AUGUST2002

THERE WERE NO COMMISSION DECISIONS OR ORDERS

ADMINISTRATIVE LAW JUDGE DECISIONS
08-07-02
08-09-02
08-15-02
08-22-02
08-23-02

Lodestar Energy Incorporated
John R. Peterson v. Sunshine Precious Metals, Inc.
Darwin Stratton & Son, Inc.
Sec. Labor on behalf of Richard M . Bundy
v. Kennecott Utah Copper Corporation
Cannelton Industries Incorporated

KENT 2001 -53
WEST 1998-307-DM
WEST 2002- 146-M

Pg. 803
Pg. 810
Pg.817

WEST 2001-608-DM
WEYA 2000-113

Pg.822
Pg.840

KENT 2002-253-D
LAKE 2002-20

Pg.864
Pg. 866

ADMINISTRATIVE LAW JUDGE ORDERS
08-13-02
08-22-02

Jerry Polly v. Powell Mountain Coal Co.
Black Beauty Coal Company

i

AUGUST 2002

Review was granted in the following cases during the month of August:
Secretary of Labor, MSHA v. Cannelton Industries, Inc., Docket Nos. WEVA 2002-111-R
and WEYA 2002-112-R. (Judge Hodgdon, July 10, 2002).
Secretary of Labor, MSHA v. Dacotah Cement, Docket No. CENT 2001-218-M.
(Judge Schroeder, July 31, 2002).

No cases were filed in which Review was denied during the month of August

ii

ADMINISTRATIVE LAW JUDGE DEQSIONS

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

August 7, 2002

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

: CIVIL PENALTY PROCEEDINGS
: Docket No. KENT 2001-53
: A. C. No. 15-14492-03838

Petitioner

v.
: Docket No. KENT 2001-64
: A. C. No. 15-14492-03836

LODESTAR ENERGY INCORPORATED,
Respondent

: Docket No. KENT 2001-166
: A. C. No. 15-14492-03837
: Docket No. KENT 2001-198
: A. C. No. 15-14492-03840
: Docket No. KENT 2001-199
: A. C. No. 15-14492-03841
: Docket No. KENT 2001-200
: A. C. No. 15-14492-03843
: Docket No. KENT 2001-201
: A. C. No. 15-14492-03844
: Docket No. KENT 2001-295
: A. C. No. 15-11704-03565
: Docket No. KENT 2001-346
: A. C. No. 15-14492-03849
: Docket No. KENT 2001-347
: A. C. No. 15-14492-03850
: Docket No. KENT 2001-349
: A. C. No. 15-14492-03852

803

Docket No. KENT 2001-350
A. C. No. 15-14492-03853
Baker Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 2001-52
A. C. No. 15-13920-03942

v.
Docket No. KENT 2001-141
A. C. No. 15-13920-03944
LODESTAR ENERGY INCORPORATED,
Respondent

Wheatcroft Mine

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

CIVIL PENALTY PROCEEDING
Docket No. KENT 2001-223
A. C. No. 15-16855-03555

v.
LODESTAR ENERGY INCORPORATED,
Respondent

Miller Creek Mine No. 1

DECISION
Appearances: Thomas A. Grooms, Esq., Office of the.Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of Petitioner;
Stanley Dawson, Esq., Lodestar Energy Incorporated, Lexington, Kentucky,
on behalf of Respondent.
Before:

Judge Melick

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
(1994) et seq.. the "Act" charging Lodestar Energy Incorporated (Lodestar) with multiple
violations of mandatory standards and proposing civil penalties for those violations. Citations
No. 7646106, 7646137, 7647120 and 7645346 were vacated by the Petitioner at hearing and
other citations were the subject of settlement agreements submitted and approved at hearing. A
corresponding order approving settlement for the appropriate citations will be incorporated
herein.

804

Six citations remained in dispute and were the subject of evidentiary hearings. Citations
No. 7646256, 7646257, 7646233, 7646103 and 7646265, each allege violations of the mandatory
standard at 30 C.F.R. § 75.321(a)(l). That standard provides, as relevant hereto, that "the air in
areas where persons work or travel . . . shall contain at least 19.5% oxygen ... "
More specifically, Citation No. 7646256 charges as.follows:
The oxygen reading taken at.the upper right side of Seal #2 of the #10 set
was 18.8%. The upper right side ofthe .# 1 seal of the # 10 set was 19.1 %.
Inspector Abel De Leon, of the Department of Labor's Mine Safety and Health
Administration (MSHA), has an associate degree in niining technology and significant
underground coal mining experience. He also received specific classroom and on-the-job
training by MSHA in the proper methods for taking air readings. In particular, he was taught of
the need to take air samples at least 12 inches from the roof, ribs, faces and seals.

On December 16, 2000, De Leon, accompanied by miner's representative Kenneth
Mallory, was approaching Seal No. 2 of the No. 10 Set when the alarm went off on his
"spotter."' Using his "spotter" and taking readings at least 12 inches from the roof, ribs and seal,
De Leon obtained a reading only 18.8% oxygen at the upper right side of seal No. 2 of the No. 10
set. De Leon obtained a bottle sample at the same location and forwarded this sample for
analysis. The undisputed result of the sample analysis at that location was 18.34% oxygen
(Gov't Exh. No. 3). De Leon also took a second reading with his "spotter" at the upper right side
of the No. 1 seal at the No. 10 set. Holding the "spotter" more than 12 inches from the roof, ribs
and seal, he obtained a reading of 19. I% oxygen. A bottle sample taken at this location showed
19.09% oxygen (Gov't Exh. No. 3).
Citation No. 7646257 alleges a violation of the same standard and charges as follows: 2
The # 1 seal of the # 11 set of seals had an oxygen reading of 15 percent
and a methane reading of 2.1 percent, (upper right side) and upper left side. Also
the
#5 seal, middle to right side of the seal, 19.2 - 19.4%. No. 6 seal, middle to left

De Leon described his "spotter" as a hand-held TMX 412 mechanical detector
used to ascertain oxygen, carbon monoxide and methane levels. The detector is set to sound an
alarm in an atmosphere ofless than 19.5% oxygen.
2

In its posthearing brief, Lodestar offered to "withdraw its contest of this citation
and the associated penalty." To date the Secretary has not assented to this proposal.
Accordingly the citation remains at issue in this decision.

805

side, 19. l - 19.4 percent. Air bottle samples were taken.
Inspector De Leon testified that he took readings with his "spotter" at the locations noted
in the citation, making sure that he was more than 12 inches from the roof, ribs and seal. He
obtained readings of 15% at both locations. He also obtained bottle samples at the same
locations and the results of those samples sJ:i.owed 15.37% at the No. 1 seal of the No. 11 set of
seals and 18.91 % at the No. 5 seal, middle to right side of seal. (Gov't Exh. No. 3).
Miner's representative Kenneth Mallory testified that he accompanied De Leon on his
December 16, 2000, inspection into the sealed areas· and he too detected low oxygen with his
"spotter." The alarm on his·"spotter" was triggered two or three feet from the seal at the same
time that De Leon's was also triggered. He observed De Leon take his bottle samples more than
12 inches from the roof, ribs and seals. Mallory had·previously accompanied De Leon on at least
50 occasions during some of which De Leon obtained gas samples. According to Mallory, De
Leon always performed his inspections in a professional manner and within the law.
Citation No. 7646265, issued February 20, 2000, as amended at hearing, alleges a
violation of the same standard on December 20, 2000, and charges as follows:
The air quality was 17.1 percent oxygen and 2.1 percent methane in front
of the #3 seal of the #8 set. An air bottle sample was taken.
De Leon testified without contradiction that he found oxygen levels of 17.1 % in front of
the No. 3 seal of the No. 8 set. Analysis of a bottle sample taken at the same·location showed
17.08% oxygen. (Gov't Exh. No. 6).
Citation No. 7646233, issued November 27, 2000, alleges another violation of the same
standard and charges as follows:
The air bottle sample taken on 11103/2000 showed an oxygen analysis
19.19%. This bottle sample was taken at Seal #2, # 14 Set of Seals. A minimum
of 19.5% Oxygen is required.
According to Inspector De Leon, on November 3, 2000, he obtained a reading at the cited
location close to the 19.5% oxygen level. He therefore deferred issuing a citation until obtaining
the analysis of a bottle sample taken at the same location. The analysis of the bottle sample
showed 19.19% oxygen and, therefore, on November 22, 2000, De Leon issued the instant
citation. (See Gov't Exh. No. 9).
Citation No. 7646103, issued November 20, 2000, alleges another violation of the same
standard and charges as follows:
The upper left portion of the #2 Seal of the #24 set of Seals had an oxygen
806

reading of 18.8% and a Methane reading of 2.0%. .A bottle sample was taken.
According to Inspector De Leon, on November 20, 2000, he detected 18.5% oxygen with
his "spotter"at the cited location. Analysis of a bottle sample taken at the same location showed
an oxygen level of 13.95%. (Gov't Exh. No. 11).
Within the above framework of evid~nce I conclude that the violations have been proven
as charged. This credible evidence demonstrates that Inspector De Leon obtained his "spotter"
samples as well as his bottle samples at least 12 inches from the ribs, roof and seals, in each of
the cited cases. The test results are indeed undisputed and each shows oxygen levels below the
minimum required by the cited standard.

In reaching these conclusions I have not disregarded Lodestar's arguments that there will
invariably be oxygen deficiencies in the vicinity of seals and that Inspector De Leon moved his
"spotter" around the seal areas until he obtained an oxygen deficient reading. However, even
assuming, arguendo, that these statements were factually accurate, such facts nevertheless would
not negate the existence of the violations as charged.
I have also not disregarded Lodestar's argument that the Secretary must prove that the
oxygen deficient air is located precisely in the same area in which the exposed person would
intake a breath. According to this argument Lodestar would require the Secretary to prove the
location of the mouth and nostrils of each person who would work or travel in the cited areas and
then limit oxygen testing to only those precise locations where such mouths and nostrils would
appear. I find no such requirement in the cited standard and accordingly reject Lodestar's
argument in this regard. 3
The parties conditionally stipulated (assuming that the violations had been proven) that
the violations were of low gravity and the result of only moderate negligence. These conclusions
were based upon the fact that there had been prior low oxygen readings near the seals thereby
giving Lodestar some notice of potential oxygen deficiencies in these areas. They were also
based on the fact that the cited oxygen deficiencies were only slightly below the required level
and that no one in the inspection party suffered any ill effects from the oxygen deficient
atmosphere. It has also been stipulated by the parties that the penalties issued herein would have
no affect on the operator's ability to continue in business and that the operator abated the
violations in a good faith and timely manner. Lodestar is a large mine operator and has a
significant history of violations (Gov't EXh. No. 1). Considering all of the "section l lO(i)"
criteria, I find that the civil penalties originally proposed·by the Secretary are appropriate: i.e.,

3

Respondent's additional argument - - that these citations should be vacated
because they were written as to areas where "persons" do not work or travel - - was previously
rejected in an Order Denying Motions for Summary Decision issued March 8, 2002. The
substance of that Order is incorporated herein by reference.

807

Citation No. 7646256 - $55.00, Citation No. 7646257 '"$55.00, Citation No. 7646265 - $55.00,
Citation No. 7646233 - $55.00 and Citation No. 7646103 - $55.00.
Citation No. 7646334, issued February 27, 2001, alleges a violation of the standard at 30
C.F.R. § 75.l 722(c) and, as amended at hearing, charges as follows:
Because of the position of the No. 3 Unit ID 007 belt tail roller and tail
piece, the tail roller guard needed t<? be extended to an area where the belt hung
below the conveyor belt frame exposing ~ners .to the hazard of being pulled into
the tail roller. An expanded metal guard providing this protection was present but
was not secured to the conveyor belt frame.
The cited standard, 30 C.F.R. § 7 5.1722(c), provides that "[e]xcept when testing the
machinery, guards shall be securely in place while machinery is being operated." MSHA
inspector Ronald Oglesbee testified that on February 27, 2001, he was performing an inspection
at .Lodestar's Baker Mine when he observed in the feeder area of the conveyer, what he believed
to be an extension to the tail roller guard that was not secured. The item was propped onto the
conveyor frame and was not attached to the frame. The tail roller was admittedly guarded
however. According to Oglesbee, there was a danger to the section foreman and belt workers
who frequently traveled the area. In particular he believed that a shovel could become caught
under the moving belt thereby dragging a miner into the belt. He concluded that the violation
was of low gravity because the area was guarded although not secured.
Lodestar's compliance coordinator, Kevin Vaughn, testified that he was present at the
time the citation was issued. According to Vaughn, the guard found by Inspector Oglesbee lying
against the belt frame was actually an old guard that had been removed and replaced by a welded
steel guard protecting the tail roller. According to Vaughn, the welded guard provided full
protection for the tail roller area and there were no moving parts exposed beyond the guard.
Vaughn further testified that the new welded guard had been in place for about two months and
one or two inspectors had examined this condition without issuing any citations. He also
admitted however that the subject tailpiece would have been moved every four days thus altering
the extant conditions. He also testified that Lodestar had.utilized similar guards elsewhere in the
mine without citation by inspectors.
I find Vaughn's testimony sufficient to vacate the citation at issue. llis testimony is
undisputed that- the old guard had been replaced by a new welded guard and it is acknowledged
by the Secretary that the welded guard fully protected the tail roller. The fact that the old guard
had remained in the vicinity of the tail roller leaning against the belt structure cannot be taken,
under the circumstances, to mean that it was intended to be, or was needed as, a fixed guard.
Within this framework of credible evidence I find that the item, which was formerly a guard,
could not, at the time the citation was issued, be considered a "guard" within the meaning of 30
C.F.R. § 75.l 722(c). At the same time the welded guard protecting the tail roller was securely in
place as required by the cited standard. Indeed, if the welded guard was deemed inadequate then
808

a violation should properly have been charged under subsection (a) or (b) of the cited standard - not subsection (c). Citation No. 7646334 must accordingly be vacated.
ORDER

Citation No. 7646334 is hereby vacated. ·citation Nos. 7646256, 7646257, 7646265,
7646233 and 7646103 are hereby affirmed and Lodestar Energy Incorporated is hereby directed
to pay civil penalties of $55.00 for each violation within 40 days of the date of this decision. In
addition, pursuant to the settlement agreement submitted at hearing, Lodestar Energy
Incorporated is directed to pay civil penalties of$1 l ,353.00 within 40 days of the date of this

~~~

~
\

fvvv'\ \\ ./·\l/ " .
Gary Meli
.~
l_,,..'\.
Administr 1 ive Law Judge

""

Distribution: (By Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215
Stanley Dawson, Esq., Lodestar Energy, Inc., 333 West Vine Street, Suite 1700, Lexington, KY
40507
\mca

809

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

August 9, 2002

JOHN R. PETERSON,

DISCRIMINATION COMPLAINT

Complainant
Docket No. WEST.98-307-DM
WEMD98-04

v.

SUNSHINE PRECIOUS METALS,
INCORPORATED,

Sunshine Mine
Mine ID 10-00089

Respondent

DECISION
Appearances:

John R. Peterson, Coeur D'Alene, Idaho, prose;
Fred M. Gibler, Esq., John S. Simko, Esq., EVANS, KEANE, Kellogg, Idaho,
on behalf of Respondent.

Before:

Judge Cetti

This case is before me upon the complaint of discrimination filed by John R. Peterson,
pursuant to Section I 05(c)({3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.§
801 et seq., the "Mine Act." In his original complaint filed with MSHA, Mr. Peterson states
that on September 16, 1997, while employed as a Gypo contract miner by the Sunshine Mining
Company, he was discharged for insubordination. His original complaint to MSHA states the
date of the alleged discriminatory action occurred with his discharge on September 16, 1997.
Peterson was reinstated by Sunshine Mines to his position as a Gypo contract miner,
working in the stope of his choice, in October 1998. This reinstatement was pursuant to an
arbitration finding and award which Peterson's union pursued and obtained on Peterson's behalf.
Pursuant to the Finding and A ward and a later settlement agreement, Sunshine paid Peterson
total back wages of $52,748.80, less the standard government's required deductions. The
settlement was approved by the arbitrator who heard the case and issued the findings and award.
(Complaint Ex. 1)
The final event that occurred just prior to Peterson's discharge involved the abatement of
Citation No. 4135775, received in evidence as Complainant's Exhibit 6. The citation was issued
to Sunshine Mine on September 4, 1997, and required the ventilation problem described in the
complaint to be corrected by September 7. The ventilation problem was caused by waste rock

810

that the miners placed in a drift that was the exhaust drift for an underground shop, which
maintained and serviced three loaders that were kept at the shop. This shop was located in
Peterson's stope, in an area close to where he was mining. For some unknown reason, the
citation was not abated by the date specified in the citation. Peterson first learned of the citation
from his mining partner Mr. McNutt. Peterson's shift boss, Stan Mayo, as the first step in the
abatement of the citation, instructed Peterson to install a fiberglass ventilation tubing in a minedout area at the mine so the miners could move the blocking waste rock out of the exhaust drift of
the shop into the mined out area. Ventilation of the mined out area was necessary for the miners
to perform this work. Peterson's shift boss, Stan Mayo, needed this ventilation tubing installed
as the first step in abatement of the citation and instructed Peterson to do that installation the first
thing on the morning of September 9. The shift was half over when the shift boss Stan Mayo
came to where Peterson was working and found that the ventilation tubing had not been installed.
Peterson explained why the installation of the ventilation tubing had not been done. One of the
primary reasons was he did not know where to obtain the needed ventilation tubing. Apparently
neither Stan Mayo nor mine management believed him nor accepted his excuses as valid reasons
to delay the installation of the needed ventilation tubing.
Peterson was given a five-day letter required by the Union contract before discharging
him for his refusal to follow what mine management considered a direct order. The arbitrator,
however, disagreed, and in his finding and award stated that Sunshine Mine had to offer
something more to establish a "deliberate refusal" than the "speculative argument" that Peterson
"could have" or "should have" known where to get the Y ventilation tubing. The Arbitrator
therefore issued the Finding and Award reinstating Peterson and making him economically
whole for all loss resulting from his discharge. Peterson, upon receiving the arbitrator funding
and award wrote to the undersigned as follows:
"Arbitrator James Reed has found in my favor, an unjust termination. He
has awarded myself back wages at contract rate, my seniority, my choice
of bids awarded while I was discharged, vacation, safety awards, holidays,
medical and dental expenses while discharged."
Peterson was obviously pleased with the award but he still believes Sunshine should give
him more back pay than the $52,748.80 gross amount back wages that Sunshine mine paid him,
pursuant to the finding to award and the later settlement approved by the Arbitrator Reed who
heard his case. (Resp's Exhibit 1)
At the hearing under the Mine Act, once it became clear to Peterson that there could be
no recovery under the "Mine Act" for additional compensation for pain and suffering, the major
issue that concerned the parties was whether or not Peterson had already received under the
Arbitrator's Finding and Award and the latter approved settlement, the correct amount of back
pay for loss resulting from his discharge. It is Respondent's position that Peterson has already
been paid everything he could receive even if he were successful in proving his discharge
constituted a violation of Section 105(c) of the Mine Act. For the reason stated in more detail
811

below, I find Peterson has been paid in full for all economic losses that resulted from his
discharge.
The union contract provides for the operator to set up an incentive pay system for Gypo
contract miners where they can earn more than a day's pay. Under the incentive pay system,
Sunshine Mine paid the Gypo miners additional wages called a "bonus" which was based on the
number of feet the Gypo miner advanced the face of his respective stope. Under the system, the
mine would periodic- ally set up a so-called contract for each stope that was ready for mining and
set the price per foot for each particular stope as a bonus. The mine would then set out for
bidding by the Gypo miners each of the stope contracts management prepared. The gypo miners
bid on the stope they wished to mine. Mine management awarded contracts at each stope to the
Gypo miners on the basis of the miner's seniority. Before bidding on this contract for a stope,
each miner would team up with another Gypo miner to form a team of two for the purpose of
bidding on the contract for mining the stopes of their choice. The bidding was awarded on the
basis of the seniority of the senior member of each team. At times there would be a second team
of Gypo miners working on the same stope but on a different shift. Thus the pay of each of the
four miners would be based on the number of feet the four miners advanced the face of the
stope. This advance would be measured periodically.
Adding vacation days and holidays, there apparently was a potential maximum of 2,208
hours of pay that Peterson could have earned during the time between his discharge and his
reinstatement.
At the hearing, the judge asked Mr. Peterson if the wages to be paid to Gypo contract
miners were set forth somewhere in the Union contract. Peterson responded "No" and
emphatically elaborated his answer as follows:
Peterson:

No, it's not. Thafs on the company's discretion, totally whether they like
you or not.

Judge:

What do you mean by that,"... at the company's discretion"?

Peterson:

That means that they pay by the foot. But they don't gotta pay you
the same as anybody else. They pay whatever they want to whoever
they want per foot. Then they can do things like give somebody a
two-yard loader, which-and only give you a one-yard loader to muck
with. But you 're only gonna haul half the rock of a two-yard loader.
If they give somebody better equipment, a jumbo, they're gonna get
drug away faster that you are with.a jack leg. And a jumbo has a tenfoot steel on it, and a jack leg that you're manhandling has only got a
six-foot steel on it.

812

Sunshine Mine first paid Peterson $40,048.80 for his loss of wages from the time
between his discharge and his reinstatement. This amount was reduced by reimbursement of
$6,360.00 for Idaho State Unemployment, which he received during the time he was off. There
were also the standard government wage deductions required by law, as set forth in Respondent's
Ex. B. This figure of$40,048.80 was based on Peterson's past performance and earnings during
the 18 months he worked for Sunshine Mine as a Gypo contract miner before his discharge.
Under the facts of this case, it was proper to use past earnings to compute Peterson's wage loss
resulting from his discharge. Any other method of computing wage loss under the fact of this
case would involve considerable unacceptable speculation. Peterson's average earnings prior to
his discharge were 1.584311 times a regular day's pay, which at that time was $10.45 per hour.
Claimant's Ex. 3. His average pay was therefore approximately $17.00 per hour, which resulted
in the $40,048.80 first paid to Peterson. However, the union, through intense negotiation with
Respondent, was able to.obtain an additional $12,700.00 of back wages for Peterson. The
$12,700.00 was paid pursuant to settlement of his loss approved by the trial arbitrator. Peterson
cashed each check of back wages he received from Sunshine, but before cashing each check, he
wrote on the back of the check "partial payment:" Peterson was paid a total.of$52,748.80 which
was about $25 per hour. Peterson contends he should have received the same amount of pay as
his replacement. However, there was no replacement as such. The stope that Peterson now says
he would have bid on if he were working for Sunshine at the time that contract was passed out
for bidding was contracted out to a truly "independent contract company, the "Atlas Faucet
Contracting Company," (Atlas Faucet), which had two employees who were paid by Atlas
Faucet. There is no evidence as to what those two Atlas Faucet employees received in the way of
wages. The only evidence available was the amount Sunshine paid the independent contractor,
Atlas Faucet Contractors Company. Out of what Sunshine paid Atlas Faucet came not only the
wages Faucet paid their two employees who did the mining but also the burden an employer
carries such as workers' compensation, health insurance, holiday and vacation pay, and perhaps
some profit.
Peterson had no medical or dental expenses.
On review of all the relevant evidence, I find that Respondent Sunshine Mine paid
Peterson for his economic losses resulting from his discharge. He has been made "whole"
economically. Sunshine Mine paid Peterson for all economic loss that could potentially be
payable to him if he were to win his claim under the Mine Act.
Peterson stated several times that Sunshine management acknowledged that he was a
productive worker. He then asks, "Why did they fire me?" It appears that a large part of the
answer to his question can be found in Peterson's Exhibit l, the favorable decision, findings, and
award that his friend Lavern A. Milton, Subdistrict Director of United Steel Workers of America,
was able to obtain for him in the arbitration proceeding. The arbitrator James C. Reed in his 11page decision stated the following at page 2:

813

During his tenure at the mine, which was about one and one half years,
he displayed a work disciplinary record that, to say the least, was not
exemplary. Starting in January 1997 with an attendance problem.
Again in June another safety violation. In September another attendance
problem.
·His personal record shows a history of twenty seven (27) days absent
for various reasons. Counseling in May 1997 for harassment of other
employees. Counseling in May 1977 for absenteeism. Counseling
again for absenteeism in June, and at this session he was advised of the
Company's employee assistance program. In June 1997, the Grievant
was observed and tested for alcohol while on duty. He was removed
from work for that shift. Later a grievance was filed for that incident,
but it has nothing to do with this gnevance concerning the Grievant's
discharge. Again in August 1997 the Grievant was charged with another
safety violation. In August of 1997, he was instructed to install a vent
line and the work was not done two days later. Some of these items in
the Grievant' s record are merely notes to the file, and some are pending
grievances, but the overall record are merely notes to the file, and some
are pending grievances, but the ov_erall record of this Grievant is still that
of a less than good employee.
With respect to the employer's position, the Arbitrator on page 3 of his decision stated:
The Grievant was expected to install the vent line system as a part of his
job as a contract miner. It is not unusual for a work assignment of this
nature and the 52-pound "Y" is light enough for one person to install, and
if the Grievant needed help, he could have asked the nipper to help him.
Instead of asking for help, the Grievant simply decided on his own to not
install the vent line and instead installed rock bolts in the ceiling of S76A
Stope, a task, which according to testimony by the Company, was not
necessary at the time. The ·Grievant was not required to work by himself;
he had plenty of help available to him.
The grievant was issued a corrective action memorandum for failing
to perform work as instructed. The decision to terminate the Grievant
was made after reviewing his entire work record, as indicated in the
Collective Bargaining Agreement at Article 15.13, where if the Grievant
in question has less than five years seniority, as in this case, his entire

814

work record may be considered when the Company is making a
determination concerning discipline of the Grievant.
On page 4 the Arbitrator in his decision states:
There is also the matter of the Grievant's position on the incident changing
over time. At step four of the grievance proceedings, he, or the Union,
argued that he could not hang the vent line by himself. But at hearing, the
reason changed to-he did not perform the task as directed because he could
not find the "Y" fitting. This position of the Union's at hearing was contradicted by the nipper's testimony that he knew where the fitting was and
would have assisted the Grievant if required.
The discharge of the Grievant was appropriate since he, without a justifiable reason, disobeyed a direc_t order given him by the Company, which
is a basis for discipline under Section 23.3 of the CBA. In addition, given
the Grievant's 18-month work history, discharge was the appropriate outcome.

In the end, the Grievant could very well have done the task assigned to him
if he had elected to do it. The "Y'~ fitting did not weigh 90 pounds as the
Union argued; it weighed 50 pounds. The Grievant was not required to
work alone as he has stated, instead, there was help available from the
nipper ifhe needed it. But according to the nipper's testimony, he was
never asked to help.
The Grievant made excuses why he did not install the vent line. He testified
that he couldn't find the fitting, yet his partner and nipper, who worked
here less than a year, knew where it was. He said he bad to install the
rock bolts for safety reasons, yet the Union safety representative testified
it was not necessary to install the rock bolts before installing the vent line.
He also said he did not have a loader to assist him, yet the nipper and his
partner both had loaders.
The Grievant's testimony was brief, but a few matters became evident.
Despite Article XXVI of the CBA he felt he was more competent to
manage the Mine than management. His work record shows over the
short period of his employment he failed to follow orders on other
occasions and felt that he was "above" the work he was required to do.
In the end, there is not much question that the Grievant is a lousy
employee and eventually he will be terminated for something, but
not this time. There is simply not enough evidence to determine
that the Grievant deliberately refused to change the ventilation
815

system. It was a job that, according to testimony, would have
taken him only about 20 to 30 minutes and it just doesn't make
any sense that, unless he simply did not know where to find a
"Y" he would have not installed it.
Peterson did participate in a meeting with management involving the potential
disciplinary action against him for absenteeism. This occurred on June 18, about three months
before he was discharged. At that meeting, Peterson asked for the telephone number and address
of MSHA but no one responded to his question. However, he could have easily gotten this
information from the safety department or from one of his fellow miners who was a
representative of the union. I do .not believe his request for MSHA's phone number and address
constituted protected activity. Peterson, at no time, called MSHA nor did he discuss any
problem with an MSHA representative before his discharge.

CONCLUSION
On review of the record, I find that there is no persuasive, credible evidence of protected
activity prior to his discharge. Assuming argumento that there was protected activity, there is no
direct or indirect circumstantial evidence from which to draw any reasonable inference that the
adverse action was motivated in whole or in part by protected activity. The complaint is

DISMISSED.

~4~
Augu5( F. Cetti
Administrative Law Judge

Distribution:
Mr. John R. Peterson, 2600 East Third Street #130, Post Falls, ID 83854
John S. Simko, Esq., CIO EVANS, KEANE, 1101 W. River St., Suite 200, P.O. Box 959,
Boise, ID 83701-0959
/ek

816

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENV.ER, CO 80204-3582
303-844-3577/FAX 303-844-5268

August 15, 2002
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2002-146-M
A.C. No. 42-02283-05506

v.

Rattlesnake Pit
DARWIN STRATTON & SON, INC.,
Respondent

DECISION
Before:

Judge Manning

The Secretary of Labor filed a petition for assessment of civil penalty against Darwin
Stratton & Son, Inc. ("Darwin Stratton") proposing a penalty of $1,000 for Citation No.
6281686. The citation alleges a violation of section 103(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 813(a), for refusing to permit an inspector of the Department
of Labor's Mine Safety and Health Administration ("MSHA") to inspect the Rattlesnake Pit.
When Darwin Stratton did not file an answer to the petition, as required by 29 C.F.R. §
2700.29, the Commission's chief administrative law judge issued an order to show cause to
Darwin Stratton. In response to the order to show cause, Mr. Pat Morgan acting for Darwin
Stratton filed a letter stating:
We do not feel that FMSHRC can be or will be fair and
impartial in the hearing of Docket No. WEST 2002-146-M,
A.C. No. 42-02283-05506 in regard to the CANCELED and
Permanently Closed Mine ID No. 42-02283. The former
alleged Rattlesnake [Pit] situs NEVER was a mine or pit and
NEVER was under the jurisdiction of MSHA. Therefore, your
March 19, 2002, ORDERED threat of default and penalty
(punishment) continues the process of force and fear by
FMSHRC, MSHA, and the Office of the Solicitor.

817

(emphasis in original). Darwin Stratton enclosed a number of documents, including a Motion
for the Voluntary Recusal of the Honorable David Sam, 1 a memorandum in support of this
recusal motion, and a copy ofMSHA's Quarterly Employment Form for the first quarter of
2002 on which Morgan had stamped "CANCELED." The chiefjudge accepted, this response
to the order to show cause and the case was assigned to me.
Citation No. 6281686 was issued on November 8, 2000, by MSHA Inspector Stephen
Wegner and alleges a violation as follows:
Pat Morgan, a consultant acting on Darwin Stratton & Son
Inc.' s behalf, refused to allow an authorized representative to
enter the mine for the purpose of conducting an inspection of the
mme.
Mr. Morgan refused to acknowledge Judge Manning's October
3, 2000, decision stating that MSHA has jurisdiction to inspect
the Rattlesnake Pit. Mr. Morgan felt that he had canceled all
review commission action last July. Mr. Morgan was told that
refusal to allow the inspection was in violation of the provisions
of section 103(a) of the Mine Act.

In Darwin Stratton & Sol}, Inc., 22 FMSHRC 1265 (Oct. 2000), I held that the
Rattlesnake Pit is a mine subject to the jurisdiction of MSHA. In that case, Darwin Stratton
requested a hearing on citations and orders issued at the Rattlesnake Pit. I set the case for
hearing, at Darwin Stratton's request, but Darwin Stratton and Mr. Morgan refused all mail
service from me and from the Office of the Solicitor. 22 FMSHRC 1269-70. No
representative from Datwin Stratton appeared at the hearing held in Washington, Utah, on
October 3, 2000.
Based on evidence presented by the Secretary at the hearing, I concluded that the
Rattlesnake Pit was subject to the jurisdiction ofMSHA at the time of the inspection in late
April 2000. I based this determination, in part, on the fact that the wash plant at the facility
was used to prepare excavated rock and that this rock was then fed into a hopper and conveyed
to a single-deck screen to separate out oversized material. 22 FMSHRC 1267-69. The Mine
Act defines a mine broadly to include "lands, excavations ... structures, facilities, equipment,
machines, tools, or other property ... on the surface or underground, used in, or to be used in,
or resulting from, the work of extracting minerals from their natural deposits, ... or used in,
or to be used in, the milling of such minerals, or the work of preparing ... minerals ... ." 30

The Secretary brought an action against Darwin Stratton in the United States District Court
for the District of Utah seeking temporary and permanent injunctions against Darwin Stratton for
refusing to allow MSHA inspectors to enter its facilities. Judge Sam sits on the District Court and
I presume he has jurisdiction over the injunction actions.
1

818

U.S.C. § 802(h)(l). Thus, the fact that Darwin Stratton was, at a minimum, milling or
preparing minerals at the site that had been extracted from their natural deposits, established
MSHA jurisdiction. Stone, rock, gravel, and sand are "minerals" as that term is used in the
Mine Act. Richard E. Seiffert Resources, 23 FMSHRC 426, 427 (April 2001) (ALJ). I also
held that the sale of the prepared minerals entered or affected interstate commerce. 22
FMSHRC 1269. I entered similar findings with respect to Darwin Stratton's Airport Pit in
Darwin Stratton & Son, Inc., 24 FMSHRC 403 (April 2002).

On May 17, 2002, I issued a prehearing order in the present case directing the parties
to confer in an effort to settle the case. I also addressed the jurisdiction issue raised by Darwin
Stratton and stated that if Darwin Stratton permanently closed the Rattlesnake Pit between
April and November 8, 7000, MSHA jurisdiction may have terminated.
By letters dated June 28, and July 8, 2002, John Rainwater, counsel for the Secretary,
advised me that he had ma~e several unsuccessful attempts to contact Mr. Morgan to discuss
the case. He also talked to people at Darwin Stratton's office who advised him that Mr.
Morgan would be available by phone in Darwin Stratton's office on July 1, 2002. Mr.
Rainwater was unable to reach Mr. Morgan and Mr. Morgan did not return any of his phone
calls.
On July 16, 2002, I issued an order directing Darwin Stratton to advise me, in writing,
whether it will appear at a hearing and present evidence on the jurisdictional issues. In his
response, Mr. Morgan reiterated that Darwin Stratton canceled ID. No. 42-02283 and that
MSHA officials have "first-hand knowledge" of this cancellation. Mr. Morgan stated that he
previously notified me that Darwin Stratton was ''waiving the prehearing order and request to
a review on the CANCELED MINE ID No. 42-02283." (emphasis in original).2 With respect
to settlement, Mr. Morgan stated that the jurisdiction issue must be resolved "in the District
Court venue and, if necessary, even to the Supreme Court." In the final paragraph, Mr.
Morgan stated that "Respondent once again waives its request for a hearing by the FMSHRC
due to the fact that it cannot be fair or impartial to the Respondent." (emphasis in original).
Based on the statements contained in documents filed by Darwin Stratton in this case,
I conclude that Darwin Stratton is no longer requesting a hearing. Under 29 C.F.R. §
2700.3(b)(4), Mr. Morgan is authorized to represent Darwin Stratton and he is the only person
who has responded to the Commission's orders in this case and the other cases involving
Darwin Stratton. Consequently, I enter findings of fact and conclusions of law based on the
record in this case and the record in previous cases before me involving the Rattlesnake Pit.

2

Mr. Morgan attached a letter addressed to me, dated June 24, 2002, which states that
Respondent has "decided to waive the prehearing order and proceed to resolve this whole matter in
the District Court venue." I do not recall seeing this letter but, because it does not contain a docket
number, it may have been misfiled.
819

On April 21 , 2000, an employee of Darwin Stratton was fatally injured at the
Rattlesnake Pit when she became entangled in a moving conveyor-belt tail-pulley that was not
guarded. MSHA conducted an investigation and issued a nwnber of citations against Darwin
Stratton. I held a hearing in that case on October 3, 2000, but no representative of Darwin
Stratton appeared at the hearing. The Secretary presented evidence as to the nature of the
operations at the Rattlesnake Pit. Based on that evidence, I concluded that the Rattlesnake Pit
was a "coal or other mine" as that term is defined in section 3 of the Mine Act. 22 FMSHRC
at 1267-70. I described the Rattlesnake Pit as follows:
The Rattlesnake Pit is a small sand and gravel mine
owned and operated by Darwin Stratton near Hurricane, Utah, in
Washington County. Sand and gravel is extracted from a dry
stream bed, transported by truck to an adjacent wash plant, and
stockpiled. The stockpiled material is fed into a hopper and
conveyed to a single-deck screen where oversized material is
separated. The sand is then fed into a screw classifier and
mixed with water to remove unwanted material.

22 FMSHRC at 1267. In my prehearing order in the present case, I advised Darwin Stratton
that if it permanently shut down the Rattlesnake Pit between April and November 2000,
MSHA's jurisdiction may have ceased, but it waived its right to present evidence on this
issue.

I conclude that the Rattlesnake Pit is a "coal or other mine" and that it is subject to the
jurisdiction of the Secretary under section 4 of the Mine Act. Consequently, I find that
Darwin Stratton violated section 103(a) of the Mine Act when it refused to allow an MSHA
inspector onto its property at the Rattlesnake Pit.
Section 11 O(i) of the Mine Act sets out six criteria to be considered in determining an
appropriate civil penalty for a violation of the Mine Act. The petition for penalty states that
27 citations were issued at the pit during the previous 24 months. Darwin Stratton is a small
operator. The citation was not abated in good faith and section 104(b) Order No. 6281687
was issued. There has been no showing that the penalty assessed in this decision will have an
adverse effect on Darwin Stratton's ability to continue in business. The violation was serious
because it was reasonably likely that an inspection would have revealed hazardous conditions
that needed correction. Darwin Stratton's negligence was high because it intentionally refused
to allow the inspection in the face of a previous finding ofjurisdiction. Darwin Stratton had
not notified the local MSHA office that it closed the pit after April 2000 and it did not so
advise Inspector Wegner. It simply stamped "Canceled" on MSHA docwnents to indicate that
it was refusing MSHA jurisdiction. An operator cannot unilaterally nullify MSHA
jurisdiction. Based on the criteria in section 1 lO(i) of the Mine Act, 30 U.S.C. § 820(i), I
assess a penalty of$1,000 for this violation.

820

ORDER
Accordingly, section 104(a) Citation No. 6281686 and section l04(b) Order No.
6281687 are AFFIRMED and Darwin Stratton & Son, Inc.~ is ORDERED TO PAY the
Secretary of Labor the sum of $1,000.00 within 40 days of the date of this decision.

Richard W. Manning
Administrative Law Judge

Distribution:

John Rainwater, Esq., Office ~f the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
Johnpatrick Morgan, General Delivery, Fredonia, AZ. 86022-9999 (Certified Mail)
Darwin Stratton & Son, 720 West State Street, Hurricane, UT 84737-2084 (Certified Mail)

RWM

821

FEDERAL MINE SAFETY AND HEALTH R6VIEW COMMISSION
1244 SPEER BOULEVABD #2SO

DEliiVE~. co 8ti264~!'i582

303-844-3577/FAX 303-844-5268

August 22, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of RICHARD M. BUNDY
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 2001-608-DM
Bingham Canyon Mine
Mine I.D. 42-00149

V.

KENNECOTT UTAH COPPER CORP.,
Respondent

DECISION
Appearances:

Gregory W. Tronson, Esq., and Jennifer A. Casey, Esq., Office of the
Solicitor, U. S. Department of Labor, Denver, Colorado, for
Complainant;
James M. Elegante, Esq., Kennecott Utah Copper Corp., Bingham
Canyon, Utah, and Melissa H. Bailey, Esq., Ray, Quinney & Nebeker,
Salt Lake City, Utah, for Respondent.

Before:

Judge Manning

This case is before me on a complaint of discrimination brought by the Secretary of
Labor on behalf of Richard M. Bundy against Kennecott Utah Copper Corporation
("Kennecott") under section 105(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §815(c) (the "Mine Act"). The complaint alleges that Kennecott _terminated Mr. Bundy
from his employment in violation of section 105(c). An evidentiary hearing in this case was
held in Salt Lake City, Utah, and the parties filed post-hearing briefs.

I. FINDINGS OF FACT
Kennecott is the operator of the Bingham Canyon Mine, a large open-pit copper mirie in
Salt Lake County, Utah. Mr. Bundy worked at the mine as a repair gang machinist from March
21, 2000, until he was terminated on March 21, 2001, after he refused to work overtime on the
evening of March 15, 2001. He told his supervisor that he was too tired to work safely during
the overtime shift and left the mine at 11:30 p.m. at the end of his regular shift.

822

At the time of Mr. Bundy's termination, the mine worked three shifts. Bundy worked
the B shift, which started at 3 p.m. and ended at 11 :30 p.m. His supervisor was Michael
Ragsdale. As a repair gang machinist, Bundy helped repair and maintain electric shovels and
drills at the mine. Mr. Bundy was suspended without pay on March 16, 2001. Following an
investigation and a disciplinary hearing conducted by Kennecott on March 19, Bundy was
terminated from his employment on March 21, 2001. (Ex. R-26).
The circumstances giving rise to his suspension and tennination stem from events on
March 15, 2001. Bundy arrived for work at the beginning of his shift and was directed by
Ragsdale to help repair the No. 56 shovel (the "shovel"). The transmission for the shovel had
been removed on the previous shift, but the crew on that shift could not remove the swing
shaft. The transmission is connected to this swing shaft, which functions as a pinion to rotate
the very large metal-toothed wheel under the superstructure of the shovel. As this wheel is
turned, the deck of the shovel, the house containing the machinery and controls, as well as the
crane for the shovel, rotate. The swing shaft is quite large and heavy. In theory, the swing shaft
should simply fall out when the transmission is removed but, more often than not, the swing
shaft has been deformed from use. A number of techniques are used to remove the swing shaft
so that it can be replaced with a new one.
About five members of the B crew, including Bundy, were assigned to remove the
swing shaft, which is in a small compartment under the deck of the shovel. The crew
determined that the best way to remove this swing shaft was to weld blocks in this
compartment and then maneuver the swing shaft free using hydraulic jacks. One end of the
jack was placed against the block and then pressure was exerted against the swing shaft to
loosen it. The compartment containing the swing shaft measures about 44 inches wide, 66
inches deep, and 34 inches high. The jack weighs about 30 pounds and is capable of exerting
30 tons of pressure.
Bundy testified that he spent more that three hours of his shift in this compartment with
the hydraulic jack attempting to dislodge the swing shaft. He testified that he was the only
member of his crew who worked in the swing shaft compartment for a substantial period of
time. He had to sit in the cramped compartment as he worked. Although Bundy believes that
he made some progress in loosening the swing shaft, the swing shaft was still in place at the
end of the shift.
Bundy testified that by 11 p.m., he was very tired and was ready to go home. Ragsdale
believed that he needed three B shift employees to work overtime on the C shift to remove the
swing shaft and to perform other jobs that he wanted to complete before the start of the A shift
the next morning. These overtime employees would work with the four members of the C
shift.
The employees at the mine are represented by several unions. The repair gang
machinists are represented by Local 568 of the International Association of Machinists and
823

Aerospace Workers (the "union"). There i.s a single collective bargaining agreement ("CBA")
at the mine that applies to seven unions including this union. The CBA has specific procedures
that Kennecott must follow when it seeks to have employees work overtime. As applied here,
Kennecott must first seek volunteers for overtime, starting with those on the crew with the
most seniority. If Kennecott cannot recruit a sufficient number of volunteers, it can force
employees to work overtime. In such an instance, the company must start with the employee
on the crew with the least seniority and work up the seniority list until it secures the number of
overtime employees that it is seeking.

On the night of March 15, Ragsdale began informally soliciting volunteers to work
overtime as the crew was beginning to wrap up its work at the shovel and at the other locations
where crew members were working. After the crew had driven to the changing room at about
11 p.m., Ragsdale again sought volunteers. When no employees volunteered for overtime, he
announced that he would have to force three employees to work overtime. The person at the
bottom of the seniority list, Danny Turquoise, volunteered. The next eligible employee up
from the bottom of the seniority list, Duane Barton, ''volunteered" to work overtime after
Ragsdale told him that he was going to force him to. The next employee up on the seniority
list was Bundy. Ragsdale asked Bundy to work overtime. Bundy declined. Bundy testified
that he believed that he was too tired to work safely and he believed that he would be placing
himself and others at risk if he worked with heavy equipment and machinery during the C shift.
Ragsdale continued to press Bundy to work overtime. Bundy refused, saying on
several occasions that he was "too tired and unsafe" to work overtime. Ragsdale continued to
press Bundy to work overtime and Bundy continued to refuse. This dispute continued over a
15- to 20-minute period. Ragsdale had a number of other responsibilities that he had to tend to
before 11 :30 p.m. so the exchange between Ragsdale and Bundy was not continuous. During
the shift, Ragsdale did not observe Bundy working in the compartment under the deck but saw
him joking around with other employees and Bundy did not appear to be particularly tired to
him.
Ragsdale advised Bundy that the company would have to make a determination as to
whether Bundy should be excused from working overtime. Bundy then advised Ragsdale that
he could not stay because he was having carpet installed in his home at 7 a.m. the next
morning. Ragsdale told Bundy that he would be home in plenty of time for the carpet
installers. When Ragsdale believed that they had reached an impasse, he went to his office and
looked at the CBA to make sure that he was following the required procedures for forcing
overtime on an employee and to review the procedure for resolving disputes. After reviewing
the CBA, Ragsdale discussed the procedures for forcing overtime with the union representative
on the shift, J. T. Timothy, to see if he was proceeding correctly. Mr. Timothy advised
Ragsdale that he had the right to force Bundy to work overtime that night. Bundy did not seek
union representation and he did not talk to Timothy about his rights.

824

Ragsdale approached Bundy one more time and told him that he could be forced to
work overtime and that they would have to resolve their dispute and talk to a union
representative. Bundy went to the time clock, punched out, and said "I punched out ... I [am]
on my own time now ... I [am] going home ... quit talking to me." (Tr. 38). As Bundy left,
Ragsdale said that their dispute could not wait until the next day and, if he left, he would face
disciplinary action. Mr. Bundy left the mine. After Bundy left, Ragsdale wrote up what is
called a "Notice of Investigation and Hearing" under the CBA, which is commonly referred to
as a "disciplinary ticket." He wrote the ticket because Bundy left the mine without permission.
The next day, when Ragsdale advised Jerry Kinyon, the Field Maintenance Superintendent,
what had happened on the B shift, Kinyon agreed that Ragsdale had followed the terms of the
CBA.
Ragsdale, Danny Turquoise, and Duane Barton worked the C shift that night. Ragsdale
does not ordinarily work on the C shift but he did so that night to make sure that the shovel was
repaired. The C shift crew removed the swing shaft using a different method which did not
require anyone to enter the frame of the shovel or to work in a tight space. Several individuals
on the crew performed that task while others worked in the warehouse and obtained supplies
from the shop.
On March 16, 2001, after Bundy arrived at the start of the B shift, Kinyon gave Bundy
the disciplinary ticket. A representative from the union was present at this meeting in K.inyon's
office to represent Bundy, but Bundy refused representation and he signed a waiver releasing
the union from its obligations to represent him. 1 Bundy was suspended until a disciplinary
hearing was held on March 19, 2001. Bundy, Ragsdale, Kinyon, two union representatives,
and a Kennecott human resources department representative were present. Although Bundy
refused union representation, the union officials wanted to attend because the outcome of the
hearing could have an impact on future cases involving union members. At this hearing,
Ragsdale explained what happened and Bundy responded by defending his actions. After
reviewing Kennecott's Code of Conduct and the CBA, Kinyon recommended that Bundy be
dismissed from his employment at Kennecott. Kinyon's decision was based, in part, on
Bundy's violation of the second paragraph of the Code of Conduct, which covers the "[f]ailure
or refusal to comply with instructions, perform work assignments, or complete responsibility of
the job." (Ex. R-20).
II. MOTION TO EXCLUDE TESTIMONY OF TERRY HURST AND DAVID
PARSONS

1

Utah is a ''right-to-work" state. Bundy is not a member of the union. At all times pertinent
in this case, whenever Bundy was asked by Kennecott officials if he wanted a union representative,
Bundy declined and, when requested by the union, he signed a release relieving the union of its
obligation to represent him.

825

At the hearing, the Secretary called Terry Hurst and David Parsons as witnesses.
Kennecott objected to their testimony because the Secretary did not list them as witnesses on
her witness list provided in response to my Amended Notice of Hearing issued on January 7,
2002. The Secretary also did not list these individuals as potential witnesses in her response to
Kennecott's interrogatories. In response, the Secretary maintains that these witnesses were
informants protected under 29 C.F.R. § 2700.61 ("Commission Rule 61 ")and that she was not
required to disclose their names until two days before the hearing under Commission Rule 62.
At the hearing, I allowed the Secretary to present these witnesses and asked the parties to brief
this issue. I stated that ifl granted Kennecott's motion, the testimony of these witnesses would
be stricken.
Terry Hurst was employed by Kennecott on several occasions. His most recent
employment by Kennecott was between January 1998 and June 22, 2001. He worked as a
repair gang machinist. He voluntarily left Kennecott in June 2001 to take a job in the aircraft
industry at Hill Field Air Force Base. David Parsons worked at Kennecott from January 25,
2000, until February 3, 2002, as a repair gang mechanist. At the time of the hearing, he was
living in Garland, Texas, and was looking for work with Ingersoll-Rand and other miningrelated companies. Both of these men were working on the same shift as Bundy on March 15,
2001.
The Secretary maintains that, although Hurst and Parsons were no longer employed by
Kennecott at the time of the hearing, "they both worked at the Bingham Canyon Mine in March
2001 when Bundy was terminated from his position and [they] provided confidential
information to MSHA regarding Bundy's protected activity and subsequent termination." (S.
Br. 7). She further argues that "the possibility for retaliation for communicating with MSHA
lingers for Hurst and Parsons·in the same manner as it would for current employees working
for Kennecott." Id. The Secretary contends that these witnesses should be afforded the same
protection from disclosure as current Kennecott employees. In making this argument, the
Secretary relies on case law on the informant's privilege, including Bright Coal Co. , 6
FMSHRC 2520 (Nov. 1984).
Kennecott contends that the Secretary was obligated to provide it with the names of
Hurst and Parsons because neither of these individuals are miners. It argues that Commission
Rules 61 and 61 only apply to individuals "currently employed in mining operations." (K. Br.
19). The term "miner'' is defmed in section 3 of the Mine Act as "any individual working in a
coal or other mine." 30 U.S.C. § 802. Kennecott argues that there was no potential for
intimidation or retaliation against Hurst and Parsons and that Rules 61 and 62 do not apply to
them. The Secretary violated the Commission's rules when it failed to identify Hurst and
Parsons as witnesses and, consequently, their testimony should be stricken. In addition,
Kennecott maintains that the Secretary failed to provide the names of these witnesses two days
prior to the start of the hearing as required by Rule 62.

826

The Commission has two related procedural rules that govern the disclosure of the
identity of informants and witnesses who are miners. Rule 61 provides that a judge shall not,
except in extraordinary circumstances, order a person to disclose to an operator or his agent the
name of an informant who is a miner. In broadly interpreting the informant's privilege, the
Commission noted that the language of the Mine Act and its legislative history ')'eflect
congressional concern about the possibility of retaliation against miners who participate in
enforcement of the Act." Bright, 6 FMSHRC at 2524. The Commission went on to state:
We believe that these expressions of congressional concern for
protecting the identity ofminers who contact the Secretary
regarding violations of the Act, and otherwise protecting miners
who participate in enforcement of the Act, underscore the need
for the recognition and proper application of the informer's
privilege in Mine Act proceedings. Therefore, in order to
maximize the lines of communication with the Secretary
concerning violations of the Mine Act, we hold that a person's
status as an informer is not dependent on whether that person is
an employee of a mine operator.

Id. The Commission discussed this issue because the operator in that case had ceased all
operations and it was not clear whether the informants were still employed in the mining
industry. Consequently, an individual who was an eyewitness to events that may be in
violation of section 105(c) of the Mine Act may be ari informant notwithstanding the fact that
he is no longer employed by a mine operator. In such an instance, that individual's identity
would be protected from discovery by the informant's privilege. See also Asarco, Inc., 12
FMSHRC 2548, 2552-57 (Dec. 1990); 14 FMSHRC 1323, 1327-28 (Aug. 1992). The
Secretary maintains that Hurst and Parsons were informants protected by this privilege.
Although the language of Rule 61 can be interpreted to protect the identity "of an
informant who is a miner" and not informants who are no longer employed by a mine operator,
the Commission has not adopted this interpretation. It has consistently interpreted the
informant's privilege broadly. The Commission has not implied that Rule 61 2 is to be
construed more narrowly than or inconsistently with its broad interpretation of the informant's

2

When the Commission's cases on the informant's privilege were issued, the provisions of
Rules 61 and 62 were contained in Rule 59. See Bright, 6 FMSHRC at 2523 n 2. When the
Commission revised its rules, it split Rule 59 into two rules. In the preamble, the Commission noted
that a "miner informant may also be a witness in Commission proceedings" and stated that a judge
shall not disclose under Rule 62 whether any miner witnesses "were also informants." 58 Fed. Reg.
12158, 12163 (March 3, 1993).
827

privilege. In any event. I am prohibited by Commission case law from revealing the identity of
informants who are not miners.3
Rule 62 provides that a judge shall not, "until 2 days before a hearing, disclose or order
a person to disclose to an operator or his agent the name of a miner ... whom a party expects
to summon or call as a witness." This rule applies to all miners who are called as witnesses,
including miners who are not informants. How this two-day rule should be applied to
witnesses who are not informants and who are no longer employed in the mining industry is
not before me. What is before me is how this rule should be interpreted for witnesses who are
informants but who are no longer employees of a mine operator. As discussed above, a judge
is prohibited from ordering the.Secretary to disclose the identify of an informant. I hold that
Rule 62 is an exception to this prohibition with respect to informants who are to be called as
witnesses. If the Secretary intends to call an informant as a witness, she must identify him two
days prior to the hearing. If she does not intend to call an informer as a witness, his identity
need not ever be revealed. Given the Commission's interpretation of the informant's privilege,
discussed above, Rule 62 must also apply to individuals who are not employed in the mining
industry at the rime of the hearing. 4
I find that Hurst and Parsons were informants as that term has been interpreted by the
Commission and that the Secretary was within her rights to protect their identity. As a
consequence, for the reasons set forth above. the Secretary was not required to reveal their
identity until two days before the hearing under Rule 62. My holding in this case is consistent
with my holdings in two previous cases. Mobile Premix Sand & Gravel Co. 19 FMSHRC 220
(Jan. 1997); Basin Resources, Inc., 18 FMSHRC 1125 (June 1996).s

Because the informant's privilege is a qualified one, if the judge determines that the
privilege applies, he must perform a "balancing test to determine whether the respondent's need for
the information is greater that the Secretary's need to maintain the privilege to protect the public
interest." Bright, 6 FMSHRC at 2526. Because of the manner in which the issue arose, the
balancing test does not apply.
3

" lfl interpret the word "miner" in Rule 62 to include only individuals who are employed
by operators at the time ofthe hearing, then the Secretary would not be required to reveal the identity
of"non-miner'' witnesses who are informants. An informant's identity would be protected by the
informant' s privilege and Rule 62 would not apply because the informant is not a ')niner." I reject
this interpretation.
5

In making its arguments, Kennecott relies on orders of Commission Judge Feldman.

Laurel Run Mining Co., 19 FMSHRC 1229 (June 1997), 19 FMSHRC 1607 (Sept. 1997). That case
arose out of a different set of facts but, to the extent that Judge Feldman's holding is inconsistent
with the holding in this case, I respectfully disagree with his reasoning.
828

Kennecott argues that the Secretary did not comply with Rule 62, in any event, because
she provided it with the names of these witnesses less than two days prior to the start of the
hearing. It is undisputed that the Secretary advised Kennecott that she was calling Hurst and
Parsons as witnesses on Saturday, March 16, 2002, at about 11 a.m. (S. Br. Ex. C). The
hearing commenced at 9 a.m. on Tuesday, March 19, 20.02. Kennecott points to Commission
Rule 8, which states that when a prescribed time period js less that seven days, "intermediate
Saturdays, Sundays, and federal holidays shall be excluded in the computation." As a
consequence, Kennecott maintains that the Secretary was obligated to provide the names of
these witnesses at 9 a.m. on Friday, March 15, 2002.
The Secretary does not dispute Kennecott's argument that she was required to provide
the names of Hurst and Parsons on the morning of Friday, March 15. She argues that counsel
for the Secretary misinterpreted the Commission's rules. She contends, however, that the
sanction of striking the testimony of these two witnesses is too extreme. She maintains that I
should take into consideration the reason for the delay and whether the delay prejudiced
Kennecott. The Secretary argues that Kennecott failed to establish actual prejudice caused by
the delay. She points to the fact that Kennecott engaged in active discovery but did not take
any depositions in this case, Kennecott had knowledge that Hurst and Parsons were on Bundy's
crew and had informally interviewed them about the facts in this case. The Secretary contends
that Kennecott "obtained detailed, factual information concerning Bundy's allegations .... "
before this case was initiated. (S. Br. 11). The Secretary maintains that if Kennecott believes
that it was prejudiced by the delay, it could have requested a one-day continuance of the
hearing. Finally, the Secretary believes that Bundy's interests should not be compromised by
the failure of the government to meet its time obligations.

I hold that the Secretary was obligated to disclose the names of these informant
witnesses at or about 9 a.m. on March 15. Under the facts of this case, however, I find that
Kennecott did not suffer any prejudice by the Secretary's short delay. The testimony of Hurst
and Parsons was consistent with the testimony of the other witnesses and consistent with what
they told Kinyon when he interviewed them on March 26, 2001. (Ex. R-27). Consequently,
the motion to strike the testimony of Hurst and Parsons is DENIED.

III. SUMMARY OF THE PARTIES' ARGUMENT
A. Secretary of Labor
The Secretary contends that Bundy had a reasonable, good faith belief that he was so
tired that if he continued working on the shovel.he could injure himself or others. A miner
who refuses to work is not required to establish that an actual hazard exists, but he must show
that he had an "honest belief that a hazard exists." Robinette, 3 FMSHRC at 810.
Nevertheless, the miner must attempt to communicate his safety concerns to the operator.
Secy ofLabor on behalfofDunmier v. Northern Coal Co., 4 FMSHRC 126, 133 (Feb. 1982).

829

The Secretary maintains that when Bundy told Ragsdale that he was too tired to work
safely, he had a reasonable good faith belief that he would put himself and others in danger if
he continued working on the shovel. The Secretary argues that his refusal to work beyond his
normal work shift was protected activity under section 105(c) of the Act. Because Kennecott
discharged Mr. Bundy as a direct result of this work refusal, it violated section 105(c). The
Secretary relies, in part, on a decision of former Com.mission Judge Koutras in which he held
that a refusal of a miner to work overtime because he was too tired is protected activity. James
Eldridge v. Sunfire Coal Co., 5 FMSHRC 408 (March 1983). The Secretary also relies on
the Commission's decision in Sec '.Y ofLabor on behalfof Bowling v. Mountain Top Trucking
Co., 21 FMSHRC 265 (March 1999) in which the Commission held that a work refusal based
on fatigue as a result of excessive work hours was protected under the Mine Act.
The Secretary rests on the fact that Bundy "conducted uniquely difficult work" on the B
shift on March 15. (S. Br. 15). He was working in a small compartment in the frame of the
shovel using hydraulic jacks weighing about 30 pounds to exert pressure on the swing shaft.
Because the compartment was dark and dusty, he used a flashlight to see. Bundy testified that
he worked in this compartment for about 3Yi hours and that it was "back-breaking" work. (Tr.
20). Bundy testified that he was mentally and physically exhausted at the end of his regular
shift.
The Secretary also states that Kennecott did not tell Bundy what overtime work he
would be performing during the C shift. Consequently, he assumed that he would be
"conducting the same back-breaking work" that he performed on the B shift. Ragsdale told the
crew that he was seeking miners to work overtime because the swing shaft had not been
removed on the B shift. Bundy honestly believed that he could not safely continue to remove
the swing shaft on the next shift. The Secretary maintains that Bundy communicated his safety
concerns to Ragsdale on several occasions. Despite Bundy's repeated attempts to
communicate his safety concerns, Ragsdale did nothing to address these issues or to ease his
fears. The Secretary also believes that Ragsdale expressed animus towards Bundy's safety
concerns. Finally, the Secretary contends that Bundy was terminated as a direct result of his
work refusal.

B. Kennecott
Kennecott maintains that the record in this case does not support the Secretary's
position that Bundy entertained a reasonable, good faith belief that a hazard existed at the time
he refused to work overtime. Kennecott believes that Bundy raised the safety issue to mask his
real reason for his work refusal. He simply did not want to work another four hours but wanted
to go home. Bundy offered a string of excuses to get out of his obligation under CBA to work
overtime. Thus, Kennecott contends that the safety concern was a pretextual excuse rather than
one made in good faith. Kennecott points to the fact that, in a conversation with Kinyon,
Bundy stated that Kennecott ''was missing the boaf' by not having 12-hour shifts. (Tr. 37576).
830

Kennecott contends that Bundy's refusal to work overtime and his subsequent decision
to walk off the job was also unreasonable. Kennecott maintains that Ragsdale tried to keep
Bundy from leaving the mine so that Bundy and the company could follow the dispute
resolution process in Article 18J of the CBA. Because Bundy is not a member of the union, he
refused to comply with the requirements of the CBA. Kennecott states that if Bundy had
stayed at the mine, he would not have been required to work around the shovel or perform any
other heavy work while the parties attempted to resolve the issue under Article 18J and he
would have been compensated for this time. Thus, even if Bundy's safety concern was initially
reasonable, it became unreasonable, and therefore unprotected, when he refused to allow the
company to follow the procedures set forth in the CBA to resolve the issue. If Bundy was
concerned about safety, he would have stayed at the mine because he would not have been
required to place himself in a position where he could be injured. As a consequence, Bundy's
testimony was not credible as further evidenced by the fact that he told Ragsdale that he was
having carpet laid at his home at 7 a.m., which Bundy now admits was not true.
Even if Bundy's work refusal was protected, the Secretary failed to establish that his
dismissal was motivated in any part by his protected activity. Although Kennecott had
knowledge of Bundy's safety concerns, the company never had a chance to address them
because Bundy abruptly left the mine. As a consequence, Kennecott was never given the
opportunity to make a determination whether Bundy was too tired to work safely. There is no
evidence in the record that Kennecott has any animus towards work refusals due to safety
concerns. Bundy was terminated from his employment, after a hearing on the merits, because
he refused to stay at the mine to have the matter resolved under the procedures set forth in the
CBA.

IV. DISCUSSION WITH FURTHER FINDINGS AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising
any protected right under the Mine Act. The purpose of the protection is to encourage miners
"to play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to
be encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 95•h Cong., 151 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 95111 Cong., 2"d Sess., Legislative History of the Federal Mine Safety and
Health Act of1977 at 623 (1978).
A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity. Sec '.Y ofLabor on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-800 (October 1980), rev 'd on other
grounds, 663 F .2d 1211 (3d. Cir. 1981 ); Sec '.Y ofLabor on behalfofRobinette v. United Castle
Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The mine operator may rebut the primafacie
case by showing that no protected activity occurred or that the adverse action was in no part
831

motivated by the protected activity. Pasula, 2 FMSHRC at 2799-800. If the mine operator
cannot rebut the prima facie case in this manner, it nevertheless may defend by proving that it
was also motivated by the miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone. Id.; Robinette, 3 FMSHRC at 817-18; see also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (41h Cir. 1987).

In a discrimination case involving an alleged work refusal, the complainant is not
required to establish that a hazard actually existed. The complainant must show that bis work
refusal was based on his reasonable, good faith belief that a hazard exists. To meet this burden
of proof, the Secretary must establish that Mr. Bundy's belief that he could not continue to
work safely was reasonable, that it was made in good faith, and that he at least attempted to
communicate his belief that he could not continue to work safely to a representative of
Kennecott. Sec '.Y ofLabor on behalfofDunmire v. Northern Coal Co., 4 FMSHRC 126, 133
(Feb. 1982). The ''perception of the hazard must be viewed from the miner's perspective at the
time of the work refusal." Gilbert v. FMSHRC, 866 F. 2d 1433, 1439 (D.C. Cir 1989).
I find that Bundy acted in good faith when he told Ragsdale that he was too tired to
work safely. "Good faith belief simply means honest belief that a hazard exists." Robinette, 3
FMSHRC at 810. I find that the preponderance of the evidence establishes that Bundy
honestly believed that he was too tired to continue working safely with heavy equipment At
first he did not give Ragsdale any reason why he did not want to work overtime. He raised the
safety issue once they reached the change room. When that failed, he told Ragsdale that people
were coming to install new carpets in his house at 7 a.m. the next morning. As a consequence,
Kennecott maintains that the Secretary did not establish that Bundy was acting in good faith
when he raised safety issues. Kennecott states that his lack of good faith is underscored by the
fact that he told Kinyon the next day that Kennecott should institute 12-hour shifts. Kennecott
also argues that I should not credit Bundy's testimony because, in order to obtain
unemployment benefits, he told the hearing officer at the benefits hearing, while under oath,
that he did not have carpeting installed the next day. (Tr. 51-52, 83-84). Kennecott also points
to the fact that Bundy's statements about having carpet installed has changed several times and
that his testimony at the hearing in this case was also inconsistent on this issue.
(K. Br. 29-30; Tr. 49, 82).
Although Bundy's lack of candor is troubling, I find that his testimony at the hearing as
to why he raised the carpet issue with Ragsdale to be credible. He testified that he did not need
to be home when the carpet was installed and that he told Ragsdale about the carpet installers
in the hope that Ragsdale "would let me go home." {Tr. 50). Bundy testified that he did not
want to work overtime because he felt that he was too tired to work safely, but he raised the
carpet issue thinking that perhaps Ragsdale would accept that excuse, since he did not believe
that be was getting anywhere with the safety issue. I give Bundy the benefit of the doubt on
this issue.

832

The closer question is whether Bundy's safety concerns were reasonable. The
Secretary contends that Bundy's safety concerns were reasonable because he had been working
with heavy equipment for at least three hours in a very small, dark compartment under the deck
of the shovel. Bundy assumed that he would be doing the same "back-breaking" work during
overtime because the swing shaft had not been removed from the shovel. (Tr. 93). Ragsdale
told the crew that he needed three individuals to work overtime so that the repair work on the
shovel could be completed. At the hearing in this case, Bundy stated that he was concerned
that "if you are not mentally and physically able to work, in a split second you can get crushed,
maimed, or even kill yourself or a fellow coworker." (Tr. 40). The Secretary contends that the
reasonableness of Bundy's concerns is emphasized by that fact he had worked about 300
overtime hours during the previous year thereby demonstrating that he was not someone who
evaded work responsibilities. Finally, the Secretary argues that Bundy's safety concerns were
clearly communicated to his supervisor, Ragsdale.
Kennecott argues that Bundy was not being reasonable on the evening of March 15. It
maintains that it terminated Bundy for walking off the job, not for raising safety issues. He did
not know what work he would be required to perform during the C shift and the Mine Act does
not regulate working hours or allow miners to refuse to perform work that does not present any
particular hazards. Moreover, even assuming that Bundy had legitimate safety concerns, he
refused to stay at the mine so that the matter could be handled under the dispute resolution
provision in the CBA. Kennecott contends that Ragsdale ''worked to convince Bundy to
follow the dispute resolution procedure of Article l 8J of the CBA to make a determination as
to whether a safety hazard existed." (K. Br. 27; Tr. 254). Bundy's refusal to submit to this
procedure because he was not a member of the union was unreasonable. Kennecott contends
that Bundy would not have had to perform any work while the matter was being resolved. As a
consequence, if Bundy had stayed at the mine, as instructed by Ragsdale, he would not have
been exposed to any safety hazards.
Under the appropriate circumstances, I hold that a miner has the right to refuse to
perform a job assignment if he is too tired to safely conduct the work. Former Commission
Judge Koutras held that a miner is engaged in protected activity when he refused to work
overtime because he was "too tired and exhausted" to continue extracting pillars in a coal mine.
Eldridge, at 464. Commission Judge Feldman held that miners, who drive large multi-ton haul
trucks, had the right to refuse to continue driving their vehicles because of fatigue in the face of
the long hours that they had worked during the preceding weeks driving these trucks over
mountainous terrain on narrow and winding roads. Sec '.Y on behalfofBowling v. Mountain
Top Trucking Co., 19 FMSHRC 166 (Jan 1997); ajf'd on this issue 21FMSHRC265, 274
(March 1999).

I find, however, that Complainant did not establish that Bundy' s refusal to work
overtime on the night ofMarch 15, 2001, was protected activity under section 105(c) of the
Mine Act because his refusal was not reasonable at the time he left the mine. Bundy's initial
concern that he was too tired to continue trying to remove the swing shaft was reasonable, but
833

his refusal to stay at the mine until the matter was resolved or until he was assigned work that
he considered to be hazardous considering his fatigued state was not reasonable. In reaching
this conclusion, I have considered the facts from the perspective of Mr. Bundy at the time of
his work refusal.
First, it was not reasonable for Bundy to assume that he would be required to continue
the "back-breaking" job of attempting to remove the swing shaft from inside the compartment
under the deck for the shovel. Bundy was never assigned to perform that task by management.
Bundy undertook to be the employee on the B shift to work in the compartment on his own.
He could have asked another employee to take over that work during overtime, or asked
Ragsdale to assign him a different, less demanding task. Several of the employees who worked
overtime performed tasks that did not involve working with heavy equipment or working in
areas that presented a hazard. Indeed, Mr. Herbert, who worked the C shift that night, testified
that he told Ragsdale that overtime employees would not be needed that night. (Tr. 181-83).
Bundy had no reasonable basis to conclude that he would be forced to continue working in the
compartment under the deck of the shovel. His refusal to work was too anticipatory to be
afforded protection. In contrast, the miners who refused to work in the Eldridge and Bowling
cases had been assigned to complete specific jobs. Mr. Eldridge was told that he would be
pulling pillars until the job was completed. The miners in Bowling were truck drivers who
would be required to continue driving their haul-trucks over narrow maintain roads. If Bundy
had stayed at the mine and Ragsdale required him to work in or around heavy equipment or put
him ·in a dangerous position, taking into consideration his fatigued state, Bundy would have
had a statutory right to refuse to perform those tasks. Instead, Bundy left the mine at the end of
his shift despite requests from Ragsdale to stay so that the matter could be discussed and
resolved.
Complainant emphasizes the fact that Bundy raised the safety issue in the context of
whether he could be required by Kennecott to work overtime. The Mine Act does not regulate
the working hours of miners. Thus, the issue is whether Bundy had a reasonable belief that he
could not safely perform an assigned task because of his fatigued state, irrespective of the time
in which he raised the issue. A miner who is mentally and physi~ally exhausted may
reasonably believe that he cannot safely perform a specific task in the middle of his shift,
particularly if the shift is longer than eight hours. In such an instance, his refusal may
constitute protected activity. On the other hand, a miner who does not know what task he will
be required to perform cannot refuse to perform any work because he is fatigued.6 It is
important to understand that there has been no showing that Bundy was so tired that he could
not do any productive work. Complainant's case was premised on the assumption that Bundy

6

Situations may arise where a miner is so exhausted that he cannot perform any productive
work. There has been no showing 't hat Bundy was in such a condition. Some of the miners who
worked on the C shift that night performed work that was not arduous and did not involve the use
of heavy equipment.
834

would be required to perform a task that was too demanding for him to safely perform. Bundy
assumed, without justification, that he would be forced to work in the compartment of the
shovel doing the same work he did during the B shift. Although Bundy stated that he was also
mentally tired, which could have clouded his thinking, he did not wait to see what job he was
assigned. He also did not attempt to negotiate with Ragsdale to get an easier job assignment.
Bundy only told Ragsdale that he could not be forced to work overtime because he was too
tired.

Mr. Timothy was the union representative on the B shift that evening. Any hourly
worker, including a worker who is not a member of the union, has the right to talk to the
representative about his rights and to request representation. Ragsdale asked Bundy if he
wanted to talk to Timothy. Bundy refused by saying that he had no use for unions and that the
union could not help him. Ragsdale talked to Timothy, but only in the context of making sure
the union did not dispute his right to force Bundy to work overtime. It is not clear whether
Timothy understood the nature of Bundy's refusal but he advised Ragsdale that he could force
Bundy to work overtime under the CBA.
Complainant argues that Kennecott failed to notify Bundy of his rights under section
l 8J of the CBA. It is clear that Bundy was advised of his safety rights and his rights under the
CBA at the time of his orientation when he was hired by Kennecott. As a general matter, an
employer is not required to offer its interpretation of a union contract to its employees and in
some instances an employer would violate the National Labor Relations Act if it does so.
More importantly, it is clear that Bundy was well aware of his right to request union
representation. It was not necessary for Bundy to understand all of the nuances of the CBA
because he could ask a union representative. Union representative Timothy was available to
Bundy but he waived his right to seek his representation or his advice. (Tr. 284).
Section 18J of the CBA, "Disputes Resolution," establishes a step-by-step procedure
that the company and union will follow when an employee ''believes an unsafe condition exists
which is beyond the normal hazards inherent in the operation which involves an immediate
danger of injury to his person .... " (Ex. R-6). Under this procedure, the employee notifies
his immediate supervisor when he believes that such a condition exists. If the supervisor
determines that an immediate danger of injury does not exist, the employee may request union
representation. If the union representative and the supervisor cannot reach an agreement, the
matter proceeds to subsequent steps which involves calling in higher levels of management,
calling in company and union safety officials and, in certain instances, calling in medical
personnel. This procedure has been used in similar situations such as when miners ask to leave
their shift early because they feel tired or sick.
I credit the testimony of Kennecott witnesses that the company would have called in
those people necessary to resolve the dispute between Ragsdale and Bundy on the night of
March 15. If Bundy had remained at the mine, he would not have been required to work until
the matter was resolved, but he would have been paid for his time. Because Bundy refused to
835

discuss the matter with Timothy and he left without Ragsdale's permission, the dispute
resolution procedures were never implemented. Complainant faults Ragsdale because he did
not lay out this procedure in detail for Bundy before he left. As stated above, Mr. Timothy was
available to assist Bundy. Ragsdale testified that Bundy told him that he did not need the
union's help and that he could handle the matter on his own. (Tr. 254). It must also be
understood that Ragsdale had to tend to many other matters between 11: 10 and 11 :30 that
night, including lining up the oncoming crew to give them their assignments and advising that
crew's leadman of the status of the work to be completed. It was unreasonable for Bundy to
insist that Ragsdale determine whether he should be excused from working overtime during
this 20-minute period. When Ragsdale kept talking about it, Bundy told him to "quit talking to
me." (Tr. 38).
Throughout this proceeding Bundy maintains the he was in the best position to know
whether he was too tired to work safely. The implication is that once Bundy told Ragsdale that
he was too tired to work safely, he should have been excused from working overtime. Given
the subjective nature of such a claim, it is reasonable for an employer to want to evaluate such
a claim. When an employee asks to be excused from working at the Bingham Canyon Mine
because he is sick or exhausted, Kennecott sends him to its on-site medical clinic for an
examination. (Tr. 118-19, 155). 1n·at least one instance, an employee who asked to be excused
from working overtime because he was not feeling well was sent home after he was examined
by clinic personnel. If the clinic is closed, an EMT is available to examine the employee. It is
impossible to know how Mr. Bundy's situation would have been resolved had he remained at
the mine. I find that because Bundy left the mine before he was given a work assignment and
before Kennecott was given the opportunity to review his claim that he was too tired to work
safely, his refusal to remain at the mine for overtime was not reasonable and was not protected
by section 105(c) of the Mine Act.
When "a miner expresses a reasonable, good faith fear in a hazard, the operator has a
corresponding obligation to address the perceived danger." Gilbert, 866 F.2d at 1440. In
Gilbert, a miner raised concerns about the condition of a roofin a mine. Although the miner
had not been told that he was going to be working in the same area, he left the mine after he
came to work the next morning because of his continued concerns about the condition of the
roof. When he inquired about the roof that morning, he was told that it was "none of his
concern". Id. After reviewing the events leading up to his work refusal, the court held that the
Commission's conclusion that he could not have "entertained a reasonable or good faith belief
that he would be required to work in a hazardous [area]" was not supported by the record. The
court remanded the case to determine ''whether management addressed [the miner's safety]
concerns in a way that his fears reasonably should have been quelled." Id. at 1441.
The facts in this case differ significantly from the facts in Gilbert. In Gilbert, the miner
had a reasonable, good faith belief that he would be required to work under a hazardous roof
In the present case, none of the conditions at the mine presented a hazard that concerned
Bundy. His safety concern was that, because he was tired from working under the deck of the
836

shovel for three hours during his regular shift, he could not continue to safely perform that task
or another arduous task without jeopardizing his safety and the safety of others. In Gilbert, the
miner was concerned that management had not done enough to determine the extent of the roof
control problem and had not taken sufficient steps to secure the roof. Jn this case, by leaving
the mine, Bundy prevented management from making a determination whether he was indeed
too tired to work safely. Thus, the o_n ly option for Kennecott was to take Bundy at his word,
allow him to go home, and force the next person up the seniority list to work overtime.
I credit the testimony of Ragsdale that he told Bundy that they would have to resolve
their dispute that night and that he would be disciplined ifhe left at the end of his shift. (Tr.
253-55). Although these statements did not address Bundy's concerns about his fatigued state,
it is clear that Bundy was not going to be asked to work under the deck of the shovel until his
concerns were discussed further. It appears that Bundy did not particularly like Ragsdale and
did not completely irust him. But given the nature of Bundy's safety concern, it was
incumbent on him to remain at the mine until Kennecott could evaluate his fitness to work.
Thus, Bundy's initial concern that Ragsdale would make him get right back into the
compartment under the shovel or perform other arduous work "reasonably should have been
quelled," at least enough for him to stay at the mine to see if Ragsdale was acting in good faith.
It was not reasonable for Bundy to leave before the dispute was resolved or before he was
assigned a task that he be.lieved he could not safely perform. It is important to remember that
Ragsdale had not required Bundy to work under the deck of the shovel during the B shift, so
Bundy's continuing concern that he would be forced to perform such work during overtime
was illogical and unreasonable.
In determining whether a mine operator's adverse action was motivated by the miner's
protected activity, the judge must bear in mind that "direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect." Secretary ofLabor on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981 ), rev 'don
other grounds, 709 F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial evidence." Id. (citation
omitted). In Chacon, the Commission listed some ·of the more common circumstantial indicia
of discriminatory intent:
(1) knowledge of the protected activity; (2) hostility or animus towards the protected activity;
(3) coincidence in time between the protected activity and the adverse action; and (4) disparate
treatment of the complainant. See also Hicks v. Cobra Mining, Inc. , 13 FMSHRC 523, 530
(April 1991).

In applying this test to the present case, it is clear that Kennecott had knowledge of the
protected activity and that there was a coincidence in time between the protected activity and
the adverse action. Any hostility exhibited by Ragsdale concerned Bundy's refusal to work
overtime and to stay at the mine to resolve the matter. There has been no credible showing that
Ragsdale and Kennecott were hostile to miners' safety concerns or that Ragsdale issued the
disciplinary ticket because Bundy raised safety issues. Bundy was disciplined because he left
837

the mine. In the termination letter, Kinyon stated "[s]ince you chose not to have further
discussions with your supervisor, refused to stay, used foul and abusive language towards him,
then left the property, the Company has decided to terminate your employment effective the
date of this letter for your insubordinate behavior as described above." (Exs. R-26, G-6).
Finally, Complainant did not establish disparate treatment. There is little evidence on this
issue. A union officer was given a disciplinary ticket for refusing overtime, but the ticket was
vacated when the company discovered that he refused overtime because he had to tend to union
business. On February 22, 2001, Bundy refused to work overtime after Ragsdale told him he
was going to force him to work but, before the matter came to a head, another en:iployee
voluntarily agreed to work overtime. (Tr. 214; Ex. R-3). Bundy had not been previously
disciplined and he received favorable performance evaluations. No empfoyee had been
terminated at the mine under similar circumstances because there is no evidence that anyone
had refused to work overtime and then left the mine in a similar manner. I find that there is
insufficient evidence to hold that Bundy was treated differently than other employees because
he raised a safety issue.
In conclusion, I find that although Bundy's initial concern about his fatigued condition
was reasonable, his refusal to remain at the mine after the end of his shift to resolve the matter
under the CBA was not reasonable and was not protected by section I 05(c). I find that the
adverse action was not motivated by Bundy's protected activity but was prompted by his
unprotected activity alone, as discussed above.

V. ORDER
For the reasons set forth above, the complaint filed by the Secretary of Labor on behalf
of Richard M. Bundy against Kennecott Utah Copper Corporation under section 105(c) of the
Mine Act is DISMISSED.

Richard W. Manning
Administrative Law Judge

838

Distribution:
Gregory W. Tronson, Esq., and Jennifer A. Casey, Esq., Office of the Solicitor, U.S.
Department of Labor, P.O. Box 46550, Denver, CO 80201-6550 (Certified Mail)
James M. Elegante, Esq., Kennecott Utah Copper Corp., P.O. Box 351, Bingham Canyon, UT
84006-0351 (Certified Mail)
Melissa H. Bailey, Esq., Ray, Quinney & Nebeker, P.O. Box 45385, Salt Lake City, UT
84145-0385

RWM

839

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3867
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

August 23, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2000-113
A. C. No. 46-03317-03655
Mine: Lady Dunn Preparation Plant

CANNELTON.INDUSTRIES,
INCORPORATED,
Respondent
DECISION
Appearances: Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor,
Arlington,
Virginia, for the Secretary;
David J. Hardy, Esq., Heenan, Althen & Roles, Charleston, West Virginia, for the
Respondent.
Before:

Judge Barbour

This civil penalty proceeding is brought by the Secretary of Labor (Secretary) on behalf
of her Mine Safety and Health Administration (MSHA) pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977 (30 U.S.C. §§ 815, 820). The Secretary is seeking
the assessment of civil penalties against Cannelton Industries, Incorporated (Cannelton) for three
alleged violations of mandatory training and safety standards. The case arises out ofMSHA's
investigation of a fatal accident that occurred at Cannelton's Lady Dunn Mine, a facility that
includes the Dunn Coal and Dock Strip Mine, the Dunn Hollow Haulroad and the Lady Dunn
Preparation Plant, on June 28, 1999. The accident took the life of Roy Whitt, an employee of
Cannelton's contractor, Wiggles Trucking Company (Wiggles).
Cannelton denied the violations occurred, and the parties engaged in extensive pretrial
discovery. The case was tried in two sessions in Charleston, West Virginia. During the first
session, the testimony of nonexpert witnesses was heard. During the second session, the expert
witnesses testified.

840

STIPULATIONS
At the commencement of the first session the parties agreed to the following 16
stipulations:
1. Cannelton ... is the operator of the [Lady Dunn Mine;]
2. Operations of the [mine] are subject to the jurisdiction of the [Mine Act;]
3. [The] case is under the jurisdiction of the ... Commission and its designated
Administrative Law Judge pursuant to ... the Mine Act [;]
4. William Uhl was acting in his official capacity as an authorized representative of the
Secretary ... [i.e., as a federal mine inspector] when [the] citation[s] ... were issued[;]

5. True copies of [the] citation[s] ... were served on ... [Cannelton] or its agent as
required by the Mine Act[;]
6. The total proposed penalty ... will not affect .. . [Cannelton's] ability to continue in
business[;]
7. [Gov. Exh. l] is an authentic copy of [C]itation No. 7157394 .. . and may be admitted
into evidence for the purpose of establishing its issuance[;]
8. [Gov. Exh. 2] is an authentic copy of [C]itation No. 7157395 ... and may be admitted
into evidence for the purpose of establishing its issuance[;]
9. [Gov. Exh. 3) is an authentic copy of [C]itation [N]o. 7187482 ... and may be
admitted into evidence for the purpose of establishing its issuance[;]
10. Assuming that the violations ... are affirmed ... [they] were abated in good faith[;]
11. The Proposed Assessment ... [Gov. Exhibit 5), accurately sets forth(:]
a. [T]he size of Cannelton ... in production tons or hours worked per year[;]
b. [T]he size, in production tons or hours worked per year, of . . . [the mine] in which
the citations . .. were ... issued[;]
c. [T]he total number of assessed violations for the period of July 1998 through May
2000, and[;]
d. [T]he total number of inspection days for that same period[;]
841

12. [Gov. Exh.6], the .. . printout of prior violations, may be admitted into evidence and
may be used for determining the assessment of a penalty if the citations at issue are affirmed[;]
13. Coal was hauled from the Dunn Coal [and] Dock Strip (M]ine to the preparation
plant via the Dunn Hollow haulroad on June 28, 1999(;]
14. On June 28, 1999, the Dunn Coal [and] Dock Strip (M]ine, the Dunn Hollow
[H]aulroad and the Lady Dunn [P]reparation [P]lant were all on property leased or owned by
Cannelton ... [;]
15. On June 28, 1999, at approximately 6:00 p.m., while driving a loaded haulage truck
on the Dunn Hollow [H]aulroad, going from the Dunn Coal [and] Dock Strip [M]ine to the Lady
Dunn [P]reparation [P]lant, Roy E. Whitt was involved in a haulage accident and received fatal
injuries [;]
16. The decline grade of the Dunn Hollow [H]aulroad in the vicinity of the accident
ranged from 10.6 to 17.4 percent[;] [Gov. Exh. 8] . . . is an accurate depiction of the grade of the
haulroad in the vicinity of where the accident occurred and may be admitted into evidence.
(Tr. 14; see also Joint Exh. 1).

THE FACTS
The mine is a surface complex where bituminous coal is extracted, hauled and processed.
As the stipulations indicate, the mine includes the Dunn Coal and Dock Strip Mine (the pit),
where the coal is mined and stockpiled, and the Lady Dunn Preparation Plant, a coal preparation
and tipple facility. The pit and the processing area are connected by the Dunn Hollow
[H]aulroad (the road). The pit's elevation is considerably higher than that of the processing area.
As a result the connection road has several areas of steep decline.
If the company's speed limits are observed, it takes approximately l5 minutes to drive
from the pit to the processing area. Due to the elevation difference the route is somewhat
circuitous. The road leaves the pit and, after its initial descent, reconnects with a public road
before resuming its course on mine property and descending to the processing area. Primarily,
the road is used by coal haulage trucks. However, the road also is used by other mine vehicles,
and the short public part of the road is open to general traffic (Tr. 119, 688).

Jack Hatfield, the safety manager of Cannelton since 1977, explained that the mine began
operating in late 1992 or early 1993 (Tr. 569). After it opened, the road was used intermittently.
As 1999 began, the road which had been out of service was upgraded and reopened (Tr. 573).
Cannelton then contracted with Bridgeport Trucking Company (Bridgeport) to haul coal from the
pit to the processing area (Tr. 575-576). However, on June 13, 1999, Bridgeport informed
Cannelton it no longer would haul (Tr. 578, 676). Because Cannelton could not get its coal to
842

the processing area without trucks, Cannelton immediately sought to replace Bridgeport with
another firm (Tr. 676).
On June 18, Cannelton selected Big G Trucking Company as its new contractor. After
the company decided on Big G, Hatfield told George Arthur, Big G's president, that all of Big
G's drivers, mechanics, and bosses should come to the mine for training. A training class was
scheduled to be held on Saturday, June 19. Hatfield maintained that he assembled the men and
began a hazard training session in which he reviewed hazards associated with the road and the
processing area (Tr. 584). Hatfield discussed escape ramps with the drivers (Tr. 586) and
explained that they should rely on their citizens' band (CB) radios to report trouble and request
assistance (Tr. 588-589). Also, Hatfield emphasized the drivers should wear seat belts and
should not pass on the road (!QJ.
In the meantime, George Arthur's relative, William Arthur, heard about the job at the
mine. William Arthur owned Wiggles Trucking Company, a coal haulage firm that owned 11
trucks and employed approximately 30 persons. 1 William Arthur wanted the work for his
company. After discussing the matter, Wiggles subcontracted the work from Big G (Tr. 30-32).
Thus, it was Wiggles' drivers who actually hauled for Cannelton.
After Hatfield's training session ended, William Arthur, who was at the mine, introduced
himself to Hatfield. As the owner of Wiggles, William Arthur was in charge of all work done by
his employees. As he put it, he was responsible for ''run[ning] the jobs" (Tr. 29). After the two
men met, Hatfield got in William Arthur's pickup truck and guided Arthur up the road to the pit.
Along the way, Hatfield spoke to Arthur abo.u t various aspects of the road, including the escape
ramps and the berms. Hatfield noted that there was a flat area near the top of the hill where the
drivers could pull over. He told Arthur to instruct the drivers that when they left the pit and
began to descend toward the tipple, they could stop in that area, gear down and then proceed
down the hill (Tr. 682).
When the tour of the road was finished, Hatfield felt that Arthur "could lead the trucks
... and ... talk to [the] drivers" (Tr. 590-591). Hatfield believed Arthur would tell the drivers
which gears to use when they came down the hill (Tr. 591). Arthur agreed that Hatfield gave a
good overview of the road. "He showed me the whole road ... all the escape ramps and
everything" (Tr. 191).

1
/ Subsequent to the accident, Wiggles filed for bankruptcy.

trucking (Tr. 27-28).
843

It no longer engages in

Hatfield testified he told Arthur that if Arthur was going to bring in drivers other than
those Hatfield already had met, Arthur should "make sure they have all their training, they have
been hazard trained, [and] ... they're legal" {Tr. 598). Hatfield felt certain Arthur understood
Cannelton did not want untrained persons on its property and that Cannelton was concerned
about safety {Tr. 656). For his part, Arthur was not clear what Cannelton officials asked about
Wiggles' safety program. At first, he seemed to agree that representatives of Cannelton asked
whether his company had a safety training program {Tr. 216), but a short time later he stated he
did not recall whether or not anyone asked (Tr. 218). Arthur was sure, however, that the
representatives of Cannelton made it clear that Wiggles' drivers had to be trained as MSHA
required {Tr. 218).
Hatfield also testified he told Arthur that Cannelton needed copies of Form 5000-23 for
the drivers to show they had been trained. 2 According to Hatfield, Arthur responded that a
person named Greg Holestin conducted training for Wiggles, that Arthur would contact Holestin,
and that Holestin would provided the documents. Hatfield felt comfortable that Wiggles' drivers
had the required training (Tr. 593).
After Hatfield's and Arthur's conversation ended, Wiggles' drivers went up the hill to the
pit. Hatfield believed Arthur would lead the drivers down the road to the processing area and
the tipple. Hatfield did not accompany the drivers because he "felt confident [Arthur] had seen
the road, and escape ramps, and ... [would] convoy . .. [the drivers] ... and show them these
things" (Tr. 681).
The next day, June 20, the mine did not operate. The drivers returned to the mine for
work on Monday, June 21, and·they worked the rest of the work week. Hatfield stated that
during this week he was not aware of any safety issues at the mine involving the drivers {Tr.
596). Arthur agreed that things went well. However, because of a large amount of coal in the
pit, Hatt.field kept asking Arthur for more
drivers, and Arthur testified he felt pressure to provide them {Tr. 34, 194-195).3
A short time later Wiggles hired two laid-off former employees, one was Whitt and the
other was David Fields (Tr. 34-35). Arthur had known Whitt for 20 years {Tr. 36). Whitt was
then working in the Cleveland, Ohio area {Id.). Holestin called Whitt on June 24 or June 25, and
left a message for Whitt to return to West Virginia, ifhe wanted to work at the mine (Tr. 196).

2/

Upon completion of a miner's training, an operator is required to record and to certify
that the miner has received the training specified. The operator does so on MSHA Form 500023, a copy of which is given to the miner and a copy of which is retained by the operator {30
§ 48.9).

u.s.c.

3/

Arthur maintained that Hatfield told him if Wiggles could not provide more drivers,
Cannelton would let someone else do the job (Tr. 41 ).
844

Whitt agreed to report for work on Monday, June 28 {Tr. 83-84, 197). Fields also agreed to
come to work that Monday.
Holestin testified that he let Cannelton officials know Whitt and Fields would be
reporting for work by writing their names on a piece of paper and leaving the paper on a desk at
Cannelton's mine office {Tr. 75). Holestin stated he did not sign the paper.(Tr. 87).4
Whitt and Fields reported for work around 5:00 p.m. on June 28 (Tr. 198). The men
stopped where Wiggles' trucks were parked. Arthur estimated that he spent approximately
45 minutes to 1 hour "training" both men {Tr. 38, 163). 5 He explained that the training was the
same he had "done for 15, 16 years or 20 years" (Tr. 164-165). It involved him and the men
preshift examining the trucks by checking their brakes, lights, horns, and other components
(Tr. 165). Arthur had great confidence in the men's driving abilities, and he noted that neither
asked any questions regarding the trucks (Tr. 165-166, Tr. 170). After he was finished with the
"training," Arthur filled out Whitt's and Fields' task training papers.
Arthur completed the forms even though he was not certified by MSHA to provide
training (Tr. 38-39, 158). He stated he did not know he was required to be certified, that he had
provided training "for 23 years," and that prior to the accident "[e]very inspector in West
Virginia ha[d] looked at it and it was fine" (Tr. 38).6
After the papers were signed, Whitt and Fields got in their trucks and headed for the pit.
Arthur told them when they reached the pit, they should not try to take their trucks down the road
on their own. Rather, the first time they descended the road, they should follow another driver,
Ronald Hunt (Tr. 41). Arthur viewed Hunt as an "excellent truck driver" (Tr. 38), "one of the
best ... on the job" (Tr. 167). Hunt was "head strong when it [came] to safety" ffil).
Whitt and Fields did as they were told. When they reached the pit, their trucks were
loaded, and they formed a "convoy" with other trucks. Hunt lead the way down the hill followed

4
/

The paper was not addressed to anyone, and Holestin had no knowledge of what
happened to it (Tr. 74-75). Cannelton's witnesses testified that they never saw it.

s; Arthur later seemed to hedge his testimony regarding the time he spent with the men.
He agreed that when he met with Inspector Uhl and a representative of the State of West Virginia
after the accident, he might have said he spent 10 to 15 minutes with Whitt and Fields {Tr. 52,
163).
6

1 Fields described how his training papers were completed. Fields placed his social
security number and the date on the forms, and Arthur filled out the rest (Tr. 110, 125). As
Fields recalled, it took about 5 minutes (Tr. 108, see also Tr. 125). He believed that the same
procedure was followed with regard to Whitt (Tr. 110).
845

by Fields, Whitt, a driver named John Harless, and another Wiggles driver {Tr. 126-127). Fields
understood that Hunt would explain the "lay of the land" to him and Whitt (Tr. 127). As the
trucks proceeded down the hill, Hunt spoke to the drivers over their CBs {Tr. 108, 127-128 ).
Fields remembered Hunt telling them to stay in first gear. According to Fields, Hunt talked to
the men all of the way down the hill {Tr. 130). Once the trip was completed, Fields believed he
was introduced to the haulage road and that he understood what was required to drive it
{Tr. 112).
In the meantime, another driver, Randy Halstead, had stayed from the previous shift to
work during the evening shift. Halstead was assigned to use Wiggles' Truck No. 425. Halstead
checked the truck' s brakes and tires, and found nothing wrong (Tr. 375). He was not.surprised
the brakes exhibited no problems because approximately 2 112 months previously new brake
shoes had been installed on the truck (Tr. 365-366). Halstead proceeded to the pit in Truck
No. 425 where the truck was loaded. Truck No. 425 was equipped with a "Jake brake," a devise
for slowing the engine and hence the truck. It also was equipped with a retarder. 7 Prior to
starting down the hill, Ron Hunt told Halstead that he only should use the Jake brake and that he
should stay in first gear (Tr. 377, 378).
As he began his descent, Halstead put the truck into first gear and applied the Jake
brake. He had no trouble getting down the hill. In addition, when he applied the truck' s service
brakes at the bottom of the hill, they worked as they should (Tr. 379-380).
After Halstead reached the bottom and dumped his coal at the tipple, lie heard someone
on the CB tell Whitt that something was hanging underneath Whitt' s truck. Halstead pulled up
beside Whitt, got out of Truck No. 425, and looked under Whitt's truck. A brace for a fuel line
had come loose and was hanging below the truck. Halstead told Whitt to use Truck No. 425, that
he, Halstead, would take Whitt's truck and have it repaired {Tr. 356-357).
Whitt agreed to switch trucks with Halstead. Halstead explained to Whitt that Truck
No. 425 had a larger engine than the truck Whitt had been driving. Whitt responded that he
could "handle it" (Tr. 357). As the men drove up the hill and before Halstead went to the repair
area, Halstead remained in touch with Whitt over the CB. Whitt reported no problems with

7

I A "retarder" is generally defined as a device for restraining movement (See M·
U.S. Department of the Interior A Dictionary ofMine, Mineral & Related Terms (1968 at 918).
William Arthur, descried the function of a retarder as being to "hold you back on the hill where
you don't have to use your brakes and get them hot" {Tr. 49). Fields explained that a retarder
"slows the drive shaft down and [thus] help[s] to slow the truck down,, (Tr. 114). Fields
cautioned - and almost all of the other witnesses who addressed the point agreed- that if a driver
tried to down-shift and to take the truck out of gear while the retarder was engaged, the driver
could not get the truck back into gear and the retarder would have no effoct on controlling the
truck's speed {Tr. 114-115).
846

Truck No. 425 (Tr. 381 ).
Near the top of the hill, Halstead turned off to go to the repair area, and Whitt continued
to the pit. A short time later, Whitt asked over the CB how to work the retarder. Halstead was
not surprised. He believed a driver would not necessarily know how to use a retarder, especially
if he or she never had driven a truck equipped with one (Tr. 371).
Halstead thought it was dangerous for such a driver to use the retarder. If the driver tried
to shift and go out of gear, he or she could stall the engine. The result would be ')ust like putting
... [the] truck in neutral" (Tr. 363). Once the engine stalled, the driver instinctively would apply
the service brakes, but the truck would be traveling at such a speed it would require repeated
application of the brakes to even begin to slow it, which in tum would make the brake drums hot
and the brakes quickly would loose their effectiveness (Tr. 367). Therefore, Halstead told Whitt
"you don't need the retarder ... use your Jake brake ... and first gear .. . until you get to the
bottom of the mountain" (Id.). Whitt again replied he could "handle" the truck, and Halstead
had the impression that Whitt was comfortable driving it (Tr. 372).8
When Whitt reached the pit, Cannelton miner Tommy Campbell was loading trucks with
a front-end loader (Tr. 401- 402). Whitt pulled his truck into the wrong place, and Campbell
called him on the CB and asked him to move the truck closer to the front-end loader, which
Whitt did (Tr. 404-405). Campbell testified that Cannelton officials had told him and other
loader operators that new drivers would be coming and had asked them to "make sure ... [the
new drivers] were ... task trained before ... [the operators] loaded them" (Tr. 406). As a result,
Campbell believed when a new driver arrived in the pit, the front-end loader operators always
asked if the driver was task trained (Id.).9
Because Whitt was a new driver, Campbell maintained that he loaded Whitt's truck
"lighter" than he loaded the other trucks (Tr. 407). Campbell was certain he had been told to "to
do that" by the mine superintendent (Tr. 407). Because the coal was not piled above the truck's
side rails, Campbell estimated Whitt's load was about 75 percent that of an experienced driver
(Tr. 408).

8
/ Fields overheard the discussion.

Fields version of what was said essentially tracked
Halstead's. He stated that Whitt "asked [Halstead] something about the ... retarder and
[Halstead] told him not to fool with it, just [to] put the truck ... in first gear and do down the
hill" (Tr. 113). Fields did not know whether Whitt had prior experience driving a truck equipped
with a retarder (Tr. 189).
9
/

Campbell never specifically stated he asked the question of Whitt (See Tr. 405-407).
Rather, he testified that he was "sure he ... would have [asked Whitt] or I wouldn't have loaded
him" (Tr. 412). Compbell also stated he had no first hand knowledge Whitt actually received
such training (Id.).
847

After Field's truck was loaded, the men were ready to make their second trip down the
hill to the tipple. Fields proceeded Whitt. Because he was ahead of Whitt, Fields did not see
what happened next (Tr. 107). However, John Harless did.
Harless had been working at the mine for about a week. On June 28, he too was hauling
coal from the pit to the tipple on the evening shift. When Whitt and Fields left the pit, Harless
also started for the tipple. Harless reach a spot where he had a good view of the road. Harless
described what happened:
[I] slowed down and looked ... I saw a truck break away,
and I saw it flip over .. . coal dust went up . . . 30, 40 feet in the
air.[ 10] I started . .. hollering at Roy [over the CB]. [There was]
no response. And I thought Roy was still in the truck because Roy
always wore a seat belt ... I hollered back up to the strip. I said
you need to get 911 up here there's been an accident {Tr. 233; see
also Tr. 240)).
Harless drove to a level spot and parked. He got out and began running down the road
toward Whitt's truck. He rounded a curve and saw Whitt laying in the middle of the road. The
truck had traveled on for a considerable distance before running off the road and overturning.
Harless took off his shirt and covered Whitt. He told Whitt that everything was going to be all
right. Whitt did not respond. Another miner arrived and checked Whitt' s pulse. The other
miner told Harless to return to his truck and there was nothing Harless could do. Whitt was dead
(Tr. 234-235).
MSHA was notified of the accident, and later that evening, Inspector Uhl arrived at the
mine. He made sure that an order was issued under section 103(k) of the Act (30 U.S.C.
§ 813(k)) to "freeze" the accident site until MSHA's investigation was completed. He traveled
the haulroad to familiarize himself with the road, and he requested that representatives of
MSHA' s technical support unit come to the mine and inspect the overturned truck. Uhl also
arranged for MSHA to interview those who had information about the accident, and he requested
the truck's maintenance records and the road's shift examination reports {Tr. 423). Finally, he
asked to see the training records of Wiggles' and Cannelton's employees {Tr. 424).
In addition to Uhl, MSHA sent to the mine supervisory investigator Dennis Ferlich, who
holds a BS degree in mechanical engineering from Penn State University (Tr. 834-835). Perlich

10

1Harless described the truck as traveling faster than if it had been in first or second gear.

In fact, it was going so fast, he believed it could have been totaJly out of gear {Tr. 241, 261 ).
848

arrived on June 30, and spent the next 3 days inspecting the truck (Tr. 748). 11 He took
photographs and kept notes of his findings (Tr. 749).
Although, Ferlich found the steering, the transmission, the gears, the electronic system,
the pneumatic system, and the structure of the truck to be sound, he believed there were defects
in the trucks' service braking system (Tr. 778-779, 843, 867-868). He explained there were six
service brakes on the truck. Two wheels on the truck's front steering axle each had brakes, and
four wheels on the truck's back axles each had brakes. The brakes were applied through
hydraulic air pressure which was activated when the driver pushed the brake pedal. The brakes
worked as follows: When the driver stepped on the brake pedal, the air pushed forward the
pushrods, which contacted the slack adjusters, which pushed the S-carns, which pushed against
the rollers, which pushed the brake shoes outward and into the inside of the brake drums. Since
this happened virtually simultaneously on the six wheels, the contact between the brake shoes
and the brake drums caused the wheels to slow and, if need be, to stop (Tr. 755, 766-767, 768;
see Gov. Exh. 20-7).
In Ferlich's view, the nature of the contact between the pushrods and the slack adjusters
was critical to the effective functioning of the brakes. The distance the pushrods moved (the
pushrod stroke) determined whether the slack adjusters adequately caused the S-carns to move
sufficiently to cause the rollers to propel the brake shoes out against the brake drums. Ferlich
stated that the goal was to keep the pushrod strokes to a minimum so that a S-carns "didn't have
to tum too far to push the [brake] shoes ... against the drum[s]" (Tr. 770). The strokes should
extend no more than 2 inches (Id.). Ideally, each stroke should be "in the neighborhood of an
inch and~ half' (Tr. 771).
Ferlich found the pushrod stroke on the right middle brake to be 2 1/4 inches, which, in
Ferlich's view "reduced the braking force on that brake" (Tr. 781). In addition, two of the three
other rear brakes were at or near their limit. The left-rear brake had a stroke of 2 inches and the
right rear brake had a stroke of 1 15/16 inches. (The stroke on left middle brake was
1 9/16 inches (Tr. 781; see also Tr. 843-844).)
Ferlich also testified there were limits to allowable wear on the brake drums. He
measured the wear and found that "all of the brake drums were over the maximum allowable
wear limits" (Tr. 783). The drums were "severely worn ... beyond what the manufacture[r]
allow[ed]" (kh). In his view, the wear was so great the drums should have been "throw[n] ...
out" {Tr. 799). Each drum had a "ridge build up on the edges" and the ridge showed that
excessive use had worn the drums down (Tr. 783).

11

On June 30, the truck was still located where it had come to rest after it careened off
the road. The only change in the truck's physical condition since the accident was that it had
been returned to·an upright position {Tr. 862).
/

849

In addition, each drum was discolored by scorching, which indicated to Ferlich that the
drums had been subjected to temperatures "anywhere above 6 to 8 hundred degrees Fahrenheit"
{Tr. 783). Finally, a piece measuring approximately 2 114 inches had broken off the edge the
right middle brake drum (Tr. 782; see Gov. Exh. 20-10).
Upon the completion of his on-site inspection of the truck, Ferlich returned to his office
where he prepared a report summarizing his findings {Id.). Then, after consulting with Ferlich,
Uhl issued the subject citations to Cannelton.

THE ALLEGED VIOLATIONS

30 C.F.R. §

Citation No.
7157394

9121199

48.26

Citation 7157394, which alleges a significant and substantial violation of section 48.26,
states:
Based upon testimony and records obtained during this
accident investigation, adequate experienced miner training was
not provided to Roy Whitt, driver and victim of the . .. haulage
accident which occurred June 28, 1999. The training he received
did not provide adequate information and instruction about the
recognition and avoidance of hazards he would encounter at the
mine, more specifically on the haul road where he was assigned to
drive. This inadequate training was determined to be a factor
contributing to the accident which resulted in fatal injuries to the
driver (Gov. Exh. 1).
At the time the alleged violation occurred (June 28, 1999), section 48.26{a) required
newly employed experienced miners to complete a training course as "prescribed in the section"
before beginning work duties. Section 48.26{b) specified the topics for the course, which
included: (1) an introduction to the work environment (section 48.26 {b)(l)); (2) mandatory
health and safety standards pertinent to the task(s) the miner [would] be assigned
(section 48.26{b)(2)); (3) review of the line of authority of supervisors and miners'
representatives, and an introduction to the operator's rules and procedures for reporting hazards
at the mine (section 48.26(b)(3)); (4) instruction on the procedures for riding on and in mine
conveyances, the controls for the transportation of miners and materials, and the use of
communication systems, warning signals and directional signs at the mine (section 48.26(b)(4));
(5) escape and emergency evacuation plans and fire warning and firefighting procedures at the
mine (section 48.26(b)(5)); (6) instruction in work procedures around highwalls and pits
(section 48.26(b)(6)); (7) the recognition of hazards in the mine and their avoidance
(section 48.26(b)(7)); (8) and such other courses of instruction as may be required by MSHA's

850

District Manager based on the circumstances and conditions of the mine (section 48.26(b)(8)). 12
The citation charges that "adequate experienced miner training was not provided to Roy
Whitt" (Gov. Exh. 1). The parties accept the fact that Whitt was an "experienced miner" (as
defined in section 48.22 (30 C.F.R. § 48.22)), who was newly employed. As such, section 48.26
required that he be trained according to .its mandates. There is no <lispute that Cannelton did not
provide Whitt with training. Thus, whatever training Whitt received was provided by Wiggles.

I credit Arthur's testimony that on the afternoon of June 28, the trucks that Whitt and
Fields were going to drive were preshift examined in Whitt and Fields presence
(Tr. 106, 159, 165). I also find that after the trucks were examined, Whitt and Fields drove them
to the pit where they were loaded, that the men then followed Hunt down the hill (Tr. 41 ), and
that on the way down, Hunt pointed out the escape ramps and other safety-related features of the
road (Tr. 167).

I conclude, however, that none of this "training" complied with the existing requirements
of the standard. There is nothing in the standard indicating that miners observation of and/or
participated in preshift examination of trucks they would be driving in and of itself met any of
the prescribed training requirements. Further, even if Whitt's "convoyed" introduction to the
road qualified as instruction in "the recognition and avoidance of hazards present in the mine"
(section 48.26 (b)(7)), a dubious assumption given the rather imprecise description of the content
of Hunt's instruction given in the testimony (See Tr. 126-130), section 48.26(a) required the
training to be given before Whitt was "assigned to work." Here, the journey down the road did
not occur before Whitt was assigned to work, that is to carry a load of coal to the tipple. Rather,
it followed his visit to the pit and it coincided with his first trip down the road in a loaded truck
(Sec. Br. 10).
Moreover, the training requirements for newly employed experienced miners were
premised on the requirement that most of the training would be provided by ·MSHA approved
instructors (See section 48.23(g)). Arthur acknowledged that he was not certified by MSHA to
provide training. Nor was Arthur authorized to sign a certificate of training (Tr. 38, 41, 542543). Hunt, too, was not authorized by MSHA to provide training. For these reasons, I find the
Secretary proved that Whitt was not provided with experienced miner training as required and
that section 48.26 was violated.
Having found a violation, the question arises whether Cannelton can be held responsible
for it, and I conclude it can. The law is clear. In a case whose facts resembled those at hand, the
Commission stated:

12
/ Effective July

I , 1999, section 48.26 was revised. Among other things additional
requirements for a "minimum course of instruction" were add to the regulation (30 C.F.R.
§ 48.26 (July 1, 1999)).
851

Operators are liable without regard to fault for violations of
the Mine Act and its standards. E.g. Fort Scott Fertilizer-Cul/or,
Inc. 17 FMSHRC 1112, 1115 (July 1995); Western Fuels-Utah,
Inc., IO FMSHRC 256, 260-61 (Mar. 1988) affd on other grounds,
870 F.2d 711, 716 (D.C. Cir. 1989); Asarco, Inc. -Northwestern
Mining Dept., 8 FMSHRC 1632, 1634-36 (Nov. 1986), affd, 868
F.2d 1195, 1198 (10th Cir. 1989).. . .[T]he mine operator ... is
strictly liable for all violations of the Act that occur at its mine,
including those committed by its contractors' employees. See Bulk
Transportation Services, Inc., 13 FMSHRC 1354, 1359-60
(Sept. 1991) ("the Act's scheme ofliability provides that an
operator, although faultless in itself, may be held liable for the
violative acts of its employees, agents and contractors"); see also
Cyprus Indus. Minerals Co. v. FMSHRC, 664 F .2d 1116, 1119 (91h
Cir. 1981) (mine operators are strictly liable for the actions of
independent contractor violations") (Bluestone Coal Corporation,
19 FMSHRC 1025, 1032) (June 1997)).
Thus, a production-operator may be liable without regard to fault for violations
committed by its contractor's employees, and it is within the Secretary's discretion to cite the
production-operator, the contractor, or both. The Commission and its judges may review the
decision of the Secretary in order to guard against an abuse of discretion. (Bluestone,
19 FMSHRC at 1032 (citing to W-P Coal Co., 16 FMSHRC at 1404, 1411(July1994)).
The facts support the Secretary's decision to cite Cannelton. As the Commission has
pointed out, a factor indicative of a proper exercise of the Secretary's discretion is whether the
violation affects the safety of the production-operator's employees (Mingo Logan Coal Co., 19
FMSHRC 246, 250 (Feb. 1997); affd 133 F3d 916 (41h Cir. 1998)). Whitt did work alone or
only with Wiggles' drivers. His operated his truck in areas where Cannelton's employees and
the public occasionally were present. Employees of Cannelton worked in the pit and the
processing area (Tr. 243), and at times equipment other than haulage trucks was driven by
Cannelton's employees on the haulage road. Finally, the public had access to the small part of
the road that belonged 'to the state {Tr. 589). An untrained driver, such a Whitt, was a danger to
Cannelton's employees as well as to the public when he had to travel in the pit, the processing
area, and on Cannelton's and the state's parts of the road (Tr. 244). Cannelton had a duty to
protect those employees and citizens by ensuring that its contractor's employees were properly
trained.
Moreover, as the Court noted in Mingo Logan, "holding production-operators liable for
the training violations of their independent contractors encourages production-operators to
employ only those independent contractors with exemplary health and safety records, thereby
promoting the protective purposes of the Mine Act" (Mingo Logan, No. 97-1392, slip op 8
(4th Cir. Jan. 8, 1998)). In addition, holding production-operators liable for the training
852

violations of their independent contractors promotes production-operator oversight and, thus,
encourages contractor compliance. Training prescribed by the regulations is vital to ensuring a
safe work place and the ultimate responsibility for ensuring a safe workplace lies with the
production-operator.

SIGNIFICANT AND SUBSTANTIAL (S&Sl AND GRAVITY
Inspector Uhl found that the violation was S&S. He based his finding on the fact that the
lack of training meant hazards associated with descending the road and ways to avoid such
hazards were not properly pointed out to Whitt. Uhl believed the violation directly contributed
to Whitt's death. (Tr. 480-481).
Although the evidence does not establish an unequivocal causal link between the accident
and Whitt's lack of experienced miner training, I agree with Uhl's conclusion as to the S & S
nature of the violation. A condition or practice is S&S if: ( 1) it is a violation of a mandatory
safety standard; (2) if it contributes to a discrete safety hazard; (3) if there is a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) if there is a reasonable
likelihood that the injury will be of a reasonably serious nature (Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981); Math-ies Coal Co., 6 FMSHRC 1, 3-4
(Jan. 1984)). When evaluating the ''reasonable likelihood" element, "likelihood" is viewed in
terms of continued normal mining operations without any assumption as to abatement (US. Steel
Mining Co., Inc. 6 FMSHRC 1573, 1574 (July 1984); Halfway, Inc., 8 FMSHRC 1, 12
(Jan. 1986); Southern Ohio Coal Co., 13 FMSHRC 912, 916-917 (June 1991)).
I have found a violation of section 48.26. The failure to provide Whitt with required
experienced miner training made him a danger to himself and to others, specifically to those at
the mine who worked in the pit and tipple areas, who drove on the road, and to those members of
the public who used the state's part of the road. This was especially true given the fact that Whitt
had not driven a loaded coal haulage truck for a number of months and the fact that he was
totally unfamiliar with the steeply graded road. The situation created by Whitt's lack of training
was an accident waiting to happen. Finally, given the weight of the truck, the speed at which the
truck could move, the steepness of the road, as well as the other vehicles the truck could
encounter as mining continued, it was reasonably likely that any injuries resulting from Whitt's
lack of training would be serious or worse.
In addition to being S&S, the violation was very serious. As I have noted, training is
critical to maintaining a safe work place. Whitt was not given the training required. He had not
driven a coal haulage truck for months, and he was unfamiliar with the conditions at the mine,
the most potentially hazardous of which was the steep descent of the haulage road. He was
expected to work in the vicinity of other miners and, to a limited extent, in the vicinity of the
public. Allowing him to work under such conditions without first providing him the required
prescribed training placed him and others in a very dangerous situation.

853

NEGLIGENCE
Negligence is the failure to exercise the care required by all of the circumstances. I
conclude that although Cannelton tried to exercise some oversight of contractor training, it did
not implement sufficient procedures to make the oversight effective and, therefore, did not
exhibit the care required. In finding Cannelton negligent, I note, again, that it is the productionoperator who bears the ultimate responsibility to ensure training is given as required.
Essentially, Cannelton relied on Wiggles to be responsible for the training of new drivers.
Cannelton's reliance was exemplified by the fact that Hatfield showed William Arthur the
haulage road so. that Arthur could instruct the new drivers in its hazards (Tr. 590-591 ), and by
Hatfield telling Arthur to make sure the Wiggles' drivers were trained properly (Tr. 598, see also
Tr. 28). For his part, I am persuaded that Arthur lead Hatfield to think all of Wiggles' drivers
were trained as required (Tr. 616). I am also persuaded that Arthur was asked by a Cannelton
representative whether Wiggles had a training program. Arthur testified this "probably"
happened, and it is something a production-operator, relying on its contractor to provide training,
would have done (Tr. 216-217). Moreover, I credit Arthur' s testimony that Cannelton officials
had made it clear to him Wiggles' drivers had to be current in their training {Tr. 218). This also
would have been consistent with Cannelton' s reliance.
There was nothing wrong with Cannelton relying on Wiggles. Required training can be
provided by the contractor, the production,.operator, or by both. The problem was that
Cannelton's efforts to monitor Wiggles' compliance were woefully inadequate. In fact, there is
no indication that Cannelton instituted any systematic checks to ensure that before a contract
miner was assigned work, he or she was properly trained by a certified trainer. For example,
Cannelton did not insist that prior to beginning work a newly employed contract employee
review his or her training status with someone from the company and from Wiggles. 13 True,
Hatfield requested copies of Wiggles' employees training certificates {Tr. 610), but this was not
enough because it left Cannelton in the position of relying on what the certificates stated without
attempting to confirm their accuracy.
Further, even if rank-and-file front-end loader operator, Tommy Campbell, and other
loader operators were told by Cannelton officials to make sure new drivers were trained before
they loaded the drivers' trucks (Tr. 406), by the time the loader operators would have asked,
untrained newly employed experienced drivers would have been assigned to work and would
have embarked upon their duties. In other words, the loader operators' questions would have
come too late to further full compliance with section 48.26(a). ("A newly employed experienced
miner shall receive and complete training .. . before such miner is assigned to work duties"

13
/ This is not to say that the mechanics of a production-operator's oversight must include

such a check. Oversight methods are up to the operator. However, whatever methods it chooses
to employ, they must be effective, and Cannelton's were not.
854

(30 C.F.R. § 48.26(a)). 14

30 C.F.R. §

Citation No.
7157395

9/21/99

48.27

The citation, which alleges a S & S violation of section 48.27, states:
Based on the testimony obtained and the failure to provide records of task
training for operating the Mack RD-854-SX coal haulage truck, it is detennined
that task training was not proved for Roy Whitt, driver and victim of the fatal
powered haulage accident which occurred on June 28, 1999. This was the
victim[']s first day of employment at this mine site and his first trip on the
haulage road with this particular type vehicle. He was operating it in the
production process and was not under direct supervision. This failure to provide
training was determined to be a factor contributing to the accident which resulted
in fatal injuries to the driver (Gov. Exh. 2).
With regard to Whitt, section 48.27 then required he be: (1) instructed in an on-the-job
environment in the health and safety aspects of safe operating procedures relating to the
operating of the coal haulage trucks at the mine and relating to the hauling of coal (30 C.F .R.
§ 27(a)(l)); and, (2) because he was to begin work immediately, be instructed in the supervised
operation of the coal haulage truck during production (30 C.F.R. § 48.27(a)(2)(ii)). Whitt was
required to abstain from driving a truck until the training "ha[d] been completed"
(30 C.F.R § 48.27(a)).
It is clear that Uhl based the citation on the fact that after Whitt's first trip down the
haulage road, he changed to Truck No. 425, a truck that was equipped with a retarder. In Uhl's
opinion, the presence of the retarder required new task training because the regulation required
training whenever a miner used a new or modified piece of equipment that he or she had not used

14
/

While I conclude Cannelton was negligent because it failed to exercise effective
oversight of Wiggles' compliance, I recognize Wiggles also did not exercise the care rquired.
Indeed, Wiggles' lack of care was greater than Cannelton's. Arthur was primarily responsible
for failing to see that Whitt was trained properly before he was assigned work. Wiggles' greater
negligence, however, does not excuse Cannelton's failure.

855

before. 15 In Uhl's view, the retarder qualified as such a modification because if a miner was
unfamiliar with its purpose and use the miner's ignorance could create a serious safety hazard for
himself or herself and others (Tr. 487, 526). Uhl believed Whitt did not understand the function
of the retarder because Whitt asked Halstead over the truck's CB about the retarder's purpose
Gd., see also Tr. 360).
I agree with Uhl that Whitt needed new task training (Tr. 487, 523). The regulation
encompasses the exact situation in which Whitt found himself when it requires operators of
equipment to be "instructed in safe operating procedures applicable to . . . modified ...
equipment[,] . . . which requires ... new or different operating procedures" (section 47.27(a)(3)).
The retarder's purpose, as stated by Wiggles' driver, John Harless, was to slow the truck
(Tr. 239). However, while the testimony establishes that a retarder can be helpful in keeping a
truck under control as it descends an incline, the record also reveals the retarder can be dangerous
if its purpose and function are not understood. As Halstead and others explained, a driver must
realize if the retarder is engaged and he or she tries to shift, the transmission can go out of gear
and the engine can stall. If this happens, and the truck is.loaded and starts to run away, the
truck's brakes will not hold it on steep grades S\J.Ch as those of the haulage road (See e.g.
Tr. 363).
I accept as a fact that Whitt asked Halstead over the CB radio how to work the retarder
since there is no testimony discrediting Halstead's assertion that this is what happened and since
Halstead's description of the conversation was essentially confirmed by Fields (See e.g. infra
(Tr. 360)). Whitt's question reveals that the retarder was new to him and that training was
required - training he did not receive. Other than being told by Halstead not to "fool around"
with the retarder, there is no indication Whitt was advised about the device's purpose, function
and safe use (or, nonuse, as the case may be (Tr. 360)). Thus, Whitt was placed in a situation
where misuse of the retarder easily could cause the truck to run away. Therefore, I find that a
violation of section 4 7.27 occurred as charged.

S&S and GRAVITY
The violation was S&S. The Jack of training contributed to the hazard that Whitt would
try to use the retarder and would endanger himself and/or others. Given the particular
circumstances under which the violation occurred - the grades of the road, the necessity to
maintain complete control of the truck when on the road, Whitt's general lack of familiarity with
the road, the fact that shifting gears with the retarder "on" could cause the truck to go into neutral
and stall, and the fact that Whitt was likely to downshift to try to control the speed of the truck it was reasonably likely that lack of training in the purpose and function of the retarder could
lead to a runaway situation which, in turn, could result in an accident causing injury to Whitt or

15
/ Uhl also testified that the truck's larger engine size also required new task training

(Tr. 526), but he did not explain why, and the entirety of his testimony abundantly indicates he
based the citation almost solely upon the presence of the retarder.
856

to anyone the uncontrolled vehicle hit. Finally, such aJi accident was reasonably likely to at least
cause serious injury to Whitt and perhaps to others as well.

In addition, to being S & S, the violation very serious. While I am not holding that the
accident was caused by misuse of the retarder - no one knows for certain its cause - it is clear to
me that lack of training in the purpose and function of the retarder created the conditions under
which the accident or one like it easily could have happened. This alone is sufficient to make the
violation very serious.
NEGLIGENCE
I also find that the violation was due in part to Cannelton's negligence. Cannelton's
management representatives did not know that Whitt had started work, changed trucks, and was
unfamiliar with a retarder. However, Cannelton knew that new employees of Wiggles were
likely to be arriving and especially that they might be present on June 28. (I credit Arthur's
testimony that Cannelton was anxious to have more drivers on the job (Tr. 195-196) and that
Arthur told Hatfield more drivers would be coming to work that Monday (Tr. 195)).
As I have already noted, Cannelton made some general efforts to check on the training of
its contractor's employees, but what the testimony does not reveal and what I conclude did not
exist was systematic, effective and ongoing oversight by Cannelton to make sure all of the
employees of its contractor were trained as required. There were things that a productionoperator exercising reasonable care might have done, and which Cannelton did not do, to
exercise effective oversight. Had Cannelton systematically overseen training compliance by its
contractor, Arthur would have been more likely to make certain that Whitt be properly trained
before he drove a truck like Truck No. 425. Although Arthur, acting for Wiggles, assumed the
primary duty of making sure all required training was provided, Cannelton also had a duty that it
fully failed to meet. Its negligence was less than Wiggles', but Cannelton's lack of a systematic
and (most importantly) effective effort to make sure the training requirements were enforced,
means that the violation of section 48.27 also was due to its negligence.
30 C.F.R. §

Citation No.
7187482

9121199

77.404(a)

The citation, which alleges a S & S violation of section 77.404(a), states:
(The truck] that was being driven by Roy Whitt to haul coal at the mine on
June 28, 1999, was not maintained in a safe operating condition in that: 1. One
brake on the axles was beyond the maximum allowable adjustment range[;] 2. The
other three brakes on the drive axles were at or near the maximum allowable
adjustment range[;] 3. The brake drums of all four drive axle brake units and the
two front steering axle brake units were worn beyond the maximum allowable
wear limit stamped on the drums by the manufacturer. These conditions
857

decreased the braking capacity of the truck. This reduced braking capacity, in
combination with the fact that the truck was operating on a steep grade that ranged
from 10.6 to 17.4 percent over a distance of approximately 1000 feet in the area of
the accident site and the fact that the truck was routinely carrying significantly
more than its rated capacity, contributed to the accident that resulted in fatal
injuries to the driver (Gov. Exh. 3).
Section 77.404(a) requires in pertinent part that "[m]obile ... equipment ... be
maintained in safe operating condition and . .. equipment in unsafe condition ... be removed
from service immediately." The Commission has held that section 77.404(a) imposes two duties:
(1) to maintain equipment in safe operating condition; and (2) to remove unsafe equipment from
service immediately (Peabody Coal Company, 1FMSHRC1494, 1495 (Oct. 1979)) and that
"[d]erogation of either duty violates the regulation" (1 FMSHRC at 1495; see also Ambrosia
Coal & Construction Co., 18 FMSHRC 1552, 1556 (Sept. 1996)). Truck No. 425 was mobile
equipment. Obviously, it was not removed from service before the accident. Therefore, if the
conditions cited by Uhl existed, and if they singly or in combination rendered it unsafe to operate
the truck, a violation occurred. 16 The issue of whether the truck was unsafe must be determined
by deciding whether "a reasonably prudent person familiar with the factual circumstances
surrounding the allegedly hazardous conditions, including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action" (See Alabama By-Products
Corporation, 4 FMSHRC 2128, 2129 (Dec. 1982) (involving identical standard applicable to
underground coal mines)). The burden of proof is on the Secretary.
Ferlich was the only witness who conducted a detailed, post-accident investigation of the
state of the subject truck's braking system, and I find that the conditions be found, particularly
the pusbrod stroke lengths, the brake drum wear and discoloration, and the missing piece of the
right rear middle brake drum, existed as he described them.
Would a reasonably prudent person consider these conditions to have rendered Truck
No. 425 unsafe? The question must be answered based on the testimony ofFerlich and Steven
Chewning, President of Traffic Safety Consultants of Richmond, Virginia. (Chewing conducted
a study of the accident for Cannelton {Tr. 906-907)). Having considered the testimony of both, I
conclude that the Secretary established the violation. My conclusion is based upon a
combination of conditions as they affected the brakes and upon the circumstances under which
the truck was used. In my view, together they created a situation in which a reasonably prudent
person would have recognized a hazard and would have withdawn the truck from service.
Ferlich believed the braking capacity of the truck was diminished by what he found. He
stated that the pushrod for the brake on the right rear axle being 114 inch above the limit reduced
its braking capacity. Ferlich persuasively and logically explained why a stroke exceeding the

16/ Equipment may be defective and not be in violation of the standard if the defect does

not affect safe operation of the equipment during its normal intended use (See Hobet Mining,
Inc., 19 FMSHRC 411, 4 14 (Feb. 1997) (ALJ Maurer)).
858

2 inch limit meant the S-cam could not propel the right rear brake shoe far enough so it had
adequate contact with the brake drum (Tr. 770-771, 781). Ferlich was a credible witness, and I
accept his testimony that the braking capacity of the right rear brake was lessened.
I am also persuaded that, due to wear, all of the brake drums were thinner than they
should have been (Tr. 783, 786-788, 799). I credit Ferlich's testimony that because they were
thin, the drums had less structural integrity and a tendency to heat faster than brake drums with
lesser wear. Further, I credit his explanation that as the temperature rose, the drums then
expanded and, when the brakes were applied to the expanded drums, the brake shoes could not
maintain effective contact with the drums because the drums had pulled away from the shoes (Tr.
786-787, 789-790). (This is the phenomenon Ferlich referred to as "brake fade" (Tr. 788)). The
credibility ofFerlich 's testimony regarding the condition of the drums and the consequences to
the braking system is supported by the fundamental and unchanging rule of physics that friction
produces heat and that heat causes metal to expand.
Ferlich was less convincing when he testified regarding the hazard posed by the three
pushrods that were "at or near the limits" (Tr. 781 ). The stroke of the three pushrods measured 2
inches, 1 15/16 inches, and 1 9/16 inches (hh). Although he believed the length of these strokes
minimized a driver's ability to stop, he did not satisfactorily explain why (Tr. 786), and the fact
remains that the strokes' distances were within an allowable range. I cannot conclude that a
perfectly permissible condition would have signaled a hazard to a reasonable miner.
Also, while I accept as a fact that a piece measuring approximately 2 1/4 inches in length
was missing from the right middle drum, I am not convinced the missing "chunk" posed a hazard
(See Tr. 791). In his testimony Perlich did not connect the missing piece to any particular
hazard. His general view seemed to be that somehow the missing chunk compromised the
integrity of the braking system, but he did not fully explain why. Without an adequate
explanation I cannot find that the missing piece posed or contributed to a hazard, especially
when, as here, the missing chunk was not mentioned in the citation as a cause of the violation. 17
Thus, during the course of a work day, Truck No. 425 - a truck, with diminished braking
capacity on one wheel and with six worn brake drums - would have been required to descend a
haulage road carrying a load of coal. The question is whether a reasonable miner would have
concluded that travel down the road in such a loaded truck posed a hazard warranting correction.

17
/

In addition, there was much discussion by Ferlich and by Chewning about the
significance of the brake drums' blue color. Their testimony revolved around the issue of
whether "bluing" was indicative of bake fade (Tr. 820) and thus, indicative of the immediate
cause of the accident. Very little, if any, of the testimony concerned whether a reasonable miner
would have noted the bluing as indicating a hazard prior to the accident. In fact, Ferlich agreed
he could not say for certain if the "bluing" was present prior to the accident and thus would have
been seen by such a miner (Tr. 856, 885). Therefore, I will not consider it as a condition that
would have signaled a hazard.
859

I conclude the answer is "yes" because the pushtod stroke being above the limit on one of
the rear brakes reduced the capacity of that brake to function as it should, and, therefore, the full
force of the truck's braking system could not be applied when needed. In addition, the record
fully supports finding that the thin brake drums meant they were more likely to crack or to loose
a piece because their integrity was less than when they were manufactured and that they would
heat up and expand faster and lead to brake fade (Tr. 786-789). Not only does Ferlich's credible
testimony support this conclusion, so do elementary physical principles.
Ferlich's description of the brakes as "the " last line of defense in an emergency" was
accurate (Tr. 809). As he explained, if the Jake brake and the retarder did not slow the truck
sufficiently, the service brakes had to be used (Tr. 808). For example, if the drive shaft broke,
the truck would have nothing to slow it but its service brakes (Tr. 809). Also, Ferlich
persuasively testified that brakes in pristine condition are designed to stop the truck on a 20
percent grade (Tr. 879). Here, the grade was approximately 17 percent at its steepest, close to the
maximum grade on which the truck could be safety operated. The fact that the brakes were in far
from pristine condition meant that Truck No. 425 had diminished braking capacity where it
might be needed most. While the diminished capacity might not have been a problem if the
truck had been operated on generally level roads, on a road with grades
as steep as those at the mine, diminished capacity presented a definite hazard. Therefore, I
conclude Truck No. 425 was in an unsafe condition, and a reasonably prudent person familiar
with the truck and the conditions under which it was operating would have fixed or adjusted the
pushrod stroke and installed new brake drums or would have removed the truck from service.

S&S and GRAVITY
The violation was S&S. The violation of section 77.404(a) contributed to the hazard that
the truck would be unable to stop. Given the particular circumstances under which the violation
occurred - the grade of the road, the necessity to maintain control of the truck, the need to make
frequent trips down the road with the truck, the driver's unfamiliarity with the road and with the
truck - I conclude that as mining continued it was reasonably likely that the lack of full braking
capacity could contribute to a situation which was reasonably likely to result in an accident
causing serious injury to Whitt and/or to anyone the uncontrolled vehicle hit. Obviously, the
violation also was serious.

NEGLIGENCE
William Arthur testified that, prior to the accident, no one from Cannelton inquired about
Wiggles' truck maintenance program (Tr. 42-43). There is no testimony to refute this assertion,
nor any testimony that Cannelton made any independent checks of Wiggles' trucks. While
primary responsibility for the violation lay with Wiggles, Cannelton also exhibited negligence.
Cannelton could have - and should have - instituted some sort of systematic check (perhaps a
periodic spot check) to ensure its contractor's equipment was in compliance with applicable
safety standards. In particular, Cannelton had a duty to ensure its contractor used equipment that
860

either was maintained in safe condition or, if it could not be so maintained, was removed from
service. In the case of Truck No. 425, Cannelton did not meet this duty. .

ABILITY TO CONTINUE IN BUSINESS
The parties stipulated that the total of the proposed penalties would not affect Cannelton's
ability to continue in business (Stip. 6).

The parties stipulated that the proposed assessments were based, in part, on accurate
figures regarding Cannelton's size (Stip. 1l(a),(b); Gov. Exh. 5). The figures reveal that
Cannelton has an annual tonnage of 43,607,666 (See Gov. Exh. 5; Petition For Assessment of
Civil Penalty, Exh. A). Cannelton is a large operator.

GOOD FAITH ABATEMENT
The parties stipulated that if the violations are affirmed, they were abated in good faith
(Stip. 10 infra).

HISTORY OF PREVIOUS VIOLATIONS
The parties stipulated that the printout of the mine's prior violations for June 27, 1997
through June 27, 1999, ''may be used determining the assessment of a penalty" (Stip. 12). The
printout indicates that there were 34 applicable violations during this period, a number which
represents a moderate history of pervious violations.

CIVIL PENALTY ASSESSMENTS
Citation No.
7157394

9121199

30 C.F.R. § .

Proposed Assessment

48.26

$25,000

I have found the violation was very serious and was in part the result of Cannelton's
negligent failure to effectively oversee Wiggles' training of its employees. The violation was
abated in good faith, and any penalty assessed will not affect the ability of Cannelton, which is a
large company with a moderate history of previous violations, to continue in business. Given the
factors and especially in view of Cannelton's shared negligence and moderate history of prior
violations, I conclude an assessment of $5,000.00 is appropriate.

Citation No.
7157395

9/21 /99

30 C.F.R. §

Proposed Assessment

48.27

$20,000

861

I have found the violation was very serious. I also have found that it was in.part the result
of Cannelton's failure to effectively oversee Wiggles' training of its employees. The violation
was abated in good faith, and any penalty addressed will not affect the ability of Cannelton,
which is a large company with a moderate history of previous·violations, to continue in business.
Given these factors and especially in view of Cannelton' s shared negligence and a moderate
history of previous violations, I conclude an assessment of $4,000 is appropriate.

Citation No.
7187482

9/21199

30 C.F.R. §

Proposed Assessment

77.404(a)

$20,000

I have found the violation was serious. I also have found it was, in part, the result of
Cannelton's failure to meet its duty to ensure the equipment operated by its contractor was either
safe or removed from service. The violation was abated in good faith, and any penalty assessed
will not affect the ability of Cannelton, which is a large company with a moderate history of
previous violations, to continue in business. Given these factors and especially in view of
Cannelton's shared negligence and moderate history of previous violations, I conclude an
assessment of$1 ,500.00 is appropriate.

ORDER
Within 30 days of the date of this decision, Cannelton SHALL pay to the Secretary a
total of$10,500.00 for the violations found above, and upon payment of the penalties this
proceeding is DISMISSED. 18

18
/

In issuing this order, I note that the Secretary chose to propose very substantial
penalties for these violations. In so doing the Secretary presumably was attempting to "send a
message" to Cannelton and to other production-operators that they must increase oversight of
their contractors' compliance efforts and proactively encouraging compliance. While I do not
disagree with the Secretary regarding production-operators overalJ responsibility for compliance
and their need to effectuate that responsibility, I question whether the assessment of substantial
penalties without a prior "warning" is equitable. It is clear from the testimony of Bowman and
Hatfield that before the accident they discussed Cannelton's responsibility for contractors'
violations including the operator's need for oversight (Tr. 272-273, 282-283, 296-297; 648-649).
What is not clear from this record is whether there has been a prior consistent effort on MSHA' s
part to enforce oversight by Cannelton and/or other production-operators. For example, MSHA
might have insisted that operators include in their training plans provisions for effective
oversight . . . something MSHA apparently did not do when it came to Cannelton (Tr. 659), or
MSHA might have sent cautionary letters to production-operators, something about which the
record is silent.

862

Payment may be sent to: Mine Safety and Health Administration, U. S. Department of
Labor, Payment Office, P. 0. Box 360250M, Pittsburgh, Pennsylvania 15251.

3Jv-'1"rl _(Je;,Jt, ....__David Barbour
Chief Administrative Law Judge
Distribution:
Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson
Boulevard, 22nd Floor, Arlington, VA 22209-2296 (Certified Mail)
David J. Hardy, Esq., Heenan, Althen & Roles, BB & T Building, P. 0. Box 2549, Charleston,
WV 25329-2549 (Certified Mail)
dcp

863

ADMINISTRATIVE LAW JUDGE ORDERS

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

August 13, 2002
JERRY POLLY,

DISCRIMINATION PROCEEDING
Complainant,

v.

Docket No. KENT 2002-253-D
BARB-CD-2002-04

POWELL MOUNTAIN COAL
COMPANY, INC.,
Respondent

Mine: Kentucky Wallins Mine

ORDER DENYING M OTION TO DISMISS
ORDER TO RESPONDENT TO FILE AN ANSWER
Before:

Judge Barbour

On July 17, 2002, the Respondent, Powell Mountain Coal Company, Inc. ("Powell"),
fi led a motion to dismiss the above captioned discrimination case. In support of the motion,
Powell asserts the Complainant, Jerry Pol1y, failed to file a discrimination complaint with the
Commission within 30 days notice by the Mine Safety and Health Administration ("MSHA")
that no violation occurred under Section l 05(c) of the Mine Act ("the Act"). Resp. Mot. at 1.
Powell argues that Polly was required to file a complaint with the Commission by May 15, 2002,
but Polly did not mail the complaint until June 4, as shown by a copy of the envelope. Mot. at 2;
Resp. Exhibit 4.
Section 105(c)(3) of the Act states in pertinent part: "[i]fthe Secretary, upon
investigation, determines that the provisions of this subsection have not been violated, the
complainant shall have the right, within 30 days of notice of the Secretary's determination, to file
an action in his own behalf before the Commission, charging discrimination." 30 U.S.C. §
815(c)(3).
The record indicates, as Powell correctly states in its motion, that MSHA's letter is dated
April 15, 2002, and, therefore, Polly had until May 15, 2002, to file a complaint with the
Commission. However, Powell is mistaken in asserting that Polly did not timely file a
complaint. My office received Polly's complaint on May 13, 2002, two days before the deadline.
Subsequently, on May 14, 2002, I sent a letter to Polly - as is normal practice - instructing him to
fi le additional information, wi~hin 30 days, including a copy of the return receipt indicating he
had sent a copy of the complaint to Powell. If Polly had not already sent a copy of the complaint
to Powell, I instructed him, in the alternative, to do so via certified mail, return receipt requested.
My office timely received the required information on June 14, 2002.
864

Thus, the record clearly indicates that Polly was in compliance with MSHA's April 15
letter and my May 14 letter. Polly timely filed his documents with my office. Polly's apparent
error was in failing to timely serve Powell with a copy of the complaint, an error that likely was
the root of PoweJI's belief that Polly did not timely file a complaint. Commission Rule 7(a) (29
C.F.R. § 2700.7(a)) requires all documents filed with the Commission to be served on all parties.
However, Polly, who is appearing prose, may have been unaware of the rule. He is now, and I
expect him to fully comply in the future.
In light of the foregoing, Powell's motion to dismiss is DENIED.
Further, Powell is ORDERED to file an answer to the complaint within 30 days of the
date Qfthis order.

..D~d-{ ~"111/Nv,_

David . Barbour
Chief Administrative Law Judge

Distribution:
Jerry W. Polly, HC 61,Box 199, Pinevelle, KY 40977 (Certified Mail)
Marco M. Rajkovich, Jr., Esq., Melanie J. Kelpatrick, Esq., Noelle M. Holladay, Esq., Wyatt,
Tarrant & Combs, LLP, 1600 Lexington Financial Center, Lexington, KY 40507 (Certified Mail)
dcp

865

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

August 22, 2002
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH ·
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2002-20
A. C. No. 12-02010-03609

V.

Air Quality No. I Mine

BLACK BEAUTY COAL COMPANY,
Respondent

ORDER DENYING MOTION TO LIFT STAY
Proceedings in this case were stayed on February 6, 2002, pending completion of a
11 O(c) investigation, 30 U.S.C. § 820(c), involving Respondent's employees. The
Respondent has now filed a Motion to Terminate Stay of Proceedings. The Secretary
opposes the motion. For the reasons set forth below, the motion is denied.
When the Secretary filed the original motion to stay, she indicated that the
investigation was expected to be completed within 90 to 120 days. Pointing out that more
than 120 days have elapsed, the Respondent states that three of its employees, who were
present during the inspection which resulted in the citations in this case, no longer work
for the company.

In response to the motion, the Secretary requests that the stay remain in effect
because the matter has been referred to the U.S. Attorney for criminal investigation.
Included with the response, is a letter from the U.S. Attorney's office requesting that the
Secretary seek a stay in the case.
The Commission has held that the following factors should be considered in
determining whether to lift a stay in a case where the possibility of criminal prosecution
exists: ( l) the commonality of evidence in the civil and criminal matters; (2) the timing of
the stay request; (3) prejudice to the litigants; (4) the efficient use of agency resources; and
(5) the public interest. Buck Creek coal, Inc., 17 FMSHRC 500, 503 (April 1995). After
considering these factors, I conclude that the stay should remain in place.
Here it appears that the evidence in the civil and criminal matters will be the same. The
Commission has noted that it is proper to stay civil proceedings if they "'chum over the same

866

evidentiary material"' as the criminal case. Id. (citing Peden v. U!Jiled States, 512 F.2d 1099,
1103 (Ct. Cl. 1975). Thus, I find that this factor supports retaining the stay.
Turning to the second factor, the Commission has held that where there has been no
criminal investigation and, therefore, no reference to the U.S. Attorney for criminal prosecution
there is a "reduced need for a ... stay." Capitol Cement Corp., 21 FMSHRC 883, 890 (August
1999). The opposite, however, is true in this case. The matter has been referred to the U.S.
Attorney for criminal investigation. Accordingly, I find that this factor also supports retaining
the stay.
The third factor requires consideration of prejudice to the litigants. Black Beauty asserts
that three potential witnesses have left its employ and that "at least one of these witnesses has
moved to another state." (Resp. Mot. at 2.) The Respondent does not contend, however, that
these witnesses are unavailable or that their evidence cannot be memorialized, if it has not
already been, to refresh recollections. Nor does the company aver that these are the only
witnesses available to it. The company's bare assertion, without more, is not sufficient to
establish that it will be prejudiced if the stay continues. This does not preclude it from
conducting its own investigation. Consequently, I find that this factor does not militate against
retaining the stay.
The fourth factor also supports retaining the stay. Any witness who may be subject to
criminal prosecution is likely to assert his privilege against self-incrimination if called to testify
in the civil penalty proceeding. This would hinder rather than advance the efficient use of
agency resources.
Finally, only the fifth factor resul~s in the conclusion that the stay should be lifted. As the
Commission observed over 20 years ago, "there is a substantial public interest in the expeditious
determinatio.n of whether penalties are warranted." Scotia Coal Mining Co., 2 FMSHRC 633,
635 (March 1980).
After considering all of the factors involved in granting or denying a stay, it is clear that
four of the five either support, or are not contrary to, retaining the stay. Accordingly, the Motion
to Terminate Stay of Proceedings is DENIED.

Yr~~

Administrative Law Judge
(703) 756-6213

867

Distribution: (Certified Mail)
Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South
Dearborn Street, Suite 844, Chicago, IL 60604
David Joest, Esq., Black Beauty Coal Company, 1970 Barrett Court, P.O. Box 1990, Henderson,
KY 42420

\fb

868

*

U.S. GOVERNMENT PRINTING OFFICE: 2002

492-135175252