work in only what mi9ht be called an "abnormal. imminent danger 11
and declined to construe that Act to limit a miner's refusal to
work to only such conditions.
Cb) Close analysis of the reprimand letter reveals (a) that its
primary thrust is Schafer's alleged "abuse" of the tag-out procedure, and (b) that it fails to precisely describe how Schafer
did so CT. 103). Nor does it explain to Schafer how he "failed
to follow" the 1984 contract. It can be inferred that the
"abuse" Mr. Suess had in mind was generally that Schafer tagged
out a piece of equipment that was not unsafe.
Significantly, the
timing of events, Schafer's knowledge of them, and their
interplay with the specific rights of miners under the tag-out
procedure and grievance procedure and the requirements thereof
applicable to both miners and management was not delineated.
Also, Mr. Suess did not discuss the matter with Schafer before
issuing this reprimand (T. 497). There is no evidence that
Schafer was ever told why Respondent concluded the G-3 was safe
to operate, or which "areas" Respondent thought it was safe to
operate in. Schafer was told, though, that management wanted to
operate the G-3 until the G-4 was out of the repair shop.
Cc> At the hearing, Mr. Suess could not say, assuming arguendo
that the only thing Schaf er did wrong was abusing the tag-out
procedure, whether or not Schafer would have been reprimanded CT.
508-510, 478).

aware of Schafer's "Marv's policy" is a "a joke" notation at the
bottom of the copy of ART III of the Union Contract posted on the
bulletin board (T. 445; Ex.·12).
Mr. Suess at first conceded that Schafer's first tag-out was
proper CT. 425), but only because the steering mechanism was defective CT. 425). Mr. Suess took the position, however, that
with respect to the G-3's brakes, the first tag-out by Schafer
was not in "good faith" CT. 449-450). Yet, when the brakes were
ultimately removed for repairs Mr. Suess who was present in the
repair shop did not examine them closely and professed not to
have been curious about their condition CT. 490-491). I find
this consistent with the discriminatory frame of mind I attribute
to Respondent in this matter. The net effect.of Respondent's
various failures to follow its past practices and tag-out
policies in this esposode was, along with its premature
initiation of disciplinary action, a provocation to Schafer and a
discouragement of his taking a required, protected safety
measure.
Mr. Suess took the further position that the second tag-out
was improper on the following basis stated at the hearing:
"Q. Okay. When Mr. Schafer came back on shift on the
evening of the 13th, following removal of the first tag, he
disputed removal of that tag with his foreman and placed a
second tag on it~ Was that, in your opinion, proper?

x

x

x

x

x

x

x

x

A. I believe he should have then gone through his grievance
procedure since management had already made the determination that it was safe to operate. I do not deprive the
man of removing himself from that piece of equipment, but
by tagging it out, it also did not allow us to utilize anybody else on the piece of equipment" CT. 425-426).
<emphasis supplied)
An important follow-up in Mr. Suess's position occurred
subsequently in his testimony:
Q. Okay. When do you think he was not -- acting in bad
faith --- what did he do that you think was in bad faith?

A. In the fact that he ran it from four o'clock until
the steering broke before the brakes became an issue. Yet
the brakes didn't change at all. And then tagging it the
second day, knowing what has been done -- what had been
inspected. And then also riding that motor grade in that

1584

fourth gear with the mold board up and the ripper up, to me
if the brakes were that bad, it should have never been rode,
it should have been towed to the shop. CT. 450). ~/
ULTIMATE FINDINGS,
CONCLUSIONS AND DISCUSSION
In order to establish a prima facie case of discrimination
under section 10.5 ( c) of the 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 1980), 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). The operator may
rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no part
motivated by protected activity.
If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that Cl) it was also motivated by the miner's
unprotected activities, and (2) it would have taken the adverse
action in any event for the unprotec~ed activities alone. The
operator bears the burden of proof with regard to the affirmative
defense.
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38
(November 1982). The ultimate burden of persuasion does not
shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20.
See also Baich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983):
and Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C.
Cir. 1984)(specifically approving the Commission's PasulaRobinette test). The Supreme Court has approved the National
~/

Mr. Suess's misunderstanding and rationalizing of the
sequence in which certain crucial events occurred must be
underscored at this juncture: the record is overwhelming that
when Schaf er put on the second tag he had not been advised that
management CMr. Brown) had determined that the brakes were safe
or otherwise informed of management's position. Mr. Suess subsequently conceded that Schafer did not know that management had
evaluated the equipment before he put on the second tag CT.
463-464, 476-477, 507). Further, Mr. Suess was not sure, even at
the time of the hearing, whether any Safety Committeeman had been
advised of management's determination CT. 464, 477, 507). These
facts, among other things, place Respondent in contravention of
Section 3(b)(4)(a) of its own Tag-Out Procedure.
Even so, Mr.
Suess reprimanded Schafer and steadfastly held to the position
that Schafer had abused the tag-out procedure, even on the first
tag-out with respect to the brakes CT. 449-450). While assuming
this posture it is significant that Mr. Suess did not undertake
to ascertain the brakes' condition after they were removed in the
repair shop CT. 491).

1585

Labor Relations Board's virtually identical analysis for discrimination cases arising under the National Labor Relations Act.
The essence of Respondent's defense appears to be that
Schafer, on both tagouts, was not in good faith and was
unreasonable in his position that the G-3's brakes were unsafe,
and that the tagouts were thus not "protected activities."
Respondent's basis for asserting that Schafer was not in good
faith or reasonable relies heavily on the fact that its personnel
made checks of the G-3 and determined it to be safe for use under
restricted conditions and at certain locations. However, the
facts that these tests were made and the decisions made by
Respondent's management were either (1) not communicated to
Schafer or (2) were made after Schafer had attached the second
tag on the machine.
It is clear also that the joint test that
management made with the safety committee was performed after the
second tagout (T. 514}. Respondent failed to establish that
Schafer was told that management felt the G-3 was safe to use in
certain areas or that he should not use the G-3 in inclined areas.
Yet Mr; Suess also indicated that "99 times out of 100 11 , management concurred with a miner's assertion that equipment was unsafe
CT. 518). Thus, in this episode, Respondent broke a very strong
pattern and did not communicate its position or findings to
Schafer before his second tagout.
Tagging out equipment believed to be unsafe is a safety
activity protected by the Act and required (T. 519). Schafer's
belief that the brakes on the G-3 were defective and rendered
operation of the G-3 unsafe on both November 12 and November 13,
1985, was reasonable CT. 503-504) in good faith, 9; and calculated to protect himself and other operators using the G-3 from
safety hazards. This was borne out by various of his actions at
the time including demonstrating the defective brakes to a fellow
employee and listing such on both tags. That the brakes were
actually unsafe is shown by the condition they were found in
after their removal, the considerable "pause" in their operation,
and the distances the G-3 traveled after the brakes were applied.
There is no prohibition, .express or implied, in Respondent's
tag-out procedure, against tagging out equipment believed to be
defective more than once. The essence of a proper tag-out is a
miner's reasonableness and good faith in believing equipment is
unsafe. Indeed, Schaf~r was obliged to tag-out the G-3 since a
miner's failure to tag out unsafe equipment subjects his employer
to sanctions under the Act for violations of the safety standards
(T. 458). Respondent's contentions that Schafer "abused" the

.2,/

See Secretary ex rel. Pratt v. River Hurricane Coal Company,
Inc., 5 FMSHRC 1524 (1983).

1586

tag-out procedure and thu.s was not engaged in a protected
activity is not established in the record. 10; What is clear,
as previously noted, is that Respondent being fully aware of
Schafer's safety concerns did not follow its own tagout
procedures.
Respondent, admittedly desirous of keeping the G-3 in
operation for productivity reasons, took disciplinary (adverse)
action against Schafer for his engagement in the protected
activity described above. Its belated contention that Schafer
should have removed the tag himself after he was advised that
management considered the brakes safe CT. 477-478) is pretextual.
Management personnel removed the tag the night before and no
reason having any merit was submitted why it could not have
removed the second tag had it chosen to do so. 11; The mine
superintendent, who investigated the matter before reprimanding
Schafer, did not bother to ascertain Schafer's position CT. 497498), the basis for his belief that the brakes were unsafe, or
his state of knowledge, before reprimanding him. The mine
superintendent, Mr. Suess, did concede that Schafer "probably"
would not have been reprimanded for the allegedly improper
unprotected activity of putting the "Marvin's policy is a joke"
note on the bulletin board CT. 509-510). The record shows, and I
have found, that the reprimand process was initiated before
Schafer posted the note. Respondent clearly failed to establish that it would have taken the adverse action in any event
for Schafer's alleged unprotected activities alone. Rather, in
reprimanding Schafer, Respondent appears to have been motivated
by Schafer's protected activity in tagging out the G-3 and its

10/ Mr. Suess's ipse dixit that Schafer "abused" the tag-out
procedure aside, Respondent failed to persuasively show Schafer
was proceeding in bad faith in the tag-outs. I infer from the
fact that Respondent did limit the G-3's use to certain areas
that it considered the G-3's brakes unsafe for use in other areas.
Compounding the essential unreasonableness of its position, there
is no evidence that Respondent ever told Schafer he was not to
use the G-3 in certain areas before the second tag-out.
11/ By taking this position, and by failing to recognize that a
"dispute" as to safety of the G-3 existed, it was Respondent's
management which blocked the operation of Art. III, Section (i)
of the Union Contract. Thus, the matter was not "reviewed" by
management and "at least one member" of the Safety Committee
within 4-hours, as required by the contract. Respondent,
instead, let Schafer know with considerable alacrity that he was
to be dispiplined. From this, its strong desire to keep the G-3
in production, its failure to follow its own procedures, the
fundamental unfairness in its position vis a vis Schafer, and the
transparency of some of its arguments as previously noted, I
infer that its motivation was discriminatory. Houser v. Northwestern Resources , 8 FMSHRC 883 at 886.

1587

patent displeasure in his taking the G-3 out of operation before
the G-4 was out of the repair shop. Accordingly, it is concluded
that Respondent failed to establish any rebuttal or affirmative
defense afforded under the Act or by precedent. Specifically, it
failed to establish by reliable, probative, or convincing evidence that Schafer's tag-out actions were not protected, that the
reprimand was in no part motivated by Schafer's two tag-outs, or
that it would have reprimanded Schafer for unprotected activities
alone. A violation of Section 105(c) of the Act is found to have
occurred.
LOSS OF PAY
The Secretary claims that Schafer is entitled to reimbursement of $16.61, representing one hours pay. Schafer was docked
for this time-which apparently was used to call fellow employees
to get the phone number of an MSHA Inspector on the evening of
November 14, 1984 - after he was advised he was to receive a reprimand.
The Secretary failed to establish Schafer's entitlement to
reimbursement. Very little evidence was adduced on this question.
No urgency or necessity for his attempting to call the inspector
at this time was shown, nor was it shown why Schafer could not
have made the calls on his own time at the conclusion of the
shift on the following day. Schafer was advised in advance that
he would be charged for the time he was utilizing, but was
allowed by his management to take the time to do so.
It is concluded from the thin record on this point, that
Schafer's loss of this pay was not an expected or normal result
from the discriminatory action of Respondent and an award
therefor is denied.
PENALTY ASSESSMENT
As noted above, the violation of section lOS(c) of the Act
occurred when Respondent Consolidation was the operator of the
Glenharold mine. The parties stipulated that there were no
previous violations of Section 105(c) during the pertinent 2-year
period preceding the subject violation (T. 291). I have
previously determined that Consolidation is a large mine operator
and the parties further stipulated that assessment of a penalty
would not adversely affect its ability to continue in business
CT. 287). In this matter the concept of prompt abatement of the
violation has no specific relevance in view of the Respondent's
good faith assertion of the legality of its position, and the
complexity of the legal issues involved. Prompt abatement here
would amount ,to the surrender of its right to assert its own
position and to a hearing on the merits.
The remaining statutory assessment factors, negligence and
gravity, also require some conceptual transposition from the
ordinary meanings thereof in matters involving violations of
discrete safety and health standards to a discrimination

1588

violation. With respect to the seriousness of the viola~ion, the
adverse action taken here against the complaining miner, as in
many discrimination cases, could have the effect of discouraging
the taking of protected safety activity by other miners in the
future. While there is no basis to question the sincerity of
Respondent's concern for the viability of its tag-out procedures
generally, with respect to the two tag-outs by Schafer here I
have concluded that Respondent's response to such was discriminatory. I find no credible basis in the record to conclude that
Schaf er or other miners were in the past the subject of
oppressive measures to discourage safety activities. As
evidenced by Schafer's actions themselves, and by the absence of
other probative evidence, the instant adverse action was not
taken in such a background of intimidation as to dishearten
justified, reasonable, and required safety activity of miners in
the future. Accordingly only a moderate degree of gravity is
attributed to this violation.
The concept of negligence has no direct applicability to
this particular matter. The adverse action was taken wilfully
and thus the broader idea of the culpability of Respondent's
managment in reprimanding Schafer is to be considered. In this
connection it is first noted that because there was no showing
that an "explanation" was ever given to either Schafer or a
safety committeeman concerning the removal of the first tag, and
it does not otherwise appear that such was the case, Respondent
did not establish that it was in compliance with its own tag-out
procedures. While charging Schafer with "abuse" of the tag-out
procedure in various respects it appears that if there was any
deviation therefrom, it was on the part of Respondent's
management. Schafer, who took safety - calculated action in
putting the second tag on the G-3, had done so without it having
been explained to him what had taken place by the repair shop
with respect to the first tag the night before. Nevertheless,
the mine superintendent, with apparent knowledge of this CT.
463-464), proceeded to reprimand him.
Since a member of management, in this case Brown, the repair
shop foreman, had taken off the first tag, either he or any other
foreman could have taken off the second tag had it wished to do,
so on the second night, before or after informing Schafer of
their testing and determination that the brakes were safe. It
was Respondent's management, by not following its own procedures
(T. 463-464), who thwarted the dispute from going to resolution
through the grievance procedure by Cl) taking the position that
Schafer, not it, should have removed the second tag (T. 477
after being notified of management's determination, and (2)
letting it be known to Schafer in advance and nearly immediately
that he was to be disciplined. During Schafer's shift on
November 13 and after the second tag was placed on the G-3,
nothing prevented Respondent from following its own procedures
by:

1589

(1) removing the second tag as it had done the night
before,
(2) advising Schafer that it had checked the brakes and
considered them safe, and,
(3) if Schafer persisted in his position that the brakes
were unsafe,
Ci) advising him that there was a safety dispute,
which under both the union contract and the Tagout
Procedure, must be resolved through the Contract
Grievance Procedure CART. I I I Ci>,
and (ii) assigning him to other work.
In reviewing the foregoing and the entire record it is found
that Respondent's motivation in the discipline of Schafer was
willful and retaliatory. Respondent gave him no audience before
taking the action. It allowed no disagreement whatsoever with
its determination that the brakes were safe, even though any such
determination or belief was never communicated to Schaf er as to
the first tag-out and-as to the second tag-out-was firmed up by
further, testing after the second tag was placed on the G-3.
After weighing the above assessment considerations, it is
concluded that a penalty of $1,000.00 is appropriate.
ORDER
1. The written reprimand of Complainant Dewayne Schafer
dated November 16, 1984, shall be removed by both Respondents
from his employment records and all references thereto in other
of Respondents' records shall be expunged.
2. Respondent Consolidation shall pay the costs and
expenses reasonably incurred by Complainant in connection with
the institution and prosecution of this proceeding.
3. Counsel are directed to immediately confer and attempt
to agree on the amount due under paragraph 2 and, if they can
agree, to submit a statement thereof to me within 20 days of the
date of this decision. If they cannot agree, Complainant shall,
within 30 days of the date of this decision, file a detailed
statement of the amount claimed, and Respondent shall submit a
reply thereto within 20 days thereafter. This decision shall not
be final until I have issued a supplemental decision on the
amount due under paragraph 2.
4. Respondent Basic, the current owner and operator of the
Glenharold Mine, shall post a copy of this decision on the
appropriate bulletin board at the subject mine which is available
to all employees for a period of 60 days.
5. Respondent Consolidation shall pay the Secretary a
penalty of $1,000.00 within 30 days of the date of this decision.

~~Ld,~ftMichael A. Lasher, Jr.
Administrative Law Judge
1590

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 ~·ederal Building, 1961 Stout Street, Denver, co 80294
(Certified Mail)
Gregory Lange, Esq., Richardson, Blaisdell, Isakson & Lange, 206
Central Avenue N., Hazen, ND 58545 (Certified Mail)
Deborah Fohr Levchak, Esq., Office of General Counsel, Basin Electric
Power Cooperative, 1717 E. Interstate Avenue, Bismarck, ND 58501
(Certified Mail)

/bls

1591

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

OCT 1 71986
LONNIE SMITH,

DISCRIMINATION PROCEEDINGS
Complainant

v.

Docket No. VA 86-7-D

RECO, INC.,
Respondent
DILLARD SMITH,
Complainant

.
..

Docket No. VA 86-9-D

v.
RECO, INC.,
Respondent
DECISION
Appearances:

Before:

Hugh F. O'Donnell, Esq., Client Centered Legal
Services of Southwest Virginia, Inc., Castlewood,
Virginia, for Complainant Lonnie Smith; William B.
Talty, Esq., Talty & Gillette, Tazewell, Virginia,
for Complainant Dillard Smith; Robert B. Altizer,
Esq., Gillespie, Hart, Altizer & Whitesell, Tazewell, Virginia, for Respondent.

Judge Broderick

STATEMENT OF THE CASE
Complainants Lonnie Smith and Dillard Smith, brothers, were
employed by Respondent Reco, Inc. (Reco) from about 1977 until
November 26, 1985. Each claims that on the latter date he was
discharged because of activity protected under the Federal Mine
Safety and Health Act (the Act). Because the two complaints
arose out of the same incident or incidents, the two cases have
been consolidated for the purposes of hearing and decision.
Pursuant to notice, the cases were called for hearing on July 8,
1986 in Bluefield, west Virginia. Dillard Smith and Lonnie Smith
testified for Complainants; Steve Williams and Don Bowman
testified on behalf of Respondent. All parties were afforded the
opportunity to file post hearing briefs. Respondent filed a
brief; Complainants did not. I have considered the entire record
and the contentions ·of the parties, and make the following
decision.

1592

FINDINGS OF FACT
1. On November 26, 1985, Respondent was in the business of
selling and servicing mine batteries. Part of its business
required it to go into underground coal mines to service
batteries.
2. Complainants Dillard and Lonnie Smith were employed by
Respondent beginning in 1977 or 1978. Their duties were to
service and maintain mine batteries. Dillard Smith had prior
experience working with mine batteries, but Lonnie Smith did not
have such prior experience. Neither of them worked in underground coal mines prior to working for Respondent.
3. Both Dillard and Lonnie Smith were required at times to
work repairing batteries in underground coal mines. During 1985,
Dillard worked approximately 49 hours, and Lonnie worked approximately 50 hours in underground mines. Each performed more than
40 hours of underground work in the 6 months prior to the termination of their employment.
4. Dillard was paid $6.75 per hour as of November 26, 1985.
Lonnie was paid $6.35 per hour. Each received an additional
$2.00 per hour while working underground in coal mines. They
each worked approximately 40 hours per week.
5. In November 1979, Dillard Smith received MSHA approved
training for underground work and received a certificate upon
completion of the course. He did not have any refresher training
or any other training related to working underground after
November 1979.
6. Lonnie Smith. never received any training related to
working in underground mines.
7. In June 1985, Dillard Smith asked Steve Williams his
foreman, about refresher training for himself, and about training
for Lonnie. Williams nodded but did not reply. Dillard had
inquired at an MSHA office and was told that his training certificate had expired, and he needed 40 hours additional training.
8. On some occasions Dillard and Lonnie Smith were accompanied by mine personnel when they serviced batteries in underground mines. On other occasions they worked alone.
9. On November 26, 1985, Dillard and Lonnie Smith were
working on batteries at Respondent's shop. At about 9:00 a.m.,
Steve Williams approached and told Dillard that he had a service
call. Dillard asked if it was in an underground mine and

1593

Williams said it was. Dillard told Williams that he was not
going. Williams then said: "Change your clothes ahd you know
where the door's at." (Tr. 31). Dillard changed from his work
uniform, turned in his car keys and credit card and left the
premises. Neither he nor Williams said anything further.
10. After Dillard left, Williams turned to Lonnie Smith.
Lonnie said he was not going underground anymore. Williams told
him to get his clothes and hit the door. Lonnie then left.
11. Dillard Smith applied for unemployment compensation
after he left Reco. He drew benefits for 26 weeks. His health
insurance policy was terminated on the day he left. He returned
to the mine site on November 26, 1985 to get his paycheck. He
was told by the office secretary that it had been mailed the
previous day. He did not contact or attempt to contact any other
Reco official concerning his termination. He told the office
secretary to inform Jack Pyatt, the company president, that he
left because he did not want to go underground because his
training had expired. Dillard began working for a janitorial
service company about July 1, 1986. He is earning $3.35 per hour
and works 30 hours per week.
12. Lonnie Smith was unemployed for 5 months after leaving
Reco. He has worked since, setting up house trailers and earns
$4.50 per hour. His health insurance was cancelled when he left
Reco and in December, 1985 he and his family incurred medical
bills totalling approximately $600.
13. Lonnie Smith never complained to Reco about his lack of
training. He did not tell anyone at Reco why he refused to go
underground.
14. On November 26, 1985, Reco decided to terminate its
mine battery sales and service business. The decision followed a
discussion with the State of Virginia Labor Department officials
concerning a list of health and safety violations cited following
an August, 1985 inspection. The State officials agreed not to
issue citations if Reco terminated its mine battery business
within a week.
The company agreed and the business was terminated December 6, 1985.
15. Respondent continued in business after December 6, 1985
solely to sell its spare parts inventory and make deliveries on
repairs completed prior to December 6. Foreman Steve Williams
was laid off December 18, 1985, as was the office secretary. One
other employee remained until March, 1986 helping to clean the
building, trying to get it ready for sale or lease. At the time
of the hearing, the only people on Reco's payroll were

1594

Don Bowman, Vice-President-General Manager and a person who
cleans the off ice, working about 2 hours a week.
ISSUES
1. Whether Complainants were miners and Respondent an
operator under the Federal Mine Safety and Health Act?
2. Whether Complainants were discharged because of activity
protected under the Act?
3.

If so, to what relief are Complainants entitled?

CONCLUSIONS OF LAW
A.

Jurisdiction

1. Respondent was an "operator" to the extent that it
performed services at coal mines and, as such, was subject
to the provisions of the Mine Safety and Health Act.
Section 3(d) of the Act defines operator as "any
owner, lessee, or other person who operates, controls or
supervises a coal or other mine or any independent contractor performing services or construction at such mine."
2. Complainants were "miners" to the extent that they
worked in coal mines.
(Section 3Cg) of the Act.) Whenever
Complainants w~nt to coal mines to service batteries, they
were miners, and were protected by the Act.
3. Insofar as Respondent was an operator and Complainants were miners, I have jurisdiction over them and the
subject matter of this proceeding.
Respondent's entire business involved the sales and
servicing of mine batteries for coal mines. Although most
of its work was performed at its own facilities, the work it
did at the mine sites was not "rare and r.emote" as was that
of the electric power company in Old Dominion Power Company
v. Donovan, 772 F.2d 92 (4th Cir. 1985). When Respondent's
employees went into underground coal mines, they were
subject to the same hazards as miners who produced coal.
They are entitled to the same protection under the Mine Act.
B.

Protected Activity

1. Complainants' refusal to perform underground work
because they had not received mandatory health and safety
training was activity protected under the Act.

1595

A miner has the right under section 105(c) of the Act
to refuse to work, if he has a good faith, reasonable belief
that it is hazardous. Secretary/Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 (1980), rev'd on other grounds sub.
nom. Consolidation Coal Co. v. Marshall, 633 F.2d 1211 (3rd
Cir. 1981); Secretary/Robinette v. United castle Coal Co., 3
FMSHRC 803 (1981); Simpson v. Kenta Energy, Inc., 8 FMSHRC 1034
(1986).
Section 115 of the Act requires each operator to have .
a health and safety training program which must provide as a
minimum that miners with no underground experience receive
no less than 40 hours of training if they are to work underground, and all miners shall receive no less than 8 hours of
refresher training every 12 months. Complainants' refusal
to work underground without the required training was therefore reasonable, and there is no evidence that it was other
than in good faith.
I do not determine in this proceeding whether
Respondent is responsible for providing the requisite
training for its employees. Respondent contends that if a
violation occurred, it is that of the mine operator, not
Respondent. But in either case, training was not provided,
and Complainants were justified in their refusal to work
underground without it. See Secretary/Robinette, supra.
c.

Adverse Action

1. Complainants were discharged because of their
refusal to work underground.
Respondent contends that Complainants were not discharged, but voluntarily quit.
I accept the testimony of
Complainants as to what they were told by their foreman
Steve Williams and conclude that they were discharged.
D.

Communication of Safety Concerns

1. Complainants did not communicate their safety
concerns to the operator.
Where reasonably possible, a miner refusing work must
ordinarily communicate or attempt to communicate to some
representative of the operator his belief that a safety or
health hazard exists. Secretary/Dunmire and Estle v.
Northern Coal Co., 4 FMSHRC 126 (1982); Simpson v. Kenta
Energy, Inc., supra.

1596

It was clearly reasonably possible for Complainants to
tell Williams that they ref used to work underground because
they lacked training. They did not do so. Dillu.rd Smith's
request for training some .:1.onths previously cannot be converted into a notification of safety concerns at the time of
the work refusal. The fact that Respondent was aware of
blatant safety violations does not, according to the Commission, excuse the failure to communicate. Simpson v. Kenta
Energy, Inc., supra.
Dillard Smith did communicate his safety concerns to
the office secretary the day after his discharge and asked
her to tell the company president, Jack Pyott. Mr. Pyatt
was present during the hearing, but did not testify. I
assume that the message was given him. Is this adequate
communication? Respondent has already decided to cease
operations, so it would not have been possible for it to
"address the perceived danger. 11 Simpson, supra. I conclude
that under the circumstances of this case, the communication
of safety concerns to the operator on the day after the
miners' discharge did not satisfy the Dunmire and Estle and
Simpson test.
2. Therefore, Complainants were not discharged for
activity protected under the Act and no violation of section
105Cc) has been established.
ORDER
Based on the above findings of fact and conclusions of law,
the complaints of Dillard Smith and Lonnie Smith, and these
proceedings are DISMISSED.

1~ #:1¥1?~

cf ~~~;s
A. Broderick
Administrative Law Judge

1597

Distribution:
Hugh F. O'Donnell, Esq., P.O. Box 147, Castlewood, VA 24224
{Certified Mail)
William B. Talty, Esq., P.O. Box 599, Tazewell, VA 24651
{Certified Mail)
Robert B. Altizer, Esq., Gillespie, Hart, Altizer and Whitesell,
P.C., P.O. Box 718, Tazewell, VA 24651 (Certified Mail)
slk

1598

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

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

OCT 201986

CIVIL PENALTY PROCEEDING

v.

.
.

RIVER CEMENT COMPANY,
Respondent

..

Docket No. CENT 86-91-M
A.C. No. 23-00188-05518
Selma Plant Quarry & Mill

ORDER OF DISMISSAL
Before:

Judge Morris

Respondent has moved to dismiss the above case for the
reason that the Secretary's PETITION FOR ASSESSMENT OF CIVIL
PENALTY was not timely filed.
In his memoranda filed in the case the Secretary does not
concede the facts but he states that his petition "may" have been
filed beyond the 45 day period as required by Commission Rule
27(a), 29 C.F.R. § 2700.27(a). The Secretary also asserts that
the respondent has failed to show any prejudice. The Secretary
has not filed any affidavits nor has he denied certain relevant
facts that appear as a matter of record.
These facts are that the appeal process was initiated on
April 24, 1986 with a notice of contest (notice of contest form).
The Secretary filed his petition on June 16, 1986 (time/date
stamp on petition in file).
In support of his position the Secretary states as follows:
Although his petition may have been beyond the 45 day
limitation recited at 29 C.F.R. 2700.27, the Secretary
asserts that this resulted from miscalculation of time
periods in the normal processing of this type of case in
the office of the Secretary's counsel. This miscalculation
occurred due in part to inadvertence by the Secretary's representative and in part due to the fact that the respondent
seQt at least three separate responses to the notice of
proposed penalties. Based on the date stamp of May S, 1986,
on the last of the three letters from respondent, the Secretary' a calculated a due date of June 19, 1986. The Petition
was actually filed on June 11, 1986, a mere two days beyond
the due date alleged by respondent in his motion.

1599

While it appears that the Secretary's petition may have been
filed two days beyond the 45 day period, it is also apparent
that respondent has demonstrated no prejudice to himself as
a result.
Discussion
The applicable case law is contained in Salt Lake County
Road Department (1981) and Medicine Bow Coal Company, 4 FMSHRC
882 (1982).
In these cases the Commission ruled that a two tier test
exists in a late filing situation. The initial test requires the
Secretary to show adequate cause to support ·his late filing. In
Salt Lake and Medicine Bow the Secretary's excuse of insufficient
clerical help was accepted as minimally adequate. The .second
test is that dismissal could be required, notwithstanding
adequate cause, when an operator demonstrates prejudice caused by
the delayed filing.
In view of the Commission's pronouncements it is necessary
to examine the record to determine whether the Secretary has established adequate cause.
As a threshold matter it appears that the appeal process
commenced with a notice of contest dated April 24, 1986.
Under Commission Rule 27{a), 29 C.F.R. § 2700.27(a), the
Secretary was obliged to file his petition within 45 days. The
45 day period expired on June 9, 1986. The Secretary filed his
petition on June 16, 1986 which was 53 days af.ter receiving the
notice of contest and 7 days late.
In justification of the late filing the Secretary basically
states it was due to "inadvertence by the Secretary's representative" and due to the fact that "respondent sent three separate
responses to the notice of the contest".
Inadvertence does not constitute justification for the late
filing of a complaint.
The letters relied on by the Secretary all post-date the
notice of contest of April 24. The 45 day period began to run
after receipt of the April 24 notice.
In Medicine Bow an issue was presented as to whether the
filing time for penalty proposals should be augmented by the 5

1600

days that Commission Rule 8(b), 29 C.F.R. § 2700.8(b) allows for
filing documents in response to those served by mail. The
Commission ruled "[t]he 45-day period in Rule 27 is a sufficient
amount of time to allow for the processing of mail" ••• further
••• Rule 8(b) does not apply to the Secretary's filing of penalty
proposals" 4 FMSHRC at 884.
For the foregoing reasons I conclude that the Secretary
failed to show adequate cause to justify the late filing of his
petition.
Accordingly, I enter the following:
ORDER
CENT 86-91-M is dismissed.

r is
ive Law Judge

Distribution:
Tobias B. Fritz, Esq., Office of the Solicitor, U.S. Department
of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 64106
(Certified Mail)
Bradley s. Hiles, Esq., Peper, Martin, Jensen, Maichel & Hetlage,
720 Olive Street, 24th Floor, St. Louis, MO 63101 <Certified
Mail)

1601

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

0CT2o 1986

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

.

CIVIL PENALTY PROCEEDINGS

.

Docket No. CENT 86-127-M
A.C. No. 23-00188-05520

v.

.

RIVER CEMENT COMPANY,
Respondent

Docket No. CENT 86-128-M
A.C. No. 23-00188-05521
Selma Plant Quarry & Mill

ORDER OF DISMISSAL
Before:

Judge Morris

Respondent has moved to dismiss the above cases for the
reason that the Secretary's PETITION FOR ASSESSMENT OF CIVIL
PENALTY was not timely filed.
In his memoranda filed in the case the Secretary does not
concede the facts but he states that his petition "may" have been
filed beyond the 45 day period as required by Commission Rule
27(a), 29 c.F.R. § 2700.27(a). The Secretary also asserts that
the respondent has failed to show any prejudice. The Secretary
has not filed any affidavits nor has he denied certain relevant
facts that appear as a matter of record.
These facts are that on June 27, 1986 respondent filed its
notice of contest in each of these cases. (Notice of contest form
in each file). The Secretary filed his petitions with the
Commission on September 3, 1986. (Time/date stamp on petition in
file).
In support of his position the Secretary states as follows:
Although his petition may have been beyond the 45 day
limitation recited at 29 C.F.R. § 2700.27, the Secretary
asserts that this resulted from miscalculation of time
periods in the normal processing of these cases in the
office of the Secretary's counsel. This miscalculation resulted from two factors. First, a delay in processing was
encountered at the Civil Penalties Processing Unit CCPPU)
of the Mine Safety and Health Administration in Arlington,
Virginia due to a change in policy being implemented in
that office at the time the respondent's Notice of Contest
and Request for Hearing in these matters was received. Due

.1602

to this unusual delay in processing at the CPPU and the
resultant delayed arrival of the case file to the office of
the Secretary's counsel, the date stamp of July 11, 1986 on
the Request for Hearing Form was inadvertently picked up as
being the date the Request for Hearing was received in the
CPPU (it being in line with the time factor usually involved
in this type of case from the time of receipt of the Request
for Hearing at the CPPU until the receipt of the file in
the office of the Secretary's counsel}. Based upon the date
stamp of July 11, 1986 the Secretary calculated a due date
of August 29, 1986, which is eighteen days beyond the due
date alleged by respondent in its motion.
While it appears that the Secretary's petition may have
been filed eighteen days beyond the 45 day period, it is
also apparent that respondent has demonstrated no prejudice
to itself as a result.
Discussion
The applicable case law is contained in Salt Lake County
Road Department, 3 FMSHRC 1714 (1981), and Medicine Bow Coal
Company, 4 FMSHRC 882 (1982}.
In these cases the Commission
ruled that a two-tier test exists in a late filing situtation.
The initial test requires that the Secretary to show adequate
cau$e to support his late filing.
In Salt Lake and Medicine Bow
the Secretary's excuse of insufficient clerical help was accepted
as minimally adequate. The second test is that dismissal could
be required, notwithstanding adequate cause, when an operator
demonstrates prejudice caused by the delayed filing.
In view of the Commission's pronouncements it is necessary
to examine the record to determine whether the Secretary has
established adequate cause.
As a threshold matter it appears that the appeal process
commenced with a notice of .contest on June 27, 1986. Under
Commission Rule 27Ca) 29 C.F.R. § 2700.27(a} the Secretary was
obliged to file his petition within 45 days. The 45 day period
expired on August 11, 1986. The petitions were in fact filed on
September 3, 1986 which was 68 days after receipt of the notice
of contest and 23 days late.
In justification of the late filing the Secretary basically
states it was due to a "change in policy" at his off ice at the
Civil Penalties Processing Unit and by a subsequent misreading of
a date stamp.
The "change in policy" was not further explained and may
have some meaning for the Secretary but it fails to present the
judge with any facts to justify the late filing.
In addition, I
do not see how a "change in policy" could affect a long standing
filing requirement.

1603

In addition, the Secretary also states that a date stamp of
July 11, 1986 was inadvertently relied on to calculate a date of
August 28, 1986.
In Medicine Bow the Commission specifically rejected the
Secretary's reliance on such internal date stamps describing it
as "internal bureaucratic processing" 4 FMSHRC at 884, footnote

5.
For the foregoing reasons, I conclude the Secretary has
failed to show adequate cause to justify the late filing of his
petitions.
Accordingly, I enter the following:
ORDER
1.

CENT 86-127-M is dismissed.

2.

CENT 86-128-M is dismissed.

Law Judge
Distribution:
Judith c. Hastings, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO
64106 (Certified Mail)
Bradley S. Hiles, Esq., Peper, Martin, Jensen, Maichel & Hetlage,
720 Olive Street, 24th Floor, St. Louis, MO 63101 (Certified
Mail)

/bls

1604

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

20006

October 21, 1986
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 86-193
A.C. No. 36-00917-03625

v.
Lucerne No. 6

HELVETIA COAL COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlements of the
two violations involved in this case. The originally assessed
penalty for each violation was $750, for a total of $1,500. The
proposed settlement for each violation is for $425, for a total of
$850.
Citation No. 2695543 was issued for violation of 30 C.F.R. §
75.301 because an excessive amount of methane was detected in the
mine. Citation No. 2696487 was issued, also for violation of
30 C.F.R. § 75.301, because an inadequate amount of oxygen was
detected in the mine.
The Solicitor's motion discusses both violations in light of
the six statutory criteria set forth in section llO{i) of the
Federal Mine Safety and Health Act of 1977. The Solicitor
represents that a reduction in the proposed penalties is justified
because both gravity .and negligence were less than originally
thought. The violations were detected during a preshift examination
following a weekend shutdown of the mine. The problems had developed
during the 48-hour shut-down period when no miners were in the mine
and the operator was not required to make preshift examinations.
The Solicitor also represents that the methane accumulation took
place in an area where none had been before.
The representations and recommendations of the Solicitor are
accepted.
· Accordingly, the motion to approve settlements is GRANTED and
the operator is ORDERED TO PAY $850 within 30 days of the date of
this decision.

•
Paul Merlin
Chief Administrative Law Judge
1605

Distribution:
David T. Bush, Esq., Office of the Solicitor, U.S.' Department of
Labor, Rm 14480-Gateway Bldg., 3535 Market Street, Philadelphia,
PA 19104
(Certified Mail)
Edward J. Onuscheck, Vice President, Helvetia Coal Company, 655
Church St., Indiana, PA 15701 (Certified Mail)
Michael H. Holland, Esq., UMWA, 900 15th St., N.W., Washington, D.C.,
20005
(Certified Mail)
/sc

1606

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

October 21, 1986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRAION, ON BEHALF OF
JOHN W. BUSHNELL,
Complainant

v.
CANNELTON INDUSTRIES, INC.,
Respondent

DISCRIMINATION PROCEEDING
Docket No. WEVA 85-273-D
HOPE CD 85-1

.

..
...

Pocahontas I 3 and f 4 Mines

DECISION
Appearances:

Before:

Jonathan M. Kronheim, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
VA, for Complainant;
Larry W. Blalock, Esq., and Michael J.
Bommarito, Esq., Jackson, Kelly, Holt &
O'Farrell, Charleston, WV, for Respondent.

Judge Fauver

This action was brought by the Secretary of Labor under

§ 105Cc)(l) of the Federal Mine Safety and Health Act of

1977, 30 u.s.c. § 801, et. ~, to recover lost pay alleged
to be due John w. Bushnell for reduction of his pay rate
after a transfer while he was a Part 90 employee. The
Secretary also seeks a civil penalty for the alleged
violation of that section.
On July 17, 1986, the parties' motion to submit this
case on a stipulated record and briefs without a hearing was
granted.
On September 23, 1986, after receipt of the parties'
briefs, my secretary called the attorneys for the parties and
asked the following question at my request:
Please see if you can stipulate
whether or not Mr. John Bushnell,
at any time after notice of his Part
90 status in 1972 and before September 17,
1984, was transferred as a result of
exposure to respirable dust.
The attorneys' reply is a letter from counsel for Respondent dated September 29, 1986, in which counsel states that

1607

counsel for the Secretary stipulates to the facts stated in
the letter. Accordingly, that letter is incorporated as a
stipulation in the record.
FINDINGS OF FACT
The pertinent facts are set forth in stipulations submitted by the parties on July 15, 1986, and September 29,
1986. In brief, John w. Bushnell was an employee of the
Respondent for approximately 17-years. Respondent was
informed of Mr. Bushnell's Part 90 status in 1972. He
transferred to a less dusty job in January 1980, by exercising his Part 90 rights. He remained a.Part 90 miner at
all times pertinent to this action. On September 16, 1984,
Mr. Bushnell was employed as a dispatcher, earning $113.28
for an eight hour shift. On September 17, 1984, Mr. Bushnell
was transferred from his dispatcher position to that of
general inside laborer, as a result of a realignment of the
Respondent's work force due to economic conditions. Mr.
Bushnell's occupation code was changed from code 365 to code
116 and his pay reduced to $104.78 for an eight hour shift.
Mr. Bushnell was laid off on October 1, 1984, for economic
reasons. Mr. Bushnell suffered a loss of wages of $161.14 as
a result of the reduction of his pay rate in connection with
his transfer from dispatcher to general inside laborer. The
Secretary seeks to recover $161.14 in lost pay plus interest
thereon, and proposes a civil penalty in the range of $100 to
$150 for Respondent's failure to maintain Mr. Bushnell's pay
rate when he was transferred.
OPINION
The Secretary's regulations, at 30 CFR § 90.103, provide
in pertinent part that:
Cb) Whenever a Part 90 miner is transferred,
the operator shall compensate the miner at
not less than the regular rate of pay
received by that miner immediately before
the transfer.
The regulations, at 30 CFR § 90.2, define "transfer" as
"any change in the occupation code of a Part 90 miner."
Thus, whenever a Part 90 miner has a change in his occupation
code, the regulation require that he be paid at not less than
the regular rate of pay received prior to the change.
The preamble to 30 CFR § 90.103, states that the Part 90
regulations were promulgated by the Secretary out of
a concern that a large percentage of miners eligible for the
Part 90 program were not participating. After receiving
testimony and written comments, the Secretary attributed this
.lack of participation to significant economic sacrifices that

1608

miners were forcea to make on entering the program. For this
reason the Part 90 rules provided eligible miners with
additional economic protection, including a guarantee against
reduction in pay resulting from a transfer.l/ The
Secretary's reasoning demonstrates an intent to safeguard the
health of Part 90 miners, consistent with their protection
provided by the Act. The regulations are therefore
reasonably related to the purposes of the Act and should be
sustained as valid. Mourning v. Family Publications Service,
Inc., 411 U.S. 356, 369 (1973); United Mine workers v.
KI'ei?pe, 561F2d1258~ 1263 {7th Cir. 1977).
John Bushnell was an eligible Part 90 miner when his
occupational code was changed without retention of the rate
of pay he received prior to the change. Such action is
contrary to the plain language of the regulation, which
establishes a Part 90 miner's right to such pay retention, and
constitutes interference with a protected right. It is therefore discriminatory pursuant to § 105(c)(l) of the Act, in
the same manner that failure to compensate a Part 90 miner at
his previous rate after a transfer to a less dusty environment would be discriminatory.~/
I therefore hold that John w. Bushnell was unlawfully
discriminated against by Respondent for engaging in the
exercise of rights protected by§ 105(c)(l) of the Act.
ORDER
WHEREFORE IT IS ORDERED that:
1. Respondent shall pay to John W. Bushnell $161.14 in
lost wages resulting from the cut in pay that occurred
because of his transfer. Interest shall be added to the back
pay retroactively and shall accrue until the date of payment.
The interest shall be computed in accordance with the Commission's rulings concerning interest. Payment shall be made
within 30 days of this Order.
1/ See 30 CFR §§ 90.12, 90.103 and 45 Fed. Reg. 80761,
80763, 80766 (1980).
~/ The rights of Part 90 miners are specifically designated
for protection under§ 105(cJ(l) of the Act.
"No person
shall ..• interfere with the exercise of the statutory rights
of a miner ••• because such miner ••• is the subject of
medical evaluations and potential trans
under a ~tandard
published pursuant to Section 101 .••• " 30 u.s.c. § 815Cc)(lJ.

1609

2. Respondent is ASSESSED a civi1 penalty of $25 for
the violation found above, and shall pay such penalty within
30 days of the date of this Order.

-ed.~
lz:t.<..({.)~
William F~r

Administrative Law Judge

Distribution:
Jonathan M. Kronheim, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 1237A,
Arlington, VA 22203 (Certified Mail)
Mr. John W. Bushnell, Box 26, Kimball, WV 24858 (Certified
Mail)
Larry W. Blalock, Esq., and Michael J. Bommarito, Esq.,
Jackson, Kelly, Holt & O'Farrell, P.O. Box 553, Charleston,
WV 25322 (Certified Mail)
Mr. Wiliam C. Miller, Cannelton Industries, Inc., 1250 One
Valley Square, Charleston, WV 25301 (Certified Mail)
Mr. Ronald Schell, MSHA, U.S. Department of Labor, 4015
Wilson Boulevard, Room 829, Arlington, VA 22203 (Certified
Mail)
kg

1610

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

TONY WILEY,

OCT 2 4 1986

DISCRIMINATION PROCEEDING

Complainant

v.

Docket No. KENT 86-99-D
PIKE CD 86-11

SAMOYED ENERGY COMPANY, INC.,
Respondent
DECISION
Appearances:

JoAnn Harvey, Esq., Appalachian Research and
Defense Fund of Kentucky, Inc., Prestonsburg,
Kentucky, for Complainant;
James P. Pruitt, Jr., Esq., Pruitt and de
Bourbon, Pikeville, Kentucky, for Respondent.

Before:

Judge Melick

This case is before me upon the complaint by Tony Wiley
under section 105(c)(3) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et~, the "Act," alleging
that he was discharged from Samoyed Energy Company, Inc.
(Samoyed) on December 31, 1985, in violation of section
105 Cc) ( 1) of the Act.!:_!
.
In order for the complainant to establish a prima facie
violation of section 105(c)(l) of the Act he must prove by a
preponderance of the evidence that he engaged in an activity
protected by that section and that his discharge was motivated
in any part by that protected activity. Secretary on behalf
of Pasula v. Consolidation Coal Company, 2 FMSHRC 2786 (1980),
rev'd on other grounds sub nom. Consolidation Coal Company v.
Marshall, 663 F.2d 1211 C3d Cir. 1981). The operator may
rebut the prima facie case by showing either that no protected
activity occurred or that the adverse action was not motivated
in any part by protected activity.
~/

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

1611

If an operator carinot rebut the prima facie case in
this manner it nevertheless may defend affirmatively by
proving that (1) it was also motivated by the miner's unprotected activities, and (2) it would have taken the adverse
action in any event for.the unprotected activities alone.
The operator bears the burden of proof with regard to the
affirmative defense. Haro v. Magma Copper Company, 4 FMSHRC
1935 (1982). The ultimate burden of persuasion does not shift
from the complainant.
Donovan v. Stafford Construction
Company, 732 F.2d 954 (0.C. Cir. 1984); Boich v. FMSHRC, 719
F.2d 194 (6th Cir. 1983). The Supreme Court has approved the
National Labor Relations Board's virtually identical analysis
for discrimination cases arising under the National Labor
Relations Act. NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
In this case Mr. Wiley alleges that he made periodic
complaints notifying the operator's agent, Preparation Plant
Supervisor Don Burgraff, of alleged dangers at its mine. In
particular he alleges as protected activity the reporting of:
(1) the tramming of a D-6 bulldozer on a low-boy trailer in
such a way that the blade of the bulldozer obstructed his
view in the rear view mirrors creating a danger in making
turns without a flagman or escort; (2) the operation of the
bulldozer in the refuse area during particularly muddy conditions and supporting the truck beds with the bulldozer
blade to keep the trucks from turning over while dumping; (3)
operating the dump trucks and bulldozer over a gas line
without sufficient fill material to protect the gas line; and
(4} the absence of a heat tube or other heating device in the
bulldozer cab during cold weather.
With respect to the first allegation, Wiley maintains
that he began complaining about those conditions in early
November and then "every day" thereafter. With respect to
the second allegation, Wiley maintains that he complained to
Burgraff about the mud every time it rained and every evening
after "it would happen." His last complaint in this regard
was allegedly made to Burgraff the Friday before his discharge
when Burgraff was at the refuse site as they were supporting a
truck with two bulldozers. Wiley also testified that he complained "every day" to Burgraff that "something would have to
be done about the gas line." Wiley maintains that he sent his
complaints by way of the truck drivers to Burgraff throughout
the day. With respect to the fourth allegation Wiley maintains
that he complained to Burgraff "every day it was cold" about
the inadequate heat in the bulldozer.
times.

Truck driver Greg Pack worked with Wiley during relevant
Pack confirmed that he had talked to Burgraff several

1612

times on behalf of both Wiley and himself concerning the need
for fill material to cover the gas line and about the unsafe
conditions on the access road to the refuse site. He also
conveyed Wiley's complaints about the lack of heat in the
bulldozer and the need for a heat tube.
Burgraff acknowledged in his testimony that Wiley had
complained to him about road conditions at the refuse site
and, in particular, about the need for fill to cover the gas
line. Wiley had also complained· to him about the lack of
heat on the bulldoze~. Burgraff denied however that Wiley
had ever complained to him about the operation of the low-boy.
In the absence of corroboration of the latter alleged complaint and of Burgraff's denial Cin contrast to his unqualified acknowledgement of the other complaints} that such a
complaint about the operation of the low-boy was made to him
I do not £ind sufficient evidence that the complaint was in
fact communicated to Burgraff as alleged.
It is clear however that the remaining complaints by
Mr. Wiley concerning allegedly dangerous conditions were
communicated at some point in time to Burgraff. Wiley's
testimony in this regard is corroborated in essential
respects by both Greg Pack and Burgraff himself. Accordingly
I find that the complainant has met the first element of a
prima facie case and that indeed he was engaged ·in a protected reporting of alleged dangers at the mine site to an
agent of the mine operator.
The Complainant also maintains that his discharge was
motivated by that protected activity. In support of this
causal relation he cites evidence that he made repeated
safety complaints and that the rea~on given to him by mine
management for his-discharge i.e., absence without calling
in, was inconsistent with what he was told was company policy.
It is not disputed that Wiley was absent from work on
December 30, 1985 and that he failed to notify his employer
of this anticipated absence. Wiley says that he was ill that
day with arthritis and therefore went to see his doctor.
When he showed up for work on December 31, he presented a
doctor's excuse to Burgraff. Wiley maintains that his first
supervisor at Samoyed, Frank Price, told him only that if he
missed a day of work and did not call in he "had better bring
in a doctor's excuse" the first day back. Price testified at
hearing and fully corroborated Wiley's testimony in this
regard.
Clifford Marenko, Samoyed's president testified that it
was Samoyed policy that if an employee expected to be absent
from work because of illness he was required to call in or ·
have someone call on his behalf to notify the mine. Marenko
admits that he never told Wiley of this policy. Marenko
1613

testified that after Wiley failed to show up on December 30,
and had not called in, he met with Don Burgraff and William
Higginbotham to discuss the situtation. Greg Pack who
car-pooled with Wiley was also absent that day and at the
time of the meeting it was thought that he too had not called
in. Pack was also therefore discharged at that meeting.
Marenko felt that Wiley's absence without calling in
was "the last thing that I could tolerate". In deciding to
discharge Wiley, Marenko also considered however that Wiley
had previously been tardy on several occasions and had failed
to obtain hard toe safety shoes. Marenko had previously
warned Wiley that he could be fired for not wearing safety
shoes. Marenko testified that he had discharged approximately 10 other employees over a period of 2 to 3 years for
failing to call in when sick.
Don Burgraff also participated in the decision to
discharge Wiley and Pack. He too believed that it was
company policy to call in when sick. He decided that Wiley
should be discharged based on the fact that he failed to call
in sick that day, that he had not obtained safety shoes as he
had been told to do, that he had been tardy on a number
occasions and that there was "some question" about his work
ability. Wiley's absence on December 30th was a particular
problem because it necessitated the shut down of the preparation plant until a substitute bulldozer operator could be
transferred to the refuse site. Burgraff denied that this
discharge was the result of safety complaints.
According to Marenko and Burgraff, Greg Pack was subsequently reinstated when it was discovered that someone had in
fact called the security guard on his behalf early on the
morning of December 30, to advise that he would not report to
work that day because of illness. When Pack was rehired he
was warned by Burgraff that it was-necessary for him to call
in if he was sick to give advance notice.
In finding that Wiley did not suffer an unlawful
discharge in this case I have considered that other employees
of Samoyed <including the complainant's witnesses Greg Pack
and Joe Alston) had co~plained of two of the three allegedly
dangerous conditions that Wiley himself had complained of and
suffered no apparent retaliation.
I have also considered
that other employees (10 or 11 employees over the previous 2
or 3 years according to the undisputed testimony of Marenko)
had also been discharged for the same reason given to Wiley
i.e. for failing to call in and notify the mine operator of
absence because of illness. Other employees similarly
situated were thus treated in the same manner as Wiley.
Indeed I therefore conclude that the mine operator has
rebutted the complainant's case by showing that the adverse
action was not motivated in any part by the protected

1614

ac~ivity.

In any event the evidence is sufficient to show
that Samoyed would have discharged Mr. Wiley for his
unprotected activities alone. Haro, supra.

In reaching these conclusions I have not disregarded
the evidence that Wiley had not been specifically told of the
company policy requiring employees to call in when sick.
Such a policy is, however, one that the ordinary working man
would be expected to know without the necessity of being told.
This is particularily true where the employee is working in a
critical job (as was Wiley) and where his absence would cause
considerable disruption of his employer's business. The
credible evidence is that it is also the accepted industry
practice for employees to call in when anticipating an
absence due to illness.
In any event there is no evidence that the officials
responsible for discharging Wiley were even aware that he had
not been informed of that policy. Thus I cannot ascribe any
animus from the fact that Wiley was discharged at least in
part based on a policy about which he had not been
specifically informed.
Under the circumstances
discharge herein must be den±

Judge
Distribution:
Mr. Tony Wiley, H.. C. 87, Box 40
(Certified Mail)

, Thelma, KY 41260

JoAnn Harvey, Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., 205 Front Street, Prestonsburg, KY 41653
(Certified Mail)
James P. Pruitt, Jr., Esq., Pruitt And de Bourbon Law Firm,
P.O. Box 39, Pikeville, KY 41501 (Certified Mail)
rbg

1615

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

October 24, 1986

..
.
..

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

v.

CIVIL PENALTY PROCEEDING
Docket No. SE 86-111
A. C. No. 01-01247-03713
No. 4 Mine

JIM WALTER RESOURCES, INC.,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The parties have filed a joint motion to approve a
settlement of the one violation involved in this case. The
proposed settlement was the· subject of conference calls on
October 1 and October 7, 1986 between the Solicitor, operator's
attorney, and the Judge. At the conference calls the violation
was discussed at length. The originally assessed penalty for
this violation was $725. The proposed settlement is for $200.
The joint motion discusses the violation in light of the six
criteria set forth in section llO(i) of the Federal Mine Safety
and Health Act of 1977. Citation No. 2192194 was issued for violation of 30 C.F.R. § 70.100 because an excessive concentration
of coal dust was detected in the operator's mine. The parties
represent that the violation was much less serious than was
originally thought because all exposed miners were adequately
protected by ~espirators. A reduction in the penalty below $200
is not justified, however, because the operator failed to abate
the violation in as timely a manner as could have been expected.
The representations and recommendations of the parties are
accepted.
Accordingly, the motion to approve settlement is GRANTED and
the operator is ORDERED TO PAY $200 within 30 days of the date of
this decision.

-

Paul Merlin
Chief Administrative Law Judge
1616

Distribution:
William Lawson, Esq., Office of the Solicitor, U. s. Department
of Labor, Suite 201, 2015 Second Avenue North, Birmingham, AL
35203 (Certified Mail)
Harold D. Rice, Esq., Robert Stanley Morrow, Esq., Jim Walter
Resources, Inc., P. o. Box C-79, Birmingham, ~L 35283
(Certified Mail)
H. Gerald Reynolds, Esq,., Jim Walter Corporation, P. O. Box
22601, Tampa, FL 33622 (Certified Mail)

/gl

1617

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

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

OCT 311986

CIVIL PENALTY PROCEEDING
:

Docket No. WEST 86-86-M
A.C. No. 42-01927-05502 15J

v.

Gilbert Mine #1

SANDERS CONSTRUCTION, INC.,
Respondent
DECISION
Appearances:

Margaret Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner.

Before:

Judge Morris

This is a civil penalty proceeding initiated by petitioner
against respondent in accordance with the Federal Mine Safety and
Health Act bf 1977, 30 U.S.C. § 801 et~· The civil penalties
sought here are for the violation of mandatory standards
promulgated pursuant to the Act.
After notice to the parties, a hearing on the merits
commenced in Las Vegas, Nevada on August 26, 1986. At the
hearing counsel for the petitioner advised the judge that the
parties had reached an amicable settlement.
The citations, the standards alleged violated, the original
assessments and the proposed dispositions are as follows:

Citation No.
2361156
2361157
2361159
2361171
2361175

Standard
C.F.R. Title 30
56.6047
56.6047
56.6090
56.6047
56.18020

Original
Assessment
$500
500
500
500
500

Disposition
$500
500
500
500
vacate

I have considered the proposed settlement and I find it is
reasonable and in the public interest.
Accordingly, I enter the following:

1618

ORDER
1.

The settlement is approved.

2. The following citations and proposed penalties are
affirmed:
Citation No.
2361156
2361157
2361159
2361171
3.

Penalty
$500
500
500
500

Citation 2361175 and all penalties therefor are vacated.

4. Respondent is ordered to pay the sum of $2,000 within 40
days of the date of this decision.

Law Judge
Distribution:
Margaret Miller, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Kent Winterholler, Esq., Sanders Construction, Inc., Parsons,
Behle & Latimer, 185 South State Street, P.O. Box 11898, Salt
Lake City, UT 84147-0898 {Certified Mail)

/bls

1619

1620

* U.S, GOVERNMENT PRINTING OFFICE 1986;

491-223/53108