FEBRUARY 1993

COMMISSION DECISIONS AND ORDERS
02-01-93
02-04-93
02-22-93
02-25-93

C G & G Trucking, Inc.
Sec. Labor on behalf of Donald Bowling v.
Perry Transport, et al.
Little Rock Quarry Company, Inc.
Brown Brothers Sand company

KENT 92-574

Pg. 193

KENT 92-1052-D
CENT 92-202-M
SE
92-84-M

Pg. 196
Pg. 201
Pg. 203

KENT 92-332-R
WEVA 92-816
SE
92-61-M
VA
92-138

Pg.
Pg.
Pg.
Pg.

205
214
223
236

KENT 92-259-D
KENT 93-60-D
KENT 92-877-D
PENN 92-445
KENT 92-226
WEST 92-586-M
WEST 92-587-M
WEST 92-686-M
WEST 93-9-M
WEVA 92-1103
KENT 92-452

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

237
254
257
263
273
275
276
277
278
279
280

KENT 92-867-D

Pg. 282

LAKE 92-454-M
LAKE 93-40-M
SE
92-318-DM
VA
92-187
WEST 92-524-M
WEST 92-226-DM
WEST 92-511-M
WEVA 93-29-R
WEST 92-563

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

286
287
288
296
298
300
312
313
329

WEVA 92-1006-C
WEVA 92-714
WEVA 92-1025
CENT 92-358-M

Pg.
Pg.
Pg.
Pg.

331
333
335
337

ADMINISTRATIVE LAW JUDGE DECISIONS
02-04-93
02-08-93
02-08-93
02-10-93
02-12-93
02-16-93
02-16-93
02-18-93
02-19-93
02-19-93
02-19-93
02-19-93
02-19-93
02-19-93
02-22-93
02-23-93
02-23-93
02-23-93
02-23-93
02-23-93
02-23-93
02-2'-1-93
02-24-93
02-24-93
02-26-93

Costain Coal, Inc.
Consolidation Coal COmpany
GFD construction Company,'Inc.
Island Creek Coal Company
Sec. Labor on behalf of Clayton Nantz
v. Nally & Hamilton Enterprises
Donald Porter v. North Star Contractors
Denver Collins v. Andalex Resources, Inc.
Consolidation Coal Company
Harlan-KYVA Coal, Inc.
Basin Asphalt Company
Basin Asphalt Company
Montana Resources
Kern Rock Company
K Y V Coal Company, Inc.
Costain Coal Incorporated
Sec. Labor on behalf of Robert Teaney
v. Black Mountain coal Mining Inc.
James Kosiba employed by Rensselaer
Stone Company, Inc.
,j-efferson !Vlaterials Company
Irene Toney v. IMC Fertilizer
Baxter R. Neece
Western Sand & Gravel
stephen D. Jungers v. U.S. Borax
Western Sand & Gravel
Consolidation coal Company
Conn Pest Control Inc.

ADMINISTRATIVE LAW JUDGE ORDERS
02-05-93
02-12-93
02-17-93
02-18-93

UMWA, Local 1588 v. Consolidation Coal
Virginia Crews Coal Company
Maple Meadow Mining Company
Concrete Materials

FEBRUARY 1993

Review was granted in the following cases during the month of February:
Secretary of Labor, MSHA v. c G & G Trucking, Docket No. KENT 92-574.
Judge Merlin, Default Order of November 19, 1992 - unpublished)

(Chief

Secretary of Labor, MSHA v. Pittsburg & Midway Coal Mining Company, Docket Nos.
CENT 91-196, CENT 91-197, CENT 91-202.
(Judge Morris, November 27, 1992)
Secretary of Labor, MSHA v. Allan Goode, Docket No. WEVA 91-2096.
December 29, 1992)

(Judge Fauver,

Secretary of Labor, MSHA v. Rhone-Poulenc of Wyoming Company, Docket No.
WEST 92-519-M.
(Judge Morris, December 28, 1992)
Secretary of Labor, MSHA v. Davis ~~oulders, employed by Pyro Mining Company,
Docket No. KENT 92-17.
(Judge Barbour, December 29, 1992)
Secretary of Labor, MSHA v. American Mining Services, Inc., Docket Nos.
WEST 91-563, WEST 91-624.
(Judge Morris, December 30, 1992)
Secretary of Labor, MSHA v. Little Rock Quarry Company, Inc., Docket Nos.
CENT 92-202-M, CENT 92-204-M, CENT 92-205-M.
(Judge Lasher, January 15, 1993)

Review was not granted in the following case during the month of February:
Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. SE 92-84-M.
(Judge Barbour, December 11, 1992)

COMMISSION DECISIONS AND ORDERS

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

20006

1, 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. KENT 92-574

v.
CG&G TRUCKING, INC.
BEFORE:

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

BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act").
Chief Administrative
Law Judge Paul Merlin issued an Order of Default on November 19, 1992 to CG&G
Trucking, Inc. ("CG&G") for failure to answer the Secretary of Labor's
proposal for penalty and the judge's subsequent order to show cause. The
judge assessed a civil
of $400 as proposed by the Secretary. On
December 28, 1992, the Commission received a letter from CG&G dated December
19, reques
that the Commission vacate the default order. In support of
its request, CG&G states that, in response to the Secretary's notification of
proposed penalty, it filed a "Blue Card" request for a hearing but heard
nothing further about the matter until it received the default order. For the
reasons that follow, we reopen this proceeding, vacate the default order, and
remand this case for further proceedings.
It appears from the record that CG&G, a small operator acting without
counsel, filed a Blue Card request for a hearing in this matter in response to
the Secretary's notification of proposed assessment of penalty. However, CG&G
did not file an answer to the Secretary's subsequent proposal for penalty as
was required in order to contest that penalty proposal. See 29 C.F.R. §
2700.28. Accordingly, on September 10, 1992, Judge Merlin issued an Order to
Respondent to Show Cause, directing CG&G to file an answer or be found in
default. CG&G did not respond to the show cause order, which was returned to
the Commission unclaimed.
Under the Mine Act and the Commission's procedural rules, relief from a
judge's decision may be sought within 30 days of its issuance by filing a
petition for discretionary review with the Commission. 30 U.S.C.
§ 823(d)(2)(A); 29 C.F.R. § 2700.70(a).
CG&G did not file a timely petition
for discretionary review within the 30-day period, nor did the Commission

193

direct review on its own motion. 30 U.S.C. § 823(d)(2)(B). Thus, the judge's
order became a final decision of the Commission 40 days after its issuance.
30 u.s.c. § 823(d)(l).
Under these circumstances, we deem CG&G's letter of December 19 to be a
request for relief from a final Commission decision and to incorporate a latefiled petition for discretionary review. See J.R. Thompson, Inc., 12 FMSHRC
1194, 1195-96 (June 1990). Relief from a final Commission judgment or order
on the basis of mistake, inadvertence, surprise or excusable neglect is
available to a party under Fed. R. Civ. P. 60(b)(l). See 29 C.P.R.
§ 2700.l(b)(Federal Rules of Civil Procedure apply, "so far as practicable"
and "as appropriate," in absence of applicable Commission rules). See,~.
Danny Johnson v. Lamar Mining Co., 10 FMSHRC 506, 508 (April 1989).
See also
Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991).
The Commission has indicated that "under appropriate circumstances, a
genuine problem in communication or with the mail may justify relief from
default." Middle States Resources, Inc., 10 FMSHRC 1130, 1131 (September
1988), quoting Con-Ag, Inc., 9 FMSHRCH989, 990 (June 1987). See also Ten-ACoal Company, 10 FMSHRC 1132, 1133 (September 1988). The record does not
contain sufficient information to permit us to rule with respect to CG&G's
claim. CG&G has, however, offered a cognizable explanation of its failure to
respond to the judge's show cause order. In the interest of justice, we will
permit CG&G the opportunity to present its position to the judge, who shall
determine whether final relief from default is appropriate under the
circumstances presented. Cf. Perry Drilling Co., 9 FMSHRC 379, 380 (March
1987).
Accordingly, we reopen this matter, vacate the judge's default order,
and remand this matter for proceedings consistent with this order. CG&G is
reminded to serve counsel for the Secretary with copies of its filings in this
proceeding. 29 C.F.R. § 2700.7(a).

Arlene Holen, Chairman

tf~/</[~{_·/\dc, ,
Richard V. Backley, CommissioneF

194

Distribution
Curtis Gayheart
C G & G Trucking, Inc.
HCR 60, Box 1810
Pine Top, Kf 41843
Darren L. Courtney, Esq.
Office of the Solicitor
U.S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Chief Administrative Law Judge Paul Merlin
Federal Hine Safety & Health Review Co!Tli!lission
1730 K Street, N.J., Suite 600 ··
Washington, D.C. 20006

195

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N. W., SIXTH FLOOR
WASHINGTON, D.C. 20006
February 4, 1993

SECRETARY OF LABOR, on behalf
of DONALD BOWLING,
Complainant
and
DONALD BOWLING,
Intervenor

v.

Docket No. KENT 92-1052-D

PERRY TRANSPORT, INC., a
corporation; STEVIE CALDWELL
TRUCKING, INC., a corporation; and
STEVIE CALDWELL, an Individual,
Respondents

lllECISION

in this discrimination proceeding ansmg under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. Sec. 801 et seq. (1988) (11 the Mine Act 11 ), respondents Perry
Transport, inc., Stevie Caldwell Trucking, line., and Stevie Caldwell have filed a petition
fr'or review of Administrative JLaw Judge William Fauver's December 28, 1992, order of
ttemporary reinstatement issued pursuant to Commission Procedural Rule 44, 29 C.F.R.
Sec. 2700.44 (1986). We grant respondents' petition for review and, for the reasons that
follow, affirm the judge 1s order requiring the temporary reinstatement of Donald Bowling.
Complainant Donald Bowling was employed by Stevie Caldwell Trucking, Inc., as
a truck driver from February 1990 to February 7, 1992, when his employment terminated.

196

On April 13, 1992, Bowling filed a discrimination complaint with the Secretary of
Labor (Secretary) pursuant to Sec. 105(c)(2) of the Mine Act.l/ Following an investigation,
the Secretary determined that the discrimination complaint filed by Bowling was not
frivolous. On September 15, 1992, the Secretary filed an application for temporary
reinstatement. On October 20, 1992, an evidentiary hearing on the application for
temporary reinstatement was held. Sixty-nine days later, 'Z_/ on December 28, 1992, the
judge issued his decision concluding that the complaint was not frivolous.
The Secretary and intervenor Donald Bowling allege that Bowling was discharged
from his job in retaliation for reporting safety violations to the Mine Safety and Health
Administration (MSHA) on two separate occasions. Respondents contend that Bowling
was not discharged and that he voluntarily terminated his employment.
As we have previously stated, "the scope of a temporary reinstatement hearing is
narrow, being limited to a determination by the judge as to whether a miner's
discrimination complaint is frivolously brought." Secretary of Labor o.b.o. Price and
Vacha v..Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987), aff'd, Jim
Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990).

11
Respondents seek now to challenge Bowling's discrimination complaint on the
additional ground that it is time barred. This issue was not raised before the judge. The
typewritten discrimination complaint attached to the Secretary's application for temporary
!reinstatement is signed by Donald Bowling and dated April 13, 1992. Thus, the complaint
wouid appear ~o have been filed six days beyond the sixty day statutory time period for
such filing. However~ in response to this challenge, the Secretary has furnished a copy of
&wiing 1s handwritten discrimination complaint, signed by Donald Bowling and dated
April 2, 1992, which the Secretary maintains was submitted timely. (Exhibit B, Response
nn Opposition to Petition for Review) Because the judge has not had an opportunity to
]!»ass on this issue~ we decline to ruie on

While we recognize that each case is unique, we perceive no basis in this record for
the protracted delay and failure to adhere to Rule 44(d), which requires that "Within 5
days following the dose of a hearing on an application for temporary reinstatement the
JJudge shaH issue an order granting or denying the application."

21

197

After conducting an evidentiary hearing and considering the testimony of the
complainant and two witnesses for the respondents, the judge concluded:
The hearing evidence shows a sharp dispute of the facts
concerning the termination of Mr. Bowling's employment .
. . . I do not find that Mr. Bowling's testimony is so
incredible or unworthy of belief as to amount to a
"frivolous" complaint.
I therefore conclude that the special concern Congress has
shown to require temporary reinstatement of a miner
unless his claim is frivolous requires temporary reinstatement
in this case.
Slip op. at 3.
After careful review of the evidence and pleadings, we conclude that the judge's
determination that the complaint is not frivolous is supported by the record and is
consistent with applicable law.
The only issue before us is whether Bowling's
discrimination complaint was frivolously brought. We intimate no view as to the ultimate
merits of this case. J./
Respondents have additionally requested that we "stay the effect of the decision of
the Administrative Law Judge pendente lite." Petition at 4. To the extent that
respondents sought relief pending our consideration of the instant matter, their motion
was considered and is denied. To the extent that respondents seek a stay of the temporary
reinstatement order pending a final determination of whether a violation of Section
JWS(c)(l) l[)llf lthe Mine Ad has occurred, their motiorn us denied.
Absent some
extraordinary drcumstance, yet ~o be advancec:ll, ~he granting olf such a motion would
eviscerate the temporary reinstatement provision of the Mine AcL

No other issues raised by respondents, including the judge's back-pay order 9 are
lfnnal and 1 thus, they are not before the Commission at this time.

'!1_1

198

Accordingly, the judge's order requiring the temporary reinstatement of Donald
Bowling is affirmed.

199

Distribution:
Sara Walter Combs, Esq.
P.O. Box 828
Stanton, KY 40380
C.A. Noble, III, Esq.
3231 Combs Ferry Road
Lexington, KY 40509
Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
630 Maxwelton Court
Lexington, KY 40508
Stanley R. Geary, Esq.
Buchanan Ingersoll
58th Floor
600 Grant St.
Pittsburgh, PA 15219
Stephen D. Turow, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
falls Church, VA 22041

200

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

20006

February 22, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Docket Nos. CENT 92-202 M
CENT 92-204-M
CENT 92-205-M

v.

LITTLE ROCK QUARRY COMPANY,
INCORPORATED

BEFORE; Holen, Chairman; Backley, Doyle; andNelson, 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. (1988) ("Mine Act"), Administrative
Law Judge Michael A. Lasher, Jr., issued a Decision and Order of Dismissal on
January 15, 1993, (the "Dismissal Order") as a result of the Secretary's failure
to show good cause why he failed to comply with the judge's Prehearing Order of
September 14, 1992.
On January 27, 1993, the Secretary filed with the judge a motion for
reconsideration, which was forwarded to the Commission by the judge and received
on February 4, 1993. As grounds for reconsideration of the Dismissal Order, the
Secretary stated that the parties had "informally settled" the case on January
12, 1993, three days prior to the Dismissal Order.
The judge's jurisdiction over this matter terminated with the issuance of
the Dismissal Order. 29 CFR § 2700.65(c). The judge therefore could not have
entertained a motion for reconsideration.
Under the Mine Act and the
Commission's procedural rules, relief from a judge's decision may be sought by
a petition for discretionary review with the Commission within thirty days
of the judge's decision.
30 U.S.C § 823 (d)(2); 29 CFR § 2700.70(a).
The
Secretary's motion for reconsideration seeks relief from the judge's dismissal
of the case.
We will, accordingly, treat it as a timely petition for
discretionary review of the judge's Dismissal Order.
~. Middle States
Resources, 10 FMSHRC 1130 (September 1988).
We are unable to evaluate the merits of the Secretary's pleading on the
basis of the present record.
Therefore, we will afford the Secretary the

201

opportunity to present his position to the judge, who will take such action as
he deems appropriate.
Accordingly, we grant the Secretary's petition for discretionary review,
vacate the Dismissal Order, and remand the matter for proceedings consistent with
this order.

Arlene Holen, Chairman

y~ec:::~~

~air
Distribution

Michael H. Olvera
Office of the Solicitor
U.S. Department of Labor
525 Griffin St., Suite 501
Dallas, TX 75202
Mr. Ike Carter, Jr., President
Little Rock Quarry
P.O. Box 548
Benton, AR 72015
Administrative Law Judge Michael A. Lasher, Jr.
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Speer Boulevard
Denver, CO 80204

202

Nelson, Commissioner

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

20006

February 25, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. SE 92-84M

v.
BROWN BROTHERS SAND COMPANY
ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (1988)
{"Mine Act"). On December 11, 1992, Administrative Law Judge David
F. Barbour issued a decision finding two violations of the Mine
Act.
On February 1, 1993, the Commission received a letter from
Brown Brothers Sand Company ("Brown 11 ) challenging the judge's
findings of violations. The Mine Act, 30 u.s.c. § 823 (d) (2) (A)
(i), and Commission Procedural Rule 70, 29 C.F.R. 2700.70, require
that petitions for discretionary review be filed within 30 days
after issuance of the judge 1 s decision, in this instance by January
lp 1993.
The letter from Brown states that the writer, Carl
Brown, was aware
the 30-day ·time limit to appeal but that he
"deliberately waited past this deadline."
The Commission has entertained late-filed petitions for
discretionary review in appropriate circumstances. Such relief is
evaluated on a case-by-case basis. We have looked to the Federal
Rules of Civil Procedure for guidance in such matters. 29 C.F.R.
§ 2700.l(b).
Federal Rule 60(b) (1) provides relief from a final
judgment on the basis of inadvertence, mistake, surprise, or
excusable neglect.
M.M. Sundt Constr. co., 8 FMSHRC 1269,
1270-71 (September 1986}; Kelley Trucking Company, 8 FMSHRC 1867
(December 1986); A.H. Smith Stone Company, 11 FMSHRC 796 (May
1989).

1.1 If the last day for filing falls on a Saturday, Sunday or
holiday, the filing date is extended to the following non-holiday
weekday.
See Gravely v. Ranger Fuel Corp., 4 FMSHRC 799 (April
1984) •
203

Brown's admittedly deliberate late filing does not meet the
criteria of Rule 60(b) (1). Accordingly, we deny Brown's petition.

-~_//~/
Richard V. Backley, Commissioner

J~¥t:tfay& ~er

~~/

L. Clair Nelson, Commissioner

Distribution
Carl Brown
Brown Brothers Sand Company
P.O. Box 22
Howard, Georgia 31039
Michael Hagan,
Office of the Solicitor
U.S. Department of Labor
1371 Peachtree St., NE
Room 339
Atlanta, GA 30367
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

204

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE lAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

CONTEST PROCEEDING

COSTAIN COAL, INC.,
Contestant

v.

Docket No. KENT 92-332-R
Citation No. 3550973;
2/11/92

SECRETARY OF LABOR 1
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)v
Respondent

Baker Mine
Mine ID 15-14492

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

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 92-412
A. C. No. 15-13920-03736
Docket No. KENT 92-450
A. C. No. 15-13920-03730

COSTAIN COALu INC.v
Respondent

Docket No. KENT 92-451
A. C. No. 15-13920-03731
Pyro No. 9 Wheatcroft Mine
Docket No. KENT 92-413

No.

-14492-03602

Baker Mine
)i)ECISION
Appearances~

::arl

• Boyd g JTr.

• r Henderson 9 Kent:ucky v for

·the Operator 'Q

Mary Sue Taylor 9 Esq.

Office of the

s. Department of Labor, Nashvi

Solicitor~

, Tennesseeu

t:he Secretary.
Before~

Judge Maurer
STATEMENT OF THE CASE

Contestant, Costain Coal, Inc. (Costain}, filed a Notice of
Contest challenging the issuance of citation No. 3550973 at its
Baker Mine (Docket No. KENT 92-332-R). The Secretary of Labor

205

(Secretary) subsequently filed a petition seeking a civil penalty
of $50 for the violation charged in that contested citation
(Docket No. KENT 92-413).
Pursuant to a notice of hearing, these two cases were
consolidated for hearing and decision with three other costain
civil penalty cases from a different mine and were heard on
October 14, 1992, in Owensboro, Kentucky.
At that hearing, the parties proposed to settle the majority
of the citations pertaining to the Pyro No. 9 Wheatcroft Mine.
In Docket No. KENT 92-412, there was a single section 104{a)
citation; citation No. 3553122 charged a violation of 30 C.F.R.
§ 75.316 and the Secretary originally proposed a $276 penalty.
The parties now propose to settle this case with the payment of a
$50 civil penalty. In Docket·No. KENT 92-450, the parties
propose to settle 9 out of the 10 section 104(a) citations
included:
CITATION NO.

30 C. F. R. SECTION

3549963
3549764
3549765
3549767
3549961
3550236
3546406
3546407
3549768

75.1725
75.316
75.316
75.316
75.1403-5(g)
75.1403-5(g)
75.220
75.316
77o408

ASSESSED

PROPOSED

$178
276
276
20
178
63
311

$ 50
276
50
20
50
50
50
213
178

213
178

In Docket No. KENT 92-451ff The parties propose to settle all four
of the included citations on the following basis:
CITATION NO.
3549771
3549964
3546409
3549973

3\0

C.F.R. SECTION
75.400
75.316
75.220
75.316

ASSESSED

PROPOSED

$192

$135
178
50

178

178
311

311

Based on the representations of the parties and the trial
testimony, I conclude that the proffered settlement is
appropriate under the criteria contained in section 110(i) of the
Mine Act. The financial terms of this settlement agreement will
be factored into my order at the end of this decision.

206

There remained for my decision at the conclusion of the
hearing, two section 104(a) citations: Citation No. 3550973;
contested in Docket No. KENT 92-332-R and assessed in Docket No.
KENT 92-413, and Citation No. 3549766, assessed in Docket No.
KENT 92-450.
Both parties subsequently briefed the issues concerning the
aforementioned two citations and I have considered those along
with the entire record herein. I make the following decision.
DISCUSSION AND FINDINGS

I.

Docket No. KENT 92-332-R: KENT 92-413:
No. 3550973

Citation

Citation No. 3550973, issued pursuant to section 104(a)
of the Act, alleges a violation of the mandatory standard at
30 C.F.R. § 75.316 and charges as follows:
A review of the currently approved Methane and
Dust Control Plan for this mine dated October 21, 1992
(sic) and a resubmittal dated January 15 9 1992 revealed
some deficient provisions. Letters dated December 19,
1991 and January 16, 1992 were mailed to and received
by the operator requesting that these deficiencies be
corrected and to include them in an amended plan.
In
the letter to the operator dated January 16, 1992 the
operator was advised that failure to comply with the
requests would result in revocation of the Methane and
Dust Control Plan in
present form. As of this date
the requested corrections have not been included in an
amended plan.
mine is now operating without an
approved Methane and Dust Control Plan.
In a nutshellif Costain is charged with operating without an
approved methane and dust control plan for the Baker Mine at
least as
0715 9 February 11u 1992. Of courseu it
not quite
that simple. Costain had submitted a plan for the Baker Mine for
approval back on July 2u 1991. The company was notified by the
District Manager on October 2lu 1991u that the submitted plan had
been reviewed and had met review criteria. Tentative approval of
the plan was granted at that time until such later time as an onsite plan review could be conducted by MSHA. The operator was
also notified at this time that:
"Should any significant
deficiencies be detected in the Methane and Dust control Plan
during an inspection or investigation, this approval may be
revoked and a revised plan shall be required."

207

The on-site plan review was completed by MSHA on December 9,
1991. On December 19, 1991, the District Manager notified the
company that the plan submitted by them on July 2, 1991, no
longer met review criteria. The letter further advised that the
plan needed to be revised by the inclusion of three items that
were unrelated to dust control (and thus to the case at bar) •
Costain submitted a revised plan dated January 15, 1992 that
created a new problem which became the focus of this case, and
approval of the revised plan was deniedo The letter to Costain
from the District Manager dated January 16, 1992, stated in
pertinent part as follows:
Your statements under (active working sections) P. 3/4
item (h) "calcium chloride or water with wetting agent
shall be applied as neeciedto haulage roads and supply
roads to maintain respirable dust at 2 MG/M3 or less
except for roadways in intake airways within 200 feet
outby the working faces which will be treated as needed
to maintain respirable dust to 1 MG/M3 or less" and
under (areas other than active working sections),
Page 2 item 4, "water with wetting agent or calcium
chloride shall be applied as needed to maintain
respirable dust to 2 MG/M3 or less except for haulage
ways in intake airways within 200 feet outby the
working faces which will be treated as needed to
maintain respirable dust to 1 MG/M3 or less", are
unacceptable because they cannot be routinely checked
during t:he s
:month reviev.r"
District Manager further advised by that January 16,
1992 letter that Costain had 10 days after receipt of this latest
disapproval within which to submit a plan suitable for approval.
He further emphasized to the company that failing to submit such
an approvable plan would result in the revocation of their
present plan and would place them
the position of operating
without an approved Methane and Dust Control Plan. He warned
that~
Qijoperating after the revocation date is a violation of the
standard requiring an approved plano oc
Costain 5 for its partv admits that at the moment the
citation was issued on February 11, 1992, it was, in fact 1
operating without an approved plan. But, Costain disputes that a
violation occurred, in any event, because they argue the plan
which had been submitted to the District Manager was a valid and
acceptable plan which should have been approved. Costain urges
that the District Manager 1 s refusal to approve the plan was an
abuse of discretion and the citation should therefore be vacated.

208

MSHA personnel had several discussions with Costain
management between January 16, 1992, and February 11, 1992,
concerning plan language that the District Manager would approve.
In fact, Costain was expecting and perhaps welcomed the citation
when it finally came on February 11. A plan which contained
acceptable language was submitted within 30 minutes after the
citation at bar was issued. It was given final approval by the
District Manager on February 12, 1992. This plan, as finally
revised and approved, simply stated that: "Water with wetting
agent or calcium chloride shall be applied as needed to control
the dust." This simple provision replaced the unacceptable
language in both of the two virtually identical paragraphs quoted
above from the District Manager's January 16 letter.
The Secretary justifies her insistence on this substituted
language on the principle that MSHA policy requires that all plan
language be enforceable using current technology. For
enforcement purposes, MSHA cannot at this time take an
instantaneous or "snapshot" measurement of the dust level in a
specific area. The substituted provision, on the other hand,
does not require a dust sample (which could take a one to five
day period to obtain) before a violation of the provision could
be issued. And, of course, once the sampling process was
underway, the operator would be aware and could easily take
extraordinary steps, such as constant watering of the roadway
being tested, to skew the result.
Howeverv it is also true, as the operator complains, that
of provision is totally subjectivev without any
standards or bench marks to measure the inspector 0 s
againsto At what point does the roadway become too
dusty?
what point is the dust not under control? Howeverv
having said this, I would note that the regulatory standards in
the mining industry are replete with examples of subjective
prescriptions and proscriptions and I believe that experienced
coal mine inspectors as well as certified coal mine examiners and
foremen can adequately and fairly evaluate the condition of
roadways based on their many years of experience to determine
the roadways are sufficiently treated to control the dust.
Citation No. 3550973 was issued only after a long process of
negotiation concerning the dust control plan at this mine. I am
satisfied that MSHA and Costain had an adequate opportunity to
discuss the various provisions of the plan and propose language
that might be acceptable to both parties. The failure of Costain
to incorporate a dust control provision acceptable to the
District Manager into their proposed plan within a reasonable
amount of time inevitably led to the citation which was issued in
this case. I understand the operator's concern, but, in the end,

209

I concur with the Secretary that public policy requires that any
provision included in an MSHA-approved plan be enforceable. If
it is not, it is worse than useless.
The plan language finally approved by MSHA simply requires
the mine operator to take steps to allay the dust which is
created on dry underground roadways. It is relatively easy to
comply with or to enforce, if necessary. Therefore, I find
MSHA's District 10 Manager to have operated well within the
bounds of his discretionary authority to approve/disapprove dust
control plans in this instance.
Accordingly; since Costain was admittedly operating without
an approved plan, Citation No. 3550973 IS AFFIRMED, the
operator~s contest of the same IS DENIED and a civil penalty of
$50 will be ordered, as originally proposed by the Secretary.
II.

Docket No. KENT 92-450:

Citation No. 3549766

Citation No. 3549766 1 issued pursuant to section 104(a) of
the Mine Actu alleges a violation of 30 C.F.R. § 75.316 and
charges as follows:
Water or calcium chloride has not been applied to
the supply road to the #4 unit ID-004 1st East off 2nd
M. North for a distance of 1,000 ft. Roadway dust was
observed in suspension creating a hazy condition
against a lighted background.
The approved Methane and Dust.
Plan for the Pyro
Wheatcroft Mine at the \::.irne
instant citation was issued
contained a provision substantially similar to that finally
approved in the plan discussed in Section I of this decision.
Essentially" costain
charged with having failed to
sufficiently wet down or otherwise suppress dust along a supply
road in violation of
dust control plan. Inspector Whitfield,
who issued this citation was traveling in a golf cart on a mine
supply road at the time he observed the violationo He saw dust
being raised on the road from a scoop and another golf cart which
created a hazy condition against a lighted background. The
inspector testified that the dust involved was uroadway dust,
rock dust, probably clay. ~~ He further opined that " ( i] t is not
coal dust. There may be some coal dust mixed in, but it is
basically rock dust and fire clay. 10
Costain does not dispute the fact of violation of the cited
standard. Rather, they contest only the "significant and
substantial" special finding that was made.

210

A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial 11 as follows:
In order to establishthat a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
(1) the underlying violation of a
mandatory safety standard;
(2) a discrete safety
hazard--that is, a measure of danger to safety-contributed to by the violation;
(3)
a reasonable
likelihood that the hazard contributed to will result
in an injury; and (4) a reasonable likelihood that the
injury in question will be of a reasonably serious
nature.
In United States Steel Mining Company, Inc.u 7 FMSHRC 1125u
1129 {August 1985) 0 the Commission stated further as follows~
We have explained further that the third element of the
Mathies formula 1 requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury. 11
U.S. Steel Mining Co.u 6 FMSHRC 1834 0 1836 (August
1984). We have emphasized that 0 in accordance with the
language of section 104(d) (1) 0 it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. u.s. Steel Mining
Company, Inc.u 6 FMSHRC 1866u 1868 (August 1984);
U.S. Steel Mining Company, Inc., 6 FMSHRC 1573, 1574-75
(July 1984).
ij

In this case, the violation is a given and the discrete
safety hazard identified is an indisputable health hazard to some
degree for the miners who must breathe in this dusty environment.
However, after that the Secretary's burden of proof becomes more
difficult because of the very subjective nature of the cited plan
provision that she insists is necessary to make it enforceable as

211

a practical matter by her inspectors on the scene. By including
a provision that can be cited on the spot (and get the dust
abated) on purely subjective grounds, she is giving up the more
rigorous collection of evidence that could perhaps easily
establish the third element of the Mathies formula.
The Secretary carries the burden of proof to show by a
preponderance of the competent evidence in the record that
breathing the dust observed in the roadway by Inspector Whitfield
will result in an injury or illness of a reasonably serious
nature. The record evidence, however, is to the effect that the
major health concern with dust is with respirable dust, and there
has been no definitive showing that there was any respirable dust
involved with the observed dust being "kicked-up" by the
equipment which the inspector cited. We do have the general
opinion testimony of two of the Secretary's witnesses that
wherever you have dust in suspension, you have respirable dust.
But I note that neither of these gentlemen observed the cited
condition and in any event their opinion is not quantifiable. It
must be remembered that some concentration of respirable dust is
allowable under the applicable regulatory standards. Whether or
not the dust observed in suspension by Inspector Whitfield
contained respirable dust in excess of the allowable
concentration is unknown by anyone, even if we assume that "some"
respirable dust was in suspension.
Accordingly:
facts

1.r:~

I

find and conclude that there are insufficient
to support an S&S special finding

~S AFFIRMED as a non s&s
and a civil penalty of $100 will
be assessed as appropriate under the criteria contained in
section 110 i) of the Mine Act"

Therefore;

violation of

o C.F.R.

No. 3549766

§ 75.316

Coal IuC.p shall within 30 days of the date of this
pay the sum of 1811 as a
l penalty for the
found herein" Upon payment of the civil penaltyv
these proceedings are DISMISSED"

aurer
rative Law Judge

212

Distribution:
Carl B. Boyd, Jr., Esq., 223 First Street, Henderson, KY 42420
(Certified Mail)
Mary Sue Taylor, Esq., Office of the Solicitor, U. s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
dcp

213

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

FEB 8 1993
CIVIL PENALTY PROCEEDINGS

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

:

v.

Docket No. WEVA 92-816
A.C. No. 46-01455-03882

. Docket No. WEVA 92-821

. A.C. No. 46-01968-03989

CONSOLIDATION COAL COMPANY 8
Respondent

..
0

0

~

Blacksville No. 2 Mine

:

Docket No. WEVA 92-758
A.C. No. 46-01455-03874
Osage No. 3 Mine

DECISION
Appearances:

Before:

Robert Wilson, Esq., u.s. Department of Labor,
Office of the Solicitoru Arlington, Virginia
for Petitioner;
Daniel E. Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Judge Feldman

In these three proceedings, the Secretary seeks to impose
civil penalties on the respondentc Consolidation Coal Company,
under Section 105
of the Federal Mine Safety and Health Act of
1977c 30 u.s.c. § 801. et seg.u for three alleged violations of
the mandatory health and safety standards found in 30 C.F.R.
Part 70 and Part 75. The respondent filed timely answers
contesting the alleged violations and these cases were docketed
for hearing. Pursuant to noticeg an evidentiary hearing was held
Morgantown, West Virginia 0 at which Lynn Arthur Workley
testified on behalf of the petitioner and Jeffrey Todd Moore
testified for the respondent. The partiesi stipulations
concerning the pertinent jurisdictional issues and the relevant
civil penalty criteria found in Section llO(i) of the Act are of
recorde The parties filed post-hearing briefs which I have
considered in my resolution of this matter.
At the hearing the petitioner moved to settle Docket Nos.
WEVA 92-816, and WEVA 92-758. These dockets each involve single
citations for alleged violations of Section 70.510(b) (2)
concerning the respondent's hearing conservation plan and its
responsibility to provide periodic audiograms for selected
employees. The proposed settlement agreement involves the
respondent's acceptance of liability for the $1,100 assessed

214

penalty associated with 104(d) (2) Order No. 3716164 which is the
subject of Docket No. WEVA 92-816. This order concerns the
respondent's failure to provide audiograms for stopper operators.
In addition, the Secretary moves to vacate the 104(d)(2) Order
No. 3716165 in Docket No. WEVA 92-758 because of an inability to
establish a violation of the respondent's hearing conservation
plan with respect to its longwall operators. Arguments in
support of the settlement agreement were provided at the hearing
at which time I issued a bench decision approving the subject
motion. The terms of the settlement agreement will be
incorporated as part of this decision.
Remaining Docket No. WEVA 92-821 concerns a citation and an
associated imminent danger withdrawal order involving a roof
condition in the tailgate entry of the respondent's Blacksville
No. 2 Mine.
PRELIMINARY FINDINGS OF FACT
Lynn A. Workley has been employed as an inspector with the
Department of Labor's Mine Safety and Health Administration for
approximately 10 years. He is certified as an underground mine
foreman in the State of Ohio. On June 13, 1991, during the
course of an inspection of the respondent's Blacksville No. 2
Mine, Inspector Workley issued 104(a) Citation No. 3715953 for an
alleged significant and substantial violation of the mandatory
safety standard found in 30 C.F.R. § 75.202{a) . 1 Citation No.
3715953 charged as follows:
The mine roof in the 13 M longwall tailgate
entry between 4+15 and 4+80 is brokenu
cracked and sagged 9 between the existing
supports and is not adequately supported or
controlled to prevent the roof from falling
in this area and weekly examination of this
airway is required. This condition is the
contributing factor to issuance of Imminent
Danger Order Noo 3715952 dated 6/13/91u
thereforeu no abatement time is set.
Contemporaneous 107(a) Order No. 3715952 provided a further
description of Inspector Workleyws observationso This Order
stated~

1

Section 75.202(a) provides: "The roof, face and ribs of
areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to
falls of the roof, face or ribs and coal or rock bursts (emphasis
added)."

215

The tailgate entry off of the 13 M longwall
section is unsafe to travel between 4+15 and
4+80. The installed roof support (bolts and
double row of cribs) has failed to adequately
support the roof. The mine roof is cracked,
broken, and sagged between the cribs which
are crushing badly. Some head coal and roof
rock has already fallen and the roof was
flaking and audibly cracking at this time.
The underlaying (sic) cause of this imminent
danger is management's failure to provide
adequate support in the longwall tailgate
entry.
The above citation and order involve the tailgate entry of
the 13 M longwall section. The tailgate entry is located between
the active longwall panel and the gob area, where the longwall
panels have already been mined. Each development section has
four entries. on the tailgate side, only one entry is safe to
travel. The tailgate entry is the alternative escapeway from the
longwall in the event of a headgate roof failure or fire.
Workley testified that he entered the tailgate entry on
June 13, 1991, from the main entry with the respondent's Safety
Escort Todd Moore, miner representative Jack Rinehart, and
stephanie Bunn, an inexperienced miner trainee. They proceeded
up the tailgate entry in the direction of the longwall face until
the roof began to deteriorate. At that point, Workley and Moore
left Rinehart and Bunn and proceeded to determine how far it was
safe to travel. Workley testified that at approximately 415 feet
into the tailgate entryu the roof conditions had deteriorated to
such an extent that it became unsafe to continue. In describing
the roof conditionu Workley testified that~
We started with approximately 7 feet of (height]
where we entered the tailgate entry. As we
proceeded forwardu the mine floor had squeezed up 0
the mine roof had squeezed down. At 4+0 0 the
mining height was approximately 4 feet high and
ahead of us it got lower yet. The mine roof was
broken. There was (sic) visible cracks in it. It
was sagged between the cribs and the solid block.
(Tr. 33-34).
Workley testified that the respondent»s roof control plan
requires the tailgate entry to be supported by roof bolts through
a board or steel mat, a maximum of 5 feet across and 8 feet
apart. The roof control plan also requires that cribs be
installed the entire length of the tailgate entry for

216

supplementary roof support. The cribs are 5x7 inch timbers that
are 30 inches in length. The cribs are placed on the ground
parallel to each other approximately 30 inches apart. Alternating
cribs are then placed upon each other at right angles until they
support the tailgate entry from the mine floor to the roof.
Wedges are driven into the corner of the cribs for additional
support~
Workley described the condition of the cribs as
follows:
The wood was crushing into toothpicks. The
5x7's were no longer 5x7•s. They started out
at 7 [feet] high and were smashed to 4 [feet]
high in places. They started out in vertical
position from the floor to the roof, some
were leaning as much as a 30 [degree] angle
towards solid block. (Tr.37).
Based on the above observ~~ions, Workley concluded that it
was dangerous to continue down the tailgate entry toward the
longwall. Therefore, he and Moore retreated up the tailgate
entry back around to the headgate entry across the face and then
back down the tailgate to determine the extent of the
deteriorated area. Workley determined that approximately 65 feet
of the tailgate entry was unsafe to travel. (Tr.38). In this
65 foot area, pieces of roof had fallen and continued to fall,
the cribs were squeezed and broken and the roof was making
audible cracking noises. (Tr.39). Workley testified that the
roof and floor were squeezed to such an extent in this 65 foot
area that there were places where the vertical clearance was as
little as 2 feet. (Tr.Sl). In short, Workley stated that the
was ready
l "iat any moment. 61 (Tr.40). He testified
·that it. Has highly lii{ely, given the large quantity of roof
material, that a
collapse would result in serious or fatal
uries. (Tr.40).
Workley testified that mine personnel routinely traverse the
tailgate entry. For exampleu he stated that section or longwall
Jcoreman occasionally
into the tailgate entry to adjust or
a block
to maximize ventilation of the longwall
face. In addition~
stated that 30 C.F.R. § 75.305 requires
weekly examination of the tailgate entry for hazardous
conditions. Final p Workley testified that employees must
~raverse the area in order to drag or rock dust the tailgate
floor in accordance with Section 75.403. (See Tr. 40-41 1 94).
Consequently, Workley issued a 107(a) withdrawal order in
addition to a 104(a) citation because of his concern for the
safety of workers who would go into the affected area during the

217

course of normal mining operations. Howeveru the only effect of
this withdrawal order was to prevent workers from entering this
areao The 107(a) order did not require the cessation of any mine
.
operations. (Tr. 4 7) • 2
The respondent called Safety Escort Jeffrey T. Moore who
accompanied Workley during the inspection. Moore essentially
corroborated the observations of Workley. In this regarde Moore
testified that:
n[t)he roof had fallen outu the cribs were crushing.
The top was working, you could here it audibly

cracking. You could see flakes and pieces of roof
material and rib falling to the floor.~~ (Tr.116).
Moore 9 s testimony that he did not believe that the roof
condition constituted an imminent danger is belied by his own
characterizations of the roof condition. Significantly, Moore
indicated that he would not feel very comfortable passing through
the area and that he felt the area was 9isomewhat risky"
(Tr.llB). He also testified that avit seem[ed] to be hazardous,
that I wouldn't want to have a picnic lunch in that area. 81
(Tr.122). Although Moore also characterized the area as
''somewhat questionable 90 and an area of u~ increased danger" he
opined that the danger was not of an imminent nature.
(Tr.115-117). Finally, Moore testified that n • • • I myself
would readily pass through that area if we had a fire or
·
something. n (Tr. 120) • 3
&

Moore also testified that he and Workley inspected the same
Moore conceded that the

area the previous day on June 12, 1991,
~rea had deteriorated s
~he

entry.
was such that
physically supported because H: would endanger
anyone sent to alleviate the problem.
.124).
Despite the
deteriorated roof condition Moore
fied
he believed
not

The respondent made a
to dismiss
presentation
Secretary's direct case. The motion was denied because
~'Jorkley" s 'cestimony adequately est:ablished a nri ma facie case.
(Tr. 108-111).
3

The tailgate entry is the only alternative escapeway in
the event of headgate roof collapse or fire. However, Moore's
willingness to traverse the tailgate area in question as a last
resort in order to escape from the longwall is not relevant to
the issue of the fitness of this area as a working environment.

218

impassable. a! (Tr.l22). 4 Moore testified that the condition was
ultimately abated approximately 2 to 4 days after Workley issued
the citation and withdrawal order by mining past the area in
question allowing the area to become part of the gob as the
longwall retreated.
FURTHER FINDINGS OF FACT AND CONCLUSIONS

Fact of Occurrence
The respondent, in its brief, heavily relies on the
Commissionvs decision in Cyprus Empire Corporation, 12 FMSHRC 911
(May 2 9 1990) which vacated a citation for an alleged violation
of Section 75.202(a). The Commission's action in Cyprus was
based on its findings that the Secretary had failed to
demonstrate that the compromised roof section in that case was an
area "where persons work or travel." In cyprus, the Commission
noted eli.
that as soon as cyprus encountered the poor roof
conditions it dangered-off the area to prevent miners from
entering& In doing so, Cyprus acted in accordance with accepted
safe-mining practice." 12 FMSHRC at 917.
o

•

respondent 0 s reliance on Cyprus is misplaced. Unlike
Cyprus, in this case the Secretary has established that mine
personnel periodically traverse the area in question to adjust or
repair block stoppings, to conduct weekly examinations for
hazardous conditions and to drag or rock dust the tailgate
floor. 5 Moreover, unlike the Cyprus case, the respondent failed
to act 99 in accordance with accepted safe-mining practice" in that
to danger-off this roof area despite the apparent
manifested by audible cracking and crushing of the
Significantlyc Moore testified that he did not danger-off
·t-he area
he Ioel ieved t:he area to be passable. Thus, the
4 Section

303 ( (1) of the Mine Act provides: "If [a mine
condition which constitutes a violation of a
or safety standard or any condition which is
mandat:o::ry
hazardous
persons who may enter or be in such areaq he shall
indicate such hazardous place by posting a 11 DANGER 11 sign
conspicuously at all points which persons entering such hazardous
place would be required to pass. • • No person, other than an
authorized representative of the Secretary or a State mine
inspector or persons authorized by the operator to enter such
place for the purpose of eliminating the hazardous condition
therein~ shall enter such place while such sign is so posted."
(Emphasis added). 30 u.s.c. § 863(d) (1}.
5 Workley

estimated that a section foreman enters this area
once each shift and that each day consists of three shifts. He
also testified that personnel drag or rock dust the area
approximately twice weekly (Tr.58}.

219

respondent has neither alleged nor shown that
took any measure
to dissuade personnel from passing under the area. I find,
therefore, that the evidence strongly establishes a violation of
Section 75.202(a) in that this area was situated in a place where
persons work or travel and the respondent failed to take adequate
measures to protect such persons from hazards related to roof
collapse.
THE ISSUES OF SIGNIFICANT AND SUBSTANTIAL

AND l:MMINEN'l' DANGER

The respondent maintains that the cited roof condition does
not constitute a significant and substantial violation or an
imminent danger because no one was required to work or travel in
the tailgate entry. In this regard, the respondent argues that
it was unlikely that a roof collapse would occur at the very
moment that a miner was in this area. As noted above~ I credit
the testimony of Workley, which was not rebutted by Moore, that
employees did have reason to periodically enter this area. This
conclusion is consistent with Moore 8 s testimony that the area was
"passable" and, therefore 8 not dangered-offo
Having concluded that employees were exposed to this hazard,
I turn to whether the facts in this instance support a
designation of "significant and substantial n and ou imminent
danger".
A violation is properly designated as "significant and
substantial 11 if there is "a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a
reasonably serious nature o09 U.S. Steel Mining Co. e Inc. u
7 FMSHRC 327 9 328 (1985)
Cement Division, National Gypsum Co. 8
JFMSHRC 322
1.\ilathies Coal Co. ,
FMSHRC
, 3-4,
made in ·terms
normal
6

F~iSHRC

1573 r

violation is
significant and substantial must be based on the particular facts
surrounding
Texasgulf, Inc.u 10 JFMSHRC 498
( 1988) ~ Youghioghenv &. Ohio Coal Company, 9 JFl'!l:SHRC 1007 ( 1987)
157 t.~

{

1984} o

The

of ·t,rhether a

0

condition
designsrteOI as an ou imminent dangerYu
defined by Section 3
of
Mine J.i.>ct:
condition
0
'
could :reasonably be expected ·to cause death or serious
physical harm before
or practice can be abated" na
0 UoSoCo
802(j)o
In Utah Power and Light Companvv 13 FMSHRC
1617 3 1622 (Octo 1991}, the Commission reviewed the legislative
history of this definition and concluded 'chat an imminent danger
exists if the inspector determines that the condition presents an
impending threat to life and limb without considering the
percentage of probability that an accident will happen. Thus, to
as

220

support a finding of imminent dangeru the inspector must conclude
that the hazardous condition has a reasonable potential to cause
death or serious harm within a short period of time. 13 FMSHRC
at 1622.
In its defense of Workley's citations, the respondent
apparently relies on a series of cases which question the
propriety of presuming the occurrence of an emergency in order to
establish a violation as significant and substantial. See
Consolidation Coal Company, 15 FMSHRC ___ (January 1993);
Shamrock Coal Company, Inc. 6 14 FMSHRC 1300 (August 1992);
Shamrock Coal Companyn Inc. 6 14 FMSHRC 1306 (August 1992); and
Beech Fork Processing. Inc., 14 FMSHRC 1316 (August 1992).
Consequently, the respondent argues that a significant and
substantial or imminent danger finding in this instance requires
the impermissible presumption of the presence of mine personnel
at the moment of a roof fall.
I find this argument unpersuasive. In this case, the
discrete safety hazard, i.e., an unstable roof, created a real
and present danger rather than a presumed threat. The fact that
miners were not exposed to this roof hazard at the time of
inspection is not dispositive of the S&S or imminent danger
issues as long as a miner could be at risk during the course of
continued mining operations. See Halfway Incorporated, 8 FMSHRC
8, 12 (January 1986) citing National Gypsum Co., FMSHRC 822, 825
(April 1981) and U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574
(July 1984).
In the current case this area was considered gupassable 11 and
thus accessible to mine personnel for periodic examination,
stopping maintenance and rock dusting. Thus, miners would be
exposed 'to a potential roof fall which, given the observations of
Workley and Moore" was reasonably likely to occur at any moment.
In the event of such an occurrence, it is reasonable to conclude
that the exposed miners would sustain serious or fatal injuries.
Thus, the significant. and substantial designation was appropriate
under these circumstances and. JJ..s affirmecL
With respect 'to t.he issue of imminent dangerv it is
significant that the condition could not be abated before it
could cause death or serious injury during continued mining
operations because abatement was accomplished only after further
retreat of the longwall past the area in questionp which took
approximately 2 to 4 days. During this interim period, absent
danger boards, personnel continued to be in jeopardy. In fact,
Moore 1 s testimony reflects that it was not until Workley issued
the imminent danger withdrawal order that Moore advised the
longwall personnel not to traverse the area. (Tr.119). Therefore,
the imminent danger order was warranted and shall be affirmed.

221

CONCLUSIONS

Having affirmed the citation and withdrawal order, I find
that the gravity associated with this violative roof condition
was serious and that the respondent 8 s underlying negligence was
moderately high given the fact that it failed to danger-off the
area despite obvious manifestations of an unstable roof.
Consequentlyu I conclude that the $1,300 assessment proposed by
the Secretary is appropriate and consistent with the criteria in
section llO(i} of the Act.
I am also incorporating the previously noted settlement
agreement in this decisionv which requires the respondent to pay
a penalty
$lvl00 for Order No" 3716164 and which vacates Order
No. 3716165.
'ORDER

Based upon the above findings of fact and conclusions of
law, it IS ORDERED that
Nco
2.

715953

AFFIRMED.

!~

Imminent Danger Withdrawal Order No. 3715952 IS
UFIR.MED.

3.

The proposed settlement agreement concerning Order
No. 3716164

I~

APPROVED.

~H.ii'..L:t:,

penal'cy of

lP~~

c 400

the date of this decision.
l

,.,if

/'1
/1

~-='i+'~,
~~--- ,Jift=aP
/;::::~•)
~
'

-..,..,

/'

'\~-~f;:::.">'

JRober:c EL

Feldman
Administrative Law Judge

il
r Off ice of the Solicitor, U.S
Department
of Labor" 4015 ~iiilson Boulevardu Room 516, Arlington, VA 22203
o

Q

(Certified !11ai1}

Daniel Eo Rogers~ Esqo, Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
vmy

222

OFF~CE OF ADMINISTR,\\1T1Jl: lfc..W JUDGES

.!: S:<VUNE, 'i Oth FlOOR
5203 LEESBURG PiKE
FALlS CHURCH, VIRGINIA 22041
)~·

(:

·..

,, __

:' .
..

CIVIL PENALTY PROCEEDING

SECRETARY OF LABORu
MINE SAFETY ~TD HEALTH
ADMINISTRATION (MSHP_) 0
Petitioner

Doc~cet

AoCo

No o SE 92-61-M
NOo 08-01046-05511

Vo

GFD CONSTRUCTION

CO!Y!Pl:v-r,~·,

INCORPORATED,
Responderrc

William LOi.'I:V'SOli1 0 ··Esqa r ··Office of the Solicitor 0
UoSo Department of Labor, Birminghamv Alabama,
for Petitioner;
Anthony Greeno GFD Construction Company,
Incorporatedr Pensacola 0 Florida, for Respondent.

Appearances~

Before~

Judge Barbou:c

In this proceeding arising under Sections 105(d) and llO(a),
, of the Federal Mine Safety and
Health Act n~ ~C7~
:;c;~
:;:~·:; 'seq,
~uul\1/.ine Actuu), the
~eh2~:

~f

the Mine Safety

i l ..:•c

assessmen·::.r:::

":'c~:

c~;.~~;·c ·,co.:.

... r

. ·-· ~··

2

·::::·

~,;anda:t.or:r

safety

standards fo:-.:· su:.:~:·c'lcc=;: ::oh2.c>>.~ . c.T,:. w.:;;n~me\:r?."~- :;ai;nes found in Part 56
of 'the Code of Fede:ca:. :;;.e9:n:.a:c:Lons ( 0°CaF.Ro 01 )a The Secretary
further assert:s ·::l:..:::~. :~(~y;:c· "" · .:?&} :.:._eorec1 ";?iola·i:ions constitute
safetv hazards
·~:~~e

:cnat:ter 1.'\i'as

~~· order ~c es~2~~~s2 ~2G ~a~u~e G~ ~he operation at issue
and IVline l~l.ct: :iur
..... · ··
::'.rs·:.: called Anthony
Green. Green stated that ~
i980 he has been the owner of GFD
Construction Company ( 0'GFD 0" c \1!.1.ich arc H:.s Green's Pitv conducts
primarily a masonry sand extraction operationa 1 According to

In addition to the extraction of sand, Green stated that GFD also
extracts some clay and is involved in providing fill dirt and top soil to
buyers, as well as in land clearingo Tro lOo

223

Green, sand is dredged from ponds at the pit, is separated from
foreign material and is trucked from the pit to purchasers.
Approximately eighty-five percent of the sand is sold to home
builders, but GFO also sells to county and federal institutions,
such as Eglin Air Force Base. Tr. 11. At the pit, GFD operates
heavy equipment such as a dragline, front end loaders, back hoes
and trucks. Approximately, ninety percent of the trucks are
purchased outside the state of Florida, in Alabama. The trucks
transport sand to purchasersv job sites over public highways.
Tr. 11-12. In addition, the last front-end loader purchased by
GFD was manufactured in Japan. Tr. llo
Section 4 of the Mine Actg 30 u.s.c. § 814, makes subject to
the Act, "[e]ach coal or other mineu the products of which enter
commerce, or the operations or products of which affect commerce,
and each operator of such mine. u~ Given Green °s testimony, I
conclude that GFDgs business affects interstate commerce, that
GFD is an operator subject to the provisions of the Mine Act in
the operation of Green's pit'and that 1 as a result, the
Commission has jurisdiction over this proceeding.
In order to establish the existence of each alleged
violation, and, where applicable the violation's S&S nature, the
Secretary called to testify
Shubert., a MSF..A inspector with
approximately 6 years of inspection experience. Shubert, who
issued all seven of the alleged violations, also testified
regarding the gravity of each alleged violation and GFD's
negligence in allowing the violations to exist. GFD's case was
presented through the direct testimony of Green and through
Green's cross-examination of Shuberto

The citation states~
500A front-end loader

The

02119 1:1a.s no':

seat belt.so

Exh. P-2
In addition t:c
a violation existed
Shubert found that the violation constituted a S&S violation.
o

Shubert stated that on October 15u 1991u he conducted an
inspection of Greenss Pit. Upon arriving at the mine, he stopped
at the mine office to advise Green of the nature of his visit.
Green did not accompany him during the inspection. Tr. 14-15

224

At the pit, Shubert observed a Kobelco front-end loader
("loadern) dumping sand into a trucl<. Upon inspecting the
loader, he noticed that
lacked a seat belt. Tr. 16. Shubert
considered this to be a violation
Section 56.14130(a) (3).
Explaining why he regarded the violation to be S&S, Shubert
stated that the loaderQs operator compartment had rollover
protection but not a closed cab. Although the loader was being
operated on level ground.u Shubert nonetheless feared that it
could turn over and throw the operator from the compartment,
subjecting him to crushing injuries or death should the rollover
protection structure strike him" Shubert stated that if the
bucket were not loaded evenly and \'>Tere raisedu the loader could
become unstable and overturn" Shubert mentioned an incident at a
Mississippi operation where this had happened. Tr. 17-20.
Shubert also explained his understanding that GFD did not
own the loader, that the loader had been rented by GFD from
Pensacola Ford Tractor Co., and thatt.he rented loader had been
at the pit for approximately two weeks. Nonetheless, Shubert
believed that GFD, as the operator, was responsible for assuring
that the loader complied with all applicable federal mine safety
regulations when it was operated at the pit. Tr. 57.
Green agreed that. the front-end loader was rented.

Tr. 81.

THE VIOLATION
Section 56.14130(a) (3) requires that seat belts be installed
There is no dispute that the cited loader was
a wheel loader and that jJ::. lacked a seat belt. Moreover, there
is no dispute 'chat GFD v:ras ·the
of t:he
and that the
loader, al
rented was under GFD 1 a control and
direction at
14s Shubert
s·tated f whether or
not an operator owns a piece
equipmentv the operator is
responsible for assuring regulatory compliance while the
equipment
at
mine. Thereforev I find that
has been

on wheel loaders.

In E/la·thies Coal Co. v
FxJ.!SHRC
Commission set forth t.he elements ox
substantial 9' violation as follm¥s ~

January 1984) 0 The
''significant and

In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the
Secretary of Labor must prove:
{1) the
underlying violation of a mandatory safety

225

zard=-that

standard;
isv a measure

contributed to bv
reasonable likelihood
contributed to
11 result
(4) a reasonable likel~u~~~

andv

in question
natureo
(6
In United States Steel Minincr Comnany, Inc.u 7 FMSHRC 1125,
1129 (August 1985)
the Co!t'.rnission stat.ed further as follows~

·vve
element of tl1e
the Secretarv establ
likelihood that the hazard

that.

t'li'ill rasul·;:
uryov

an

Q

1834\.g 1836o

There was a violation of the
Shubertus testimony establ

·to by
t.o

standardo In addition,
of danger contributed
contributed

should the

danger of

Shubert 0 s testimony
and injured was
front-end loader was
Shubert specifically
due to unevenly
an accident had

loader overturn"
established that

reasonably 1
being opera·ted
referenced the
filled lbuclcets

a
~o:mpartment

s:t:ructure
serious injury-that. this was a

sureiy r"muld
even death" In
S&S

,_cr ·::est:ifiedp
·the fron:t -end
ug

Tr o

19 o

fron'c: of the
i:rom being
'tvou.ld prevent the
sideways" Tr" 83-84.

throvm forv.Jardu he agrreect ·c.nz:c·i:
operator from being 'i:h.rm·m

226

Furtheru I conclude that GFD was negligent in allowing the
violation to exist. The seat belt was missing. It is the
operator's duty to ensure that the seat belt was in place and was
functional. GFD did not meet its duty in this regard.
Section 104Cal Citation No. 3596822. 11/15/91, 30 C.F.R.
§ 56.14132Ca).
EVIDENCE

The citation states:
The back-up alarm on the Kobelco
600A front-end loader
02119 was
not being maintained in working
condition.
Exh. P-3.
Shubert stated that while·inspecting the same loader; he
observed the machine backing up and did not hear the back-up
alarm sound. Upon closer inspection, he found that the alarm was
in place but was not working. He was not sure why the alarm
failed to sound.
Green did not dispute this testimony.
THE VIOLATION

Section 56.14132{a) requires that back-up alarms be provided
on self-propelled mobile equipment and be maintained in
ional condition. The inspectorgs testimony regarding the
state
the
was not
L
a.s

GRAVITY ~ ~EGLIGENC~

The violation was not serious.
he
~::c.

ieved
miner o

that the

The inspector indicated that
injury

Furtherc
for
reasons
of Section 56.14130(a) (
conclude GFD was negligent
Section 104(a) Citation No. 3872700, 10/15/91,
§

56.1410(a) {2).

227

regard. ·tc the
discussedv I

exist,

EVIDENCE

The citation states:
The parking brakes on the Kobelco 600A frontend loader[,] Serial Number 02119[,] would
not hold the load on level ground with [an]
empty bucket, in that the loader rolled
freely when [the parking] brakes was [sic]
applied.
Exh. P-4.
Shubert stated that during the course of his inspection of
the previously discussed loader he asked that the parking brakes
be engagedu and he observed that the loaderu nonetheless,
continued to roll. Tr. 23.
THE-VIOLATION

Section 56.1410(a) (2) requires that if self-propelled mobile
equipment is equipped with parking brakes, the brakes shall be
capable of holding the equipment, with its typical loaded on the
maximum grade it travels. Shubertis testimony regarding the lack
of effect of the loader 0 s parking brakes was not disputed, and I
conclude that the violation existed.
GRAVITY AD NEGLIGENCE

The violation was not serious. As with the lack of a
working back-up alarmu Shubert found the non-operational
~arking brakes unlikely to cause injury.
Exh. P-4. Furtheru
and for t:.he reasons stated
regard
the violations of
Sections 56.1~130(a) (3) and 56.1~132(a r I conclude that GFD was
negligent
allowing the violation to exist.
Section 104(a) Citation No. 38728411a 10/15/91, 30 C.F.R.
~ 56.14132(a).
ln"IDENCE
The

citation states~
The front-end loader was not being
maintained in functional condition;
in that when the horn button was
depresses the horn didnvt sound an
alarm on the Kobelco 600A front-end
loader[,] Serial Number 02119.
There was no fast traffic in the
area.

Exh. P-5.

228

Shubert testified without contradiction that when he asked
the loader operator
blow the horn on the loader, the horn
would not sound. Tro 24.
THE VIOLATION

Section 56.14132(a) requires that horns provided on
self-propelled mobile equipment be maintained in functional
condition. Shubert 0 s testimony established that the horn would
not function. I find that the violation existed as charged.
GRAVITY AND NEGLIGENCE

Shubert stated on the citation form that there was no fast
traffic in the areav and he further indicated that it was
unlikely an
ury would result from the violation. Exh. P-3.
I therefore conclude that the violation was not serious.
Furtheru and for the reasons stated with regard to
the violations of Sections 56.14130(a)(3), 56.14132(a)
and 56.1410(a} (2) 9 I conclude that GFD was negligent in allowing
the violation to exist.
Section 104(a) Citation No. 3596823. 11/15/91. 30 C.F.R.
§ 56.14107 (aL
EVIDENCE
The citation statesg
shaft located
provided 1rd th
from
shaft:o The
operator stands beside the drive
shaft to operated the dredge.

The

violation was S&So
Shubert:. stated

inspecting t.he loader he went to
where
dredge tvas located. Shubert went
by
inspect the dredge. The dredge was not pumping at the
·,.cune Shuber'c
r
but Shubert. stated 'chat the dredge
operatoru
ll
Smallu told him that it had been pumping earlier
tha·t morning and that the dredge 1tJas not then operating because
the pump had lost its prime. Tr. 24=25o Small was trying to
reprime the pump. Tr. 25o
t.h.e

Shubert described the dredge as having a diesel powered main
pump, along with a smaller primer pump. According to Shubert,
the main pump sucks sand up through a long snout. The snout is
lowered into the water and down to the sand floor of the pond by

229

a winch. The sand is then sucked up to the snout, through the
pump and is piped to another area of the pit where it is
discharged. Tr. 26.
Shubert stated that the drive shaft on the main pump is 8
feet long and 3 inches in diameter. The shaft rotates very
rapidly. The drive shaft turns the main pump. Shubert testified
that the dredge operator may sit 10 to 12 inches from the shaft
during the course of his duties while operating the dredge. Tr.
27-28. Because, in Shubert's experience, all dredges are subject
to oil leaks and water spills on the their decks, Shubert feared
the dredge operator could slip or fall in the immediate vicinity
of the turning shaft, and the operator's clothing could become
caught in the shaft and the operator could be pulled into the
shaft. If such were to happen, Shubert feared that a broken limb
or even a lost limb could result, as well as possible cuts. Tr.
30.
During cross-examination, Green asked Shubert if he had been
told that the dredge was sabotaged shortly before the inspection
and Shubert stated that he had not. Tr. 48. Green explained
during his testimony that the dredge had been sunk in 35 feet of
water, that it had completely turned over and that when Shubert
saw the dredge it had recently been refloated but that the pump
mechanism was gone and the main pump did not work. According to
Green, on October 15, GFD was trying to get the pump fixed. Tr.
68-69.
THE VIOLATION
Section 56.14107(a} requires that moving machine parts that
can cause
ury shall be guarded to protect persons from
contacting such parts. In additionu the regulations enumerates
several parts that must be guarded~ and shafts are among
parts listed. As commissionis Administrative Law Judge George
Koutras has stated, n[t]he language . • • found in (Section]
56.14107(a) specifically and unequivocally requires guarding for
any of the enumerated moving parts that can cause injury
contacted. The obvious intent of the standard is to prevent
contac·t 1.11ith a "moving part 0 • ou Highland County Board- of
Commissionersv 14 FMSHRC 270.291 (February 1991) (ALJ Koutras}"
I conclude that the violation existed as charged" While
Green maintained that the pump was not working on October 15, he
did not go to the pit with Shubert and was not there to hear
Shubertvs conversation with Small. Nor did Green mention the
sabotage to Shubert when Shubert came to his office on the
morning of the inspection. Tr.75-76. Shubert was adamant that
Small told him the pump had been in operation that morning, and I
credit Shubert's testimony. It seems logical that if the dredge
had still been out of operation due to the sabotage, Green would
have told Shubert. Moreover, Shubert stated that before

230

reaching the dredge
had seen sand at the end of the dredge
pipeline. Shubert believed the sand had been dredged that
morning. Tro 103. Thus, I conclude that the pump had been in
operation on October 15.
The main pump drive shaft was a long and rapidly rotating
part. Shubert 0 s fear that the dredge operator could become
entangled on the shaft should he slip or fall in its vicinity was
reasonable, and it
reasonable to credit his belief that an
injury could result. Therefore, I conclude that the main pump
drive shaft could cause injury if contacted. It was not guarded,
and I therefore find that the violation existed as charged.

The evidence shows a violation of the underlying guarding
standard. There was a measure
danger contributed to by the
violation. The unguarded drive shaft, in conjunction with the
proximity of the dredge operatorand the usual presence of oil
and water on the deck of the dredge, was reasonably likely to
result in an injury. Further, becoming entangled with the shaft
could have resulted in a reasonably serious injury. In sum, I
agree with Shubert that this was a S&S violation.
GRAVITY AND NEGLIGENCE

As indicated; Shubert stated that slipping or falling into
the shaft and becoming entangled in it could lead to broken or
lost limbs and to cuts. These are serious injuries. Further,
the dredge operator at times had to work in close proximity to
Shubert
observedr oil and water was
to some degree. Tr. 29-30
·the condi"cions under
increased
likelihood that he
conclude ·that this was an serious
tes·timony that. the dredge recently had been
Shubert:' s 'cestimonv that the
inspection. Not only
GFDus employeec he observed sand that he had
before
arrived at. the mine.
of t.he dredger the guard had
happenedv once the dredge resumed
and in neglecting to provide
standard of care required of it as an
conclude that GFD was negligent in
to exist.

Green"~.

sabotaged.
dredge
'£AJas

1reason
Green
been lost..
opera·tion a
GFD failed
operator. I
allowing the

!::01m>Jeve::::

Section 104(a) Citation No. 3596825, 10/15/91, 30 C.F.R.
§ 56.14107Ca).

231

EVIDENCE

The citation states:
The V-belt drive on the small
primer pump located on the dredge
was not provided with a guard to
protect persons from contacting the
V-belt.
Exh. P-7.
S&S.

In addition, the inspector found the violation to be

Shubert described the V-belt drive as consisting of a belt
that sits in a pulley. As such, it is similar to a drive pulley.
He also explained that the primer pump is the smaller of the two
pumps on the dredge and that it pumps water into the main pump in
order to get the main pump started. Tr. 31-32. Because the
V-belt drive lacked a guard, Shubert believed that should the
dredge operator slip or fall, he or his clothing could become
caught in the drive. Tr. 32. The dredge deck was usually wet;
and as previously noted, Shubert stated that small amounts of oil
or diesel fuel and water were present on the deck. Tr. 33. In
Shubertvs opinion this made it highly likely that the dredge
operator would slip or fall into the belt drive. Tr. 33-34.
Shubert described an incident in Mississippi where this had
occurred and where a miner had lost a thumb. Tr. 32. He also
stated that the dredge operator would walk within one or two
inches of the V-belt drive during the normal course of a work
day. Tr. 34.
THE VIOLATION

pulleys are among those enumerated moving machine
parts that Section 56.14107(a) requires must be guarded if they
can cause injury. I accept Shubert 9 s testimony that the V-belt
drive lacked a guard. I also accept Shubert's testimony with
regard to the possibility of injury should the dredge operator
slip or fall into the V-belt drive. Although Green maintained
that the dredge was not operable when the violation was cited, I
have found to be credible Shubert 9 s testimony that the dredge had
been operated on October 15. Thusu I conclude that the violation
occurred as charged.

The evidence shows a violation of the cited guarding
regulation. There was a measure of danger contributed to by the
violation. The unguarded V-belt drive, together with the
possible proximity of the dredge operator to the unguarded part
and the consistently slippery condition of the dredge deck, made

232

it reasonably likely that injury to the dredge operator would
occur. Furtheru becoming entangled with the V-belt drive would
be likely to cause a reasonably serious injury. In sum, I agree
with Shubert that this was an S&S violation.
GRAVITY AND NEGLIGENCE
The violation was serious in that it subjected the dredge
operator to the likelihood of loss or injury of a finger or
thumb. Once the dredge resumed operation, a guard was required.
In neglecting to provide it, GFD failed to meet the standard of
care required by the regulation, and thus was negligent in
allowing the violation to exist.
Section 104(al Citation No. 3872742. 10/15/91. 30 C.F.R.
§ 56.14107(a},
EVIDENCE
The citation states:
The "V"-belt for the winch that
operates the suction pipe was not
guarded to protect persons, the
dredge operator was working in the
area.
Exh. P-8.
was S&S.

In addition, the inspector found that the violation

As already indicated 6 the standard requires V-belt drives
can cause
ury to persons t.o be guarded 2 Shubert
described the function of t.he winch as pulling the cable that was
attached 'bo the nozzle of t.he dredge and thus allowing the nozzle
to be raised. When the winch was released the nozzle dropped
into the water. The V-belt drive only ran when the winch was
engagedo While the dredge operator was normally seated while the
winch was engagedu he occasionally had to walk by the V-belt
to inspect the nozzle and
so doing he passed within
inches of the V-be
drive" Tro 36-39 9 51. If the dredge
operator were to slip or fall into t.he V-belt driveu a
possibility made likely loy the usual presence of water, and of
lubricants or fuel on the dredge dec]{~ Shubert feared that the
operator could loose fingers or even a limbo Tr. 37o
t.hat:

o

2
Although the citation is written in terms of the belt, Shubert's
testimony made clear that his concern was for the unguarded belt drive.
Tr. 36-37.

233

THE VIOLATION

As previously indicatedu I accept Shubert's testimony that
the dredge had been operating earlier in the day. I also accept
his testimony with regard to the lack of a guard and that a
person could be injured if entangled in the V-belt drive. 3
There was a violation of the cited regulation.

For the same reasons as those stated with respect to the
preceding violationu I agree with Shubert that this was an S&S
violationo
GRAVITY AND NEGLIGENCE
For the same reasons as those stated with respect to the
preceding violationu I conclw:J,e that the violation was serious
and that GFD was negligent in allowing the violation to exist.
CIVIL PENALTY CRITERIA
The criteria that I must consider when assessing civil
penalties is contained in Section llO(i) of the Mine Act,
30 u.s.c. § 820(i). Gravity and negligence have been discussed.
With regard to size of the business of the operator, it is clear
from Greenvs testimony that GFD is a small operator. Further,
there is no evidence that the size of the penalties assessed will
adversely affect GFD 0 s ability to continue in business. The only
evidence submitted regarding GFDus previous history of violations
of
one
on
11v 1989 for a
one issued on May 31v 1990
5 :~..:~:..
conclude from this that
GFD
history of previous violations. Finally,
GFD abated the violations within the time set by Shubert, and
o

Shubert had nothing but praise for the manner in which GFD
complied once
lhad been
tedo
I conclude therefore; C.hat
0

GFD demonstrat.ed

t.l:.

at:tempting t.c achieve rapid

compl

Green testified that there "'1as no V-belt drive on the winch,
rather that the winch was hydraulically operated. Tr. 65. However, Shubert
was certain that when he observed the winch the V-belt drive mechanism was
present. He stated that a hydraulic system had been installed for the winch
but only after he issued the October 15 citation. Tr. 66-67. Green was not
at the pond with the inspector on October 15, nor did he testify that he went
to the pond that day. Since I have no reason to doubt Shubert's testimony
with regard to what he observed on October 15, I conclude Shubert's
description of the winch mechanism was accurate.

234

CIVIL PENALTIES
Considering all of the statutory civil penalty criteria, I
conclude the following penalties are appropriate:
le

Citation No. 3596821 - $40

2.

Citation No. 3596822

:L

Citation No. 3873700 - $20

4.

Citation NOo 3872841 - $20

5.

Citation No9 3596823 - $40

6.

citation No. 3596824 - $40

1.

Citation No. 3872842

- $20

- $40
'oRDER.

Based on the above it is ordered:
L

The citations at issue are AFFIRMED.

2. GFD shall pay to the Secretary the assessed civil
penalties within thirty (30) days of the date of this order and
upon receipt of payment this proceeding is DISMISSED.

~7)

jf./,:/l),~L__

, v_/c.L/~c

David F. Barbour
Administrative Law Judge
(703) 756-5232

Distribution~

William Lawsonu Esq.~ Office of the Solicitorv u.s. Department of
Labor 9 2015 Second Avenue, No. 9 Suite 201u Birminghamv AL 35203
(Certified Mail)
Mr. Anthony Green, G F D Construction Company, Incorporated, 8777
Ashland Avenue, Pensacola, FL 32534 (Certified Mail)
/epy

235

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 1 0 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. VA 92-138
A. C. No. 44-00246-03687

Vo

Virginia Pocahontas No. 1
ISLAND CREEK COAL COMPANYu
Respondent
ORDER OF DISMISSAL
Before:

Judge Weisberger

On January 28, 1993, Respondent filed a statement asserting
that, when Respondent received the December 16, 1992, Order of
Default 1 issued by Chief Judge Merlin in this matter, it decided
to pay the $50 proposed penalty under the Order of Default, and
to "drop&' the contest of the citation in this case. Respondent
also asserts that petitioner is in agreement with Respondent that
it is appropriate to dismiss this case.
Accordinglyu based on the assertions in Respondent's
statement this case is DISMISSED./{
J
tA---""
Avram~Weisberger

Administrative Law Judge
DistriJou·tion~

James

Office of the Solicitoru UaS. Department of
Boulevardu Room 516. Arlingtonu VA 22203

Marshalls. Peace, Esq.u Island Creek Coal Company; 201 W. Vine
Street 7 Lexington 8 KY 40507 (Certified Mail)
nio

1

The default order was subsequently vacated and this case
was assigned to me.
236

irED~RA.~ MINE SAfETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
fALLS CHURCH, VIRGINIA 22041

fEB121993
DISCRIMINATION PROCEEDING

SECRETARY OF LABORu
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
ON BEHALF OF CLAYTON NANTZ u
Complainant

g

Docket No. KENT 92-259-D

~

BARB CD 91-24

'Vo

Gray's Ridge Job
NALLY & HAMILTON ENTERPRISESu

INCORPORATEDu
Respondent
DECISION
MaryBeth Bernuiu Esq., Office of the Solicitor,
u.s. Department of Labor, Nashville, Tennessee,
for the Complainant'
David o. Smith, Esq., Marcia A. Smith, Esq.,
Corbinv Kentucky, for the Respondent.
Judge Koutras

Ste;:tement. o·:r- ·the Case
~
xne
ciet:ermine the relief due ·the
Nantz based upon my decision of November 19,
the respondent Nally & Hamilton Enterprises,
discriminated against the complainant in violation
::;~: ):he Federal
and Health Act of

seg

o

c

1:

~7Iv1SHRC

l858.

afforded thirty 30) days after my decision
t.o the rel
due Mr. Nantz or to submit
proposals
supporting arguments. By
2)ecember i~ 1992, t:he Secretary informed me that the
·to reach an agreement concerning the amount
of damages ~o be awarded to Mr. Nantz, and thereafter, on
December
1992v the Secretary submitted a Post-Decision Brief
in support
her claim for money damages on behalf of Mr. Nantz.
The Secretary stated that pursuant to an earlier stipulation, the
medical expenses which would have been covered by Mr. Nantz's
health insurance policy had he remained employed with the
respondent amounted to $1,426.76, and that the total amount of
money damages owed Mr. Nantz for 1991 and 1992, including back
wages and medical expenses, through December 31, 1992, is
{1

237

$33 8 194o60. The supporting documentation for the Secretary's
claim includes the following~
Mr. Nantz 9 s pay stubs while employed by the respondent
for the payroll weeks ending on August 11, 1990, through
April 1991 (Exhibit PT 1)"
lo

2o Mr. Nantzus pay stubs while employed with Cloverfork
Mining & Excavating 1 Inc., for the payroll weeks ending
September 8 8 1991, through December 29, 1991, including a
stub for a production bonus for the payroll period ending
January 5 0 1992a
(Exhibit PT 5)o
3o Mr. Nantz 1 s W-2 Wage and Tax Statement for 1991, in
connection with his employment with Cloverfork Mining &
Excavatingr Inc. (Exhibit PT 6)o
4o
A backpay computation calculated by MSHA Special
Investigator Ronnie Brock, including Mr. Brock's notes and
an affidavit explaining his computations (Exhibits PT 2,
PT 4)"
So
A statement by C & L Logging Owner Karen Lewis
confirming Mro Nantz~s employment from May 6, 1992,
to June 30u 1992v with total earnings of $1,340
(Exhibit PT 7).

On December 21, 1992r the respondent filed a motion to
compel the Secretary to provide under oath the tax returns of
Mr. Nantz for the years 1990, 1991u and 1992, including all
income tax W-2 and 1099 forms, and all information concerning
~Ex:
it.s :t'le
le not employed by
Q

·~:i1.e

December 2 1.992 9 t.he Secretary filed a response in
opposition to
respondentgs motion to compel and a request
that Mr. Nantz be T.einstated no later than January 4r 1993o
,Ja:rf<J.a:::~:·

Secretary'

respondent filed a response to the

·to ole issue ~vi t.h t.he Secretary g s
'co t.h.e gross income earned by Mr. Nantz
1

amount
damages that Mr. Nantz
methodology and computations used by the
Secretary
of her claim on behalf of Mr. Nantz.
Follot1ingr
of t.he respondent 0 s January 4 r 1993,
responsev I held a telephone conference with the parties that
same day, and they were afforded an opportunity to present
further arguments in support of their respective positions in
this matteru including the motion to compel, and the request for

238

Mr. Nantz's immediate reinstatement. Thereafteru on January 5,
1993, I issued an order which included the following rulings and
directives:
The Secretary was ordered to produce a copy of
Mr. Nantz's 1991 tax return, and the respondent 0 s motion to
compel production of Mr. Nantzes 1990 and 1992 tax returns
was denied.
lo

The Secretary was ordered to obtain a sworn affidavit
from Mr. Nantz concerning any employments held or income
received from the date of the hearing
August 12 0 1992, to
the present.
2.

3. The secretary was ordered to obtain an affidavit or a
W-2 tax statement from c & L Logging Company; regarding
Mr. Nantz 0 s 1992 income.

4. The Secretary was ordered to obtain from Mr. Nantz
statements concerning any unemployment compensation benefit
payments received in 1991 and 1992.

The Secretary 9 s request for Mr. Nantz 1 s
reinstatement was denied.
5.

i~mediate

The Secretary was afforded fifteen days to comply with my
order, and the respondent was given an opportunity to respond to
the Secretary 9 s submissions within fifteen days after the
Secretaryws filing.
letter

on.

s . 1-993,

compliance

'c.ax re'curnJ an
lvrr"
emplovments
since
August 12v 1992r hearingf an affidavit from-the owner
of C & L Logging Companyv and information regarding Mr. Nantz's
unemployment compensation payment benefits
199 and 1992o

Back Wages
Based on
weekly payroll stubs submitted
Mro Nantz and
the payroll records submitted by the respondent 7 covering a 32week period beginning with the pay ·period ending August llu 1990 5
and ending with the week of April 14u 1991u the Secretary
calculates that Mr. Nantz worked a total of 1,390.5 hours over
this time period, and that his average work week was 43.45 hours.
The evidence establishes that while he was employed with the
respondent, Mr. Nantz earned $10.50 per hour for up tQ 40 hours
per week, and $15.75 per hour for overtime hours worked in excess
of 40 per week. The Secretary 9 s back wage calculations are based

239

on an average salary of 40 hours per week at $10.50 per hour,
plus 3.5 hours of overtime at $15.75 per hour, for a total gross
weekly salary of $475.12. The Secretary points out that there
are several weeks in 1990 where the pay information submitted is
listed as nunknown 9e because Mr~ Nantz did not have pay stubs in
his possession for those weeksu and the respondent only submitted
payroll information for 1991 at the hearing. These weeks were
not included by the Secretary in calculating Mr. Nantz 9 s average
weekly pay rate. Furtheru the Secretary did not use the week of
April 20, 1991, in her calculations because this was the week
Mr. Nantz was terminated prior to completing the work week.
The Secretary has submitted a back wage computation
calculated by Inspector Brock on a quarterly basis with interest
computed in accordance with the Commission°s decision in
Secretary v. Arkansas-Carbona, 5 FMSHRC 2043 (December 1983), and
the submission includes Mr. BrockYs notes and an affidavit
explaining his computations.
The Secretary does not dispute the
fact that the hourly employees at the subject mine were laid off
from August 14 8 1991 1 throughSeptember 30u 1991. Under the
circumstances, Mr. Brock did not calculate any back wages owed to
Mr. Nantz during the layoff period. However, the Secretary
points out that Mr. Nantz 9 s interim earnings of $2,565 8 from his
employment at Cloverfork Mining Company during the layoff period
were not counted against Mr. Nantzus back wages with the
respondent since he would not have been employed by the
respondent during that period.
The record reflects that Mr. Nantz had interim work with
Cloverfork Mining Company from September through December, 1991.
He earned $11,150.53, through the pay period ending
December 22 v 1991 v $186 for the pay period ending December 29 ,.
bonus of

~~

pay

186 ~o Mr. Nantz ~
earningsu and included
$115.15v as part of
Mr. Nantz 0 s 1992 first-quarter interim earnings.
2n~erim

The ::record ::ur-ther

Broclt
t'Jages owed

subtracted these
~he

second quarter of 1992o

!Mr. Nantz executed an affidavit on January
1993u stating
':Chat he has been unemployed since t.he August 12 11 1992 u hearing
and has not received any interim earnings during this period of
time. Based on all of the evidence and information filed by the
Secretary 0 including the calculations made by Inspector Brock,
the Secretary concludes that the total back wages owed to

240

Mr. Nantz for 1991 through December 31, 1992, including overtime
and interest, and subtracting all interim earnings, is
$31.767.84.

Medical Expenses
It would appear that the parties are in agreement that'the
amount of medical expenses that would have been covered under
Mr. Nantz's health insurance policy had he remained employed with
the respondent is $1,426.76. The Secretary has added this amount
to the claimed back wages amount, for a total claim of
$33.194.60.
Unemployment Compensation Benefits
The Secretary has submitted statements from the Kentucky
Department for Unemployment servicesreflecting that Mr. Nantz
received unemployment compensation benefits in 1992 amounting to
$8,005, and 1991 payments amounting to $2,260. The parties agree
that the question of whether or not Mr. Nantz's backpay
compensation may be reduced by the amount of unemployment
benefits paid to him is a matter within the discretion of the
presiding judge, Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983).
The respondent takes the position that had Mr. Nantz's employment
not been terminated, he would not have received these benefits
and he should not be allowed to reap a windfall by receiving
backpay in addition to unemployment insurance benefits with no
offset. Under the circumstances, the respondent believes that
benefit payments received by Mr. Nantz should be subtracted
any backpay award. The Secretary takes no position on this
other than to stipulate that
is within
discretion
presiding judge.
Respondentvs Position
Gross Income Lost
response to the Secretaryws claims on behalf
Mr. Nantzp the respondent first addresses the gross income that
Mr. Nantz would have received had he continued to be employed by
respondent. The respondent takes the position that any award
backpay for Mr. Nantz should be computed on the basis of the
evidence it submitted at the hearing which reflects that for the
15-week period from January 5, 1991 through April 13, 1991,
Mr. Nantz's average work week was only 39.6 hours. Since this
was the tax year immediately preceding Mr. Nantz's termination,
the respondent believes that it more accurately reflects its
mining activity at the time of the termination as opposed to the
Secretary's computation which includes the preceding year
(8/11/90 through 4/13/91, for an average of 43.45 hours).

241

The respondent is in agreement with the Secretary's
computation to the extent that the 6.5 weeks from August 14,
1991, through September 30, 1991, should be omitted since no
income was lost by Mr. Nantz during this period because of an
undisputed layoff which would have affected him.
The respondent asserts that the 13 weeks for the months of
October through December 1991, that are totally discounted by the
Secretary's computation is erroneous. The respondent disagrees
with the Secretary's apparent position that since Mr. Nantz
earned more at Cloverfork than he would have earned had he still
been employed by the respondent during this period of time, that
difference should not be counted in the backpay computation. The
respondent believes that it is illogical and unreasonable not to
include all income earned by Mr. Nantz from Cloverfork as part of
the backpay computation. The respondent further submits that it
is likewise not reasonable to disregard gross wages earned by
Mr. Nantz at Cloverfork during August 14, 1991 through
September 30, 1991, when he would have been laid off by the
respondent.
The respondent suggests that the gross income lost by
Mr. Nantz can be computed simply as follows:
1) Based on the respondent's 39.6 hour work week
computation at $10.50 per hour, Mr. Nantz's gross weekly
earnings with the respondent would have been $415.80. For
the week of his termination ending April 21, 1991, Mr. Nantz
would have had gross income of $315, with a loss of $100.80
that week. The period from April 22, 1991 through
December 31, 1992 0 consists of 88 weeks, and subtracting the
.5 lay
weeks would leave 81.5 work weeks at the weekly
rate of
15.80, cr $33,887.70. Adding the $100.80 loss of
income during the week of the termination would then result
in a total gross income loss of $33,988.50, for the period
April 16, 1991 through December 31, 1992.
2) Based on the Secretary 0 s 43.45 hour work week
computation, or gross wages of $475.12 per week; Mr. Nantz
would have lost $105 for the week ending April 21, 1991,
plus 81.5 weeks at $475.12 per week 8 or $38,722.28, for a
total gross income lost for the period April 16 1 1991
through December 31 8 1992 of $38,827.28.
Based on the aforementioned arguments and computations, the
respondent believes that Mr. Nantz's gross income loss for the
relevant periods in question would be no more than $33,988.50
rather than $38,827.28.

242

Gross Income Received
The respondent agrees that the purpose of damages in this
case is to make Mr. Nantz wholeQ Howeverv it takes the position
that since MrQ Nantz had a duty to mitigate his damages by
seeking employment, all of the gross income, including
unemployment insurance income, that he received for the period
April 16, 1991, through December 31, 1992u should be subtracted
in determining his compensable damages. The respondent points
out that had Mr. Nantz 9 s employment with the respondent not been
terminated, he would not have had any of the income he
subsequently received during the period April 16, 1991,
through December 31u 1992, from the following sources~
Amount

Source of income
Cloverfork Mining & Excavating
c & L Logging
Unemployment insurance
Unemployment insurance
TOTAL

$11v 45L 6B

$ lv340.00
$ 2v260 00
$ 8,005.00

Time period
{9/91-1/5/92)
(5/6/92-6/30/92)
(1991)
(1992)

$ 23.056.68

The respondent takes issue with the Secretaryvs discounting
of any income earned by Mr. Nantz during the lay off period
covering August 14, 1991 through September 30u 1991, simply
because he would not have been employed with the respondent
during that time. The respondent believes that whatever income
Mr. Nantz earned following his termination should be deducted
from the gross wages he would have earned with the respondent.
The respondent points out what

believes
an error in
respect ·to
'::'he :respondent
asserts
··that Mr Nantz
earned $2,565, dur.:.ng
:~, 1991 7 through
September 30" 1991u the payroll checl<: stubs submitted by the
Secretary {Exhibit PT 5)u
the weeks during this period only
"ectal $1 p 707

t:he figures submit.ted by t.he Secretary
l:!J.r o Nantz
employ:men1:

a

a

The respondent:
ieves
;c:.he
's
to
subtract
fference between Mro Nantz's fourth quarter 1991
earnings with Cloverfor1c Mining ( , 77L53),
·the backpay he
t':lould have earned in ·that cruarter $6 176 56) u
computing
backpay (Broc!c affidavitu ~
P 4: , on 'che ground that the
interim earnings were greater
the backpayu is unreasonable
and unfairo The respondent argues that had Mr" Nantz continued
in the respondentus employ, he would not have had this additional
income and
should therefore be subtracted
full from any
backpay award.
o

The respondent asserts that although the W-2 payroll records
submitted by Mro Nantz establish that he had gross income from

243

Cloverfork Mining of $11,451.68, the Secretary only subtracted a
total of $6u291.71 for gross income from Cloverfork following his
termination. The respondent concludes that this is clearly
erroneous, and it believes that in determining any compensable
damages due Mr. Nantz, the total gross income he received
following his termination ($23,056.68), should simply be
subtracted from the total gross income he lost. The respondent's
calculations in this regard are as follows:
$33,988.50 (39.6 hours)
-$23.056.68
$10£931.82
$38~827.28

(43.45 hours)

-$23,056.68
$15.770.60
Deductible Weeks
Citing Metric Constructors, Inc., 3 FMSHRC 1260 (February
1984) 1 aff'd, Brock v. Metric Constructors, Inc., 766 F.2d 469

(11th Cir. 1985), the respondent argues that Mr. Nantz's backpay
claim should be barred because of his admitted failure to
immediately seek other employmentu oru in the alternative, that
at least two weeks of backpay should be deducted in computing
damages.
The respondent maintains that any backpay award in this case
should be reduced by a four-month or seventeen-week period
because of the Secretary 1 s unreasonable delay in bringing this
action within a 120-day period as provided by the Act and the
Conu"niss
Conceding t.hat:
not attempt to prove
t:.nesses tmavailable or its
~ 'the respondent points out
never agreed
delay should not be considered
computing a backpay award"
The respondent asserts
foreman Farley 1 s
:return t.o l'll'Ork e :::Y:.:'
attempt to put him
\:o Hork unless he was paid
backpay
fullv Mr. Nantz
effect
to mitigate
damages by not pursuing this
pending lH:igat.ion of
claim for Jbackpay" Since the
place sometime
June or July 1991, the respondent
argues
Mro Nantz 1 s rejection of the Farley offer
disqualifies him for any backpay weeks after June or July 1991.
Giving Mro Nantz the benefit of assuming that the offer was made
at the end of July 1991, the respondent concludes that Mr. Nantz
should be entitled to backpay for no more than 15 weeks, from
April 16, 1991, through July 3lf 1991v less the two (2) weeks he
did not seek employmentv or a total of 13 weeks.

244

The respondent agrees that the medical damages are
$1,426.76, and that they should be added to any backpay award.
The respondent submits that the backpay award with interest and
medical damages could range from $17,481.23, based upon a 43.45
hour work week and without subtracting any weeks for the
Secretary's delay, Mr. Nantz's delay in seeking employment, or
his rejection of reemployment, but including unemployment
insurance, to a low figure of $6,237, on the basis of a 39.6 hour
work week for only the 13 weeks preceding Mr. Nantz's rejection
of the offer of reemployment, but not deducting for any income
received since the record fails to establish whether he received
any income during that period of time, although he may have
received some small amount of unemployment insurance benefits.
The various possible calculations submitted by the respondent are
included as an attachment to this decision.
Findings and Conclusions
In a discrimination case, -·the amount of backpay to be
awarded as part of the remedial remedy is the difference between
what the employee would have earned but for his wrongful
termination and his actual interim earnings. OCAW v. NLRB, 547
F.2d 598, 602 D.c. Cir. 1976); cert. denied, 429 u.s. 1078
(1977), cited and followed by the Commission in Northern Coal
Company, 4 FMSHRC 126 (February 1982), and Belva Coal Company,
4 FMSHRC 982 (June 1982). Further, the employee must make a
reasonably diligent effort to mitigate his loss of income or
other damages, and his failure to do so may, in appropriate
circumstances, result in a reduction of any backpay award, OCAW
v. NLRB, supra; Northern Coal Company, supra.
In the Belva Coal Company caseu supra, at 4 FMSHRC 994-995u
Commission stated as follows~
In Northern Coal Co., 4 FMSHRC 126, 144 (1982), we
followed precedent established under the National Labor
Relations Act and defined back pay as the sum equal to the
gross pay the miner would have earned but for the
discrimination, less his "actual net interim earnings."
ouNet interim earningsge is an accepted term of art which does
not refer to net earnings in the usual sense (gross pay
minus various withholdings}. Ratheru the term describes the
employee 0 s gross interim earnings less those expenses, if
anyu incurred in seeking and holding the interim employmentexpenses that the employee would not have incurred had he
not suffered the discrimination. To remove any possible
confusion, we will henceforth refer to the term as "actual
interim earnings. 11 See OCAW v. NLRB, 547 F.2d 598, 602
(D.C. Cir. 1976), cert. denied, 429 u.s. 1078 (1977).

245

In Secretary/Bailey v. Arkansas Carbona, 5 FMSHRC 2042
(December 1983), the Commission stated as follows:
Back pay and interest shall be computed by the
"quarterly" method. See Florida Steel Corn., 231 NLRB at
652; F.W. Woolworth Co., 90 NLRB 289 (1950), approved NLRB
v. Seven-Up Bottling Co., 344 u.s. 344 (1953). Under this
method (referred to as the "Woolworth formula," after the
NLRB's dec'ision in the case of the same name, supra),
computations are made on a quarterly basis corresponding to
the four quarters of the calendar year. Separate
computations of back pay are made for each of the calendar
quarters involved in the back pay periodo Thus, in each
quarter, the gross back pay, the actual interim earnings, if
any, and the net back pay are determined.
Back Wages
The Secretary's back wagecalculations are based on an
average weekly salary based on a 40-hour week at $10.50 per hour,
plus 3.5 weekly hours of overtime at $15.75 per hour, for a total
gross weekly salary of $475.12. The Secretary's calculations are
based on Mr. Nantz's wage and hour history covering a 32-week
period prior to his termination on April 16, 1991, rather than
the shorter 15-week period covering only the year 1991, as
submitted by the respondent. I take note of the fact that in
calculating Mr. Nantz's average weekly pay rate, the Secretary
did not include several weeks in 1990 where the pay information
was not known or documented, or the week of April 20, 1991, when
Mr. Nantz was terminated and did not finish the week.
After careful consideration of the arguments advanced by the
partiesu I conclude and find that the Secretary~s computations
are both reasonable and proper and provide a more accurate and
realistic base for computing Mr. Nantzgs average weekly gross pay
for purposes of calculating his damages. I accept and adopt the
Secretaryvs calculation of $475.12u as a reasonably accurate
reflection of Mro Nantz 9 s average gross weekly wagesu and I
reject the respondent 1 s argument to the contraryo
I take note of the fact that the interim employment
information and calculations submitted by the parties basically
cover the period beginning the week after Mro Nantz's termination
on April 16 1 199lu through December 31, 1992. Any damages due
Mro Nantz will have to be adjusted to account for the subsequent
time period before his actual reinstatement or payment of
damages.
The parties are in agreement that the 6.5 week mine layoff
from August 14, 1991, through September 30, 1991, which would
have affected Mr. Nantz, should not be included in calculating
the work weeks lost by Mr. Nantz as a result of his termination.

246

Utilizing the respondent 0 s calculations based on the Secretary's
$475.12 weekly gross wage, which I have adopted, I conclude and
find that Mr. Nantz would have lost $105 for the week ending
April 21, 1991, plus 81.5 weeks at $475.12 per week, or
$38,722.28, for a total gross income lost for the period
April 16, 1991, through December 31, 1992, of $38,827.28.

Back Wages Adjustments/Deductions
Interim Earnings
The record reflects that Mr. Nantz had gross earnings of
$11,451.68, for employment with Cloverfork Mining & Excavating
during September 0 1991 through February 5, 1992, and gross
earnings of $1,340, for employment with c & L Logging during
May 6, 1992, through June 30, 1992. I agree with the

respondent's position that the--sum total of these interim
earnings should be deducted from any backpay award to Mr. Nantz.
However, I disagree with the respondent's position that the
failure by the Secretary to offset $2,565 in Cloverfork Mining
earnings by Mr. Nantz during the lay off period was unreasonable.
The parties agree that Mr. Nantz would not have been employed
during the layoff period, and they have taken this into account
by not counting the layoff period as part of their back wage
computation. By the same token, if Mr. Nantz had not been
terminated, he would have been out of work during the layoff
period and could have used that time to either work at another
job or stay home. The fact that he worked another job during the
time when he would have otherwise been laid off should not be
held against him 7 and he should not be penalized by deducting any
wages earned. during! the layoff from any Joackpay award. Under the
circumstances" <:he respondent" s arguments are rejected u and I
conclude and find that the Secretaryus discounting of the wages
earned during the layoff period was reasonable and proper.
As noted aarlierr the amount
any backpay award
a
discrimination case is the difference between what the miner
would have earned lbut for <the discrimination and his actual
interim earnings. Except for my rejection of the respondent 1 s
arguments that the $2u565 earned by Mr. Nantz from Cloverfork
Mining during the August/September 1991 mine layoff, should be
offset from any backpay awardu I otherwise agree with the
respondentus position that the sum total of Mr. Nantz's interim
earnings should be deducted from what he would have otherwise
earned had he not been terminated. I reject the Secretary's
failure to subtract the difference between Mr. Nantz's fourth
quarter 1991 Cloverfork Mining earnings of $8,771.53, and the
$6,176.56, backpay he would have earned in that quarter, from his
overall backpay award.

24 7

I conclude and find that Mr. Nantz's interim earnings of
$1,340 with C & L Logging should be deducted from the $38,827.28,
income lost for the period April 16, 1991, through December 31,
1992o I further conclude and find that $8,886.68, in interim
earnings from Cloverfork Mining ($11,451.68 less $2,565.00)
should be deducted from the income lost during this same time
period.
Mitigation of Damages
An employee who has been discriminated against by his
employer must make a reasonable effort to seek alternative
employment following his unlawful termination. Ocaw v. NLRB,
547 F.2d 598, 603 (D.C. Cir. 1976), cert. denied, 429 u.s. 1078
(1977). Any determination as to what constitutes a "reasonable
effort" is made on the peculiar facts of the case. NLRB v.
Madison Courier Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972).

In Metric Constructors'; :tnc. 1 6 FMSHRC 232 (February 1984) 1
aff'd, Brock, ex rel Parker v. Metric Constructors Inc., 766 F.2d
469, 473 (11th Cir. 1985), the commission affirmed a Commission
Judge's denial of one week of back pay for an employee who failed
to make a reasonable effort to seek employment during the week
following his termination.
The Commission also approved the
Judge's following and applying NLRB cases under the National
Labor Relations Act.
The respondent concludes that Mr. Nantz's failure to look
for other work for two or three weeks after his employment
termination waiting to see if the respondent would call him back
to work was clearly nonsensical. Relying on the decision in
Metric Constructors, Inc., supraf the respondent submits that at
least three weeks of any back pay award should be deducted
because
Mro Nantz's failure to seek employment during the
period immediately following his termination.
Mr. Nantz confirmed that he waited two or three weeks after
he was terminated before looking for other work waiting to see if
the respondent would call him back to work (Tr. 27). Mr. Nantz
explained that he heard nothing further from Mr. Farley after his
termination of April 16 0 199lu regarding any offers of
reemployment 8 and he stated that nr just kept waiting on him to
call u and he never called 10 (Tr. 82-83) .
I take note of the fact that the Secretary did not use the
week that Mr. Nantz was terminated in calculating his backpay.
However, the Secretary does not address Mr. Nantz's admission
that he waited for an additional two weeks before looking for
other work, nor does the Secretary address the respondent's
arguments with respect to this issue.

248

After careful consideration of the argument advanced by the
respondent, I conclude and find that Mr. Nantz's failure to begin
his search for work during the three or four days following his
termination was not unreasonable. However, I further conclude
and find that it was unreasonable for Mr. Nantz to wait an
additional two weeks before looking for work. I find no credible
evidence to support any conclusion that Mr. Nantz had any
reasonable expectation of being rehired by the respondent
following his termination, and he admitted that he made no effort
to contact mine management to seek reemployment and stated that
he "wouldn't work for a man who did not pay him". Under the
circumstancesu I conclude and find that two-weeks should be
deducted from Mr. Nantzis backpay award. Accordingly, I have
deducted $950.24 ($475.12 x 2) from Mr. Nantz's backpay award.
Unemployment Compensation Payments
The parties are in agree~~nt that any reduction of backpay
due for unemployment payments is a matter of discretion with the
presiding Judge. Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983),
affirming in part its prior decision on this issue in Boich v.
FMSHRC, 704 F.2d 275 (6th Cir. 1983).
The respondent maintains that all gross income received by
Mr. Nantz subsequent to his termination, including unemployment
compensation payments, should be subtracted from his compensable
damages. The respondent concludes that if Mr. Nantz had not been
terminated and remained in its employ, he would not have received
any of the 1991 and 1992 income which has been documented in this
case.
pursuant. to the Act is an egui table remedy
make the victim of discrimination
violation of
105 ( c
;.~ct. ~;crhole and to restore him to his prior
economic status absent the discrimination. I find no compelling
reason for providing Mr. Nantz additional recovery for his lost
wages over and above his backpay
interest by not deducting
unemployment compensation payments he has received.
~c

The respondent has been assessed a civil penalty of $1,000,
resulted in Mr. Nantz v s
employment termination on April 16p 1991. Since the penalty
assessment
a
sanction intended to deter further
discriminatory conduct by the respondentv I find no compelling
reason or circumstances for imposing an additional sanction
against the respondent by not crediting it with the unemployment
payments received by Mro Nantz. Under the circumstances, I
conclude and find that any unemployment benefit payments received
by Mr. Nantz should be deducted from his compensable damages.
Accordingly, I have deducted $10,265.00, in 1991 and 1992
unemployment compensation payments received by Mr. Naritz from his
i t.s discriminatory conduc'c

249

backpay award covering the period April 16, 1991, through
December 31, 1992.

Delay in Filing Complaint
The respondent's contention that Mr. Nantz's backpay award
should be reduced by a four-month or seventeen-week period
because of the secretary's unreasonable delay in filing the
complaint with the Commission IS REJECTED. The respondent has
not proved that it has been prejudiced by any delay and in fact
concedes that any delay did not make any of its witnesses
unavailable, or that it had any adverse impact on its ability to
defend the complaint. Furtheru in my decision of November 2,
1992, I rejected the respondent~s arguments with respect to any
unreasonable delay by the Secretary, 11 FMSHRC 1882-1883, and my
findings and conclusions in this regard are herein incorporated
by reference and they are REAFFIRMED. I conclude and find that
Mr. Nantz's backpay award should not be reduced because of the
asserted delay by the Secretary.
Rejected Reemployment Offer
The respondent 1 s assertion that Mr. Nantz should be
disqualified for any backpay subsequent to July 31, 1991, because
he failed to mitigate his damages by rejecting foreman William
Farley's offer to put him back to work, or to "attempt" to put
him back to work, IS REJECTED. This issue was previously raised
by the respondent and I rejected its arguments and found no
credible evidence to support any conclusion that Mr. Farley made
any bona fide offer ~o rehire Mr. Nantz. Indeed, the evidence
~eflects that Mr. Nantzqs replacement was immediately hired by
foreman Wayne Fisher when Mro Nantz was effectively terminated on
April 16 0 1991 0 and that this was done with mine superintendent
Louis HamiltonQs blessingo Under all of these circumstances, my
previous findings and conclusions are herein adopted by reference
and REAFFIRMED, and I conclude
find that Mro NantzQs backpay
award should not be reduced because
purported offer by
mine management
reemploy Mr. Nantz~ or any rejection of this
offer by Mr o Nantz,
ORDER
On the basis of the foregoing findings and conclusions,
including the reductions made for Mr. Nantz's interim earnings
with Cloverfork Mining and c & L Logging, his waiting two weeks
after his termination to begin looking for work, and his
unemployment compensation payments, I conclude and find that the
gross backpay award for Mr. Nantz for the period April 16, 1991,
through December 31, 1992, less interest, is $17,385.3~. I also
conclude and find that Mr. Nantz is entitled to an additional sum

250

of $1.426.76, for medical expenses which the parties agree he
would have been entitled to under the respondent's health
insurance plan had he remained employed with the respondent.
IT IS ORDERED THAT:
1. My decision in this case, issued on November 19,
1992, is now final.
2. The respondent shall reinstate Mr. Nantz to his
former position with full backpay and benefits, with
interest, from April 16, 1991, the date of his
terminationu and adjusted to the date of his
reinstatement, at the same rate of pay, on the same
shift, and with the same status and classification that
he would now hold had he not been unlawfully
terminated. The gross backpay award due Mr. Nantz
pursuant to this decision· ·shall be subject to the usual
and normal withholdings.
Backpay and interest will
continue to accrue until Mr. Nantz is reinstated and
paid.
The interest accrued with respect to Mr. Nantz 8 s
backpay award shall be computed in accordance with the
Commission's decision in Local Union 2274, UMWA v.
Clinchfield Coal Co., 10 FMSHRC 1493 (November 1988),
aff'd sub nom. Clinchfield Coal Co. v. FMSHRC, 895 F.2d
773 (D.C. Cir., 1990), and calculated in accordance
with the formula in Secretary/Bailey v. Arkansas
Carbona, 5 FMSHRC 2042 (December 1983}, and at the
adjusted prime rate announced semi-annually by the
Internal Revenue Service for the underpayment and
overpayment of t.axeso
J.
The respondent shall reimburse and pay to Mr. Nantz
$1,426.76, with interest, in medical expenses which would
have been covered by his medical insurance had he not been
terminated.
The respondent. shall expunge from Mr. Nantz~ s personnel
file and/or company records all references to the
circumstances surrounding his employment termination of
April 16, 1991.
4:.

5. The respondent shall pay to the Secretary (MSHA), a
civil penalty assessment of $1,000, for the discriminatory
violation which has been sustained.

251

The respondent shall comply with this Order within thirty
(30} days of the date of this final decision.

Judge
Attachment
Distribution:
MaryBeth Bernui, Esq., Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
32715 (Certified Mail)
David o. Smith, Marcia A. smith, Esqs., 100 West Center Street,
P.O. Box 699, Corbin, KY 40702 (Certified Mail)
jml

252

KENT 92-259-D

I 415.80/week (39.6 boura)

I $475.12/week (43.45 boura)

(1)

11.5 wka
-23,056.68

$10,931.82 backpay
f
196.77 interest
f 1,426.76 medical

81.5 wka
+ 105.00
-23,056.68

$15,770.60 backpay
$
283.87 interest
$ 1,426.76 . .dical

1.'otal

$12,555.35

Total

$17,481.23

+ 100.80

(Leaa:

2 weeka for Rantz'• delay in . . .king employment)

(2)

79.5 wka
·$10,100.22 backpay·
+ 100.80
f
181.80 intereat
-23,056.68 f 1,426.76 . .dlcal

79.5 wks
+ 105.00
--23,056.68

$14,820.36 backpay
$
266.77 intereat
$ 1,426.76 . .dica1

1.'otal

"''otal

116,513.89

$11,708.78

(Leaat 17 1110re veeka for secretary'• delay but
aubtracting only f18 6 445.34 for qroaa income raceived)

»
4\i2.!S wka
+ 100.80
-18,445.34

§ 7q642.96 backpay

~-].

G \1,207.29

$

'

137.57 interest
1,426.76 medical

62.5 wka
+ 105.00
-18,445.34

$11,354.66 backpay
204.38 intereat
f 1,426.76 .edical

•

Total

112,985.80

«OR&

15 weaka for period 4/16/91 - 7/31/91 only for
Wantzva rejection of re-employmen~)

LBSS:

2 weaka for Rantz' • delay 1n •eeking employment

(4)
13 wka

$ 5,405.40 backpay
f
97.30 intereat
$ 1,426.76 medical

13 vka

1.'otal

f 6,929.46

Total

$ 6,176.56 backpay

f
111.18 intereat
f 1,426.76 . .dical

253

$ 7,714.50

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 lEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

Ft.B 1 ti \993
DONALD PORTER,

v.

DISCRIMINATION PROCEEDING
complainant
Docket No. KENT 93-60-D
PIKE CD 92-11

NORTH STAR CONTRACTORS, INC.,
Respondent

Mine No. 4

DEC:IS:ION

Appearances:

Before:

Mr. Donald Porter, Deboard, Kentucky, pro se;
Keith Bartley, Esq., Prestonsburg, Kentucky, for
Respondent.

Judge Weisberger
Statement of the Case

This case is before me based on a Complaint filed by Donald
Porter alleging that he was discriminated against by North Star
Contractors, Inc., ("North Star"), in violation of Section 105(c)
of the Federal Mine Safety and Health Act of 1977, ("the Act") 30
U.s. c. § ·a15 (c) . Pursuant to Notice, the case was heard in
Huntingtonu West Virginia on January 6u 1993 9 and the transcript
of the hearing was filed February Bu 1993o At the hearing,
Mr. Donald Porter appeared~~ and testified in his behalf.
William Johnson also testified on behalf of the Complainant. At
the conclusion of Complainantus case, Respondent made a Motion
for summary decision. After listing to argument on the motion,
I rendered a bench decision dismissing this case.
The
decision 9 with the exception of minor corrections not relating to
matters of substance 9
set forth as follows~
1 have reached a decision in this matter and I
wish to place the decision on the record at this time.
The Complainant in this case 1 Donald Porteru on July
27u 1992, was working as an operator of a miner for
North Star Contractors, Inc. on that day, nothing
unusual had occurred and all the operations were
normal. Mr. Porter operated his continuous miner in
the number five heading, entered a break in the number
six heading and then proceeded to cut headings one and
two in breaks off of the No. 6 heading. In cutting
heading number two after taking a cut he noticed a hole
in the middle of the break approximately two feet in
diameter.

254

After making the cut in heading number two, he
noticed his foreman, Eugene Williams, was hollering at
him and he heard him say, "I'm really proud of you
boys". After that Mr. Williams then turned to the
helper of Donald Porter, Mr. Willy Johnson, and told
him that the could not understand why Donald would do
something like that. Mr Porter then said that he was
going to the house, left the underground mine and went
home.
As I stated at the commencement of the hearing, in
order to establish a case of discrimination under
section 105(c) of the Act the Complainant, and I'm
quoting at this point from Boswell v. National Cement
Company, 14 FMSHRC 253 at 257,
•.• bears the burden of persuasion that he
engaged in protected activity and that the
adverse action compl~!ned of was motivated in
any part by that activity~··· The Secretary on
behalf of Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786, 2797-2800 (October
1980} rev'd on other grounds, sub nom
Consolidation Coal Company v. Marshall, 663
F.2d 1211; (3rd Cir. 1981); and Secretary on
behalf of Robinette v. United Castle Coal
Company 3 FMSHRC 803, 817-818 (April 1981).
The operator may rebut the prima facie case
by showing either that the protected activity
occurred or that the adverse action was in no
part motivated by the protected activity. If
an operator cannot rebut the prima facie case
matter" it may nevertheless defend
affirmatively by provlng that
would have
·t.aken the adverse action v
any event il on
the basis of the minergs unprotected activity
alone. Pasula, supra, Robinette, supra. See
also Eastern Associated Coal Corporation v.
FMSHRC 813 F. 2d 639 ~ 642 (4th Cir. 1987) u
Donovan v. Stafford Constructionp 732 F.2d
954g 958-959u
.c. Cir. 1984)v Boich Vo
FMSHRC 719 F.2d 194f 195-196f (6th Cir.
1983) c specifically approving the
Commissionas Pasula-Robinette test)
9

o

I note in this case first of all that the foreman
did not expressly fire Mr. Porter and indeed did not
make any complaints against him at this point. There
is no evidence that the Company took any adverse action
against Mr. Porter. There were no remarks that
Mr. Williams made to Mr. Porter that could, in any way,
be interpreted as indicating that Mr. Porter was fired

255

or that any other adverse action was being taken
against him. Also, although the law provides that a
work refusal could be considered as a protected
activity, "the miner must have a good faith and
reasonable belief that the work in question is
hazardous, See generally Robinette supra, 3 FMSHRC at
807-812". Boswell, supra at 258.
In addition,
Once it is determined that a miner has
expressed a good faith and reasonable concern
the analysis shifts to an evaluation of
whether the operator has addressed the
miner's concern in a way that his fears
reasonably should have been quelled. In
other words the management explained to (the
miner) that the problem in his work area had
been corrected. Boswell, supra, at 258.
The evidence here qoes not established any work
refusal. There is no evidence that Mr. Porter was
required to perform any work that was in any way
hazardous. Mr. Porter did not indicate that any work
was assigned to him that he believed to be hazardous,
nor did he communicate to management any safety
concerns that he had.
For all these reasons, I find that there is no
basis under the law to sustain a case of discrimination
under the Act and accordingly the Complaint must be
DISMISSED.

thisAoxsz::
ORDER

\QlRDERED

'chat

Avram Weisberger
Administrative Law Judge
Distribution~

Mr. Donald Porter
{Certified Mail)

General Delivery, Deboard, KY

41214

Keith Bartleyu Esq.u 22 Court StreetQ PoOo Box 1378,
Prestonsburg, KY 41653 (Certified Mail)
nb

256

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

FEB l 61993
DENVER COLLINS,

.. DISCRIMINATION PROCEEDING
Docket No. KENT 92-877-D

Complainant

v.

. MSHA Case No. BARB-CD-92-21

ANDALEX RESOURCES, INC. ,
Respondent

c

No. 23 Mine
DECISION

Appearances:

Phyllis L. Robinson, Esq., Hyden, Kentucky,
for the Complainant;
Philip c. Eschels, Esq.,Greenebaum, Doll
and McDonald,,, Loui~ville, Kentucky;
Marcus McGraw, Esq., Greenebaum, Doll
and McDonald, Lexington, Kentucky, for
Respondent

Before:

Judge Melick

This case is before me upon the Complaint by Denver
Collins under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. 801, et seg., the "Act"
alleging unlawful discharge under Section 105(c)(1) of
the Act by Andalex Resources, Inc. (Andalex). 1 In his
Section 105(c)(l) of the Act provides 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 mineru representative of miners
or applicant for employment in a coal or other mine subject
to this Act because such miner" representative of miners
or applicant for employment has filed or made a complaint
under or related to this Act 0 including a complaint notifying
the operator or the operatorRs agentu or the representative
of miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine, or
because such mineru representative of miners or applicant
for employment is the subject of medical evaluations and
potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners
of applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or
has testified or is about to testify in any such proceeding,
or because of the exercise by such miner, representative of
miners or applicant for employment on behalf of himself or
others of any statutory right afforded by this Act."
110

257

original complaint filed with the Mine Safety and Health
Administration (MSHA), Collins alleged that he was fired
10 for keeping notes of unsafe acts at the underground mine."
Mr. Collins' Complaint filed before this Commission on
July 24, 1992, presents essentially the same allegation.
Subsequently, in an amended complaint filed on October 29,
1992, Collins further alleged that he had "voiced repeated
safety complaints during the two years of his employment
with Andalex Resources, and that management ignored said
complaints to the point that the making of said complaints
was futile.n
The Commission has long held that a miner seeking
to establish a prima facie violation of section 105(c)(1)
of the Act bears the burden of persuasion that he engaged
in an activity protected by that section and that the
adverse action was motivated in any part by that activityo
Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786 (1980) rev'd on other grounds ~ ngm.
Consolidation Coal co. v;·Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle
coal Co., 3 FMSHRC 803 (1981). The operator may rebut
the prima facia case by showing either that no protected
activity occurred or that the adverse action was in no
part motivated by the protected activity. Failing thatu
the operator may defend affirmatively against the
prima facia case by proving that it was also motivated
by unprotected activity and would have taken the adverse
action in any event for the unprotected activity alone.
Pasula, supra; Robinette, supra (the so-called PasulaRobinette test). See also Donovan v. Stafford Constr. Co.,
732 F.2d 954g 958-59 (D.Co Cir. l984)u Boich v. FMSHRC,
719 F.2d 194~ 195-96 6th
l983)o
o

The credible evidence
case clearly supports a
finding that the Complainant engagea 1n protected activities
in the two years preceding his discharge on January 21, 1992.
Collins testified that over the course of his employment
at the Andalex Noo 23 Mineu beginning on August 5 0 1991 9 he
reported to Andalex management various safety and health
problemsu including those involving coal dust in the mine
atmosphere and the need for rubber gloves to handle a power
cable.
In the absence of evidence of contemporaneous
adverse action against Collins in response to these
alleged protected activities, however, and indeed in the
absence of any retaliatory action against him even after
a fatal roof fall incident to which company officials
believe Collins himself contributed, I find it highly

258

unlikely that Andalex retaliated against him for any
health or safety complaints reported before January 16,
1992. It is further noted that these complaints by
Collins were not extraordinary in nature, but rather the
type of reports and requests to be expected from miners
in the day-to-day operation of an under-ground coal mine.
Indeed, even after these complaints had been made, it is
undisputed that Collins was being considered for promotion
to the position of foreman and was told of those plans.
For the above reasons and because of the swift and severe
action by Andalex officials on January 21, 1992, in clear
response to Collins' activities on.January 16, 1992, I
conclude that his discharge on the former date was solely
the result of his activities on the latter date.
In this regard Collins himself maintains that his
discharge on January 21, 1992, was the direct result of
the discovery by his foremqn on or after January 16, 1992,
that he had entered written notations in his logbook of
illegal deep cuts he had taken on that date. It is not
disputed that on Thursday, January 16, 1992, Collins,
while operating the continuous miner, knowingly took at
least two illegal and admittedly dangerous deep cuts of
55 feet each -- well in excess of the 30 foot cuts
permitted under the applicable roof control plan.
While Collins maintains that he took these deep cuts
with at least the tacit approval of his foreman, Charles
Smith (though not at Smith's specific order or direction)
he admits that he would not take such illegal deep cuts in
the presence of upper management including the "superintendents uu and Clifford Berryu Division Manager. In this
regard Collins testified that su[w]hen you are breaking
the law 0 you know who you can run in front of and who you
can't" (Tr. 34). It is clear, in any event, that the illegal
practice of taking deep cuts with the continuous miner, as
admitted by the Complainant, is not a protected activity.
See Secretary of Labor on behalf of Bryan Pack v. Maynard
Brunch Dredging Company and Roger Kirk, 11 FMSHRC 168 (1989).
Collins has alleged, and it is undisputed, however,
that his Foreman 0 Charles Smithg and Mine Superintendent
Willie Sizemore (the person who notified Collins of his
discharge) knew at the time of his discharge that he had
been maintaining a daily log, including, among other
things, a notation in that log of the illegal deep cuts
he had taken on January 16. Whether or not these persons
had actually seen this entry or any other log entry, it
is clear that these persons had knowledge that he was

259

maintaining such a log. Under the particular circumstances
of this case, I find that this was a protected activity.
That Collins may not have intended the contents of his log
be reported to MSHA or to Andalex officials or that the
entry regarding the deep cuts on January 16 was only
inadvertently disclosed to company officials is immaterial.
Even a miner who has not actually engaged in a protected
activity is nevertheless protected under Section 105(c) if
the mine operator retaliates based only on the erroneous
belief that the miner did engage in protected activity.
see Elias Moses v. Whitley Development Corp., 4 FMSHRC
1475 (1982). In addition, the mere threat of disclosure
is sufficient to trigger the protections of Section 105(c).
Serious allegations have been made in this case by a
number of witnesses that while it was known that upper
management would not tolerate deep cuts some foremen not
only did not discourage q~ep cuts but actively encouraged
and overlooked such practices at the Andalex Mine. These
allegations were made too many times by too many credible
witnesses to be without some merit. The fact that continuous miner operators other than Collins were also apparently
regularly taking illegal cuts, but only Collins was
discharged, suggests that the adverse action against Collins
was in fact motivated not merely for taking the illegal deep
cuts, but also at least in part for maintaining a written
record of the practice.
However, in light of the clear recognition, by even
the Complainant himself, that the upper mine management
would not tolerate deep cutting, I conclude that those
~~dalex officials who ultimately discharged Collins 0 i.e.u
zemore and Berry 9 did in fact take that action based on
his unprotected illegal activities alone -- whether or not
low ranking management such as Foreman Smith may have
also been motivated in reporting on Collins, by Collins'
protected activity. Pasula, supra: Robinette, supra. I
find credible Berryus testimony that he had no knowledge
of Collins 0 log entry on the Sunday before the discharge
when he directed Superintendent Sizemore to verify the
facts and if they proved to be true that Collins did indeed
take the deep cutsu then to fire Collins. In any event,
even had he such knowledge, it is undisputed that Berry
would not tolerate deep cutting and would no doubt fire
anyone who did so. It may therefore reasonably be inferred
that Berry would have directed Collins' discharge in any
event based solely on his unprotected and illegal deep
cutting alone.

260

While Sizemore had knowledge of Collins' log entry
(regarding his deep cuts on January 16), I find credible
his testimony that he declined to look at the log entry
and indeed would have taken the same action against
Collins regardless of his knowledge of any such log entry.
The only suggestion that Sizemore may have ever approved
of deep cutting was Collins' claim that Sizemore was once
present near an entry that had been deep cut. Without
additional evidence however I cannot infer that Sizemore
therefore in fact condoned or encouraged deep cutting.
Even if Collins' testimony was true in this regard, there
are a multitude of reasons why Sizemore may not have had
knowledge that he was near a deep cut. In addition, if
Sizemore had in fact condoned the practice of deep cutting,
as Collins seems to suggest, it would have been reasonable
for Collins to have raised that in his defense when Sizemore
told him he was being fired for that identical practice.
The fact that Collins did riotraise that claim suggests
that Sizemore did not in fact condone such a practice and
Collins knew that. Collins, of course, also testified
that he would not take illegal deep cuts in the presence of
the mine superintendents -- apparently because he knew the
practice would not be tolerated by any of the superintendents,
including Sizemore.
Finally, I find Sizemore to be a credible witness
and find credible his testimony that he did not, and
would not, tolerate deep cutting and had no knowledge,
other than the fatality in 1990 and the instant case,
where a deep cut had been takeno I therefore conclude
that his decision to discharge Collins was based solely
on Collins 0 unprotected illegal activity on January 16u
l992v of taking deep cutso
Thusu I conclude that the
persons responsible for Collinsu discharge, namely Berry
and Sizemore, were in no way motivated by his protected
activitiesu but based their decision solely on his unlawful
conduct on January 16v 1992 in taking illegal deep cuts
with the continuous minero Under the circumstances Collins
has failed to sustain his burden of proving that his
discharge was in violation of the Act and the complaint
must accordingly be dismissed.

261

ORDER
Discrimination proceeding Docket No. KENT 92-877-D is
hereby dismissed.

Distribution:
Phyllis L. Robinson, Esq., P.O.
(Certified Mail)

Hyden, KY 41749

Marcus P. McGraw, Esq., Greenebaum, Doll and McDonald,
333 West Vine Street, Suite 1400, Lexington, KY 40507
(Certified Mail)
Philip c. Eschels, Esq., Greenebaum, Doll and McDonald,
3300 First National Tower, Louisville, KY 40202 (Certified
Mail)
/lh

262

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

FEB 1 8 i993
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 92-445
A.C. No. 36-04175-03560

v.

Robena Prep Plant

CONSOLIDATION COAL COMPANY,
Respondent

.
DECISION

Appearances:

Before:

John M. Strawn, Esq., u.s. Department of Labor,
Office of the Solicitor, Arlington, Virginia
for Petitioner;
Daniel E. Rogers, Esq., Consolidation
Coal Company, Pittsburgh, Pennsylvania,
for Respondent.

Judge Feldman

This case is before me based upon a petition for assessment
of civil penalty filed by the Secretary (petitioner) alleging a
violation by the operator (respondent) of the surface mine
mandatory safety standard that prohibits dangerous accumulation
of coal dust. This matter was heard in Washington, Pennsylvania,
at which time Robert G. Santee and Robert L. Campbell testified
on behalf of the petitioner and William Geary testified for the
respondento
The issues for resolution are whether the respondent
permitted a dangerous accumulation of coal dust at its Robena
Preparation Plant and, if so, whether this accumulation was a
u~significant and substantial 91 violation andjor the result of the
respondent's "unwarrantable failure". Also for consideration is
the amount of civil penalty, if any, that should be assessed.
The parties have stipulated to my jurisdiction in this matter and
to the pertinent civil penalty criteria found in Section 110(i)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §801
et seq., (The Act). The parties' post-hearing briefs are of
record.

263

FINDINGS OF FACT AND DISCUSSION
At approximately 6:50a.m., on August 22, 1991, Mine Safety
and Health Administration Inspector, Robert G. Santee arrived at
the respondent's Robena Preparation Plant facility ~or the
purpose of conducting an inspection. This facility consists of
several buildings, that receive, transport and process coal from
the respondent's Dilworth Mine. The coal is transported up the
Monongahela River by barge to the preparation plant where it is
processed and stored by means of a series of conveyor belts.
Upon his arrival at the facility, Santee spoke to Mine
superintendent, Pat Zungri who informed Santee that Company
Representative, Joe Bailey and Miner Representative, Harry Churby
would accompany him on his inspection. Santee proceeded to the
foreman's office where he inspected the foreman's log. Santee
observed that the last entry in the log occurred on the afternoon
shift of August 21, 1991, by Mine Examiner, Ed Bodkin. Bodkin's
log entry made no reference to any accumulations of coal dust in
the transfer house.
Sometime between 7:00a.m. and 7:35a.m., Santee,
accompanied by Bailey and Churby, proceeded to the transfer house
to conduct an inspection. The transfer house is a building used
to transport coal by conveyor belt to and from the river from the
preparation plant. Upon arriving on the first floor of the
transfer building, Santee observed several areas of accumulation
of float dust and loose coal. He noted that the more he looked
around the transfer building, the more extensive the
accumulations appeared to be. Therefore, Santee issued 104(d) {1)
Order No. 3691990 to Joe Bailey for an alleged violation of
Section 77o202 which Santee concluded had occurred as a result of
the respondent 9 s unwarrantable failure. 1 The order was based on
Santee's observations of dangerous amounts of coal dust
accumulations at the following locations:
1)

Coal dust accumulations ranging from o to 1/2 inch
deep on top of the electrical motors for the No. 1
conveyor belt.

2}

Coal dust accumulations ranging from o to 1/2 inch deep
on the electrical motors and structures for the river
tipple conveyor belt.

3)

Coal dust accumulations ranging from o to 1/16 inch
deep inside of the electrical control panel boxes on

30 C.F.R. §77.202 provides: "Coal dust in the air of, or
in, or on the surfaces of 1 structures, enclosures 1 or other
facilities shall not be allowed to exist or accumulate in dangerous
amounts." (Emphasis added).

264

the bottom floor of the transfer building where
electrical motors for the No. 1 conveyor belt and river
tipple conveyor belt are located.
4)

Coal dust accumulations ranging from o to ,1/2 inch deep
on the steel beam structures on the bottom floor of the
transfer building and continuing up to the first
landing, including the first landing platform.

5)

Loose coal and wet coal and mud ranging from 2 to 24
inches in depth at three different locations on the
bottom floor of the transfer building including
underneath the tail rollers for the No. 1 and river
tipple conveyor belts.

6)

Coal dust accumulations from 0 to 1/2 inch deep on top
of the drive units and structures for the No. 1 and
river tipple conveyor belts and on the floor of the
platform for the secondary drive for the river tipple
conveyor belt.
,·
·

Santeews citation noted that the No. 1 and river tipple
conveyor belts were running at the time the citation was issued
at 8~25 a.m. In addition, Santee testified that the electrical
boxes were energized at the time he observed these accumulations.
(Tr.21,25-26). Santee noted that the accumulations observed were
black in color and were not combined with any non-combustible
materials. (Tr.44,56,108). Finally, Santee stated that there
were footprints in the accumulations which led him to believe
that these accumulations should have been observed and were not
of recent origin. (Tr.28). Santee estimated these accumulations
existed
a period of several shifts to approximately one week.
52
0

0

Upon issuing t:he 104 (d) 1 order v Santee informed Bailey to
de-energize
power from the electrical motors and boxes so as
to avoid any potential for ignition. After the top surfaces of
the drive units and structures for the No. 1 and river tipple
conveyor belts were washed
fu Santee modified Order No. 3691990
include additional coal dust accumulations he observed ranging
from 0 to 1/2 inch deep which were saturated with grease and oil
a'c several locations near the conveyor belt drive units. (Gov.
Ex.l). Santee attempted to continue his inspection but realized
that plant personnel were assigned to clean other areas of the
transfer building before he could inspect them. Therefore,
Santee discontinued
inspection at approximately 9:30 a.m.
Santee returned to the field office and was contacted at
approximately 4~00 p.m •• by zungri who advised santee that the
condition had been abated. Santee returned to the preparation
facility at approximately 5:15 p.m.p and reinspected the transfer
house in the presence of Zungri and Robert L. Campbell, Chairman
of the Union Safety Committee.

265

Robert Campbell testified on behalf of the Secretary. He
stated that he also observed extensive amounts of float coal dust
on top of the electrical panels, inside of the panels and on the
floor. campbell, who is employed at this facility, ,estimated
that the dust accumulations existing in and around these panels
were present for at least 3 weeks. (Tr. 110-111). Campbell
corroborated Santee's observations regarding an oil and grease
leak near the No. 1 conveyor belt. Campbell estimated that this
condition existed for more than one month. (Tr. 108).
campbell further testified that the transfer house is
considered to be a problem area in terms of coal dust
accumulations. He stated that the safety committee had raised
the issue with the respondent's management on several occasions.
(Tr.112-l13). campbell related that regular maintenance of the
transfer house is done on weekends. Consequently, he opined that
dust conditions deteriorate as the week progresses. {Tr. 110,
122-123). Thus, the nature Cl\.~d extent of the coal dust
accumulations observed by santee and Campbell were consistent
with this weekend cleaning policy in that the inspection occurred
on a Thursday. (Tr.117). Campbell testified that the weekend
cleaning did not include cleaning of the electrical boxes or
motors. (Tr. 122-123). Campbell expressed concern about the
accumulations and their explosive potential as welding is
performed in the transfer house approximately two times per
month. (Tr. 120-121}.
The respondent called Plant Foreman, William Geary as its
only witness. Geary worked the midnight shift on August 22,
1991. This shift began on August 21, at 11:00 p.m., and ended at
approximately 7~15 a.m.g on August 22. Geary testified that he
inspected the transfer house at approximately 6:00a.m., on
August 2 2 19 9 L
Jchat t.ime" he reportedly noted coal dust
that needed to be removed on the walkways around the No. 1
conveyor belt. (Tr. 161). Geary testified that he went to the
foreman's office at approximately 6:30 a.m. Geary stated that he
made a notation in the inspection log at approximately 6:35 a.m.u
to 6~40 a.m. (Tr.176). The subject notation states, "Transfer
house area on both sides of river tipple belt need cleaned-up
{sic) . 002 Geary testified that he did not know how this coal
accumulation occurred. (Tr.l73). Geary stated that he observed
Santee on the preparation facility premises on August 22, 1991,
prior to his departure at the end of his shift. (Tr.203).
p

2

The respondent did not introduce a certified copy of this
log entry at trial. The record was kept open and it was received
in evidence as Respondent's Ex. 1 on November 16, 1992.

266

FURTHER FINDINGS OF FACT AND CONCLUSIONS

occurrence of Violation
The respondent is cited for violation of the mandatory
safety standard in section 77.202 which specifies that coal dust
shall not be "allowed" to accumulate in "dangerous amounts" in
the air or on the surfaces of structures, enclosures, or other
facilities. As coal dust is a natural consequence of the coal
preparation process, the issue for determination is whether the
respondent ''allowed" the accumulations to occur and whether such
accumulations constituted "dangerous amounts."
Turning to the question of whether the respondent allowed
these conditions to occur, the determining factor is the period
of time in which the respondent permitted the coal dust to
accumulate. In Utah Power anddLiqht v. Secretary of Labor, 951
F.2d 292, 295 (lOth Cir. 1991), the Tenth Circuit, in applying a
similar mandatory safety standard for underground mining
contained in Section 75.400, stated that coal dust accumulations
must be 11 o • o cleaned with reasonable promptness, with all
convenient speed.n Obviously, section 77.202 does not
contemplate citations for coal dust as it is generated as a byproduct of coal preparation. It is only the accumulation of such
coal dust, which requires a period of time to occur, which is
prohibited. (Tr.84-85). Thus, the operator must be afforded a
reasonable period of time to remove coal dust accumulations
before a citation can be properly issued.
In its brief 0 referring to the testimony of Gearyv the
respondent allegesu without foundation 0 that uc[t]he major
accumulationv amounting to an estimated 50 tons of coal 0 and the
dust associated with the spill of that coal, occurred sometime
during the afternoon shift of August 21 or the midnight shift of
August 22 o (Tr. ppo 173 and 17 4) • 9' (Emphasis added) •
{Respondent 0 s Br. 1=2}o However 9 the respondent has misquoted
Gearycs testimonyo There is no evidence of record of any recent
coal spill that could account for the accumulations observed by
Santee and Campbell. In factu Gearyu speaking hypothetically 6
testified that 0 given the volume of coal on the conveyor belts it
would only take uao o o a few minutes for 50 ton[s] to get there
(spill) uu (Tr 17 0-171) • Although Geary referred to 11 a spill
there sometime during the night" he also testified that he did
not know how these accumulations (referred to by counsel for the
respondent as a "spill") occurred or when they occurred.
(Tr.168,173). Geary's lack of knowledge about a recent coal
spill is consistent with the testimony of Santee and Campbell
which makes no reference to any statement by Bailey, Churby or
Zungri, mine personnel who accompanied Santee on his inspection,
o

o

267

that a relevant coal spill had occurred. Significantly, Geary
testified that he only saw 2 to 24 inches of coal dust
accumulations around the No. 1 conveyor belt rather than a
catastrophic coal spill. (Tr.172- 173). Thus, the testimony,
when viewed in its entirety, supports the conclusion that the
subject accumulations developed over a period of time and were
not the result of a recent spill. 3 In reaching this conclusion,
I note the testimony of Campbell concerning the respondent's
policy of cleaning the transfer house on a weekly basis with
resultant coal dust accumulations as the week progresses.
Moreover, the physical evidence consisting of coal dust layers
saturated with oil and grease, coal dust filtering through cracks
in electrical boxes, and widespread coal dust accumulations on
electrical motors, beams and around the rollers of the conveyor
belts, supports the opinions of Santee and campbell that these
accumulations existed for a prolonged period of time. 4
I also reject the respondent's assertion that the subject
accumulation was noted in the· foreman's log book by Geary prior
to Santee's inspection. Santee's contemporaneous notes reflect
that upon arrival at the preparation plant the last entry in the
inspection log was by Bodkin on the afternoon shift of August 21,
1991. (Gov. Ex. 2, p.l). Significantly, Superintendent zungri,
Plant Foreman Brian Mahalovich and Plant Engineer Bailey never
informed Santee at the beginning of his inspection of the
occurrence of a recent spill that required cleanup or of a
pertinent entry in the inspection log. The first time Santee was
shown Geary's log entry was sometime after 10:15 a.m. (Tr.35).
Moreover, Geary testified that he was aware of Santee's presence
on the premises prior to ending his shift on August 22, 1991.
Thus 8 Geary had the opportunity to enter the cleanup notation
concerning both sides of the river tipple belt after he was aware
Santee had begun his inspection. I concludev therefore
t.hat t:he evidence fails to establish the existence of a log
entry concerning a cleanup of any of the subject coal dust
accumulations until after Santee's inspection and after the
7~15 a.m.u day shift on August 22v 1991, had begun.
{See Tro 35-36)

o

~.

Respondent~s Counsel and Geary have used the word spill and
accumulation interchangably throughout this proceeding. However,
find Geary 1 s description of his observations of accumulations
ranging from 2 to 24 inches consistent with an accumulation rather
than a significant spill.
d

4 As

previously noted, Santee estimated that the accumulation
existed over a period of several shifts to one week.
Campbell
testified that these accumulations were present from 3 weeks to
more than one month. I give greater weight to Campbell's testimony

as he is employed at and familiar with the preparation facility.

268

Finally, assuming arguendo that Geary's log entry was
timely, it did not adequately address the widespread
accumulations on such locations as in the electrical boxes, on
the electrical motors and on the beams. It is noteworthy that it
took the respondent an entire day to clean the transfer house.
There is no evidence that Geary's entry in the log book was
intended as an acknowledgement of the necessity for such an
extensive cleanup. Thus, the Secretary has established that the
respondent "allowed" this coal dust to accumulate in
contravention of Section 77.202 in that it failed to take
remedial action until santee issued the subject 104(d) (1) order.
The remaining issue is whether these accumulations ranging
from 1/16 inch inside the electrical boxes, 1/2 inch on the
electrical motors and conveyor belt structures and 2 to 24 inches
around the conveyor belt rollers, constitute "dangerous amounts".
The Commission, in Pittsburgh & Midway Coal Mining Company, 8
FMSHRC 4 (January 1986), has concluded that coal dust
accumulations 1/8 inch in deptb inside electrical boxes, where
there is a potential ignition source, are "dangerous amounts"
within the meaning of Section 77.202. Consistent with this
Commission decision, I construe the extensive accumulations
observed by Santee in close proximity to electrical boxes, motors
and moving belts to be "dangerous" accumulations. Accordingly,
the Secretary has established a violation of Section 77.202.
SIGNIFICANT AND SUBSTANTIAL
The Secretary asserts that the nature and extent of the coal
dust accumulations cited by Santee warrant the finding that this
was a significant and substantial violation. A violation is
deemed to be 9 ~significant and substantial n if there is "a
?easonable likelihood that the hazard contributed to will result
an
UZ""J or illness of a reasonably serious nature. 10 U.s.
Steel Mining Co.,Inc.u 7 FMSHRC 327, 328 (1985); Cement Division,
National Gypsum Co.v 3 FMSHRC 822, 825 (1981); Mathies Coal Co.,
6 FMSHRC 1,3-4 (1984). This evaluation is made in terms of
uucontinued normal mining operations 91 U.s. Steel Mining Co
Inc.v 6 FMSHRC 1573u 1574 (1984). The question of whether a
particular violation is significant and substantial must be based
on the particular facts surrounding the violation. Texasgulf,
Inc.u 10 FMSHRC 498 (1988)9 Youghiogheny & Ohio Coal Company,
9 FMSHRC 2007 (1987)
o

269

0

,

The respondent concedes that it is "· •• indisputable that
an accumulation of coal dust did exist in the transfer house on
the morning of August 22, 1991." (Respondent's Br.l). The issue
for determination is whether there was a reasonable ·likelihood
that these accumulations would result in combustion· causing
serious injury. It is fundamental that float coal dust is
combustible only if 1) the float coal dust is in suspension; 2)
there is an ignition source; and 3) there is an actual ignition
or explosion. (Tr.45).
With regard to suspension, Santee testified that although he
did not visualize any float dust in suspension, the widespread
nature of the accumulations was indicative of suspended coal
dust. (Tr.49-50). In addition, he testified that there were
several common occurrences which could place the dust in
suspension. For example, Santee stated that the starting and
stopping of conveyor belts, the movement of those belts and tail
rollersi and the opening of doors causing air circulation were
all potential causes of float dust suspension. (Tr.63-64).
With respect to the second element of ignition, I accept the
unrebutted testimony on behalf of the Secretary concerning the
presence of potential ignition sources from arcing or sparks from
the electrical boxes or motors, from heat build up and sparks
related to friction from the conveyor belts and from occasional
welding activities. (Tr. 46-47, 121). The proximity of float
coal dust to these sources of ignition further demonstrates the
serious nature of this violation.
Finally, in the event of actual combustion, it must be
established that a f
or explosion is reasonably likely to
cause serious injury or death. Santeevs citation noted that one
person was affected by
hazardous condition. Apparentlyu one
employee on each shift is assigned to the transfer house where he
is responsible for cleaning up the belt areas and hosing down the
chute. (Tr.l18). The foreman on each shift also travels through
the transfer house to inspect the condition of the facility.
" 177). Santee and Campbell also testified that personnel
enter the transfer building for maintenance and repair •
• 5lul21). The potential for explosion andjor fire engulfing
the entire building would subject anyone inside to the
substantial risk of serious injury or death. Admittedly, while
the discrete hazard in this instanceu ioe•u combustion and
resultant injuryv requires the coincidence of several events, I
find that the secretary has established a significant and
substantial violation by virtue of the extensive nature of the
accumulations, their proximity to ignition sources and the
likelihood of suspension given the accumulations' exposure to
moving conveyor belts.

270

unwarrantable Failure

The remaining issue concerns whether the respondent's
failure to timely remove the subject accumulations constitutes an
unwarrantable failure. The Commission has noted that
unwarrantable failure is "aggravated conduct, constituting more
than ordinary negligence, by a mine operator in relation to a
violation of the Act. Emery Mining Corporation, 9 FMSHRC 1997
(December 1987); Youghiogheny & Ohio Coal Company, supra;
Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249
(March 1988)s Referring to its prior holding in the Emery Mining
case, the Commission stated as follows in Youqhiogheny & Ohio, at
9 FMSHRC 2010:
We stated that whereas negligence is
conduct that is "inadvertent, 9' ''thoughtless",
or "inattentive, "unwarrantable conduct is
conduct that is described·· as "not
justifiable" or "inexcusable." Only by
construing unwarrantable failure by a mine
operator as aggravated conduct constituting
more than ordinary negligence, do
unwarrantable failure sanctions assume their
intended distinct place in the Act's
enforcement scheme.
In Emery Mining, the Commission elaborated on the meaning of
the phrase 11 unwarrantable failure as follows: 11
Unwarrantable" is defined as 91 not
ustifiable" or "inexcusable." "Failure" is
defined as 00 neglect
an assigned, expectedc
or appropriate action 03 Webster us Third New
International Dictionary (unabridged) 2514~
814 (1971) ("Webster's"). Comparativelyp
negligence is the failure to use such care as
reasonably prudent and careful person would
use and is characterized by ou inadvertence u eu
"1 thoughtlessness, ne and 09 inattentiono oe
Black 1 s Law Dictionary 930-31 (5th ed. 1979)o
Conduct that is not justifiable and
inexcusable is the result of more than
inadvertence, thoughtlessness, or
inattention. 9 FMSHRC at 200lo
00

Q

The evidence in this case reflects widespread coal dust
accumulations, including those located on electrical motors and
inside electrical boxes, which were permitted to accumulate over
an extended period of time. These conditions were indicative of
an inadequate cleanup policy which involved periodic cleanup
rather than effective cleanup on an as needed basis. The

271

existence of these accumulations in proximity to ignition sources
manifests a reckless disregard of this serious risk of explosion
which goes beyond mere inattentiveness or thoughtlessness.
Moreoveru the presence of these accumulations despite previous
meetings with the Safety Committee concerning this problem in the
transfer house provides an additional basis for concluding that
the respondentws inaction constituted more than ordinary
negligence. As such, this violation is attributable to the
respondent's unwarrantable failure.

Conclusions
In view of the above, I conclude that the gravity associated
with the respondent 1 s violation of Section 77.202 was serious
given the risk of life threatening injury and that the underlying
degree of negligence exhibited by the respondent was high. I
therefore concur with the $1,200 assessment proposed by the
Secretary in this matter as it is consistent with the evidence of
record and the criteria in Section llO(i) of the Act.
ORDER

Accordinglyv Order No 3691990 IS AFFIRMED and the respondent IS
ORDERED TO ~AY a civil penalty of $1,200 in satisfaction of the
violation in issuec Payment is to be made within thirty (30)
days of the date of this decisionv and upon receipt of payment,
this matter XS DISMISSED.

Law Judge
Distribution~

John Me

Stra't~n

ov

Office

the Solicitoru

UoSo

Department of

14480=Gateway
3535 Market Street 8
?A 19104 certified Mail)

Rogers"

Consolidation Coal Companyv 1800
ttsburgh PA 15241 Certified Mail)

Esao~

;vmy

272

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

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

20006

February 19, 1993
CIVIL PENALTY PROCEEDING
Docket No. KENT 92-226
A. C. No. 15-11292-03582
Mine No. 1

v.

Docket No. KENT 92-182
A. C. No. 15-14235-03588

HARLAN-KYVA COAL INC.,
Respondent

Docket No. KENT 92-171
A. C. No. 15-14235-03587
Docket No. KENT 92-170
A. C. No. 15-14235-03586
Mine No. 2
Docket No. KENT 92-169
A. C. No. 15-10818-03531
Mine No. 3

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

These cases are before me upon the petitions for assessment of
the civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The parties have filed a joint motion to
approve settlements.
A reduction in penalties from $9,370 to
$5,682 is proposed.
The reduction is based upon the operator's
financial condition. Reports from the operator's accountants show
a balance sheet with a net deficit in stockholder equity and a
profit and loss sheet with a net operating loss. I have considered
the representations and documentation submitted in these cases, and
I conclude that the proffered settlements are appropriate under the
criteria set forth in section llO(i) of the Act, particularly the
criterion of the operatorijs ability to continue in business.
WHEREFORE 6 the motion for approval of settlements is GRANTED,
and it is ORDERED that the operator PAY a penalty of $5,682 within
30 days of this order.

Paul Merlin
Chief Administrative Law Judge

273

Distribution:

(Certified Mail)

w.

F. Taylor, Esq., Office of the Solicitor, u.s. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215

Mr. carl E. McAfee, Esq., 1033 Virginia Ave., P.O. Box 656, Norton,
Virginia 24273-0656

274

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

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

fEB 19 1993
:
:
:

.
.
.

v.

CIVIL PENALTY PROCEEDING

Docket No. WEST 92-586-M
A. C. No. 45-00603-05512

Moses Lake Pit & Plant

BASIN ASPHALT COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

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 parties have filed a joint motion to
approve settlement. A reduction in the penalty from $362 to $181
is proposed. The parties also advise that the Solicitor has agreed
to modify Citation No. 3644317 by deleting the significant .and
substantial designation. I conclude that the proffered settlement
is appropriate under the criteria set forth in section 110(i) of
the
Act.
However, the Solicitor should be aware that in the
future she must explain why the significant and substantial finding
being deleted and why negligence is being reduced. A conclusive
statement will not suffice.
WHEREFORE, the motion for approval of settlement is GRANTED.
0 days

is ORDERED that the operator pay a penalty of $181 within
this ordero

Law Judge
Distribution:

(Certified Mail)

Cathy Barnes, Esq., Office of the Solicitor, u.s. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101
Albert De Atley, Basin Asphalt Company,
Yakima, Washington 98901
rdj
275

2000 East Beech Street,

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

20006

FEB 191993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-587-M
A. C. No. 45-00603-05511

v.

..

BASIN ASPHALT COMPANY,
Respondent

0

Moses Lake Pit & Plant

DECISION APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

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 parties have filed a joint motion to
approve settlement. A reduction in the penalty from $362 to $181
is proposed. The parties advise that the Solicitor has agreed to
modify Citation No. 3644310 by deleting the significant and
substantial designation. I conclude that the proffered settlement
is appropriate under the criteria set forth in section 110(i) of
the Act.
However u the Solicitor should be aware that in the
future she must explain why the significant and substantial finding
is being deleted and why negligence is being reducedo A conclusive
statement will not suffice.
WHEREFORE, the motion for approval of settlement is GRANTED.
It is ORDERED that the operator pay a penalty of $181 within
30 days of this order.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Cathy Barnes, Esq., Office of the Solicitor, u.s. Department of
Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101
Albert De Atley, Basin Asphalt Company, 2000 East Beech street,
Yakima, Washington 98901

276

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

~E8i91993

.

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

.

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-686-M
A. C. No. 24-00338-05533

v.
Continental

MONTANA RESOURCES,

ORDER ACCEPTING LATE FILING
DECISION APPROVING SETTLEMENT
ORDERTO PAY

Before:

Judge Merlin

The Solicitor's unopposed motion to accept late filing of the
penalty petition is GRANTED. Salt Lake County Road Department, 3
FMSHRC 1714 (1981).
The Solicitor has filed a motion to approve settlement of the
one violation involved in this matter.
The originally assessed
amount was $431 and the proposed settlement is for $431.
An
electrical conduit on the side of the conveyor belt was broken
exposing employees to possible electrical shock¢
Upon reviewQ I
find that
31 is an appropriate penalty for this serious violation
and that
is in accordance with the six statutory criteria set
forth in section 110(i) of the Act.
AccordinglyQ the recommended settlement
operator is ORDERED TO PAY $431 within 30 days
decision"

APPROVED and the
the date of this

\

Distribution:

(Certified Mail)

Robert A. Murphy, Esq., Office of the Solicitor, u.s. Department of
Labor, 1585 Federal Bldg., 1961 Stout St., Denver, CO 80294
Ed McGowan, Montana Resources, 600 Shields Ave., Butte, MT
rdj

277

59701

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

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

20006

FEB 1 9 :1993 CIVIL PENALTY PROCEEDING

..
:
:

Docket No. WEST 93-9-M
A. C. No. 04-01829-05530

.
..

Wheeler Ridge Pit & Mill

..

v.

&

KERN ROCK COMPANY
Respondent

DECXSiON APPROVXNG SETTLEMENT

Before:

Judge Merlin

This case is before me upon a petition for assessment of the
civil penalties under section 105(d) of the Federal Mine Safety
and Health Act of 1977. The Solicitor has filed a motion to
approve settlements. A reduction in the penalties from $1,610 to
$1,449 is proposed. The Solicitor has explained that the
original assessments did not adequately take account of good
faith abatement. I have considered the representations and
documentation submitted in this case, and I conclude that the
proffered settlements are appropriate under the criteria set
forth
section llO(i) of the Act.
WHEREFOREu the motion for approval of settlement is GRANTED,
and it is ORDERED that the operator PAY a penalty of $1,449
within 30 days of this order.

- \?~

Paul Merlin
Chief Administrative Law Judge

Distribution~

(Certified Mail)

J. Mark Ogden, Esq., Office of the Solicitor, u.s. Department of
Labor, 3247 Federal Bldg., 300 North Los Angeles St., Los
Angeles, CA 90012
Robert E. Jones, Kern Rock Co., P.O. Box 3329, Bakersfield, CA
93385
rdj
278

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

FEB 1 9 1993
CIVIL PENALTY PROCEEDING

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

0
0

Docket No. WEVA 92-1103
A. C. No. 46-07622-03539

.
0

0
0

K Y V COAL COMPANYu INC. 0

No. 3

0

0

Respondent

0
0

DECISION APPROYING SETTLEMENT
ORDER TO PAY

Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of the
one violation involved in this matter.
The originally assessed
amount was $903, and the proposed settlement is for $903.
The
ventilation and dust control plan was not being complied with
because the pressure of the water sprays was less than required.
Upon review I find that $903 is an appropriate penalty for this
serious violation and that it
in accordance with the six
statutory criteria set forth
section llD(i) of the Act.
Accordingly, 'che recommended settlement is APPROVED and the
operator
ORDERED TO ~A~ $903 within 30 days of the date of this
decision.

~~
' \J
~ '*

\,

/?

'~-~

'\~~'
Paul Merlin
Chief Administrative Law Judge

Distribution~

(Certified Mail}

Tina C. Mullins, Esq.u Office of the Solicitoru U.S. Department of
Laboru 4015 Wilson Blvd.u Arlington, VA 22203
Ronald L. King, Esq., Robertson, Cecil, King & Pruitt, Drawer 1560,
Grundy, VA 24614
rdj

279

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

FEB 2 21993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)f
Petitioner

CIVIL PENALTY PROCEEDING
0
0

Docket No. KENT 92-452
A.C. No. 15-13920-03732

Vo

Pyro No. 9 Wheatcroft
COSTAIN COAL INCORPORATED,

0
0

DECISION APPROVING SETTLEMENT
Before:

Judge Feldman

Statement of the Proceedings
This proceeding concerns proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section 110(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for
four(4) alleged violations of certain mandatory safety standards
found in Part 75v Title 30u Code of Federal Regulations. The
respondent filed timely answers denying the alleged violations.
The parties have decided to settle this matterv and the
Secretary has filed a oint motion pursuant to Commission Rule
30~ 29 C.F.Ro §2700.30u seeking approval of the proposed
settlements. No reduction in penalties is proposed. The
citationsu initial assessments" and the proposed settlement
amounts are as followsg
Citation ~©o
3549975

3549976
3546673
3546677

:i!?roposec.l
assessment
126.00
.e 178.00

$"" 192.00
$ 192.00

280

!Settlement.
$ 126.00
$ 178.00
$ 192.00
$ 192.00

Discussion
In support of the proposed settlement disposition, the
petitioner has submitted information pertaining to the six
statutory civil penalty criteria found in section llO(i) of the
Act. In addition, the petitioner has submitted a full discussion
and disclosure as to the facts and circumstances surrounding the
issuance of the citations in question.
conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case 6 I conclude that the
proposed settlement disposition is reasonable and in the public
interest. Accordingly, pursuant to 29 C.F.R. §2700.30, the
motion IS GRAHTEDu and the settlement IS APPROVED.
ORDER

Respondent IS ORDERED to pay civil penalties in the amount
of $688 in satisfaction of the violations in question. Payment
is to be made to MSHA within thirty (30) days of the date of this
order, and upon receipt of payment, this proceeding IS DISMISSED.

~<;:;2) ~ ---~-Jerold Feldman
Administrative Law Judge

Mary Sue Tayloru Esqou Office
Tennessee

Solicitoru

u.s. Department

002 Richard Jones
7215 (Certified

B-201u Nashvilleu

Lamey u Esq

Costain Coal
42459 (Certified Mail)

o

i

Loss

Incorporated 8 PoOo Box 289

vmy

281

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

FEB 2 31993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
ROBERT C. TEANEY,
Complainant
ROBERT C. TEANEY,
Intervenor

.• DISCRIMINATION PROCEEDING
..
Docket No. KENT 92-867-D
MSHA Case No. BARB CD-92-14
..
.. No .. 1 Mine
c

c

0

.

.•
.
...
..
.."
0

BLACK MOUNTAIN COAL MINING,
INCORPORATED,
Respondent
ROBERT C. TEANEY,
Complainant
v ..
BLACK MOUNTAIN COAL MINING,
INCORPORATED,
Respondent

0

DISCRIMINATION PROCEEDING

0
0

.
Q

.

Docket No. KENT 93-264-D
MSHA Case No. BARB CD-92-53

... No. 1 Mine

DECISION APPROVING SETTLEMENT
Appearancesg

Donna Eo Sonner, Esguireu Office of the
Solicitor 8 .. So Department of Laboru
Nashville 0 Tennessee 0 for the Secretary;
Tony Oppegard, Esquire, Appalachian Research
and Defense Fund of Kentuckyu Inc. 0 for
Intervenor" and Complainant Robert Co TeaneyF
William
Hayesu Esquire~ Middlesboro 9
Kentucky 0 for Respondent
o

Before~

Judge Melic1t

These cases are before me upon Discrimination Complaints
under Section 105(c) of the Federal Mine Safety and Health
Act of 1977 8 30 U.S.Ce 801, et seg. (the Act). Before and
at hearings the parties filed motions to approve settlement
agreements and to dismiss the cases. The terms of the settlement are attached hereto as Appendix A. I have considered
the representations and documentation submitted in these cases
and I conclude that the proffered settlement is appropriate.

282

WHEREFORE, the motion for approval of settlement is
GRANTED. Accordingly, Respondent is directed to: (1) pay
Robert Teaney within 30 days of the date of this decision
backpay of $3,600 and interest of $400; (2) expunge the
employment records of Robert c. Teaney of all references
to the circumstances involved in this matter; (3) post a
copy of this decision, including Appendix A, at the mine
office for 60 days from the date of receipt; and (4) ay a
civil penalty (in Docket No. KENT 92-867-D) of $125,
the
secretary of Labor within 30 days f the date of this decision.
Furthermore, these Discrimination roceedings are DIS ISSED.

Distribution:
Donna E. Sonner, Esq., Office of the So icitor,

u.s. Department of Labor, 2002 Richard ·ones Road,

suite B-201, Nashville, TN 37215 (Certified Mail)

William A. Hayes, Esq., 2309 Cumberland Avenue,
P.O. Box 817, Middlesboro, KY 40965 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research and Defense Fund of Kentuckyu
Incou 630 Maxwelton Courtu Lexingtonu KY 40508
Certified Mail)
/lh

283

APPENDIX A

KENT 92-867-D

*MOTION TO APPROVE SETTLEMENT

The parties, by their undersigned attorneys, hereby move
the Administrative Law Judge to approve the settlement set out
below. This motion is filed pursuant to 29 C.F.R. § 2700.30.
As reasons for this motion the parties state as follows:
1.
on July 16, 1991, the Secretary of Labor filed a
complaint against Respondent. The complaint alleged that
Robert c. Teaney was the victim of unlawful discrimination
by Respondent in that he was transferred to a belt head
position from a roof bolter operator position after he called
the Kentucky Department of Mines and Minerals to report an
electrical hazard. Subsequently, the roof bolter operators
received an increase in pay of $1.00 per hour, which caused
Teaney to suffer a loss of compensation from the time of his
transfer until September 18,'1991, when he ceased work due
to injury. Teaney also worked from employer from April 27,
1992 until June 2, 1992, when Teaney ceased working due to
aggravation of previous injuries. The complaint alleged a
violation of § 105(c) of the Act [30 u.s.c. § 815]. The
Secretary 8 s complaint sought certain relief, namely a finding
that Teaney was unlawfully discriminated against, an order
requiring Respondent to pay back wages to Teaney, an order
directing that interest be added to the back pay, an order
directing Respondent, its officers, agents, servants, employees
and all other persons in active concert or participation with
them 1 to cease and desist discriminatory activities directed
toward their employeesu for an order that Teaney's employment
=ecord be completely expunged of all references to the
circumstances involved in this matter 0 and an order assessing a
penaltyo If the Secretaryus witnesses were called to a
hearing 1 they would testify as described above.
2o
If Respondent's witnesses were called to a hearingy
they would admit that Teaney was transferred to the belt head
position from the roof bolter operator position 1 but would
assert that the transfer was due to Teaneyvs being unable to
operate the bolter fast enougho They would admit that the roof
bolter operators received an increase in pay subsequent to
Teaneyts transfero
3o
The parties have discussed the alleged violations
and the statutory criteria stated in Section 110 of the Act.

4o
Pursuant to these discussions, the parties have
negotiated a settlement, the details of which follow.

!J As amended at hearing

284

5.
Respondent does not have a history of previous
105(c) violations in the previous 24 months.
6.
The violation was determined to involve high
negligence. The gravity of the violation was high.
7.

Respondent is a medium-sized operator.

a.
The penalty agreed to will not affect the operator's
ability to continue in business.
9.
Respondent has demonstrated good faith in prompt
compliance by agreeing to repay the back wages due plus interest.
10. Respondent agrees to pay Robert c. Teaney back wages of
$3,600.00 and interest of $400.00 within 30 days of the date of
the decision by the Administrative Law Judge.
11. Respondent agrees that Teaney's employment record shall
be expunged of all references to the circumstances involved in
this matter.
12. Respondent agrees to comply with the requirements of
Section 105(c) of the Act and recognizes the right of miners to
make safety complaints. This agreement in no way constitutes an
admission of violations of section 105(c) in the instant cases,
except for proceedings under the Act.
13. Respondent shall pay to the United States Department of
Labor a civil penalty in the amount of $125.00, pursuant to
§ 105(c)(l) of the Act [30 U.S.C. 815(c)(1)].
14o
l~NT

case

Complainant 0 Robert Co Teaney 0 in Docket No.

93-264-Du further agrees to withdraw his complaint in that

consideration of the settlement hereino

15. It is the parties 8 belief that approval of this
settlement is in the public interest and will further the
intent and purpose of the Acto

285

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

20006

FEB 2 3 1993
CIVIL PENALTY PROCEEDING

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

Docket No.LAKE 92-454-M
A. C. No. 12-00087-05513A

v.
JAMES KOSIBA, Employed by
Rensselaer Stone Co. Inc.,
Respondent

Limestone Mine

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of the
one violation involved in this matter.
The originally assessed
amount was $500 and the proposed settlement is for $500. Overload
protection was not provided for the electrical circuit supplying
power to the main power control center for the crushing plant.
Upon review I find that $500 is an appropriate penalty for this
serious violation and that
accordance with the six
statutory criteria set forth in section llO(i) of the Act.
Accordingly u ·the recommended settlement is APPROVED and the
respondent having paid, this matter is DISMISSED.

\~~

Paul Merlin
Chief Administrative Law Judge

Distribution~

(Certified Mail)

J. Phillip Smith, Esq., Office of the Solicitor, u.s. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
James Kosiba, 936 Maxwell Court, Crown Point, Indiana 46307
rdj

286

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

20006

FEB 231993
CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 93-40-M
A. C. No. 33-01526-05506

v.
Howitt Plant

JEFFERSON MATERIALS COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

This case is before me upon a petition for assessment of the
civil penalties under section 105(d) of the Federal Mine Safety and
Health Act of 1977.
The Solicitor has filed a motion to approve
settlement.
A reduction in the penalty from $1,200 to $960 is
proposed. It appears that the proposed settlement is an across the
board twenty percent reduction in assessments which gives no
reasons, even though the violations are characterized as highly
likely to result in a fatality.
Nevertheless, based on the
information in the file I approve the settlement in light of the
operator 0 s small size and history under the criteria set forth in
section
O(i of the Act.
The Solicitor should be aware however, such across the board
reductions are troubling and in the future she must explicitly
explain why the recommended amounts are appropriate.
WHEREFOREp the motion for approval of settlement is GRANTEDv
and i·t is ORDERED that the operator pay a penalty of $960 within 30
days of this order.

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified Mail)

Elizabeth R. Ashley, Esq., Office of the Sol itor, U.S. Department
of Labor, 881 Federal Bldg., 1240 East Ninth St., Cleveland, OH
44199
John E. Lower, Jefferson Materials Company, 8505 state Route 14,
streetsboro, Ohio 44241
287

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

FEB 2 31993
IRENE TONEY,

v.

. DISCRIMINATION PROCEEDING
Docket No. SE 92-318-DM
. MSHA
Case No. SE MD 92-04
$

Complainant

0

0

c

IMC FERTILIZER, INC.,
Respondent

0

c

Kingsford Mine/Mill

DECISION
Appearances;

Irene Toney, Bartow, Florida, pro se;
John Ee Phillips, Esq. 0 Holland and Knight,
Tampa, Florida, for Respondent

Before:

Judge Melick

This case is before me upon the complaint by Irene Toney
pursuant to section 105(c){3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.Co 801 et seg., the 11 Act,n alleging
that IMC Fertilizer, Inc. (IMC) discharged her on December 5,
1991, in violation of Section l05(c)(1) of the Act. 1
1

Section 105(c)(1) of the Act provides 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
the statutory rights of any
miner 8 representative of miners or applicant for
employment in any coal or other mine subject to
this Act because such miner, representative of
miners or applicant for employment has filed or made
a complaint under or related to this Act 0 including
a complaint notifying the operator or the operator 8 s
agentu or the representative of the miners at the
coal or other mine of an alleged danger or safety or
health violation in a coal or other mineu or because
such mineru representative of miners or applicant for
employment is the subject of medical evaluations and
potential transfer under a standard published pursuant
to section 101 or because such miner, representative
of miners or applicant for employment has instituted
or caused to be instituted any proceeding under or
related to this Act or has testified or is about to
testify in any such proceeding, or because of the
exercise by such miner, representative of miners or
applicant for employment on behalf of himself or
others of any statutory right afforded by this Act. 11
288

More particularly, Ms. Toney alleges that her discharge
was the result of her persistent complaints to IMC management
about the unsanitary condition of the field toilet facilities
and, on at least one occasion, the absence of such facilities.
In her complaint pursuant to Section 105(c)(2) of the Act to
the Mine Safety and Health Administration (MSHA) and in her
testimony at hearing, Ms. Toney cited particularly an incident
in August or September 1991 when she purportedly found maggots
on the toilet and floor of the portable toilet facility, and
reported this condition to her foreman at the time, James Pate.
She testified that she told Pate that if the toilet was not
cleaned by 3:00 p.m. that day she would report the condition
to the Polk County Health Department. Ms. Toney maintains
that when the condition was not thereafter corrected she in
fact then did call the Polk County Health Department and was
referred to the local MSHA office. She subsequently reported
those conditions to MSHA through a toll free telephone number
and an MSHA inspector thereafter appeared at the mine site.
Ms. Toney's complaint to the Secretary, providing the
jurisdictional basis for this case, is set out in full as
Appendix A to this decision. This complaint was thereafter
denied by the Secretary by letter dated May 21, 1992, and
Ms. Toney then filed the instant case with this Commission
on June 4, 1992.
Ms. Toney began her employment with IMC in January 1981,
as a laborer and was promoted to dragline oiler in 1988. She
thereafter commenced a training program for dragline operator
and in 1990 became an assistant dragline operator and dragline
operatoro Mso Toney recalls that her first complaint at the
Kingsford Mine regarding the absence of any toilet facility
was made to her then foremanu Jerry Wells. Following her
request, a toilet was provided and apparently that was the
end of the incident. Other than this first complaint at the
Kingsford Mine 0 which apparently occurred in 1988 and the
August or September 1991 complaint to James Pateu previously
noted 0 Ms. Toney did not specify dates or particular cir=
cumstances regarding her other complaints about toilet
facilitiesQ She testified, however, that she complained about
these facilities weekly to a number of management officials,
including Mine Superintendent Ron Hartung, and Foremen
Jerry Wells, Bonnie Baileyu Darold Weichman and Tom David.
She also recalled that on at least one occasion 8 either due
to a lack of toilet facility or unsanitary conditions, she
had to go around the dragline and nuse the ground." She
observed that, in general, for the first day or two after
the toilets were serviced they would be clean but that they
would thereafter "get dirty fast."

289

The Commission has long held that a miner seeking
to establish a prima facie case of discrimination under
section ~05(c) of the Act bears the burden of persuasion
that he engaged in protected activity and 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 (1980), rev'd on other
grounds, sub nom. Consolidation Coal Co. v. Marshall,
663 F.2d ~211 (3rd Cir. 198~); and Secretary of Labor on
behalf of Robinette v. United castle Coal Co., 3 FMSHRC
803, 817-18 (~981). 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
any protected activity. If an operator cannot rebut the
prima facie case in this manner, it may nevertheless defend
affirmatively by proving that it would have taken the adverse
action in any event on the basis of the miner's unprotected
activity alone. Pasula, supra: Robinette, supra. see also
Eastern Assoc. Coal Corp. v~ FMSHRC, 8~3 F.2d 639, 642
(4th Cir. ~987); Donovan v. 'stafford Construction co.,
732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC,
719 F.2d 194, 195-96 (6th Cir. 1983) (specifically approving
the Commission's Pasula-Robinette test). Cf. NLRB v.
Transportation Management Corp., 462 u.s. 393, 397-413
(1983) (approving nearly identical test under National
Labor Relations Act.
I find in this case that Ms. Toney established a
prima facia case that she engaged in protected activities
by making health related complaints to IMC management
regarding the absence of sanitary toilet facilities
and 0 on at least one occasion, the absence of any toilet
facilitieso In addition I find that she has established
undisputed evidence that she engaged in protected
activity when she filed a complaint regarding unsanitary
toilet facilities to MSHA in August or September 1991.
Ms. Toney has also presented evidence which, when considered aloneu might suggest that her discharge may also
have been motivated by her protected activitieso She
testified that following her complaint to Foreman Pate
in August or September 1991 about the unsanitary toilet
facilityu Pate was so angry that he almost ran her down
with his pickup trucko She also maintains that following
this incident and her reporting of the same conditions
to MSHA she received eight disciplinary points for leaving
the job site early 0 was given two disciplinary points when

290

she was late for a safety meeting and was called into the
superintendent's office "almost daily. 112
While this evidence, along with the relatively
close relationship in time between her complaints to Pate
and MSHA in August or September 1991 and her discharge
on December 15, 1991, would tend to support a finding
that her discharge may have been based, at least in part,
upon her protected activities I find, in any event, that
IMC has rebutted such evidence by clearly demonstrating
that her discharge was not motivated by her protected
activity. Pasula, supra, Robinette, supra.
Doug Wampole has been a personnel supervisor for IMC
for 18 yearso His job includes reviewing all disciplinary
matters for consistency under the IMC point system. The
IMC disciplinary program, in effect since January 1, 1986
and about which all employees are notified, provides in
pertinent part as follows:
Three-Day Disciplinary Layoff
9 Points - 12 Month Period
13 Points - 18 Month Period
15 Points - 24 Month Period

12 Points - 12 Month Period
15 Points - 18 Month Period
18 Points - 24 Month Period

The IMC Disciplinary Program allows employees to personally
make positive inputs to their own record. Specifically :
Jao

If any employee has over
10 years of continuous
service

o

- delete 1 point from
disciplinary record

o

2

While Ms. Toney also testified that she complained
about the lack of sanitary toilet facilities to the Equal
Employment Opportunity Commission in October 1991, on cross
examination she acknowledged that the complaint did not
relate to the cleanliness of the toilet facilities (See
also Exhibit C-1). On cross examination Ms. Toney also
acknowledged that the two disciplinary points she received
for failing to attend a safety meeting occurred in April
1991, prior to her complaint to MSHA about unsanitary toilet
facilities.

291

RULE INFRACTIONS
Discipline
Points

Title of
Discipline

Discipline/
Reference Code

3

Reporting Late for Company
Required Meeting

03-06

4

Carelessness in Performing Duties
(minimal to moderate loss of
product or damaged equipment)

04-01

Leaving the Job o:r:.Plant Without
Permission andjor Proper Relief
(has left Company premises}

09-07

9

(Exhibits R-2 and R-3).
Wampole testified that his role in the disciplinary
action against Toney was to determine consistency. The
foreman ordinarily initiates the disciplinary action through
a "notice of discipline" (R-4) form and classifies the
violation while Wampole looks to a computerized history of
similar violations to determine whether the same type of
violation has received the same penalty. Wampole himself
the official who assesses the disciplinary points.
In reviewing Toneyvs disciplinary historyu Wampole
noted that she received two disciplinary points for a
violation on April 29u 1991, for being late for a scheduled
monthly safety meeting. Ms. Toney acknowledges that she was
indeed late for the safety meeting and did not challenge this
disciplinary action through the company grievance procedures.
Wampole noted that this was a minor infraction for which she
received only two points andu considering credit given for
one positive pointu she was left with only one disciplinary
point at that timeo (See Exhibit R-5).
Wampole noted that Toney was subsequently disciplined
for leaving the job without permission andjor proper relief
on September 8 6 1991 and received nine disciplinary points.

292

The disciplinary report regarding this incident reads, in
pertinent part, as follows:
At 6:40 am on Sunday 9/8/91 the Page 3 dragline
was called by the day shift foreman in order
to have the crews work over. There was no reply
to the repeated efforts to contact the dragline
and pit. A roving HOH was sent to the area at
6:45 am and found no personal vehicles and the
D/L house interior, exterior and boom lights
still on, on the machine. It is standard procedure that you cannot leave our assigned work
station until properly relieved. On this machine,
you were specifically instructed on 9/6/91 to
call your foreman as your primary relief. No
call was received.
An hour's production was,_lost because of the delay

in manning 3 stations.

(Exhibit R-6).

Ms. Toney admits that she did in fact leave her
job site early without receiving direct permission from
her foreman as charged in the disciplinary notice and
acknowledges that she did not challenge this action
through the company grievance procedures. Wampole noted
that following the issuance of this disciplinary notice
Ms. Toney had ten cumulative disciplinary points and
received a 3-day layoff. It is not disputed that the
two other employees on Toney's work crew who also left
early on September 8, 1991, also received the same
nine point disciplinary actiono
Wampole observedu finallyu that as a result of a
notice of IMC discipline on December 5u 1991, assessing
four disciplinary points 1 Mso Toney had, as of that date,
accumulated 14 points and, under the IMC disciplinary
programu was subject to dischargeo
The notice of disciplinary action dated December 5 0

1991u reported, in partu as follows:

On saturday 11/30/91 you failed to ensure
the proper placement of the P-5 power
cable which is one of the job duties you
are responsible for as a dragline operator.
You then got into the cable with the D/L
bucket blowing it up causing three hours
downtime and on the D/L and two hours down
on the pit. (Exhibit R-8)

29 3

This disciplinary action was challenged by Ms. Toney
through the IMC grievance procedures, including arbitration
at which she was represented by the International Chemical
Workers Union, Local No. 35. With respect to the factual
findings and appropriate disciplinary points charged for
the infractions by Ms. Toney, I give the arbitrator's
decision significant weight. See Pasula, supra, 2 FMSHRC
at 2795. The arbitrator thoroughly analyzed the factual
setting given rise to the December 5, 1991, disciplinary
action and found just cause for her discharge. (See
Exhibit R-1). There is no challenge to the procedural
fairness of these proceedings and Ms. Toney was represented
by the union. It is also noteworthy that the same number
of disciplinary points charged in this incident to Ms. Toney
had also been issued to at least three other dragline operators
between January 1991 and August 1991 for the same offense,
i.e., cutting the dragline power cable with the bucket (See
Exhibit R-9). I further find credible Mr. Wampole's testimony
that at the time he evaluated-the issuance of disciplinary
points to Ms. Toney he was unaware of her complaints regarding
the lack or the unsanitary condition of the toilet facilities.
Under the circumstances I conclude that in issuing
disciplinary points against Ms. Toney, leading to her
discharge on December 5, 1991, IMC was not motivated
in any part by activity protected by the Act. Accordingly,
this case must be dismissed.
ORDER
Discrimination Proceeding Docket No~ SE 92-318-DM is
hereby dismissedo

~La'udge
\

II

~ n

Distributiong

\

Mso Irene Toney 9 2962 Morris Drive 8 GHv Bartowu FL 33830
(Certified and First Class Mail)
John E. Phillips, Esq., Holland and Knight, P.O. Box 1288,
Tampa, FL 33601 (Certified Mail)
/lh

294

APPENDIX A

SE 92-318-DM

I called your office to report bathroom condition in
field. I tried to call Safety Personnel first but he did
not return call. Within two weeks of that time I received
a points for so called leaving job site to [sic] early
4 more points were given for a cable that was buried under
ten or more feet underground. This cable should have been
moved by two earlier shiftse When I told James Pate about
bathroom problem he said there was nothing he could do about
bathrooms which had maggots on floor on toilet itself and
crawling all about the whole bath. I had complained to all
said foremen about bathrooms and to no avail did I get any
results. There were up to 15 men around the day I complained
to James Pate. He even almost ran over me he was angry at me.
Will give more details.

295

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

20006

FEB 2 3 1993
CIVIL PENALTY PROCEEDING

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

Docket No. VA 92-187
A. C. No. 44-06593-03522

v.
BAXTER R. NEECE, formerly employed
by H B & B EQUIPMENT CO. INC.,
Respondent

Mine No. 4

DECISION APPROVING SETTLEMENT

Before:

Judge Merlin

This case is before me upon a petition for assessment of a
civil penalties under section 105 (d) of the Federal Mine Safety and
Health Act of 1977. The Solicitor has filed a motion to approve
settlements. A reduction in the penalties from $2,950 to $50 permonth for 10 months for a total civil penalty of $500 is proposed.
According to the Solicitor, the respondent is currently
unemployed and has not worked as a foreman for the last year and a
half" In addition, the Solicitor states that while the respondent
conducted preshift examinations as a maintenance foreman on the
midnight shift which should have revealed these violations, it was
unlikely that he had the authority to have prevented or corrected
the violations"
The reductions are extraordinary and constitute low penalty
amounts under section 110 ( i) of the Actu but relying upon the
Solicitor 9 s
detailed motionu
I
find that the amounts are
appropriate.
WHEREFOREu the motion for approval of settlements is GRANTED~
and it is ORDERED that the respondent, Baxter R. Neece, PAY a
penalty of $500 according to the payment schedule set forth in the
settlement motion.

Paul Merlin
Chief Administrative Law Judge
296

Distribution:

(Certified Mail)

Edward H. Fitch, Esq., Office of the Solicitor,
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Baxter R. Neece, P.O. Box 85, Trammel, VA
rdj

297

u.s. Department of

24289

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

20006

FEB 231993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-524-M
A. C. No. 45-03119-05509

v.
Tenino Pit

WESTERN SAND & GRAVEL,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Merlin

This case is before me upon a petition for assessment of the
civil penalties for ten violations under section 105 (d) of the
Federal Mine Safety and Health Act of 1977. The parties have filed
a joint motion to approve settlements.
A reduction in penalties
from $738 to $642 is proposed. Nine of the ten citations involved
in this case were assessed $50 and are all non significant and
substantial.
The parties have agreed to settle these for the
original amounts. I approve the findings for these violations and
the proposed penalty amounts.
respect to remaining citation, the Solicitor has agreed
to reduce the penalty amount from $288 to $192.
I find the $192
pena
reasonable based upon reading of the citation and the
statutory criteria set forth in section 110{i) of the Act.
Howeveru no reasons are given in the joint motion to support the
recommended penalty.
The Solicitor should be aware that in the
:Eutur.e she must explicitly disclose why the penalty is appropriate
ander section llO(i and explain the reduction in a penalty amount.
The mere submission of boiler plate language for a reduction will
not suffice.
WHEREFOREu the motion for approval of settlements is GRANTED,
and it is ORDERED that the operator PAY a penalty of $642 within 30
days of this order.

Paul Merlin
Chief Administrative Law Judge

298

Distribution:

(Certified Mail)

cathy Barnes, Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue, suite 945, Seattle, WA 98101
A. Don Scarsella, Western Sand & Gravel, P.O. Box 68388, Seattle,
Washington 98188
rdj

299

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

ftS 'l4 \993
DISCRIMINATION PROCEEDING

STEPHEN D. JUNGERS,
Complainant

Docket No. WEST 92-226-DM

v.
WE MD 91-03
U.S. BORAX
Respondent

Boron Mill
DECISION

Appearances~

Stephen D. Jungers 9 North Edwards~ California 9
Pro Se;
Michael G. McGuinness~ Esq. 9 Los Angeles 9
Californiau
for Respondent.

~eforeg

Judge cetti
statement of the case

This case is before me upon the Complaint by Stephen o.
Jungers under section 105{c)(3) of the Federal Mine Safety and
Health Act of 1977 9 30 u.s.c. § 801 et seq., the "Act," alleging
a five day disciplinary suspension without pay by U.S. Borax

300

(Borax) in violation of section 105(c) (1) of the Act. 1
More
specifically, the Complainant alleges that he was unlawfully suspended without pay commencing 2 hours after the start of his work
shift on August 12, 1990, and continuing thereafter through his
normal scheduled work days of August 21, 24, 25 and 26th.
Complainant contends the disciplinary suspension was imposed on him
for having made safety complaints to management on August 12,
1990 concerning the practice and procedures used by Respondent's
production foreman Dick Moore in handling the sodium dithionite
fires that had been occurring in the White 5 Mol area of the
plant where Complainant had been assigned to work that shift.
Mr. Jungers, the Complainant, seeks to have his personnel
record purged of the August 12, 1990, Personnel Action Notices
and (2) back pay for the 38 hours of work missed on August 12,
21, 24, 25 and 26, 1990 due to the suspension.
Complainant's position with Respondent U.S. Borax in August
1990 and at all relevant times''herein was chief production operator at Respondent's Boron Mill earning $15.99 an hour. Mr. Jungers worked at Respondent's Boron Mill for 12 years. He testified he hired on as a laborer and within a few months took a bid
under the union agreement with ILWU, Local 30 to Primary Process
Plant One, where he started as a helper and then worked his way
through the ranks to the chief position in the matter of a year
or two.
The Respondent, u.s. Borax, is incorporated under the laws
of Delaware as United States Borax Chemical Corporation.

Section 105(c){1)

provides~

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such
miner, representative of miners or applicant for
employment has filed or: made a complaint under or
related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative
of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other
mine, or because such miner, representative of miners or
applicant for employment is the subject of medical evaluations and potential transfer under a standard
published pursuant to section 101 or because such miner,
representative of miners or applicant proceeding under
or related to this Act or has testified or is about to
testify in any such proceeding, or because of the exer.cise by such miner, representative of miners or applicant for employment on behalf of himself or others of
any statutory right afforded by this Act.

301

(Ex. 2). Respondent operates an open pit mine in Boron, California, where it extracts and refines borax.
Mr. Jungers as a chief operator at the Boron Mill monitored
the process in which liquid borax and borate elements are removed
and separated from solid elements such as rock and silt. Mr.
Jungers worked in plant one at the Boron facility, and was
assigned primarily to an area commonly referred to as the "mud
birds." Mud birds are mechanical devices, shaped like cylinders,
which separate the liquid borates from the non-usable rocks and
silt as the first step in the refining process.
On August 12, 1990, at the beginning of his shift, Mr. Jungers started to perform his usual duties at the plant's mud birds
area when a fellow employee approached him and informed him that
she had just received a telephone message directing her to switch
positions with the Complainant. The switch would result in
Mr. Jungers working at the WlJ.Jte 5 Mol area where borax is chemically treated to bleach it and make it have a rich white color.
This task requires a miner such as Mr. Jungers to add sodium
dithionite, a potentially hazardous chemical, to the refining
process. Mr. Jungers, on occasion, had performed this task
before.
On August 10, 1990, two days before Mr. Jungers' suspension,
there had been a sodium dithionite fire at the White 5 Mol area
which is the area Mr. Jungers had been directed to switch to at
the beginning of his shift on August 12, 1990. Mr. Jungers felt
that the fire had been handled in an unsafe manner. Mr. Jungers
believed that the production foreman at White 5 Mol, Dick Moore,
used unsafe and hazardous procedures in handling sodium dithion2·ce r .1.res
Dick Moore would be Mr. Junger us supervisor at the
White 5 Mol faci
approximately two hours as a result of
t.he August 12th job switch.
o

It was undisputed that sodium dithionite liberates sulfur
dioxide (S02 ) when it decomposes.
It decomposes when it contacts
moisture such as drops of condensation.
It decomposes when it
smolders and starts to burn.
(Tr. 101-102). There was over
4 7 000 lbs. of sodium dithionite in the bin at the White 5 Mol.
Even before the White 5 Mol facility was installed in the
plant in September 1989, complainant and other employees heard of
the hazards involved in the use of the chemical sodium dithionite. Prior to his suspension Mr. Jungers had access to Occupational Health Guidelines for Chemical Hazards (Ex. 5) and other
similar material. To show the reasonableness of his safety
concerns Mr. Jungers read into the record, page 14 of Complainant's Exhibit 5 under the subheading "Major Hazards" as follows:

30:2

"Sulfur dioxide (S02 ) is a highly irritating gas to the
mucous membranes of the upper and lower respiratory tract.
Short-term, high dose exposures have resulted in work-related
fatalities due to marked airway obstruction. Liquid or gaseous
sulfur dioxide can cause both skin and eye burns."
Then continuing on the same page of Exhibit 5, under "Acute
Effects", Mr. Jungers read into the record the effects of exposure to different concentrations of S02 as follows:
"From 50
parts per million, marked irritation to eyes, nose and throat and
lower respiratory tract occurs. Exposure to a concentration of
500 parts per million for 30 to 60 minutes is dangerous to life."
"A few fatalitie~ has followed exposure to unknown but very
high concentrations of gas. One report describes a case of chemical bronchial pneumonia that ended in death after 17 days."
Mr. Jungers explained tha~ these are the types of concerns
he and others had regarding the hazards of exposure to S02 • He
stated that concentrations of S02 fumes produced during a sodium
dithionite fire are dangerous and hazardous to life.
As previously stated it is undisputed that sodium dithionite
liberates sulfur dioxide (S02 ) when it decomposes.
It decomposes
when it contacts moisture and when it smolders and starts to
burn.
(Tr. 101-102).
Complainant stated that he and his fellow workers "wouldn't
seem to get answers to a number of questions such as how much S02
they were being exposed to.n
(Tr. 29). Several times Mr. Jungers had coughing fits he attributed to the S02 fumes even when
there was no fire.
Mr. Jungers testified iii wanted to make sure that before I
worked with him (foreman Dick Moore) on shift again at the White
5 Mol with the possibility of a fire, that he (Dick Moore) was
certain and I was certain that he was certain about what the safe
procedures were in handling the fire."
Mr. Jungers stated that one of his main safety concerns was
that the foremanv Dick Moore 6 not ask him to fight a sodium dithionite fire once it started and that he (Jungers) would be allowed to be evacuated along with the other employees and that he
would be allowed to bring the hazardous material team in as is
and was the stated company policy at the time.
Asked if there was any reason to be concerned that Dick
Moore would not follow company safety policy in handling a
dithionite fire, Mr. Jungers replied "Yeah. The fire we had on
Friday, while we were all evacuated, and even though we we~e an
eighth of a mile, or a quarter -- however far it is from the

303

White 5 Mol, it was bad enough for us to be evacuated. He (Dick
Moore) didn't evacuate Chuck Jones who was working at the White 5
Mol on Friday during the fire." •.••
Dick Moore tried to get Chuck Jones to fight the fire and
tried to prevent or at least discourage him from calling the
hazardous materials team to fight the fire.
(Tr. 34).
(Ex. 8
and Ex. 9 are signed statements of Chuck Jones concerning the
August 10, 1990 fire.)
Mr. Jungers testified there was a tendency by some people in
management to try to circumvent the company's policy on fighting
fires in the White 5 Mol. Production foreman, Dick Moore, would
request regular untrained and unequipped employees to assist in
fighting sodium dithionite fires instead of having all the employees evacuate the area and calling the hazardous material team
to handle the fire.
Mr. Jungers testified that two days before he voiced his
safety concerns to management, there was a sodium dithionite fire
at the White 5 Mol. All the employees were evacuated approximately a quarter of a mile away except Chuck Jones. Mr. Jones
told Mr. Jungers that Dick Moore tried to get him (Chuck Jones)
to fight the fire and discouraged him from calling the hazardous
material team.
(Tr. 34). He was also concerned that Dick Moore
had stated to Chuck Jones that he (Dick Moore) and Jungers {Complainant) had put out fires by themselves without calling the
hazardous material team.
On August 12 1990u when he heard he was to switch jobs and
·£vork at ~the
5 lVIol Mr. Jungers went to the off ice of the
foreman on duty a'c 'that timeu Roy Beaver v 'co talk
sare~y concerns.
Mr. Jungers asked Chuck Jones (a
union steward) to go with him as a witness. Mr. Jungers testified 0'I was very concerned and I was pretty -- waiting till Monday which would have been the next day to bring a concern up to
Bob Delyser (Plant one supervisor)u who I wanted to have in my
presence 9
the presence of Dick Moorev make very certain what
we were going ·co do in. the event of another fire because I did
no·t want to just have Dick tell me that we're going to do it a
certain way.
I wanted to make sure that Dick knew that I knew
and the supervisor knew that company policy as to the safe
procedures would be followed in handling any sodium dithionite
fire. uu Dick Moore was going to be Mr. Jungers foreman on that
part of the shift Mr. Jungers would be working at the White 5
Mol.

Mr. Jungers testified as to what occurred in Mr. Beaver's
office as follows:
And we went to the office (of production
foreman Beaver) and talked about the whole

304

thing.
I talked about what I was concerned
about, what I've already delineated here.
Chuck mentioned things that he thought were
-- specifically needed to be looked at. He
mentioned the teflon liner, because that's
one of the ways in the past the fires had
initiated, where the liner would slip out,
cause the powder to miss its distribution
drop and end up on top of a mixing unit and
be exposed to moisture at that point, enough
.to cause a fire.
So he was concerned with the lining and
plus the fact that he wasn't very confident
working the area. He was relatively new to
-- he wasn't -- hadn't had a whole lot of
training.
So he was kind of scared as far as
having the fire on Friday. He was asthmatic
to begin with. He-·had gone through some
things, like he had vomited and coughed and
he had a bad time on Friday when they had the
fire, . . . .
He came mainly as a -- I asked him to come
as a witness but he began to express concerns
he had too, that since the subject was safety
and from -- this is quite of a side point to
this whole case, but I've never refused to
work anywhere since I've been at Borax. It's
one of my -- one of the things that -- about
me.
And I really didnvt refuse (to work at the
White 5 Mol} that day either. The strongest
words I used was I would rather not until we
can get this safety question out of the way,
my safety question being how the fires would
be handled in terms of evacuating the person
there and getting the HAZ-MAT team to put the
fire out. . .
o

o

I figured that by my example of saying I'd
rather not work there for that one day that
some -- I would get the attention of Bob
Delyser (and we could have) the meeting with
Dick Moore. That was my whole intention . . . .
Roy Beaver said you -- there will be no
discipline. You won't be getting in trouble
over this. He said he would call some other
people in.

305

Jungers stated that his foreman, Beaver,
told me and Chuck to go back to the dissol·vers and help them start up a line that we
were starting up. And it -- we did that.
And about a half hour later we were called
back to the office.
And Chuck and I went back to the office.
And Ben Gray (all plant supervisor) was
there.
• And he said we're going to take
you to the gate and I -- at that point Roy
Beaver was there. I looked at Roy and I
said, what is this? And I said, Roy, what
about what we just talked about for 30
minutes, that there would be no discipline
and on down the whole list there?
He told me that he had called Bob Delyser
at home and Bob had-made a decision. And at
that point I said, right then I said, is it
too late And he goes, yes, it's too late.
And I just said wow!
I

Discussion
It is undisputed that there had been at least 5 fires
involving sodium dithionite at the White 5 Mol. It is also
undisputed that when this chemical burns it produces an abundance
of potentially hazardous (S02 ) fumes.
It is company policy that
the area be evacuated and a hazardous material team called to put
out the f
even
they are at home because they are experienced and have the training and the equipment such as self-contained breathing apparatus to handle such fires.
I credit the testimony of the Complainant Jungers.
I find
he had a good faith reasonable safety concern and safety complaints that he wanted to discuss and bring to the attention of
management. This
not a work refusal case.
I credit Mr. Jungers' testimony that he never refused to work anywhere on August 12v 1990, or any other day. He just wanted it clear to
management that he had a serious safety concern and rather not
work at the White 5 Mol until as he states it "until we can get
this safety question out of the way, my safety question being how
the fires would be handled in terms of evacuating the person
there and getting the HAZ-MAT team to put the fire out." He
wanted to 'be sure that in the event of a fire, foreman Dick Moore
would not require him (Jungers) to stay and help put out the fire
rather than permit him to evacuate the area and call the hazardous material team to handle the fire.

306

The evidence leads me to the conclusion that Mr. Jungers and
his fellow employee Chuck Jones wanted to bring to management's
attention and discuss with management legitimate safety concerns.
They did have a discussion of their safety concerns with lower
management and indicated that they preferred not to work at the
White 5 Mol until their concerns were dealt with. As soon as
they left lower management {Beaver) made a call to upper management. Upper management may or may not have gotten an accurate
picture of what the situation was but nevertheless made the decision to take immediate adverse disciplinary action against
Mr. Jungers and Chuck Jones.
As Mr. Jungers aptly stated, he and Jones made safety complaints to management with the assurance from lower management
that there would be no retaliation and return to the work management (Beaver) assigned to them and 30 minutes later were
called into the office, taken to the gate and relieved of their
hard hats and badges.
II

Further Discussion and Findings

Section 105(c) of the Act was enacted to ensure that miners
will play an active role in the enforcement of the Act by protecting t~em against discrimination for exercising any of their
rights under the Act. A key protection for this purpose is the
prevention of retaliation against a miner who brings to an operator's attention hazardous conditions or practices in the workplace or engages in other protected activity.
The bas
principles governing analysis of discrimination
cases under the Mine Act are well settled. In order to establish
a prima facie case of discrimination under section 105(c) of the
Actu a complaining miner bears the burden of production and proof
in establishing that (1) he engaged in protected activity and (2}
the adverse action complained of was motivated in any part by
that protected activity. Secretary on behalf of Pasula v. Consolidation Coal Co. 1 2 FMSHRC 2786u 2797-2800 (October 1980) 1 rev'd
on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co. 1 3 FMSHRC 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 nevertheless may defend affirmatively by proving that it also was motivated by the
miner's unprotected activity and would have taken the adverse
action in ·any event for the unprotected activity alone.
Pasula,
supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F2d 639, 642 (4th Cir. 1987}; Donovan v. Stafford

307

Construction co., 732 F2d 954, 958-59 (D.C. cir. 1984); Boich v.
FMSHRC, 719 F2d 194, 195-96 {6th cir. 1983) {specifically approving the commission's Pasula-Robinette test). Cf. NLRB v. Transportation Management Corp., 462 u.s. 393, 397-413 (1983) (approving nearly identical test under National Labor Relations Act).
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub ngm_
Donovan v. Phelps Dodge Corp., 709 F2d 86 (D.C. Cirl 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eighth Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965):
It would indeed be-the unusual case in
which the link between the discharge and the
(protected) activity could be supplied exclusively by direct evidence. Intent is
subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence. Furthermore, in analyzing the evidence, circumstantial or
direct, the [NLRB] is free to draw any
reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining ruiner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator. Chacon 1 supra at 2510. See
also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983); and Donovan
v. Stafford Construction Companyv No.'83-1566 D.C. Cir. (April
20u 1984) (specifically approving the Commission's PasulaRobinette test).
See also NLRB v. Transportation Management
Corporation, 462 u.s. 393, (1983)u where the Supreme Court
approved the NLRB's virtually identical analysis for discrimination cases arising under the National Labor Relations Act.
On the basis of the most credible evidence presented I find
that this is not a work refusal case. Mr. Jungers simply wanted
to bring to management's attention legitimate safety concerns and
either through a deliberate intent to retaliate against Mr. Jungers for this protected activity or possibly through a negligent
misunderstanding of the true facts on the part of higher

308

management, Mr. Jungers was "taken to the gate" and relieved of
his badge and hard hat approximately 30 minutes after he voiced
his safety concerns and complaints to management.
It is clear from the Commission's analysis in Chacon, supra,
that the coincidence in time between the protected activity and
adverse action such as we clearly have in this case is strong
circumstantial evidence of the retaliatory motivation for the
disciplinary suspension Respondent imposed on Mr. Jungers.
On careful evaluation of all the evidence I find Mr. Jungers
was "taken to the gate" on August 12, 1990, and suspended in retaliation for Mr. Jungers' protected activity. Respondent failed
to rebut Mr. Jungers' prima facie case. Respondent also failed
to prove as an affirmative defense that it would have discharged
Mr. Jungers in any event for his unprotected conduct alone.
In sum on the basis of the·preponderance of the most credible evidence I find that Respondent suspended Mr. Jungers in retaliation for engaging in protected activity in violation of
section 105(c) of the Act.
III

Timeliness

Although the issue of the timeliness of Mr. Jungers' complaint was not raised at the hearing, Respondent in its answer
contends that 91 Jungers failed to timely file his complaint with
the Secretary.u~ The violation of section 105(c) occurred during
":.he
August 12 - 26 p 1990 u Mr. Jungers filed his complaint
on October 30J 1990. Thus
was filed just a few days in excess
cf the 50
period specif
section 105(c) (2).
The purpose of this time limit is to avoid stale claims, but
a late f
ing may be excused. The time limit in section
l05(c) 2)
not jurisdictional
nature. Christian v. South
Hopkins Coal Company, 1 FMSHRC 126Q 134-136 (April 1979);
v. Kaiser Aluminum & Chemical Corporation, 3 FMSHRC 1539 (June
1981); Secretary v. 4-A Coal Company, Inc.u 8 FMSHRC 240 (February 1989).
The Commission has indicated that dismissal of a complaint
for late filing is justified only
the Respondent shows
material, legal prejudice attributable to the delay. Cf.
tary/Hale v. 4-A Coal Company, Inc., supra. No such showing has
been made here. Under the facts and circumstances presented at
the hearing in this case the late filing is excused. Respondent's request for dismissal of the complaint is denied.

309

Conclusions of Law

1. Jurisdiction over this action is conferred upon the
Federal Mine Safety and Health Review Commission under section
105(c} and section 113 of the Act.
2. Respondent's Boron Mill is a mine, as defined in section
3(b) of the Act, and its products affect commerce under section 4
of the Act.
3. Respondent at all relevant times was an operator within
the meaning of section 3(d) of the Act.
4. Steven D. Jungers was a miner at all relevant times
within the meaning of section 3(g) of the Act.
5. Mr. Jungers engaged in protected activity when on August 12, 1990 he brought to Respondent's attention his safety concerns and complaints. At the time he articulated his safety
concerns he had a good faith reasonable belief as to the hazards
involved.
6. Mr. Junger's claim is not barred by his failure to file
a written complaint within 60 days of his suspension.
7. Mr. Jungers' suspension was directly motivated at least
to a large extent by his articulation to management his safety
concerns and complaints.
ORDER

Based on the above findings of fact and conclusions of lawu
ORDERED~

lo
Respondent shall pay to Complainant Steven D. Jungers
within 30 days of the date of this decision the sum of $569.62
representing back pay for 38 hours of work missed during the
suspension beginning on August 12 1990u with interest thereon in
accordance with the Commission decision in Local Union 2274, UMWA
Vo Clinchfield Coal Co., 10 FMSHRC 1493 (1988) aff'd, 895 F2d 773
(D.C. Cir. 1990) calculated proximate to the time payment is
actually made.
In that case interest was calculated at the
short-term federal rate used by Internal Revenue Service for the
underpayment and overpayment of taxes plus 3 percentage points.

310

2.
Respondent shall expunge from its personnel records
maintained on Steven D. Jungers the Personnel Action Notices of
August 1990 and all references to the August 1990 suspension of
Steven D. Jungers.

(b~7~
Administrative Law Judge

Distribution:
Mr. Stephen D. Jungers, 16966 Bellaire Avenue, North Edwards, CA
93523
(Certified Mail)
Michael G. McGuinness, Esq., O'MELVENY & MYERS, 400 South Hope
Street, Los Angeles, CA 90071-2899
(Certified Mail)

sh

311

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

FEB 2 4 1993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-511-M
A. C. No. 45-03119-05508

v.
Tenino Pit

WESTERN SAND & GRAVEL,
Respondent

DECISION APPROVING SETTLEMENT

Before:

Judge Merlin

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 parties have filed a joint motion to
approve settlement. A reduction in the penalty from $431 to $192
is proposed. The proposed reduction is large but the recommended
amounts appear proper in light of the operator's small size and
negligible history.
Therefore,
I
conclude based on the
representations and documentation submitted in this case that the
proffered settlement is appropriate under the criteria set forth in
section 110(i) of the Acto
o

WHEREFORE 0 t.he
for approval of settlement is GRANTED 11
ORDERED that the operator pay a penalty of $192 within 30
days of
ordero
and lL.

-~~?~
Paul Merlin
Chief Administrative Law Judge
Dist.ribution

(Cert:.i

Ma

Cathy Barnes Esq., Office of the Solicitor, U.S. Department of
Labor, 1111 Third Avenue, Suite 945, Seattleu WA. 98101
A. Don Scarsella 1 Western Sand & Gravel, P.O. Box 68388 1 Seattle,
Washington 98188
rdj

312

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 2 4 1993

CONTEST PROCEEDING

CONSOLIDATION COAL COMPANY,
contestant

0
0

Docket No. WEVA 93-29-R
citation No. 3121684; 10/7/92

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

Osage No. 3 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 93-63
A.C. No. 46-01455-03960

v.

Osage Noo 3 Mine

CONSOLIDATION COAL COMPANYu
Respondent
DECISION

Appearances:

Charles M. Jackson, Esq., Office of the Solicitor,

u.s. Department of Labor, Arlington, Virginia,

for Respondent.
Rebecca... Zuleskiu Esq.u Furbee, Amos 9 Webb
C::i
u Morgantownu West Virginia,
Petitioner .
Before:

.,Judge Barbour

involves ~ Notice of Contest filed on
Consolidation coal Company Coticonsol 00 )
pursuant
105(d)
30 u.s.c. § B15(d), of the Federal
Mine
and Health Act of 1977 ("Act" or "Mine Act") and a
Petition
the Assessment of a Civil Penalty filed on
December 24 1992, by the Secretary of Labor ( 91 Secretary 11 )
pursuant to Section 110(a), 30 u.s.c. § 820(a), of the Act. In
the contest proceeding Consol seeks the vacation of citation
No. 3121684, issued on October 7, 1992, pursuant to
Section 104(a} of the Act, 30 u.s.c. § 814(a). The citation
alleges a violation of 30 C.F.R. § 75.520. 1 Consol asserts that
the citation was improperly issued because the condition for
Section 75.520 provides:
All electrical equipment shall be provided with switches or other controls that
are safety designed, constructed and installed.

313

which it was cited did not violate Section 75.520. In the
Civil Penalty proceeding the Secretary seeks the assessment of a
civil penalty of $50 for the alleged violation of Section 75.520.
The specific issue to be resolved is whether a trolley switch
with its handle and blade removed but with its fingers attached
and being used as a dead block on the main haulage track
constituted a safely designed, constructed and installed switch.
A hearing on the merits was held in Morgantown, West Virginia, on
November 13, 1992. 2
Following the hearing, the parties filed
helpful briefs, which I have fully considered in reaching this
decision.
STIPULATIONS
At the commencement of the hearing the parties stipulated as
follows:
1.
Consol is the owner and operator of the Osage No.
3 Mine.
2.
The Osage No. 3 Mine is subject to the
jurisdiction of the Mine Act.
3.
The Administrative Law Judge has jurisdiction to
hear and decide the case.

4.
Federal Mine Safety and Health Administration
("MSHA") Inspector Michael Kalich was acting in his official
capacity when he issued citation No. 3121684.
5.
True copies of Citation No. 3121684 and subsequent
Action No. 3121684-01 (the termination of the citation) were
served on Consol and as required by the Act.

The condition

ted was abated in a timely

fashion.
THE EVIDENCE

The first witness called by
Secretary was Michael G.
Kalich. Kalichp an electrical inspector with MSHA for almost six
years~ stated that approximately 40 per cent of his time has been
spent conducting electrical inspections at Consol mines,

2

The hearing was noticed solely for the contest proceeding, the civil
penalty proceeding having not yet been filed by the Secretary.
The parties
agreed, however, that evidence would be taken at the hearing regarding the
applicable civil penalty criteria and that the subsequently filed civil penalty
proceeding would be consolidated for decision with the contest proceeding.

314

including the Osage No. 3 Mine. (The mine is located in MSHA
District 3, the district that has its headquarters in Morgantown,
West Virginia.) Kalich testified that he is currently assigned
full-time to inspect the Osage No. 3 Mine and has been so
assigned for the past two years. However, even prior to being
assigned to the mine, he occasionally had inspected there.
Tr. 25-26. Thus, Kalich believed that he was thoroughly familiar
with the mine.
Turning to the events of October 7, 1992, Kalich stated that
he went to the mine to continue an ongoing electrical inspection.
He arrived at the mine around 7:45 AM and went to the mine office
where a discussion was underway involving Dale Denning, a regular
(i.e.u non-electrical} MSHA inspector, Spike Bane, safety
director for Consol and Bill Kung Consol 0 s mine safety officer.
According to Kalichu the discussion centered upon the use as
dead blocks of trolley switches when the fingers had not been
removed from the switches. 3 Kalich stated that the use of such
section switches was an ongoing controversy at the mine and that
Consol wanted to be cited for so using the switches in order to
contest the citation and resolve through the administrative
hearing process whether it had, in fact, violated the cited
regulation. Because Denning was a regular inspector, not an
electrical inspector, Denning was reluctant to issue the
citation; therefore, Kalich agreed to do it. Tr. 27-28.
Kalich proceeded underground accompanied by Kun and the UMWA
walkaround representative. The inspection party traveled the
main haulageway to the No. 571 Block at the 14 North ITE Breaker
where Kalich observed a trolley switch installed and used as a
dead blocko The switch had
and blade removedv and the
handle and blade were not
near the switchv but the

In the context of this case, the term "dead block" refers to an
electrical device or control on a mine
system that separates portions of
the trolley system wiring"
wire enters the device from both of its
ends.
Each aide of ·the wire is from a separate portion or block of trolley
system wiring. The trolley wires do not meet, rather an air gap in the center
of the device prohibits any direct current from crossing between the two ends of
the trolley wires, in part to assure short circuit protection on each block of
power. The air gap between the wires must be wide enough to prevent the current
from crossing, and narrow enough so trolley cars will continue to run evenly when
traveling along the track and changing from one portion of the electrical system
to the other.
The type of trolley switch used as a dead block is depicted in Contestant's
Exhibit 3. ("C. Exh."). As the exhibit. makes clear, the wires enter both ends
of the switch. The air gap between the ends of the wires is bridged by a switch
handle and blade, which when opened (i.e., when used to connect the two wires),
pivots between two metal flanges or protrusions at the end of the switch and
slides into two basically similar metal flanges or protrusions at the other end.
These flanges or protrusions are the section switch's "fingers".

315

switch's fingers were still in place. Kalich believed that the
presence of the switch in this condition was a violation of
Section 75.520, and he accordingly issued the subject citation.
Tr. 29.
The citation states:
At the 571 + 000 Block along the main haulage
at the 14 North ITE Breaker the dead block in
use was not properly maintained. A trolley
switch with a handle removed was being used
as a dead block. The switch fingers were
still installed. The dead block is used to
separate the 300 Volt DC power feeding from
the Moorsville bore hole and the 1 Butt
Rectifier. This condition enables the dead
block to be easily jumped with the switch
handle and poses an electrical arc or burn
hazard and possibly renders the trolley short
circuit protection useless. These conditions
have been found cited at this mine in the
past.
Secretary 9 s Exhibit ( "S. Exh. ev) 2.
Kalich testified that the citation was terminated the
following day by Denning. To abate the citation, Consol removed
the fingers from the switch. Tr. 30, G. Exh. 2 at 2. Kalich
also testified that he modified the citation to reflect a finding
that the cited condition constituted a significant and
substantial contribution to a mine safety hazard. Tr. 30-31v G.
Exho 2 at 3-4. 4
When asl{ed to describe the unsafe nature of the
condit.ion citedr Kalich answeredg
[T]he condition is unsafe because with the
fingers still installedp itis very easy for
anyone to jumper the dead block. The dead
block would be jumpered with the switch
handle or 9 •
it could be jumpered with a
fuse even.
o

•

Tr. 32.

Kalich was shown copies of pages from a catalog published by
Dusquesne Mine Supply Company ( g'Dusquesne") and was asked to
point out the type of switch that was used as a dead block.
4

Interestingly, MSHA has proposed a civil penalty assessment of
$50, based upon its single penalty assessment provision, a provision
inapplicable to S&S violations. 30 C.F.R. S 100.4. ~ Proposed Assessment,
Exhibit A, Docket No. WEVA 93-63.

316

Kalich identified Ousquesne as a manufacturer of trolley switches
and stated that as best he could recall, Model No. s ooo-R was
the type that he had cited. Tr. 34, c. Exh. 3 at 2. 5 Using the
catalog as a point of reference, Kalich turned to a schematic
drawing of a switch and identified where the trolley wires were
connected to the switch. He labeled these as positions "A". He
also identified the handle and blade depicted in the drawing,
which he labeled "B". Tr. 37, s. Exh. 3 at 4. He marked the
fingers, "C". Tr. 37, s. Exh. 3 at 4. Finally, Kalich pointed
out a diagram that he stated was specifically designed to be used
as a dead block. Tr. 39, s. Exh. 3 at 3. 6
Kalich then described the purpose of a dead block. He
stated that it separates and isolates two different sections of
trolley wire. Separation and isolation allows trolley wire short
circuit protection to be maintained on the isolated sections.
Without a dead block the joined sections of wire are too long and
short circuit protection may be rendered ineffective. Tr. 39-40.
While Kalich admitted that the use of a trolley switch with
the handle and blade removed constituted an effective dead block
in that it completely separated the different sections of trolley
wire, he was of the opinion that the section switch so used was
not safely designed, constructed and installed because the
presence of the fingers "makes it real easy to jumpering the dead
block." Tr. 40. He explained that the dead block could be
jumpered by the reinstallation of the handle and blade into the
fingers. He stated that he also had heard of jumping the dead
block by laying a piece of trolley wire across the gap or by
using jumper cables (i.e., nipped jumpers). Tr. 41. In Kalich's
opinion 1 if power were lost on one of the sections of the trolley
wireQ rather than correct the condition that had caused the power
lossv miners would be tempted to do the easy thing and jumper the
dead block to restore power to the affected trolley wire section.
While
would be more difficult to replace the handle and blade
than to remove itu an untrained person could do it if he or she
wanted to. Tr. 43.
Kalich also explained that after initially concluding the
'liolation was not S&S v uor •
went back to the office and
thought about it for a while and •
realized that we were
o

•

o

•

Kalich also explained that there are other manufacturers of trolley
switches, notably; Ohio Brass. However 0 he stated that their switch designs are
basically similar. Tr. 35.
This equipment is labeled "Dukane No. 5800 Section Insulator for
trolley wire and feeded cables." It is similar to a section switch, except that
it lacks the fingers, handle and blade of a section switch. See S. Exh. 3 at 3.
Or as Kalich put it, "[the section insulator] doesn't have a place for a switch
handle." Tr. 99.

317

going to use this as a test case not just for
the Osage
Mines [sic], but all the mines in the district • • •
(a]nd • • • I reviewed accidents and • . • fatalities that have
happened because of electric shock from the trolley wire or from
mine fires. And • o o decided to make it S&S." Tr. 44-45.
o

o

•

He continued, that the dead block was on the main haulage
where miners had access to all the operating sections of the mine
and that "it would be pretty tempting for somebody to jumper the
dead block if the rectifier or bore hole would • • • go down
• • • and they would need the power in the area." Tr. 45.
He further explained that in the particular area of the dead
block power feeds from two directions - - from the Mooresville
Portal bottom to the dead block and from the One Butt rectifier
to the dead block. If the power from the bore hole on the
rectifier were shut down, 11 it would de-energize that section of
trolley wire for approximately 2 1 000 feet and then you would
still have power on one-half of the dead block. And if you
inserted the knife blade • . • into [the fingers of the dead
block) • • • then that would provide a path for • • • current to
flow from the energized side to the de-energized side." Tr. 46.
Kalich maintained that if this happened, frequently there would
not be sufficient current available to cause the circuit breaker
to de-energize the expanded circuit if there were a short. This
in turn could lead to arcing and sparking and the catching fire
of combustible materials in the vicinity of the electrical
malfunction. Tr. 47. Such a fire could endanger all miners inby
the ignition by subjecting them to possible burns and smoke
inhalation. Tr. so.
Kalich believed that 10 years ago a fire caused by
inadequate circuit breaker protection due to jumping had occurred
at Eastern Associated Coal Corporation°s (nEastern") Federal
No. 2 Mine and that 5 years ago a similar fire had occurred at
Consol 0 s Arkwright Mine. Tr. 66-67. 7
Howeveru no such fire
had ever occurred at Osage No. 3 Mine. Tr. 90.
In addition Kalich believed ~chat there t'\l'as a shock and
electrical lburn hazard visited upon the :miner jumpering a trolley
switch dead block in that the insertion of the knife blade into
the fingers could lead to arcing and sparking at the knife blade,
or the miner inserting the blade could accidentally touch the
energized portion of the ~crolley wire and
electrocutedo See
Tro 49- 50u 64u 65o

7

Kalich stated that his knowledge of the Arkwright fire was based on
what he had been told by another MSHA inspector. Tro 92.

318

Regarding negligence, Kalich stated that mine management
knew the fingers were on the dead block. Further, he stated that
Consol had been cited at other of its mines in the MSHA district
for using trolley switches as dead blocks. Tr. 55. He
maintained that over the past two years and prior to issuing the
subject citation, he had met with Consol management personnel "at
least six times" to discuss the unacceptability of using as dead
blocks section switches with fingers in place. Tr. 88. Thus,
Consol management knew that the practice was unacceptable to
MSHA.
Kalich stated that although Consol management advised him
the reason the fingers were not removed from the section switches
was to be able to jumper the dead blocks fast in case of an
emergency need to evacuate an injured miner, he did not believe
it. Kalich had never heard of an occasion wherein the two
circumstances supposedly feared by Consol -- a miner being
injured and a trolley line section being de-energized -- had
occurred at the same time. Tr .. ·61 •.. Rather, he believed the real
reason Consol management wanted to keep the fingers on the dead
blocks was to be able to continue production and the
transportation of men and materials if a trolley wire section
de-energized. Tr. 62. In fact, he stated, he had issued
citations to Consol for violations of Section 75.520, where dead
blocks had been jumpered for this very purpose. 8
With regard to the extent of the practice in MSHA District
3, Kalich testified that he had seen section switches with

fingers used as dead blocks at Consol's Arkwright, Humphrey and
Blacksville mines, as well as at Eastern's Federal No. 2 Mine.
Howeveru at mines owned by USX Corporation, section insulators
had been purchased and instal
u and section switches had not
been used" Tro 68o
According to Kalich,
policy in District 3 regarding the
use as dead blocks of section switches evolved over the years.
He stated that at first he did not recognize the hazards
associated with the practice" However as time passed he became
more aware of
hazardso In 1990 he began informing mine

g

Kalich also stated that he had issued citations to Consol for
violations of 30 C.F.R. § 75.1001 where section switches had been jumpered and
short circuit protection had not been provided. Section 75.1001 states:
Trolley wires and trolley feeder wires
shall be provided with over current
protection.

319

operators in District 3, including Consol, that he considered the
use as dead blocks of switches with fingers to be violations of
Section 75.520. Tr. 71 9
Kalich reached this conclusion solely on the basis of his
own opinion. He stated and that there was and is no MSHA policy
memorandum or written instruction of which he is aware regarding
the use of section switches as dead blocks. Tr. 101, 104,
116-117.
Kalich believed that he and other inspectors in the district
originally brought the problem to the attention of Michael Hall,
Kalich 1 s supervisor. Tr. 113. Gradually, it became a districtwide policy not to accept section switches with fingers attached
as dead blocks.
With regard to abatement, Kalich stated that operators have
an option. Either, they can remove the section switch and
replace it with equipment designed to serve only as a dead block
(i.e., a section insulator), or they can knock off the fingers
with a hammer. Tr. 124.
Kalich acknowledged that prior to jumpering a section
short circuit protection could be provided if a miner
went to the rectifier and reset the short circuit protection.
Tr. 143-144.w
Kalich also stated that 30 C.P.R. § 75.509
prohibits reinstalling a handle and blade while the trolley wire
is energized. Tr. 168-169, 172. 11
He further agreed that if
there were compliance with this regulation the electrical hazard
to the miner posed by the procedure of jumpering the section
switch would be eliminated. However, Kalich believed that once
power was restored, the hazard posed by not having proper short
protection would remainu assuming that there had been no
compliance with Section 75.100L Tr. 172. Even if there were
switch~

9

The Secretary offered into evidence citations issued at osage No. 3
i!iine, Humphrey No.
Mine, u Blacksville No. 1 Mine~ all of which were issued
prior to the subject citation and all of which alleged violations of
Section 75.520 for the use as dead block of section switches with fingers.
G. Exh. 4, G. Exh. 5, G. Exh. 9, G. Exh. 10.
lO

Kalich testified that on some rectifiers, short circuit protection
can be adjusted by turning a thumbwheel.
Id.
Section 75.509 states:
All power circuits and electric equipment
shall be de-energized before work is done
on such circuits and equipment, except when
necessary for trouble shooting or testing.

320

full compliance with Sections 75.509 and 75.1101, Kalich believed
that there would still be a violation of Section 75.520, "because
the fingers would still be on the switch. If the fingers are
removed from the switch then it's not a violation." Tr. 173.
CONSOL'S CASE

John Burr, the manager of electrical engineering in Consol's
Maintenance Electrical Department, was Consol's first witness.
Burr stated that he has 22 years of experience as an electrical
engineer with Consol. Tr. 176. Burr testified that after the
subject citation was issued he was called by Spike Bane and was
asked whether he considered the use as a dead block of a section
switch with the handle and blade removed and the fingers attached
to be a violation of Section 75.520? Tr. 178. Burr stated that
he did not and that when used as a dead block such a section
switch was safely designed, installed and maintained. Tr. 201.
Further, in his opinion, if the blade was reinserted and the
procedure was done as prescrib~sl by. the regulations - - i.e •. ,
power was de-energized in both blocks (Section 75.509) and
circuit breaker protection was properly set (Section 75.1001},
there would be no hazard. Id. Also, as Burr noted,
Section 75.511 requires that such work be done by a qualified
electrician. Tr. 216. 12
Burr described the functional difference between a section
insulator and a section switch (or as Burr termed it, a "line
switch"). The section insulator is used when it is assumed that
under no circumstances the operator will want to tie together the
two blocks of power on both sides of the insulator. The section
switch is used when the operator feels that there are times when
the switch will have to be open and other times when it will have
to be closed. Tr. 184-185.
According to Burru Consol initially left the handles and
blades attached to section switches that it had installed.
However, MSHA District 3 personnel, subsequently, advised Consol
that MSHA would not accept switches with the handles and blades
attached because anyone could come along and throw the switches.
At that pointu Consol agreed to remove the handles and blades
because the switches did not have to be opened on a regular
basis. Tr. 187o At firstu Consol stored the handles and blades
12

30 C.F.R.

§

75.511 states in pertinent part~

No electrical work shall be performed on
low-, medium-, or high-voltage
distribution circuits or equipment, except
by a qualified person or by a person
trained to perform electrical work and to
maintain electrical equipment under the
direct supervision of a qualified person.

321

in the area of the section switches because Consol fully intended
to use the handles and blades when it opened the switches. After
awhile, according to Burr, MSHA objected to this too, and
pursuant to MSHA's objection, the handles and blades now are
stored in the possession of qualified electricians and
maintenance personnel and away from the switches. Tr. 188.
CUrrently, MSHA is requiring the removal of section switch
fingers as well.
Burr also stated his understanding of procedures usually
undertaken at Consol if a section switch handle and blade has to
be installed. The power is de-energized so that the procedure
does not .present a hazard to the miner doing the work and circuit
breaker protection is provided, frequently, by adjusting a
thumbwheel switch on the over current relay. Tr. 189, 191.
(According to Burr, approximately 90 percent of the relays at the
Osage No. 3 Mine have thumbwheel switches. Tr. 218.) In
addition, Burr claimed that at every section switch used as a
dead block Consol has hung a, ..sign stating "Dead Block Do Not Put
Blade In". Tr. 199-200, See c. Exh. 5.
Burr stated that the use of section switches as dead blocks
is standard practice throughout Consol's mines. Tr. 209.
Removing the fingers essentially destroys the dead block for use
as a switch because the fingers, which are welded or wedged in
place .. must be "hacksawed" off. Tr. 210.
Bill Kun, the safety supervisor at Osage No. 3 Mine and a
mine foreman, testified next. Kun described his version of how
the contested citation came to be written. He stated that at
approximately 7:30AM, on October 7 9 1992 9 Dale Denning, the
regular MSHA inspect at Osage No. 3 Mine 9 arrived and told Kun he
was going to 00 write every . .
dead block in the .
mine that
didn°t: have t.he fingers taken out. 00 Tr. 247. According to Kunu
Denning said that he had been told to do it. Kalich arrived
about 10 minutes later and Denning said to Kun that he would let
Kalich take care of it. Spike Bane then arrived and said that it
was "Ok" to have a citation issued because Consol intended to
contest the citation in order to 00 get it. straightened out, 90 that
Consol contended there was DDno violation at all. wo Tr" 250. Kun
estimated that there are approximately 170 section switches at
the mine of which 37 to 39 have the handles and blades removed in
order to be used as dead blocks. Id.
o

o

•

Regarding the history of the controversy, Kun stated that
prior to 1990 8 the only thing he was ever told by MSHA about the
use of section switches as dead blocks was to not leave the
blades at the location of the dead blocks. Spencer Shriver was
MSHA's electrical inspect then, and he is the person who told
Kun. Tr. 253. Later, Shriver also told Kun that the fingers
should be removed from the section switches. Tr. 258.

322

Kun estimated that section switches cost between $360 to
$400 apiece and section insulators each cost between $260 to
$270. Tr. 255. Kun further stated that when blades are removed
they are kept with the maintenance department and with a
certified electrician "because they're the ones that have been
instructed to put them in if need be." Tr. 260.
Consol's next witness was Gary Mair, general manager of
Dusquesne Mine Supply Company. Mair testified that with respect
to products that it produces for the mining industry, the company
is primarily involved in the manufacture of trolley system items.
Tr. 266. Mair also stated that he was advised of the existence
of the subject citation by Spike Bane. Tr. 269.
Mair said that he believes that section switches made by
Dusquesne are safely designed. Tr. 270. He testified that the
basic product design was set 12 years ago and has never
experienced a failure. He further stated that each section
switch is properly constructed, .. and he described the process by
which each is made. Tr. 271-272. He also stated that at Osage
No. 3 Mine, the switches are properly installed. Tr. 172.
Because of the way the switches are manufactured, Mair said that
there are only two ways to remove the fingers -- saw them off or
try to knock them off with a hammer. Tr. 277. He acknowledged
that section switches could be replaced with section insulators
(Tr. 284), and he confirmed that section switches cost
approximately $100 more apiece than section insulators. Tr. 280.
Mair stated that section switches and section insulators
differ (aside from the handles and blades on the section
switches) only in that the section switches have fingers and the
section insulators do not" Their main frames are essentially the
same
Tr. 28lo
As its last witnessu Consol called Michael Hall to testify.
Hall is the chief electrical engineer for MSHA District 3. Hall
also is the supervisor of the District 3 electrical section and
has been since 1978. Tro 287" As such, he supervises the 7 or 8
electrical inspectors in District 3u including Kalich.
Hall explained that in the 70Qs and 80 1 s, District 3 had
accepted section switches with handles and blades removed as dead
blocks. Tro 293. Then MSHA began getting reports from
inspectors that they were finding section switch handles and
blades hanging right beside the section switches, an indication
that the blades were being inserted to jumper the dead blocks.
Tr. 297. Hall explained the problem confronting MSHA as follows:
"[T]hese switches that • . • had the switch
handle - - - switch blade removed, we were
finding people were bypassing these switches

323

with various devices, either with a switch
blade or with a fuse or some other method
which caused the person who was doing that to
be exposed to unsafe voltages."
Tr. 299.
Hall also believed that the practice caused short
circuit problems which in turn could cause burn injuries to
miners or a mine fire.
Tr. 311. Hall admitted that MSHA
personnel had done no testing or experimentation to assess any
shock, burn and fire hazards associated with the practice.
Tr. 302.
Hall stated that MSHA's concern was its fear that the
section switch used as a dead block would be used in an unsafe
manner.
Tr. 326. Hall agreed that with respect to the use as
dead blocks of section switches with fingers, a violation of
Section 75.520 is premised upon the assumption that miners will
not at all times act in compliance with Sections 75.1001, 75.509
and 75.511.
Tr. 327. The N,ngers on the section switches are an
incentive to miners to violate those regulations because they
make it too easy to jumper the dead block.
Tr. 328.

THE VIOLATION
Because I conclude that the cited section switch was safely
designed, constructed and installed and that, in any event, MSHA,
in regulating a future work practice through the application of
Section 75.520, stretched the standard beyond reasonable and
permissible bounds, I hold that a violation of Section 75.520 did
not exist.
In specifying that 11 [a]ll electric equipment shall be
provided with switches or other controls that are safely designed
constructed and installed uu Section 75.520 repeats
Section 305(o) of the Mine Act.
30 u.s.c. § 865(o).
The
legislative history of the interim mandatory standard states:
This section requires that electric equipment
be provided with switches or other safe
control[s] so that the equipment can be
safely started, stopped? and operated without
danger of shock, fire, or faulty operation.

s. Rep. No. 411, 91st Cong., 1st Sess. 68, reprinted in Senate
Subcommittee on Labor, Committee on Labor and Public Welfare,
94th cong., 1st Sess., Part I Legislative History of the Federal
Coal Mine Health and Safety Act of 1969, at 194 (1975).
No
argument has been presented that the cited section switch was not
a "switch or other control of electric equipment." Indeed, when
used as a dead block, the section switch segregated and

324

controlled the current available to the power block sections of
the trolley wire that it separated. Therefore, I find that the
cited equipment had to conform to the requirements of
Section 75.520.
That being the case, the question is whether the equipment
was "safely designed, constructed and installed." There is no
doubt, I think, that in and of itself, the cited section switch
was safely designed and constructed. "Design" is defined as
"the drawing up of specifications as to structures, forms,
positions, materials, texture, accessories . . . in the form of a
layout for setting up, building or fabrication." Websters Third
New International Dictionary (Unbridged) at 611-612 (1986).
"Construct" is defined as "to form, make, create by combining
parts." Id. 489. Thus, design and construction of the
referenced switches and controls refers to their structural
integrity, to the manner in which they have been conceived on
paper, modeled and to the manner in which they have been
fabricated. In this regard, ,the question is whether there is
anything inherently unsafe about the cited component resulting
from its configuration and structure? Clearly -- or so it seems
to me -- the answer is "no".
There was general agreement that there is no standard
definition of "dead block 11 , but that the purpose of such
equipment is to separate blocks of power on a trolley line.
To effectuate the separation there must be an effective air gap
between conductors that enter the dead block mechanism from both
sides. Mair testified that the basic design of a section switch
and a section insulator is the same -- except for the blade, its
handle and the fingers -- and that the design in question, which
has been unaltered for the past twelve years, has never
experienced a failure. His testimony was not rebutted. There
was simply no evidence offered that the configuration and
structure of the cited equipment was, in and of itself,
hazardous. I conclude, therefore, that the cited section switch
was safely designed and constructed.
The next question is whether the section switch was safely
installed? In Mettiki Coal Corp., 13 FMSHRC 760, 768 (May 1991),
the Commission noted that the word "install" means "to set up for
use or service." Webster's at 1171. The use or service of
equipment involves putting the equipment to a given purpose once
it is in position to function and thus involves the relationship
of miners to the equipment in the ongoing mining process. In the
context of Section 75.520, this means that a switch or control,
once in place, must not pose a hazard to miners during normal
ongoing mining operations.
Of course, the entire thrust of the Secretary~s case is that
the cited section switch posed such a hazard. Kalich repeatedly
explained that the use as a dead block of a section switch with

325

its fingers attached made it too easy for the dead block to be
jumpered with resulting hazards possible both to the miner
performing that operation and to other miners as well. In
Kalich's opinion, the miner jumpering the switch could be
subjected to a shock hazard from working in close proximity to
the energized trolley wire. Tr. 44-45, 64-65. Further, other
miners could be subjected to the fire hazards presented when
adequate short circuit protection was not provided in conjunction
with the jumpering of the dead block. Tr. 43, 47, 50. Hall
echoed Kalich's concerns. Tr. 311.
While I do not doubt that these hazards can and do exist,
they are anticipatory. As both Kalich and Hall freely admitted,
they rest upon the assumption that miners will purposefully act
in derogation of regulations which, if complied with, eliminate
the hazards altogether-- i.e., that they will not de-energize
the circuits and equipment as required by Section 75.509,
that they will not provide adequate short circuit protection
once the section switch has be~n jumpered as required by
Section 75.1001, and that jumpering will not be done by a
qualified person or under the direct supervision of a qualified
person as required by Section 75.511. See Tr. 49, 168-169,
172, 327.
Further, there are safe ways to jumper a section switch,
even if the fingers are attached to the switch, See e.g., Tr. 49.
As the testimony of Kalich and Hall made clear, it is not the use
of the section switch as a dead block and its jumpering that is
unsafe, it is the manner in which the jumpering is done.
Thus, -- and this gets to the heart of the matter -- it is not
the design 9 construction or installation of the cited equipment
that
the focus of the contested citation and the reason for
issuance but a work practice that may in the future be
associated with the equipment -- a practice that would be
eliminated by compliance with existing regulations.
There are serious flaws with this approach to compliance.
One
that MSHA must cite existing violations of regulations 9
not those that
anticipates may occur at some unspecified time
the futureo 13
Another is that prohibition of a hazardous
work practice is best regulated through specifically addressing
the practice -~ as 9 for example 0 in the standard regarding

The citation of existing violation is, of course, exactly what MSHA
does when it finds that in jumpering a section switch, an operator fails to deenergize the circuit, fails to have the work performed by a certified person, or
fails to provide short circuit protection. See e.g, Secretary of Labor v. Ronald
Weaver, 14 FMSHRC 1647, (September 1992) (citation issued for failure to comply
with Section 75.1001).

326

repairs or maintenance on mobile and stationary machinery (30
C.F.R. § 75.1725(c)) --rather than by trying to prohibit the
practice through stretching beyond reasonable limits the
interpretation of an existing regulation.
This is particularly true when, as here, the regulation MSHA
seeks to expand is broad to begin with. The Commission has noted
that Section 75.520 is the type of broadly worded standard that
is not unenforceably vague, provided a reasonably prudent person
familiar with the mining industry and the protective purposes of
the standard would have recognized the specific prohibition
requirement of the standard. Mettiki, 13 FMSHRC at 768-769. It
has further stated that the standard cannot be 18 so ••• uncertain
that (persons] of common intelligence must necessarily guess at
its meaning and differ as to its application." Id. at 768
(guoting Alabama By-Products corp. 0 4 FMSHRC 2128, 2129
(December 1982)).
As the testimony establishes, the history of MSHA's
enforcement actions with regard to the use as dead blocks of
section switches with their fingers attached is one premised upon
changing interpretations of what the standard requires. First,
the section switches were accepted provided their handles and
blades were removed. Tr. 118-119, 293. Next, they were
accepted, provided the handles and blades were removed and were
kept elsewhere. Tr. 127, 187-188, 253. Finally, they were
accepted provided the handles and blades were kept elsewhere and
the fingers were removed. Tr. 258, 301. It seems to me that
this changing interpretation of what is required by the standard
establishes that, at least as applied to the facts of this case,
persons of common intelligence must necessarily guess at its
meaning and reasonable could differ as to its application.
I am sympathetic ·to the concerns of Kalich and Hall
regarding the dangers they believe to be inherent in the practice
of jumpering dead blocks when such work is not done by a
certified person or under the supervision of a certified person
and when there has not been compliance with Sections 75o509
and 75.1001" L
not doubt for an instant that in establishing
a "0 fingerless section Slflitchesa~ policy for MSHA District 3 they
were motivated by a commendable concern for the safety of those
miners who come within their jurisdiction and of whose well-being
they are required ever to be mindful. Lacking a specific
regulation concerning the practice and, perhaps 1 lacking guidance
from MSHA as wellu they acted to protect miners from themselves.
While their motives were laudatoryv their means were not; for in
so doing I believe that they acted beyond the proper scope of
Section 75.520.
In view of the foregoing, I conclude and find that Citation
No. 3121684 does not set forth a violation of Section 75.520 and
accordingly must be vacated.

327

ORDER

It IS ORDERED that Section l04(a) Citation No. 3121684,
dated October 12, 1992, and citing an alleged violation of
30 C.F.R. § 75.520, is VACATED. Consol's contest of the citation
is GRANTED.
It is further ORDERED that MSHA 1 s proposed civil penalty
assessment for the alleged violation of Section 75.520 is DENIED
and its petition is DISMISSED.

J)w;cl £ &,£,'-'rtoavid F. Barbour
Administrative Law Judge
Distribution:
Charles M. Jackson, Esq., Office of the Solicitor,

u.s. Department of Labor, 4015 Wilson Boulevard, Suite 516,

Arlington, VA

22203

(Certified Mail)

Rebecca Zuleski, Esq., Furbee, Amos, Webb, & Critchfield, 5000
Hampton Center, Suite 4, Morgantown, WV 26505 (Certified Mail)
\epy

328

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

20006

February 26, 1993

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

.

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-563
A. C. No. 02-01195-03502 KCK

v.

Kayenta Mine

CONN PEST CONTROL
INCORPORATED,
Respondent
DECISION AEPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Mer11.n

The Solicitor has filed a letter advising that the operator
has paid $150 in settlement of the penalty originally assessed at
$300. The Solicitor asks that his letter be treated as a motion
to dismiss.
The subject citation indicates that it was issued for a
violation of 30 C.F.R. § 48.28(A) because a miner had not received the required annual refresher course. The Solicitor
represents that negligence
less than first thought because
·there
some question whether or not the operator was
fact
aware that the miner had not been trained.
The Solicitorus letter is treated as a motion for settlement
and I accept the advice set forth therein. Based thereon I
conclude that $150 is an appropriate penalty under the six
criteria set forth
section llO(i) of the Act. Accordingly a
settlement
that amount
approved.
The Solicitor
reminded that under section llO(k) of the
Act no proposed penalty that has been contested before the
Commission can be compromised, mitigated or settled without the
approval of the Commission. All such matters are before the
Commission de novo. Sellersburg stone Company v. Federal Mine
Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984). Therefore, in all cases a motion to approve settlement
should be made rather than a request for dismissal.

329

In light of the foregoing, it is ORDERED that the recommended settlement be APPROVED and that the operator PAY $150 within
30 days of the date of the order.

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, u. s. Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco, CA
94105 (Certified Mail)
Mr. Les Shelton, Conn Pest Co,ntrol, P.
86002
(Certified Mail)
/gl

330

o. Box 1146, Flagstaff, AZ

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH ·REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 0 5 1993
UNITED MINE WORKERS OF
AMERICA ON BEHALF OF
LOCAL UNION NO. 1588,
Petitioner

..
..
:

v.
CONSOLIDATION COAL COMPANY,
Respondent

COMPENSATION PROCEEDING
Docket No. WEVA 92-1006-C
Blacksville No. 1 Mine

.

PARTIAL DISMISSAL OF COMPLAINT
In this proceeding, arising under Section 111 of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 821, ("Mine
Act"), the United Mine Workers of America ("UMWA") on behalf of
Local Union 1588 seeks compensation under the first two sentences
of Section 111 for miners idled by an order of withdrawal issued
on March 19, 1992, pursuant to Section 103(k) of The Mine Act
following an explosion that occurred the same day at
Consolidation Coal Company's ("Consol") Blacksville No. 1 Mine.
The UMWA also seeks compensation under the third sentence of
Section 111 for miners idled by an order issued on March 22,
1992 0 pursuant to Section 107(a) of the Mine Act 1 for an
allegedly imminently dangerous condition arising out of the same
explosion¢
Because counsels were involved in settlement negotiations
concerning the UMWAvs claims regarding the Section 103(k) order
and be9ause the Secretary's Mining Enforcement and Safety
Administration (MSHA) had yet to complete its investigation of
the explosion and consequently 9 had not issued any citations or
orders alledging that the Section 107(a) withdrawal order closed
the mine ijifor a failure of the operator to comply with any
mandatory health or safety standards"o the parties moved that the
case be stayedu and I granted the motion.
The UMWA now seeks dismissal of its complaint with respect
to its claims under the first two sentences of Section 111. The
UMWA asserts that in essence the parties have settled these
claims and that payment has been made to claimants in accordance
with the terms of the agreement. The UMWA has attached a joint
"Stipulation of Partial Settlement and Partial Release of Claims"
to its motion. Counsel for Consol had advised me that he
concurrs with the UMWA's motion.

331

ACCORDINGLY, the motion is GRANTED. The UMWA's complaint
with respect to the first two sentences of Section 111 is
DISMISSED. The proceeding involving its third sentence claims
continues to be stayed pending a determination by MSHA whether
citations or orders alleging violations of any mandatory health
or safety standards should be issued in conjunction with the
subject Section 107(a) order and the issuance by MSHA of such
citations or orders.

yv(/~1'3t/_fi_/~

David F. Barbour
Administrative Law Judge
(703) 756-5232

Distribution:
Mary Lu Jordan, Esq., UMWA, 900 15th Street, NW, Washington, DC
20005 (Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, 1600 Laidley Tower,
P.O. Box 553, Charleston, WV 25322 (Certified Mail)
fepy

332

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

ffB J 2 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
VIRGINIA CREWS COAL COMPANY,
Respondent

. CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-714
:

A.C. No. 04702-03566

.
Noo 14 Mine
.
Q

ORDER DENYING MOTION FOR CONTINUANCE OF HEARING
By letter dated February 10, 1993, the respondent's counsel
requests a continuance of the hearing scheduled in this matter in
Charleston, West Virginia on Tuesday, March 16, 1993. As grounds
for the request, counsel states in pertinent part as follows:
The captioned matter is scheduled for hearing on
March 16, 1993 at 9:00 a.m. in Charleston, West
Virginia. I am also scheduled for hearing in Secretary
of Labor v. Laurel Coal. Inc., Docket No. WEVA 92-1282'
(ALJ Melick) for the same date. The Laurel Coal matter
has already been rescheduled twice and Judge Melick has
said that he will grant no further continuances.
The Notice of Hearing in this case was issued on October 23 0

1992u prior to Judge Melickas scheduling of the hearing in the

Laurel Coal case, and the subsequent continuances which he
granted. I have other hearings scheduled in Charleston for the
remainder of the week of March 15, 1993, and continuing this case
simply not cost effective. My trial calendar is full through
the first week of Mayu 1993u and it does not include any hearings
in Charleston.
Under the circumstances, further delay in this
case pending the scheduling of hearings in Charleston at some
future unknown time is not warranted. Further 5 given the size of
the firm representing the respondent in this matter, I am not
convinced that counsel of record is the only attorney available
to proceed with this case. In addition to its Charleston office,
Jackson & Kelly has four other offices in West Virginia, and the
issues in this case do not appear difficult or unusual. Under
all of these circumstances, the request for a continuance of the
hearing IS DENIED, and it will proceed as scheduled.

~.~~

Administrative Law Judge

333

Distribution:
Patrick L. DePace, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd., Room 516, Arlington, VA 22203
(Certified Mail)
David J. Hardy, Esq., Jackson & Kelly P.O. Box 553, Charleston,
25322 (Certified Mail)

WV

/ml

334

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

fEB J1 1993

.

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

. CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-1025

MAPLE MEADOW MINING COMPANY,
Respondent

.

A.C. No. 46-03374-03732

... Maple Meadow Mine
:

ORDER DENYING MOTION. FOR CONTINUANCE OF HEARING

By letter dated February 15, 1993, the respondent's counsel
requests a continuance of the hearing scheduled in this matter in
Charleston, West Virginia, on Wednesday, March 17, 1993. As
grounds for the request, counsel states in pertinent part as
follows:
The captioned matter is scheduled for hearing on
March 17, 1993, in Charleston, West Virginia.
Administrative Law Judge Melick has scheduled a hearing
in Secretary of Labor v. Laurel Coal Corporation
(Docket No. WEVA 92-1282} for March 16. That matter
involves approximately ten witnesses and has been
continued twice before. Judge Melick has informed the
parties that he will grant no further continuances in
that proceeding.
The Notice of Hearing in this case was issued on October 23 0
prior to Judge Melickgs scheduling of the hearing in the
Laurel Coal case 0 and the subsequent continuances which he
granted. I have other hearings scheduled in Charleston for the
remainder of the week of March 15, 1993u and continuing this case
is simply not cost effective. My trial calendar is full through
the first week of Mayu 1993 9 and
does not include any hearings
in Charleston. Under the circumstances, further delay in this
case pending the scheduling of hearings in Charleston at some
future unknown time is not warranted. Further, given the size of
the firm representing the respondent in this matter, I am not
convinced that counsel of record is the only attorney available
to proceed with this case. In addition to its Charleston office,
Jackson & Kelly has four other offices in West Virginia, and the
1992

335

issues in this case do not appear difficult or unusual. Under
all of these circumstances, the request for a continuance of the
hearing IS DENIED, and it will proceed as scheduled.

~~~
Administrative Law Judge

Distribution:
Patrick L. DePacev Esg.Q Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Blvd.u Room 516, Arlington, VA 22203
(Certified Mail)
David J. Hardy, Esq., Jackson & Kelly, P.O. Box 553, Charleston,
25322
(Certified Mail)

WV

jml

336

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

20006

FEB 1 ~ 1993
CIVIL PENALTY PROCEEDING

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

..
.
0

Docket No. CENT 92-358-M
A. C. No. 39-00226-05506

v.
CONCRETE MATERIALS,
Respondent

0

0

Summit Pit

ORDER DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION

Before:

Judge Merlin

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 Solicitor has filed a motion to approve
settlement of the one violation involved in this case. The
Solicitor seeks approval of a reduction in the penalty amount
from the original proposal of $690 to $50.
Citation No. 3909835 was issued for a violation of 30 C.F.R.
56.12067 because the fence surrounding an electrical substation
was not
feet in height. According to
citationQ the substation contained six mounted transformers with exposed energized
components. The inspector concluded that contact with the energized high voltage components might result in a fatality.
In her
motion the Solicitor alleges that negligence is less than originally assessed and that because the violation was unlikely rather
than likely to contribute to an accident the significant and
substantial designation should be deleted.
The Solicitor however, gives no reasons to support the
conclusions she would have the undersigned adopt. She has
instead filed her usual form motion. In this instance where the
Solicitor recommends a 93% reduction in the penalty amount she
must do more. Even more importantly, a $50 penalty would be
totally at variance with what the inspector wrote on the citation
which would require a far higher penalty under the criteria set
forth in section 110 (i} of the Act.
The Solicitor is reminded that the Commission and its judges
bear a heavy responsibility in settlement cases pursuant to
section 110(k) of the Act. 30 u.s.c. § 820(k); See, s. Rep. No.
95-181, 95th Cong., 1st Sess. 44-45, reprinted in Senate Subcom337

mittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 632-633 (1978). It is the Commission's responsibility to determine the appropriate amount of penalty, in accordance with the six criteria set forth in section 110(i) of the
Act. 30 u.s.c. § 820(i); Sellersburg Stone Company v. Federal
Mine Safety and Health Review Commission, 736 F.2d 1147 (7th Cir.
1984).
Based upon the Solicitor's motion, I cannot conclude that
the recommended penalty of $50 is warranted. The Solicitor must
provide explicit reasons for the action she wishes this Commission to undertake.
In light of the foregoing, it is ORDERED that the motion for
approval of settlemen~ be DENIED.
It is further ORDERED that within 30 days of the date of
this order the Solicitor submit additional information to support
her motion for settlement. Otherwise this case will be assigned
and set for hearing.

Chief Administrative Law Judge
Distribution:

{Certified Mail)

Margaret Ao Miller 9 Esqo, Office of the Solicitoru U.So Department of Laboru 1585 Federal Bldgou 1961 Stout Stou Denveru CO
80294
Jerome T. Nusbaum, Concrete Materials, PoO. Box 84140, Sioux
Falls, SD 57118

* IJ .S COVi.RNMENT PRINT INC OF'FlCl'. l s 9 3 • 3 4 2 • l 4 lll 3 3 7 7

338