JULY
Commission Decisions
LAKE 83-97-D
LAKE 83-61
HOPE 79-323-P
LAKE 83-97-D
SE
84-4-M

Pg. 989
Pg. 996
Pg. 1004
Pg. 1010
Pg. 1019

PENN 85-43
07-03-85 BCNR Mining Corporation
WEVA 85-61-D
07-05-85 UMWA/Oliver Harvey v. Kitt Energy Corp.
KENT 85-67
07-08-85 Peabody Coal Company
SE
85-2
07-08-85 Jim Walter Resources , Inc .
SE
85-44
07-08-85 Jim Walter Resources, Inc.
LAKE 84-96-M
07-09-85 Ozark-Mahoning Company
PENN 85-56
07-09-85 Barnes & Tucker Company
SE
84-23
07-09-85 Jim Walter Resources, Inc .
07-09-85 Jim Walter Resources, Inc.
SE
84-57
07-10-85 MSHA/Robert Ribel v. Eastern Assoc. Coal Corp . WEVA 84-33-D
0.7-12-85 Sahara Coal Company , Inc.
LAKE 85-28
07-12-85 FMC Corporation
WEST 8.3-69-M
07-12-85 Cannelton Industries, Inc.
WEVA 85-101
PENN 85-33
07-15-85 Shannopin Mining Company
KENT 85-57-M
07-17-85 Magoffin-Johnson & Morgan Stone Company
07-17-85 Consolidation Coal Company.
PENN 85-185
07-18-85 U.S. Steel Min~ng Co., Inc.
PENN 84-27
07-26-85 Jim Walter Resources, Inc .
SE
85-43
07--29.-85 Ki.ng James Coal Company , Inc.
KENT 84-198
KENT 84-201-D
07-29-85 James Turner v. Chaney Creek Coal Co.
PENN 82-91
07-30-85 Bradford Coal Company, Inc.
07-30-85 Benedict Straka v . Consol Pennsylvania Coal Co. PENN 85-231-D
OJ-31-85 MSHA/Chris Steuer v. Cliff Sand & Gravel, Inc. LAKE 85-73-DM
07-31-85 Southern Ohio Coal Company
WEVA 85-69-R

Pg . 1032
Pg . 1034
Pg . 1039
Pg. 1044
Pg. 1047
Pg. 1050
Pg. 1053
Pg. 1055
Pg . 1057
Pg. 1059
Pg. 1066
Pg. 1072
Pg. 1077
Pg. 1082
Pg. 1088
Pg. 1092
Pg. 1094
Pg. 1099
Pg. 1102
Pg. 1104
Pg. 1105
Pg. 1106
Pg. 1109
Pg. 1111

07-02-85
07-02-85
07-02-85
07-10-85
07-10-85

MSHA/James Clarke v. T.P. Mining, Inc.
Monterey Coal Company, Inc.
Monterey Coal Company
MSHA/James Clarke v. T.P. Mining, Inc.
Belcher Mine, Inc.

Administrative Law Judge ·necisions

J~Y

The following case was Directed for :Review during the ·mortth of July:
Secretary of Labor, MSHA v, Halfway, Incorporated, Docket No. WEVA 85-15.
(Judge Broderick, June 13, 1985}.
The following case was Denied Review during the month of July:
Secretary of Labor, MSHA v. Cowin and Company, Docket No. WEST 85-13 .
(Judge Morris, Interlocutory Review of May 24, 1985 Order).

COMMISSION DECISIONS

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

: -July 2, 1985

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of JAMES M. CLARKE

Docket No. LAKE 83-97-D

v.
T.P. MINING, INC .

BEFORE :

Backley , Acting Chai rman ; Lastowka and Nelson, Commi ssioners
DECISION

BY THE COMMISSION:
This proceeding arises in connection with a discrimination complaint filed under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (1982)("Mine Act"), by the Secretary of Labor on
behalf of James M. Clarke against T.P. Mining, Inc . ("T.P. Mining"). We ·.
granted the Secretary's petition for discretionary review of an order
issued by Commission Administrative Law Judge Joseph B. Kennedy. In
this order dated April 25, 1984, the judge affirmed his previous severance
of the civil penalty aspects of the case from the merits of the discrimination complaint and also commented critically upon the professional
competence and ethical conduct of the Secretary's counsel, Frederick W.
Moncrief. ~/ The Secretary asserts that the judge's critical comments
regarding Mr. Moncrief are without foundation and should be struck. We
agree.
The Secretary's complaint initiating this proceeding, which was
filed under section 105(c)(2) of the Mine Act, 30 U.S.C. § 815(c)(2),
alleged that T.P. Mining had discriminatorily discharged Mr. Clarke.

1/
In a subsequent order, dated' May 10, 1984, the judge affirmed the
April 25, 1984 order and dismissed the case "for want of prosecution."

989

The complaint requested, among other things, that Mr. Clarke be reinstated with back pay and benefits, and that a civil penalty of $5,000 be
assessed against T. P . Mining for the alleged violation of section 105(c)(l)
of the Act. 30 U.S.C. § 815(c)(l) . Following negotiations, the parties
were able to agree on a settlement satisfactory to Mr. Clarke . On April
12, 1984 , the Secretary, through Mr . Moncrief, filed a motion with Judge
Kennedy requesting t hat the discrimination complaint be dismissed . The
Secretary's motion stated that~ if successful, Mr . Clarke would have
been entitled to $7 , 405 . 48 in back pay plus interest and that T.P . Mining
had paid "$5,000 in compromise settlement of [Mr . Clarke t s] claim." Mr .
Moncrief attached to the motion a letter signed by Mr . Clarke that
stated, "My discrimination case has been settled to my satisfaction.rr
The motion did not refer to the civil penalty aspects of the case .
In an order dated April 3 ~ 1984 , the j udge dismissed the charge of
wrongful discharge contained in the complaint. The judge, however~
severed the Secretary's civil penalty proposal from the complaint on the
grounds that the dismissal motion provided "no basis ••• for approval of
a settl ement of the Secretary ' s penalty proposal . " The judge retained
jurisdiction over the penalty portion of the case " pending receipt of
the information on section llO( i ) criteria necessary to approve settlement of the civil penalty aspect of t he complaint. ,
In a letter to the judge dated April 18, 1984, Mr. Moncrief stated
that the parties intended that the settlement of Mr. Clarkevs back pay
claim would resolve the case completely . The letter stated that the
motion to dismiss might not have made clear that in settlement of the
case the Secretary had agreed to forego seeking a civil penalty. Mr.
Moncrief asserted, however, that the Secretary's determination to forsake
a civil penalty had been an "important ingredient of the money settlement to Mr . Clarke." Mr . Moncrief cautioned that T.P . Mining might
cancel the entire settlement unless the civil penalty aspects of the
c ase were likewise dismissed. Mr. Moncrief added:
The Secretary is concerned that these matters be
resolved as quickly as possible. Mr. Clarke, who
played an actual role in the settlement terms, is
aware of the culmination of our efforts and is
anxious to receive his money . [T.P . Mining] has
made that payment on the assumption that it l17ill
end the matter. I am reluctant to authorize
Mr. Clarke to cash his check, under the circumstances, even though technically it has been
approved .
In response to Mr. Moncr ief's letter, Judge Kennedy issued his
order of April 25, 1984. In the order the judge affirmed his prior
dismissal of the discrimination charge contained in the compl aint and
his severance of the civil penalty aspects of the case. The judge

990

stated that the Secretary's failure to disclose in the dismissal motion
that one of the considerations leading to the settlement was the Secretary's
agreement to forsake the civil penalty was evidence of Mr. Moncrief's
"professional ineptitude." The judge characterized Mr. Moncrief's
reluctance to authorize Mr. Clarke's cashing of the settlement check a
"threat" which the judge termed both "unprofessional and ethically
·improper." The judge asserted, "The Solicitor has no right to hold
complainant's settlement check hostage to his own intransigence and
incompetence." He further stated that he found Mr . Moncrief's "irresponsible attempt to coerce the trial judge to [di smiss the ci vil penalty
aspects of the case] •• reprehensible. 1' Final ly , the judge claimed ,
"In the past counsel have been careful to include a provision for payment
of a reduced penalty in settlement of the penalty case even \.;rhere the
operator denied liability . Never in my experience has the Solicitor
previously asserted a right to abandon or waive , without considerat i on
or justification, the public ' s claim to a civil penalty in a di scriminat i on
case." Order at 2.
Having reviewed carefully the record in this matter , we concl ude
that the judge ' s comments tvith r egard to Mr . Moncrief are unfounded and
unwarranted . Mr . Moncrief appears to have provoked the ire of t he j ud ge
by failing to address specifically the civil penalty aspec t s of t he
discrimination complaint in his motion to dismiss . This omission did
not justify the judge's highly critical comments.
In general, it is clear that a civil penalty must be assessed for
a violation of section lOS(c)(l) of the Mine Act. Secretary on behalf
of Bailey v. Arkansas- Carbona Co., 5 FMSHRC 2042, 2046 (December 1983).
However, it is at least debatable whether, consistent with the Mine Act,
a penalty may be forsaken in a discrimination case when the complainant
requests that in settlement of the case his complaint be withdrawn
before it has been determined on the merits that a violation of section
lOS(c)(l) has occurred. We need not resolve that issue here. Suffice
it to say that there have been other cases before the Commission in
which the complainant has requested that the complaint be withdravin
before liability is determined and where, despite the fact that neither
the settlement agreement nor the motion to dismiss referenced the civil
penalty aspects of the complaint, Commission judges nevertheless have
dismissed the proceedings entirely. See , ~. , Secretary of Labor on
behalf of Arnott v. Mettiki Coal Corp., FMSHRC Docket No . YOru< 82-20-D
(May 27, 1982)(ALJ) .
Judge Kennedy's assertion in his order of April 25, 1984, that in
the past counsel for the Secretary have always included in their motions
to dismiss or their settlem~nt agreements a provision for payment of a
reduced penalty in settlement of the penalty case, even where the operator
has denied liability, is simply not true. In fact, the judge himself
has dismissed discrimination complaints in cases where neither the
settlement agreement nor the motion to withdraw the complaint has

991

referenced a civil penalty and where it has been agreed in effect that
settlement did not constitute an admission by the operator of a violation
of the Act. Secretary of Labor on behalf of Taylor v. Buck Garden Coal
Co., 6 FMSHRC 919 (April 1984)(ALJ); Secretary of Labor on behalf of Litz
v. Shale Hill Coal Co., FMSHRC Docket No. PENN 83-162-D (January 12,
1984)(ALJ). The judge has also dismissed a discrimination complaint in
a case where the settlement agreement expressly stated that the Secretary
would not seek a civil penalty assessment for the violation of section
105(c) and that nothing contained in the settlement agreement would be
deemed an admission by the operator of a violation of the Act. Secretary
of Labor on behalf of Swann v. Chestnut Ridge Fuel Co. , FMSHRC Docket
No. VA 82-52-D (December 8, 1982)(ALJ) .
Therefore, to the extent that the judge based his assertion that
Mr. Moncrief's performance as a lawyer was "incompetent," "irresponsible 9 "
and "reprehensible," on his own inaccurate perception concerning the
Secretary's past practice, his condemnations are unfounded and unwarranted .
However, to avoid any repetition of the kind of procedural problem that
developed in this case, we will require that," henceforth, when seeking
dismissal of a discrimination complaint in settlement of the case , the
Secretary shall include in both the dismissal motion and underlying
settlement an express reference to the parties ' a greement concerning t he
civil penalty . As noted above, we leave for another day resolution of
the consequences, if any, of an attempted waiver of a penalty in such
circumstances.
We can find no record support for the judge's assertions that Mr.
Moncrief was "professionally inept," "irresponsible," or "incompetent . "
Rather, the record reveals that Mr. Moncrief ably represented Mr. Clarke.
Mr. Moncrief filed the appropriate pleadings to initiate the action; he
opposed what he believed would be a premature dismissal of the complaint
harmful to Mr. Clarke's interests; he advocated and defended the Secretary's
position; and he negotiated a settlement that satisfied Mr. Clarke.
These were not the actions of one demonstrating the lack of ability to
perform the legal functions required of him.
Judge Kennedy asserted that Mr. Moncrief's reluctance to authorize
Mr. Clarke's cashing of the settlement check resulted in Mr. Moncrief
"hold[ing] complainant's settlement check hostage to his own intransigence and incompetence." The judge described Mr . Moncrief ' s reluctance
as "unprofessional," "ethically improper," and as a "threat." A revievT
of the record does not support these characterizations. Mr. Moncrief's
reluctance to advise Mr. Clarke to cash the check represented sound
litigation judgment--an attempt to preserve the status quo until the
dispute over the civil penalty was settled, based upon. a legitimate
concern over T.P. Mining's reaction to the severance of the civil penalty
aspect of the case. Although one could read into Mr. Moncrief's statement
an attempt to exert some "pressure" on the judge to approve the settlement
promptly, we do not believe that a jurist acting reasonably and responsibly
would find Mr. Moncrief's statements to amount to an ethically improper
"threat." Rather, we regard the statements as well within the zone of
permissible advocacy on behalf of a client.

992

In concluding that the judge's criticism of Mr. Moncrief was unwarranted, we do not imply that the Commission's judges must remain mute
in the face of actual incompetence, unprofessional conduct, or unethical
behavior. A judge is not a cipher who perceives without comment all
that passes before him. Rather, a judge is an active participant in the
adjudicatory process and has a duty to conduct proceedings in an orderly
manner so as to elicit the truth and obtain a just result. See,~··
Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956), cert. denied, 352
U.S. 892 (1956). Among a judge's specific obligations in this regard is
a duty to admonish counsel, when necessary, during the course of proceedings--although such admonitions are to be couched in temperat e
language. Cromling v. Pittsburgh & Lake Erie R. R. Co. ~ 327 F . 2d 142 ~
152 (3rd Cir. 1963). Here, however, the judge's criticism of counsel
was unnecessary and the language used was intemperate. Words such as
"incompetence , " "unprofessional," "ineptitude, " "ethically improper,"
"reprehensible , " and " irresponsible, " when published without support and
broadcast to the public, not only wound the advocate personally--they
damage professionally. In unjustly maligning one who appears before
him, a judge not only demeans himself, but dishonors this Commission.
Such unwarranted rebukes can only lessen public confidence in this
independent agency ' s ability to serve its statutory role as a temperate
and even-handed decision maker .
The Commission demands that those who practice before it conform to
the standards of ethical conduct required of practitioners in the courts
of the United States. 29 C.F.R. § 2700.80(a). Where such standards
have been violated, the Commission's procedural rules provide an orderly
and fair means of correction. Commission Procedural Rule 80(b) mandates
that disciplinary proceedings be instituted when one practicing before
the Commission has engaged in unethical or unprofessional conduct . 29
C.F.R. § 2700.80(b). In order to ensure due process to those charged,
Commission Procedural Rule 80(c) provides that those accused be afforded
notice of the charges and the right to a hearing. 29 C.F . R. § 2700.80(c).
Specifically, Rule 80(c) requires that a judge "having knowledge of circumstances that may warrant disciplinary proceedings ••• shall forward
such information, in writing, to the Commission for action." 29 C.F.R.
§ 2700.80(c).
Judge Kennedy's comments with regard to Mr. Moncrief contain assertions of unethical and unprofessional conduct which, had they been
well-founded, would have been grounds for a disciplinary proceeding. We
have previously cautioned Judge Kennedy that such allegations made in
the course of a proceeding, without the required disciplinary referral,
deprive the accused of elementary procedural safeguards. Canterbury
Coal Co., 1 FMSHRC 335, 336 (May 1979). By now, Judge Kennedy should
know how to make a disciplinary referral. Canterbury Coal Co., 1 FMSHRC
at 336; James Oliver and Wayne Seal, 1 FMSHRC 23, (March 27, 1979);
In re Kale, 1 BNA MSHC 1699 (FMSHRC Docket No. D-78-1, November 15,
1978). In this case, Judge Kennedy's demonstrated insensitivity to the
legitimate interests and rights of those appearing before the Commission,
and his disregard of the Commission's rules and our prior warnings on
this subject, warrant our gravest concern.

99"3 '

Accordingly, tJe conclude that the judge's critical comments were
unfounded and unjustified . Based on the record, even if the judge had
followed the proper procedural course for making a disciplinary referral,
we would have vacated the referral as being unfounded. Therefore, all but
the last paragraph of the order of April 25, 1984, is struck, as is the
phrase " for want of prosecution" in the judge's final order of dismissal. ];./

~/
Richard V. Backley, Acting Chairman

James A.

astowka, Commissioner

UL;.>J/Le_~

L. Clair Nelson, Commissioner

~

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the
powers of the Commission.

99 4

Distribution
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 l·lilson Blvd.
Arlington, Virginia 22203
Philip G. Sunderland, Esq .
Terris & Sunderland
1121 12th St., N.W.
Washington, D.C. 20005
John J . Malik, Jr . , Esq.
Malik, Knapp, Kigerl & Frizzi
3381 Belmont St .
Bellaire, Ohio 43906
Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike , lOth Floor
Falls Church , Virginia 22041

995

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

July 2, 1985

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

0
0

Docket No . LAKE 83-61
v.

MONTEREY COAL COMPANY, INC.

BEFORE:

Acting Chairman Backley; Lastowka and Nelson, Commissioners
DECISION

BY THE C011MISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et ~· (1982), the .
issues presented are whether substantial evidence supports a Commission
administrative law judge's findings that an operator's violation of its
ventilation system and methane and respirable dust control plan was
"significant and substantial" and that the operator exhibited negligence
in connection with the violation. For the reasons set forth below, we
affirm.
On February 3 , 1983, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued a citation to Monterey
Coal Company (''Monterey") pursuant to section 104(a) of the Mine Act, 30
u.s.c. § 814(a), during an inspection of Monterey's No. 1 underground
coal mine located in Carlinville, Illinois. The citation charged Monterey
with a violation of 30 C.F.R. § 75.316, the mandatory safety standard
requiring an operator to have an approved ventilation system and methane

996

and dust control plan for each of its mines. 1/ The ventilation plan
for Monterey's No. 1 Mine required the operator to maintain a minimum
quantity of 5,000 cubic feet of air per minute ("cfm") at working faces
whenever the ventilation tubing at the faces extended in excess of 370
feet from a fan. 2/ The citation stated that Monterey was not complying
with its ventilation plan in violation of the standard "in that the
quantity of air in the 18-inch tubing (390 feet from fan), when coal was
being cut with a continuous miner, was only 1,900 cfm when measured •••• "
The inspector checked the "significant and substantial" box on· the
citation form and indicated that two persons were exposed to the violative
condition.
The inspector did not testify at the hearing, but the judge admitted
his affidavit into evidence. In the affidavit, the inspector stated
that, following issuance of the citation, rock dust bags were found in
the ventilation tubing. Once the bags were removed, the quantity of air
at the face increased to 6,302 cfm. The inspector also set forth t he
findings on which he based his characterization of the violation as
being "significant and substantial": (1) the No. 1 mine liberated more
than one million cubic feet of methane or other explosive gases during a
24-hour period during mining operations and was under the five-day spot
inspection cycle mandated by section 103(i) of the Mine Act , 30 U.S .C. §
813(i) ; (2) although permissible methane readings of . 2% and . 3% were
recorded 15 feet outby the face, the inspector believed that higher
levels could have existed at the face itself, where he could not take
measurements because of unsupported roof; (3) the methane level
1/
30 C.F.R. § 75.316, which repeats section 303(o) of the Mine Act,
30 U.S.C. § 863(o), provides:
A ventilation system and methane and dust control plan and
revisions thereof suitable to the conditions and the mining system
of the coal mine and approved by the Secretary shall be adopted by
the operator and set out in printed form on or before June 28,
1970. The plan shall show the type and location of mechanical
ventilation equipment installed and operated in the mine, such
additional or improved equipment as the Secretary may require, the
quantity and velocity of air reaching each working face, and such
other information as the Secretary may require. Such plan shall be
reviewed by the operator and the Secretary at least every 6 months.
2/

The No. 1 Mine used three ventilation fans that collectively pulled

a quantity of air of 700,000 cfm through the mine. A system of exhaust

fans and fiberglass tubing removed methane and dust from working face
areas. The tubing was hung from the roof and a 55-horsepower exhaust
fan pulled air through the tubing, into a return airway, and out of the
mine. Before any cutting of coal was done by the continuous miner, the
tubing was located two to three feet from the face. As the miner advanced,
the tubing was kept within 10 feet of the face.

997

could have built up at the face at any time, creating the hazard of an
ignition that could have caused burn injuries to the two operators of
the continuous miner; (4) such burn injuries could have resulted in lost
work days or restricted duty; and (5) the reduction of air quantity from
the requisite 5,000 cfm to 1,900 cfm "contributed to the increase in
methane gas and respirable dust and increased the exposure of miners to
the hazard caused by high methane levels and respirable dust. 11
Before the administrative law judge, counsel for the Secretary of
Labor and Monterey stipulated that a violation of section 75.316 had
occurred, and that the No. 1 Mine was a "gassy" mine . The parties also
stipulated that the inspector had recorded methane readings in the
acceptable range 15 feet from the working face , and had not taken respirable dust samples. The parties further agreed that a continuous miner
was cutting coal at the location where the citation was issued . At the
hearing, Monterey 9 s safety coordinator explained how rock dust bags had
gotten into the ventilation tubing:
As the installers install [the ventilation tubing] and
turn the fan on 9 as they walk past certain joints or
weak spots in the fiberglass tubing. they'll find where
the tubing is sucking out back there ~·· and rather
than get a piece of plastic material that~s manufactured
for it 9 they'll take an empty rock dust bag and put i~
up there. And it will hold and control air real good.
Every once in a while they'll use too small a strip and
it will suck in through the tubing, or as they walk
away later it'll collapse and suck in. It's not the
greatest material in the world to use •••• The workmen
are putting them there to try to stop a leak.

*

*

*

*

If you have problems when you take your reading
and move from room to room, a lot of times t he first
thing you'll do is walk back to the fan, disconnect the
tubing, pull out a rock dust bag and start all over .
Tr. 82-83. During this testimony, Monterey's counsel interjected that
this method of tubing repair was "probably not a one time only occurrence."
Tr. 83.
The judge found that the admitted violation of the standard was
significant and substantial, and that Monterey exhibited 11gross" negligence
in connection with the violation. 6 FMSHRC 424, 470-71, 473 (February
1984)(ALJ). With regard to the significant and substantial issue, the
judge stated that he "agree[d] with MSHA's arguments that the interruption
to the ventilation flow resulted in a significant decrease in the amount
of air required to be maintained where coal was being cut" and that this
"marked decrease in air presented a substantial hazard to the miners

998

working in the cited area •••• " 6 FMSHRC at 470. The judge emphasized
that the interruption to the ventilation flow resulted from what he
labelled Monterey's "practice of using ••• rock [dust] bags to make •••
repairs [to the ventilation tubing.]" 6 FMSHRC at 471 (emphasis in
original). In finding that Monterey was grossly negligent, the judge
also focused on the consideration that, in his view, Monterey "routinely
used" rock dust bags to make repairs in the tubing. 6 FMSHRC at 473.
The judge assessed a civil penalty of $850 for the violation.
On review, Monterey argues that the judge misapplied the test first
stated in Cement Division, National Gypsum Co., 3 FMSHRC 822 (April
1981), for .determining whether a violation is significant and substantial o
Specifically, Monterey asserts that the judge erred in premising his
significant and substantial findings on what he regarded as the cause of
the violation, Montereyvs "practice" of using rock dust bags to repair
ventilation tubing. Monterey contends that substantial evidence does
not support the finding that any such "practicen existed, and that t he
judge 9 s focus on this alleged practice ignored the main issue : whether
there was a reasonable likelihood of a reasonably serious injury or
illness given the facts surrounding this particular violation. Monterey
argues that the Secretary of Labor failed to prove that there was a
reasonable likelihood of this violation resulting in the danger of
excessive buildup of methane or respirable dust ~ which in turn could
contribute to serious injury or i llness . It points out that an excessive
level of methane was not actually present and the inspector did not tes t
the respirable dust level. Monterey also maintains that substantial
evidence fails to support the judge's finding that the violation was the
result of Monterey's gross negligence.
We briefly restate the major principles for determining whether a
violation is "significant and substantial." 3/ A violation is properly
designated significant and substantial "if, based on the particular
facts surrounding that violation, there exists a reasonable likelihood
that the hazard contributed to will result in an injury or illness of a

11

Section 104(d)(l) of the Mine Act provides in relevant part:
If, upon any inspection of a coal or other mine, an authorized
representative of the Secretary finds that there has been a violation
of any mandatory health or safety standard, and if he also finds
that, while the conditions created by such violation do not cause
imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal
or other mine safety or health hazard, and if he finds such violation
to be caused by an unwarrantable failure of such operator to comply
with such mandatory health or safety standards, he shall include
such finding in any citation given to the operator under this Act.

30 U.S.C. § 814(d)(l)(emphasis added).

999

reasonably serious nature." National Gypsum, supra, 3 FMSRRC .at 825.
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), we articulated in
detail the four elements that the Secretary must prove to meet the
National Gypsum test: (1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard -- that is, a measure of danger
to safety -- contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a reasonably
serious nature. We have further · explained that in proving the third
element, "the Secretary [must] establish a reasonable likelihood that
the hazard contributed to will result in an event in which there is an
injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August
1984). Finally, as the statutory language directs, we have held that it
is the contribution of the violation to the cause and effect of a hazard
that must be found significant and substantial. U.S. Steel Mining Co. 9 Inc .~
6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co. , Inc. , 6 FMSHRC
1573, 1574-75 (July 1984) .
The parties stipulated to Montereyis violation of its ventilation
plan, and hence of section 75.316. Indeed, as the judge observed (6
FMSHRC at 459), the violative condition-- a measured air quantity of
only 1,900 cfm -- represented a major departure from the minimum air
quantity of 5, 000 cfm required under Monterey ~ s plan at \·70rking faces
when the ventilation tubing extended more than 370 feet from a fan .
With respect to the hazard contributed to by the violation, the
hazards associated with inadequate ventilation, especially at working
faces, are among the most serious in mining. Section 303(b) of the Mine
Act, 30 U.S.C. § 863(b), requires that "the volume and velocity of the
current of air shall be sufficient to dilute, render harmless, and to
carry away, flammable, explosive, noxious, and harmful gases, and dust,
and smoke and explosive fumes," and that "[t]he minimum quantity of air
in any coal mine reaching each working face shall be three thousand
cubic feet a minute." See also 30 C.F.R. § 75.301 (restating statutory
provisions). A basic reason for these requirements is the grave danger
that, if there is not adequate ventilation, ignitions or explosions can
result from concentrations of explosive gases like methane, either alone
or mixed with coal dust, liberated during mining operations. When coal
is freshly cut, methane can be liberated in dangerous amounts in short
periods of time. Although methane itself becomes explosive at a 5%
concentration, even a smaller percentage concentration of the gas mixed
with fine coal dust can generate an explosion. See, e.g., S. Cassidy
(ed.), Elements of Practical Coal Mining 199, 243-47 (1973); R. Lewis &
G. Clarke, Elements of Mining 695 (3d. ed. 1964). In enacting the
statutory ventilation standards of the Mine Act, Congress expressly
recognized these, and related, dangers associated with inadequate ventilation:
[V]entilation of a mine is important not only to
provide fresh air to miners, and to control dust
accumulation, but also to StY'eep away liberated

1000

methane before it can reach the range where the
gas could become explosive. In terms then of the
safety of miners, the requirement that a mine be
adequately ventilated becomes one of the more
important safety standards under the ••• Act .
S. Rep. No. 181, 95th Cong. 1st Sess. 41 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d
Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 629 (1978).
In the present case, Monterey'::: nd.ne is a gassy mine that liberates
excessive amounts of methane and is un.de:r. the spot inspecti.on cycle
mandated by section 103(i) of the Mine Ac ta 30 U.S.C. § 813(i). The
citation was issued at a working face \·1 here coal was 'being cut~ For the
purposes of this decision~ the discrete hazard contributed to by the
loss of ventilation, was~ as the inspector explained in nis affidavit ? a
buildup at the face of methane and dust that could result in a p~ssible
methane ignition or could propagate an explosion.
The key issue is whether there was a reasonable likelihood that the
hazard contributed to would result in an event in lihich there t-1as an
injury. .We agree with the judge that there was such a reasonable like li~
hood. As noted, the mine was gassy and coal was being cut with a continuous
miner at the working face where the citation was issued. As the. inspecto:r
stated in his affidavit, methane could have been liberated at any time
and, as a result of the serious deficiency in the ventilation, could
have become concentrated in a ~elatively short period of time. The
operation of the miner itself provided a potential ignition source.
Given the fact tht less than 40 per cent of the required minimum quantity
of air was reaching the face, we have no difficulty concluding that,
under the facts presented, a reasonable likelihood of an ignition or
explosion in which there would be an injury to the miners was established o
Monterey does not seriously dispute that any such injury would be of a
reasonably serious nature.
The major thrust of Monterey's objection to the judge's significant
and substantial findings is that he erred in commenting on the alleged
cause of the violation itself, the "practice" of using rock dust bags to
repair ventilation tubing. Although substantial evidence supports the
conclusion that the presence of rock dust bags in the ventilation tubing
was the cause of the decreased airflow, we do not premise our decision
on whether such use of these bags was a normal, routine practice at this
mine. The essential and undisputed fact is that there was a major
decrease from the required minimum ventilation level. Whatever the
precise chain of causation leading to the loss of ventilation at the
time of the citation, the loss itself, in conjunction with the other
factors discussed above, lY'as sufficient to create a reasonable likelihood of an injurious ignition or explosion. Monterey further objects
that at the time of the citation there was no evidence that methane was

1001

present at dangerous levels. As we have observed previously, our proper
focus is on the hazards posed by continued mining operations. See,
e.g., U.S. Steel Mining Co., Inc., supra, 6 FMSHRC at 1574-75. Here,
the cutting of coal was ongoing and the potential for methane liberation
was presented.
In sum, we conclude that substantial evidence supports the judge's
conclusion that the violation was significant and substantial.
With regard to the judge's negligence findings, we need not engage,
as did the judge~ in a quanti fication of the degree of the operatorvs
negligence. See _Penn ~~legh Coal Co •• Inc., 4 FMSHRC 1224, 1227 (July
1982) . Rather, we find that the record supports a finding of negligence
and that the penalty assessed by the judge is appropriate and consistent
with the statutory penalty criteria. 30 u.s.c. § 820(i).
Accordingly, on the bases discussed above, the judge vs decision is
affirmed . 4/

~~
Richard V. Backley 9 Acting Chairman

ames A. LastQwka, Commissioner

;u_._:l&j__&?'J
'!:. Clair Nelson, Commissioner

i/

Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the
powers of the Commission.

1002

Distribution
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Carla K•. Ryhal, Esq.
Monterey Coal Company
1305 Dresser Tower
P.O. Box 2180
Houston, Texas 77001
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church , Virginia 22041

1003

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

July 2, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket No. HOPE 79~323-P

v.
MONTEREY COAL COMPANY
BEFORE:

Backley ~

Acting Chairman; Lastowka and Nelson ~ Commissioners
DECISION

BY THE COMMISSION:
This case is before us on petitions for interlocutory review filed
by Monterey Coal Company ("Monterey") and Frontier-Kemper Constructors,
Inc. ("Frontier-Kemper"),a contractor hired by Monterey to sink a shaft
at its Wayne Mine in Wayne County, West Virginia. Monterey seeks review
of an order issued by a Commission administrative law judge denying its
motion to dismiss it as a party-respondent in a civil penalty proceeding
instituted by the Secretary of Labor pursuant to the Federal t1ine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq. (1982)("Mine Act").
Frontier-Kemper seeks review of the judge's decision to allow the
Secretary to amend his proposal for penalty to add Frontier-Kemper as a
respondent. For the reasons that follow, we dismiss Monterey's petition,
reverse the judge's decision adding Frontier-Kemper as an additional
respondent, and remand for further proceedings consistent with this
decision.
This case had its genesis in a section 107(a) imminent danger withdrawal order issued by the Secretary to Monterey on May 8, 1978. 30 U.S . C.
§ 817(a). The order alleged that three violations of mandatory safety
standards had contributed to a fatal accident at the Wayne Mine shaftsinking operation. The Secretary subsequently instituted this action
against Monterey, seeking civil penalties for those violations. Monterey
contested the penalties and argued that, if any violations had occurred,
its contractor Frontier-Kemper was the operator responsible for the
violations. In 1979, these proceedings were stayed by the administrative
law judge pending the resolution of Secretary v. Monterey Coal Co . , FMSHRC
Docket No. HOPE 78-469 ("Monterey I"), a case involving Monterey's
challenge to a number of 104(d) withdrawal orders arising out of the
same accident and presenting the same question of liability.

1004

Following the termination of the Monterey I litigation, 11 this
proceeding became active again in 1983. At that time the Secretary
moved to amend his proposal for penalty to join Frontier-Kemper as an
additional respondent and Monterey sought to have the proceedings
against it dismissed. The judge granted the Secretary's motion and
denied Monterey's. These interlocutory appeals followed.
Frontier-Kemper's argument that joinder is not proper is based on
its claim that, under the circumstances of this case, the Commission
lacks jurisdiction over it. It asserts that Commission jurisdiction
over a mine operator from whom the Secretary is seeking civil penalties
for violations of the Mine Act or its mandatory standards only attaches
after the operator has been issued a citation or order and has contested
the penalty the Secretary proposes for the violation. Frontier-Kemper
argues that, absent these prerequisites, the Secretary may not rely on
Fed. R. Civ . P. 19 to effect joinder at the Commission level.
The Secretary asserts that the Mine Act does not limit Commission
jurisdiction in penalty cases only to operators who have received
citations or orders and who have contested proposed civil penalties. He
points out that, both in section 105(c) discrimination cases and in
section llO(c) penalty cases involving "knowing" violations by agents of
corporate operators, this Commission assesses civil penalties against
parties who have not been issued a citation or order . In the Secretary ~s
view, joinder is merely an economical device to ensure that all potential
parties who could be held liable for the violations at issue in this
case are involved in the hearing and to permit the Commission to properly apportion liability among them.
We hold that both the Mine Act and our own rules of procedure prohibit the Secretary from accomplishing joinder of Frontier-Kemper in the
manner attempted in this case. Before the Secretary may institute a
proceeding before this Commission seeking a civil penalty from an operator for a violation of the Mine Act or a mandatory standard, the operator .
must have been cited for a violation and been given the opportunity
either to contest or to pay the Secretary's proposed civil penalty.
This requirement provides both a method by which the parties may dispose
of civil penalty matters without Commission involvement in uncontested
cases and a framework within which litigation may productively occur in
those cases where a dispute exists.

1/

A Commission administrative law judge originally held that Monterey
could not be held liable for the orders because the violations had been
committed by Frontier-Kemper. In 1979, the Commission reversed that
holding. 1 FMSHRC 1781. In doing so, it relied on its decision in Old
Ben Coal Co., 1 FMSHRC 1480 (October 1979), aff'd, D.C. Cir., No. 79-2367
(Dec. 9, 1980)(unpublished), that, for an interim period following the
effective date of the Mine Act, the Secretary's policy of citing only
owner-operators for all violations occurring at their mines was valid.
The Commission remanded Monterey I for a decision on the merits by the
administrative law judge. Monterey's subsequent petition for review in
the U.S. Court of Appeals for the Fourth Circuit was dismissed because
(Footnote continued)

1005

Sections 105(a) and (d) of the Mine Act, 30 u.s.c. §§ 815(a) and
(d) , provide the basic framework within which civil penalty litigation
takes place. Section 105(a) provides that an operator may choose not to
contest a proposed penalty and thereby avoid litigation before this
Commission. ~/ Concomitantly, section 105(d) clearly conditions the
institution of proceedings before this Commission on the operator ' s
filing of a notice of contest of the citation or penalty . The operator's
notice of contest may be filed only in response to the Secretary's
proposed assessment of penalty, which is itself a consequence of the
Secretary's issuance of a citation or order under section 104 . We
believe that Congress did not intend the Secretary to be able to leapfrog over these procedural steps and begin a civil penalty proceeding
against an operator by the filing of a proposal for penalty , in the
first instance, before the Commission.
The Commission ' s procedural rules a l so reflect , even more explicitly~
the need for the Secretary to observe the necessary prerequisites before
filing a proposal for penalty. Commission Procedural Rule 25, 29 C.F .R.
§ 2700.25 , states :
The Secretary, by certified mail, shall notify the
operator or any other person against whom a penalty is
proposed of : (a) The violation a lleged; (b) the amount
of the penalty propos ed; and (c) t hat such person shall
have 30 days to not ify t he Secretary that he wishes to
contest the proposed penalty. If within 30 days f rom
the receipt of the Secretary 1 s notification of proposed
assessment of penalty, the operator or other person
fails to notify the Secretary that he intends to contest
the proposed penalty, the Secretary's proposed penalty
shall be deemed to be a f inal orde r of the Commission
and shall not be subject to review by the Commission or
a court.
(Emphasis added) .

Also, Commission Procedural Rule 27(a) , 29 C.F. R.

§ 2700 . 27(a), provides a further clear statement of the requirement that

the Secretary file a proposal for penalty in response to an operator ' s
notice of contest:
\~en to file.
Within 45 days of receipt of a timely
notice of contest of a notification of proposed assessment
of penalty, the Secretary shall fil e a proposal for a
penalty with the Commission.

Fn. ll continued
the Commission's remand order was not an appealable order under section
106 of the Mine Act, 30 u.s .c. § 816. Monterey Coal Co . v. FMSHRC , 635
F.2d 291 (1980) . On remand to the administrative law judge, the case was
settled when Frontier- Kemper paid civil penalties totaling $5 , 000 and
the Secretary agreed to dismiss the action against Monterey .
2/
If an operator simply pays the penalty proposed by the Secretary,
he may avoid any litigation. If he neither contests nor pays the proposed
penalty, it is deemed a final order of the Commission and may be enforced
by the Secretary in an appropriate district court.

1006

We have considered the Secretary's argument that the procedure
followed by him in the instant case is analogous to the penalty procedure utilized in cases brought under sections 105(c) and llO(c) of the
Mine Act. We have previously noted that, unlike most other Commission
proceedings, section lOS(c) discrimination cases are initiated not with
the issuance of citations or orders, but instead, with the filing of
special complaints before this Commission. Secretary ex rel Bailey v .
Arkansas-Carbona Co. , 5 FMSHRC 2042, 2046 (December 1983) . We have
therefore specifically provided, in Commissi on Procedural Rul e 42(b) ,
29 C.F.R. § 2700 . 42(b) , that the Secretary propose a civil penalty at
the same time he files a discrimina t i on complaint under section
105(c)(2). 11 With respect to section llO(c) cases , the Act s pecif ically allows a civil penalty to be assessed against t he agent of a
corporate operator after a citation or order has been issued to t he
operator. We also note that in such cases , the Secretary issues a
proposed penalty to the agent and, under our rules ~ supr a, may only
begin Commission proceedings if the agent f iles a noti ce of cont est .
Therefore , in section 105(c) and llO(c ) c ivil penal t y cases , bo th t he
Mine Act and our procedural rules provi de specifi c proced ures f or the
assessment of civil penalties against an operator who has not been
issued a citation or order. Contrary t o the Secre tary's assertions , we
conclude that those situations a re not ana logous t o the c ase before us .
Our insistence on t he need f or comp liance with the procedur a l.
requirements described above also s erves a prac t ical purpose and f ur ther s
the enforcement scheme contemplated by Congres s in t he Mine Act . Providing a mine operator with the opportunity to pay a civil penalty
before the institution of litigati on promotes judicial and administrative
economy and can assist more expeditious resolution of enforcement
disputes .
For these reasons, \ve reverse the judge' s decision allmving the
Secretary to amend his penalty proposal to add Frontier-Kemper as a
respondent.
We remand the case ~vith instructions to the judge to
permit the Secretary to seek modification of the underlying citations
and order at issue here to name Frontier- Kemper as operator, and to
thereafter follow the appropriate penalty assessment procedures. Cf.
Cowin and Co. v. FMSHRC, 612 F.2d 838, 841 (4th Cir. 1979) and 694 F.2d
966 (1982) .
We remand the Monterey portion of this litigation without op~n~on.
The Secretary has recognized and we have held previousl y that the allocation of liability between an own.e r-operator and an independent contractoroperator should be based on the factual circumstances of each case .
44
Fed. Reg. 44496 (July 1 , 1980); Cathedral Bluffs Shale Oil Co . , 6 FMSHRC
1871 (August 1984), ~· for review filed sub nom . Donovan v . Cathedral
Bluffs Shale Oil Co. (D . C. Cir . No . 84-1492). Correct resolution of
the liability issue based on the circumstances of this case cannot occur
until Frontier- Kemper's status in the litigation is resolved. In this
3/
\ve have also recognized that the Secretary uses his own "special
assessment procedure", · 30 C.F.R. § 100.5, to propose civil penalties
against operators who have been adjudicated liable for discrimination in
section 105(c)(3) proceedings to which the Secretary was not a party.
An operator who wishes to contest a penalty proposed under this procedure may also file a notice of contest .

100 7

case we granted Monterey's petition for interlocutory review as a matter
of proper judicial administration in order to keep the Monterey litigation
from proceeding while we considered Frontier-Kemper's appeal. On remand
the judge should refrain from further action in Monterey pending the
Secretary's attempt to properly propose a penalty against FrontierKemper. Thereafter, the judge should proceed to resolve any remaining
questions of liability for the subject violations. !/
Accordingly, we remand this matter for further proceedings consistent
with this decision. ~/

~

Richard V. Backley , Ac~~

~ames A. L~~~~~~~ner

~lson,

if

Commissioner

We note that the present record does not indicate satisfactorily '
why a resolution of the instant litigation that is consistent with the
resolution of the Monterey I litigation is not appropriate and in the
best interest of all concerned.
5/
Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves a panel of three members to exercise the
powers of the Commission.

1008

Distribution
~illiam H.

Howe, Esq.
Loomis, Owen, Fellman & Howe
2020 K Street, N.W.
Washington, D. C. 20006

Thomas C. Means, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington , D. C. 20036
Barry F. Wisor, Esq .
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington , Virginia 22203
Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission

5203 Leesburg Pike , lOth Floor
Falls Church, Virginia

22041

1009

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

July 10, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Docket No . LAKE 83-97-D

ON BEHALF OF JAMES M. CLARKE

v.
T. P . MINING, INC.
BEFORE :

Backley, Acting Chairman; Lastowka and Nelson , Commissioners
DECISION

BY THE COMMISSION :
This inquiry has been conducted to determi ne whether Commiss i on
Administrative Law Judge Joseph B. Kennedy and John J . Malik, counsel
for respondent T.P. Mining, Inc. ("T.P. Mining"), engaged in a prohibited ex parte communication in violation of Commission Procedural
Rule 82, 29 C.F.R. § 2700. 82, in the course of pretrial proceedings in
the above-captioned matter. 1/ The Commission solicited and received

1/

Rule 82, entitled "Ex parte communications," provides :
(a) Generally. There shall be no ex parte communication
with respect to the merits of any case not concluded, between
the Commission, including any member, Judge, officer, or agent
of the Commission who is employed in the decisional process,
and any of the parties or intervenors, representatives, or
other interested persons.
(b) Procedure in case of violation. (1) In the event an
ex parte communication in violation of this section occurs,
the Commission or the Judge may make such orders or take such
action as fairness requires . Upon notice and hearing, the
Commission may take disciplinary action against any person
who knowingly and willfully makes or causes to be made a prohibited ex parte communication.
(2) All ex parte communications in violation of this
section shall be placed on the public record of the proceeding.
(c) Inquiries. Any inquiries concerning filing requirements, the status of cases before the Commissioners, or docket
information shall be directed to the Office of the Executive
Director of the Commission ••••

29 C.F . R. § 2700.82 .

1010

affidavits from the relevant parties. For the reasons that follow, we
conclude that Judge Kennedy and Mr . Malik did engage in a prohibited ex
parte communication. Judge Kennedy's violation of Rule 82, in the face
of explicit prior warnings to him on this subject, is particularly
egregious .
This inquiry arises in connection with a discrimination complaint
fil ed by the Secretary of Labor on oehalf of miner James M. Clarke
pursuant to the Federal Mine Safety and Health Act of 1977, 30 U. S.c .
§ 801 et ~· (1982).
The complaint alleged that T.P. Mining had
discharged Mr. Clarke in violation of section 105(c)(l) of the Mine Act ,
30 U.S.C. § 815(c)(l), and requested that Mr. Clarke be reinstated with
back pay and benefits, and that a civil penalty of $5,000 be assessed
against T.P . Mining for the violation. T.P. Mining denied that Mr.
Clarke had been wrongfully discharged, and the case was assigned to
Judge Kennedy.
In an order issued on November 3, 1983, Judge Kennedy directed the
Secretary to furnish him and Mr. Malik with a copy of the report of the
investigation into Mr. Clarke's complaint conducted by the Department of
Labor's Mine Safety and Health Administration ("MSHA") . The judge ' s
order stated that the MSHA report was needed "[i]n order to facilitate
the trial judge and the operator's understanding of the issues." The
report was not produced. Rather, the Secretary requested a stay of the
order on the grounds that Mr. Clarke had been reinstated by T.P. Mining
and that a settlement of his back pay claim was expected. On February
22, 1984, the judge ordered the Secretary to show cause why the discrimination complaint should not be dismissed "subject to reinstatement
when the parties were prepared to file their motion to approve settlement." On 1-tarch 1 , 1984, the Secretary responded to the show cause
order , opposing dismissal of the complaint because "[d]espite frequent
discussions of the matter of [Mr . ] Clarke's lost income • • . no basis for
settlement has resulted . " Judge Kennedy then ordered the Secretary to
furnish the MSHA investigative report by March 23, 1984.
On March 20, 1984, the Secretary's counsel, Frederick W. Moncrief,
wrote to the judge that Mr. Clarke's discrimination claim had been
settled to Mr . Clarke's satisfaction. Eight days later, on March 28,
1984 , T.P. Mining's counsel, Mr. Malik, wrote the judge a letter that
began, " Pursuant to your telephone request this morning, I will advise
you of our proposed settlement." Mr . Malik stated that he and Mr.
Moncrief had agreed that T.P. Mining would pay Mr. Clarke $5 , 500, and
that the check be transmitted to Mr. Moncrief to retain until Mr. Clarke
had signed the "necessary papers.n Mr. Malik stated that the check had
been mailed on March 26, 1984, and that the check was "payment in full
for a discrimination case filed by [Mr.] Clarke for full back pay and
employment benefits . •. and for interest. " On April 2, 1984, the
Secretary moved that the case be dismissed .

1011

In an order dated April 3, 1984, Judge Kennedy dismissed the wrongful .
discharge aspect of the complaint . However, he severed the Secretary's
civil penalty proposal. The judge stated that the Secretary ' s motion
provided "no basis ••• for approval of a settlement of the Secretary ' s
penalty proposal." The judge retained jurisdiction over the penalty
portion of the complaint "pending receipt of the information . .• necessary
to approve settlement of the civil penalty aspect of the complaint . " On
April 18, 1984, Mr. Moncrief wrote to the judge that the parties intended
that the resolution of Mr . Clarke's back pay claim totally resolve the
case and that the Secretary's agreement to forsake seeking a civil
penalty had been an "important ingredient of the money settlement to
[Mr.] Clarke."
In response to Hr . Moncrief's letter, Judge Kennedy issued an order
on April 25, 1984, affirming the severance of the civil penalty aspect
of the case and ordering the Secretary to furnish forthwith the MSHA
investigation report in order to support the Secretary~s request to
forsake the civ~l penalty. On May 10~ 1984 , the judge dismissed the
severed penalty proposal for uwant of prosecution," due to the failure
to produce the investigative report. On May 16, 1984, the Secretary
filed with the Commission a petition for discretionary review of the
April 25 order.
On Hay 23 , 1984 , 'He granted the Secretary' s petition for discretionary review . On May 31, 1984~ Judge Kennedy sent the Commission a
letter concerning the Secretary ' s petition. In his letter, Judge
Kennedy asserted that the record supported his decision . The judge also
maintained that he had appropriately severed the penalty aspect of the
case from the discrimination complaint and stated that Mr. Malik had
r ecognized that the penalty proposal would require separate consideration.
Judge Kennedy stated: "This was because the basis for the settlement was
fully disclosed in a discussion between counsel for the operator and the
trial judge to which Mr . Moncrief was not a party." Because we concluded
that the judge's letter, on its face , indicated that an ex parte conversation had occurred between Judge Kennedy and Mr. Malik, we did not r eturn
it to the judge as an unauthorized submission. We directed the judge
and Mr. Malik to submit sworn statements that disclosed fully the substance of the telephone conversation. 6 FMSHRC 1401 (June 1984).
The first sworn statement received by the Commission was from Mr.
Malik. Mr. Malik stated. that on March 28, 1984 , he had received a telephone call from Judge Kennedy inquiring about the settlement negotiations .
Mr. Malik further stated that he "informed the judge that the matter had
been basically settled but there were a few small details to be worked
out between [Mr . ] Moncrief and myself." Although Mr. Malik asserted
that he did not discuss the settlement in detail, he added that "the
money settlement ••• had been resolved and I may have related that to .
the judge." Mr. Malik concluded his affidavit by stating that following
the telephone call from Judge Kennedy he called Mr. Moncrief and related
the conversation.

1012

The second sworn statement received was the affidavit of Judge
Kennedy, accompanied by a brief in the form of a letter from counsel
retained by the judge. In his affidavit, Judge Kennedy stated that his
telephone conversation with Mr. Malik on March 28,. 1984, lasted "no more
than one or two minutes," and was confined to a single inquiry--namely ,
whether the check in payment of Hr . Clarke's claim for back pay had been
sent to Mr. Moncrief . The judge stated that Mr. Malik had told him that
he was certain the check had been sent but that "he would double check
the matter with [T.P. Mining] and inform [the judge] by letter of the
exact status both of the payment and of the parties' settlement
negotiations . " Judge Kennedy added, "My recollection of the . conversation
closely coincides with that of Mr . Malik as set forth in his [affidavit]."
Judge Kennedy also noted Mr . Malikvs statement in his letter of
March 28, 1984, to the judge that "[p]ursuant to your telephone request
this morning, I will advise you of our proposed settlement which I am
aware is subject to your approval." Judge Kennedy asserted that this
statement confirmed his recollection that he did not inquire, Mr. Malik
did not volunteer, and neither of them discussed any details of the
settlement, because at the time of the telephone call the details of the
settlement had not been finally resolved. The judge stated that Mr.
Malik's March 28 letter was composed after Mr. Malik had spoken with Mr.
Moncrief later that day and had worked out the settlement details . The
judge asserted that it was Mr . Malik 9 s March 28 letter, not the earlier
telephone conversation with Mr. Malik on that date, which "informed me
of the basis of the settlement." Judge Kennedy stated that when he
wrote in his May 31, 1984 letter to the Commission that "the basis for
the settlement was fully disclosed in a discussion between counsel for
the operator and the trial judge to which [Mr. ] Moncrief was not a
party," his reference to a "discussion" included Mr . Malik's letter of
March 28, 1984 .
The third sworn statement received by the Commission was the affidavit
of Michael A. McCord, the Secretary's Counsel for Appellate Litigation.
Mr. McCord moved the Commission for leave to file the affidavit, asserting
that it contained information directly bearing on the inquiry, and the
motion was granted. In his affidavit, Mr. McCord stated that he had
several telephone conversations 'Y7ith Mr. Malik in April and May 1984,
while trying to obtain background information for a possible appeal of
the judge's orders. According to Mr. McCord, Mr. Malik stated that the
judge had called him on March 28, 1984, and that Mr. Moncrief had not
been involved in the conversation. Mr. McCord stated that Mr. Malik
informed him that the following subjects had been discussed during the
conversation: (1) The judge repeatedly complained to Mr. Malik about
alleged misconduct by Mr. Moncrief; (2) the judge asked whether Mr.
Malik intended to demand that the Secretary turn over a copy of his
official investigative files and suggested that this might be helpful;
(3) Mr. Malik told the judge tbat he did not intend to seek the file ·
because the case might be settled; and (4) Mr . Malik gave the judge a
brief status report of the case but did not fully disclose the basis for
the settlement.

1013

After a review of these affidavits, together with the judge's
letter of May 31, 1984, the Commission issued an order on August 21,
1984, in which we stated that the record contained "apparent discrepancies and omissions." We therefore ordered Mr. Malik to file a
"complete and detailed" affidavit to resolve the discrepancies.
On September 20, 1984, Mr. Malik filed his second affidavit. In
the affidavit, Mr. Malik stated that on at least two separate occasions
during his March 28 telephone conversation with Judge Kennedy, the judge
complained about the manner in which Mr. Moncrief was handling the case.
Mr . Malik stated that he did not recall the specifics of Ju.d ge Kennedy's
comments "but there was no question that they were of a derogatory
nature." Mr . Malik also stated, "The judge and I did discuss the
investigative file in this matter. I told him that I had not reviewed
it and he suggested that it might be helpful. I then informed him that
I did not intend to seek the file at that time because of the way our
negotiations were going . "
Both Commission Rule 82 (n. 1 supra) and section 557(d) of the
Administrative Procedure Act , 5 U.S.C. § 557(d)(l982)("APA") ~ prohibit
ex parte communications between a Commission judge and a party regarding
the merits of pending cases . Knox County Stone Co ., Inc . , 3 FMSHRC
2478, 2483-86 (November 1981) . 2/ We have held that the concept of the
"merits" of a case is to be broadly construed , and that the purpose of
prohibiting ex parte communications wi th respect to the merit s of a
Commission case is to foster the integrity and t he fairness of Commission adjudicative proceedings. Knox County, supra, 3 FMSHRC at 2485-86 ;
United States Steel Corp., 6 FMSHRC 1404, 1407 n. 2 (June 1984). 11 Ex
parte communications also are prohibited in the Code of Judicial Conduct .
Knox County, 3 FMSHRC at 2485-86.
!:_/

The APA defines "ex parte communication" as :
an oral or written communication not on the public
record with respect to which reasonable prior notice to
all parties is not given, but it shall not include
requests for status reports on any matter or proceeding . • ••

5 u.s .c. § 551(14).

11

We stated in Knox County:
As Congress explained in enacting section 557(d) :
The purpose of the provisions . • • is to insure
that agency decisions required to be made on a public
record are not influenced by private, off-the-record
communications from those personally interested in the
outcome.

*

*

*

*

In order ·to ensure both fairness and soundness to
adjudication •.. , the ••• [APA] require[s] a hearing and
decision on the record. Such hearings give all parties
an opportunity to participate and to rebut each other's
(Footnote continued)

1014

To be prohibited, a communication must not only be ex parte but
also must bear on the merits of a case. To warrant discipline, the
communication must be knowingly and willfully made . It is clear that
the telephone conversation of March 28, 1984 , between Judge Kennedy and
Mr. Malik was initiated by Judge Kennedy , involved only one party to the
pending litigation, was not on the public record, and was without prior
notice to the other party, the Secretary of Labor . In short, the
conversation was ex parte. Therefore, we must next determine, on the
basis of the record deyeloped in this inquiry , whether the communication
was prohibited in that it concerned the merits of the case.
Based upon the affidavits in this record , we conclude that the
following substantive matters were discussed during the conversation:
(1) the state of the settlement negotiations ; (2) the MSHA investigative
report; and (3) the judge ' s opinion of Mr. Moncrief . We are not troubled
by the portion of the conversation that concerned the status of settlement negotiations. The discussion involved the question of whether the
case had been settled and whether the settlement check had been sent.
As such , it was a permissible status inquiry by the presiding judge.
On the other hand, those portions of the conversation that dealt
with the MSHA investigative report referenced the merits of the case and
were prohibited. Mr . Malik states that he and Judge Kennedy discussed
the MSHA investigation file, and that Judge Kennedy suggested that " it
might be helpful" i f Mr. Malik received the file . Judge Kennedy had
every reason to believe that the MSRA investigative report contained
subject matter relating to the grounds of the Secretary' s discrimination
complaint, and therefore was relevant to potential defenses as well. At
the time of the ex parte conversation, the case had not been settled and
the report was a potential piece of evidence . In communicating about
the report, in an off - the-r ecord and ex parte manner, Judge Kennedy discussed an aspect of the merits of the case. Judge Kennedy had previously
ordered the Secretary to produce the r eport , and it may be that he urged
Mr. ~alik to seek the report in order to pressure the Secretary to
comply with the order. However, if Judge Kennedy believed that production of the report was necessary to a resolution of the case he
should have sought to compel compliance with his order by proper judicial
process. An ex parte and off-the-record suggestion to counsel for one
of the parties is no substitute for orderly and v~lid legal procedure .
Fn. 3 continued
presentations . Such proceedings cannot be fair or soundly
decided, hO't-Jever, when persons outside the agency are
allowed to communicate with the decisionmaker in private
and others are denied the opportunity to respond.
[H.R. Rep. No . 880, Parts I & II , 94th Gong . , 2d Sess . 2 (Part I),
18 (Part II)(l976), reprinted in 1976 [3] U. S. Code Cong. & Ad.
Ne\vS, Legis. Hist . 2184, 2227 . ] See also Raz Inland Navigation
Co . , Inc. v. ICC , 625 F.2d 258, 260 (9th Cir. 1980) . The implications of the purposes mentioned by Congress are obvious : Improper
ex parte contacts may deny a party "his due process right to a
disinterested and impartial tribunal." Rinehart v. Brewer, 561
F.2d 126, 132 (8th Cir. 1977) . Diminishing public confidence
in the affected tribunal is the likely and unacceptable result.
3 FMSHRC at 2485.

1015

Moreover, an ex parte, off-the-record suggestion by a judge that a
party seek a particular piece of evidence is incompatible with the
requirements of the Mine Act and the APA that adjudicative records in
Commission proceedings be developed through the adversarial system.
When the development of evidence is influenced by such a judicial
"suggestion" to one party, the integrity of the record and, consequently,
of the Commission may be compromised. See, ~·· U.S. Lines v. FMC, 584
F.2d 519, 537-43 (D . C. Cir. 1978); Home Box Office, Inc. v. FCC, 567
F.2d 9 , 51- 59 (D.C. Cir. 1977), cert. denied, 434 U.S. 829 (1977).
We also conclude that those portions of the conversation in which
Judge Kennedy criticized Mr. Moncrief were prohibited . In his affidavit ,
Mr. Malik stated that the judge "complained about the manner in which
[Mr. Moncrief] was handling the case," and that the complaints were
derogatory. The merits of a case include not only the grounds of a
proceeding or a defense to it but also any communication that may
indirectly or subtly influence the outcome of a proceeding. PATCO v ,
FLRA, 685 F.2d 547, 563 (D . C. Cir . 1982). A judge ' s off-the-record,
derogatory comments about counsel for one party made to opposing counsel
could influence the behavior , tactics, and arguments of opposing counsel
and, thus , affect the substantive outcome of the proceeding.
We turn to the question of whether Judge Kennedy and Mr . Malik
"knowingly and willfully" engaged in the prohibited aspects of their
discussion . Judge Kennedy initiated and pursued the conversation with
regard to the investigative report and Mr. Moncrief. Judge Kennedy knew
what he was saying . He raised the subjects intentionally. His participation was knowing and willful. The judge's participation in the conversation was not an innocent, albeit misguided , first- time occurrence. Cf .
United States Steel Corp . , supra, 6 FMSHRC at 1408-09 . Judge Kennedy
has been warned previously that the prohibitions against ex parte communications are vital to the integrity of the Commission ' s process . Knox
County, 3 FMSHRC at 2483, 2486; Inverness Mining Co., 5 FMSHRC 1384,
1388 n. 3 (August 1983)(both cases involving our review of proceedings
presided over by Judge Kennedy) . To be fully aware of the prohibitions,
and nevertheless to initiate and participate in a prohibited ex parte
communication is unacceptable.

1016

We recognize that any conversation requires two parties. Mr. Malik
also knew that the conversation was ex parte. Although we conclude that
his participation was knowing , there are mitigating circumstances with
regard to willfulness. Mr. Malik was responding to the presiding judge,
who initiated the contact and raised the prohibited subject . Further,
Mr . Malik advised the Secretary's counsel following the conversation
that the conversation had occurred. Moreover , Mr . Malik stated that
this was the first time that he had been contacted in such an ex parte
fashion by a judge . We credit Mr. Malik's assertion that he was surprised by the call and that he was a reluctant participant. Thus,
although we conclude that his participation in the prohibited ex parte
conversation violated Commission Rule 82, we are persuaded that his
lesser role in this affair warrants no more than a cautionary warning
that the Commission should have been notified on the record of the
communication and that prohibited communications are to be strictly
avoided in the future .
The judge, on the other hand , has no excuse. We expect Commission
judges, regardless of personal opinions, to abide by the law. As we
have stressed, Judge Kennedy previously has been reminded expressly of the
necessity of complying with the letter and the spirit of Commission Rule
82 . His actions in this case demonstrate an intransigent disregard of
applicable procedures . They impugn this independent agency 1 s credibili t y
and undermine its status a s an impartial adjudicative body . We condemn
Judge Kennedy ' s actions in the strongest terms and retain , for further
consideration, the question of appropriate discipline . ~

. ~y, Acting Chairman

L. Clair Nelson, Commi ssioner

~/

Pursuant to section 113(c) o f the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the
pov1ers of the Commission.

1017

Distribution
Michael McCord , Esq.
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd .
Arlington, Virginia 22203
Philip G. Sunderland, Esq.
Terris & Sunderland
1121 12th St., N. W.
Washington, D.C . 20005
John J . Malik, Jr . , Esq.
Malik, Knapp, Kigerl & Frizzi
3381 Belmont St .
Bellaire, Ohio 43906
Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church, Virginia 22041

1018

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

July 10, 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSI!A)

Docket No. SE ·84- 4-M

v.
BELCHER MINE, INC.

BEFORE :

Backley~

Acting Chairman ; Lastowka and Nelson, Commissioners
DECISION

BY THE COMHISSION:
In this civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U. S.C. § 801 et seq . (1982)( "Mine
Act" ), Commission Administrative Law Judge Joseph B.Kennedy issued a
decision approving a settlement agreed to by the parties . 6 FMSHRC 1052
(April 1984)(ALJ). We granted the Secretary of Labor's petition for
discretionary review of that decision. The Secretary asserts that the
judge's decision contains unsupported and unwarranted allegations of
perjury and subornation of perjur y, and unsubstantiated defamatory
remarks beyond the proper scope of a settlement approval . We agree.
Belcher Mine, Inc. ("Belcher") operates an open- pit limestone
quarry located in Aripeka, Florida. On August 1, 1983, an inspector of
the Department of Labor's Mine Safety and Health Administration ("MSHA"),
Alonzo Weaver, observed a bulldozer operator positioning a mobile crusher
unit by means of a draw bar attached to the bed of the crusher. The
crusher's draw bar was beneath a structural steel boom that extended
some 70 feet from the unit. The boom was supported by steel girders
anchored to the crusher ' s bed and a Yire rope suspension cable. The
inspector observed the operator of the crusher beneath the boom.

1019

The inspector questioned Belcher's foreman, Floyd Miles, about the
crusher, which he believed to be a different unit from that which he had
observed during an earlier inspection. The inspector observed, upon
detailed examination, that the anchor points that held the crusher's
suspension frame in place were damaged. The right anchor had worn
through and the left anchor exhibited a break in a previous repair weld.
As a result, the inspector issued a combined imminent danger withdrawal
order under section 107(a) of the Mine Act, 30 u.s.c. § 817(a), and a
citation under section 104(a) of the Act, 30 U.S.C. § 814(a), alleging a
violation of 30 C.F.R. § 56.14-26. !/
Subsequently, the Secretary of Labor proposed a civil penalty for
the alleged violation. Belcher contested the penalty, and the jurisdiction of this independent agency attached. Judge Kennedy was the
administrative law judge assigned by the Commission to hear the matter .
At the hearing, the inspector testified that the bulldozer positioning
the crusher appeared to have a faulty clutch, causing it to lurch . The
inspector stated that this jolting action could have caused the crusher ~ s
already weakened suspension frame to break free of its anchors . If the
anchors failed, the frame supporting the boom could have collapsed and
anyone below the boom would have been injured. According to the inspector,
the anchors had been broken for some time, as rust had developed on the
surface of the breaks in the anchor points .
During Inspector Weaver ' s direct testimony, Judge Kennedy asked him
whether Belcher's foreman, Mr. Miles, had known about the condition of
the anchor before the inspection, and the inspector replied that he
believed so. On cross-examination by Belcher's president, Warren Hunt,
the inspector again opined that Miles or the company superintendent,
Robert King, knew that the structural support was broken prior to his
issuance of the order and citation. Mr. Hunt also asked Inspector
Weaver whether he had found the same crusher in acceptable condition
during his previous inspection. The inspector responded that the crusher
that he had previously inspected was a different unit. Mr. Hunt elicited
testimony on the number of crushers at the mine. The inspector maintained
that there were three crushers; Mr. Hunt insisted that there were two.
To determine how many crushers were at the mine, Judge Kennedy
directed the Secretary's counsel, Kenneth Welsch, to furnish for the
record a copy of the inspector's contemporaneous notes from his August 1 ·
inspection. The judge stated that he wanted further clarification of
this question following the lunch-hour recess. When the hearing reconvened,
Mr. Welsch was unable to explain the discrepancy between the assertions
of the inspector and Mr. Hunt as to the number of crushers at the mine.
1/

30 C.F.R. § 56.14-26 provides:
Mandatory. Unsafe equipment or machinery shall be removed
from service immediately.

1020

He stated that he· was willing, for purposes of this case, to have the
judge assume that the crusher inspected on August 1 was the same crusher
examined during the earlier inspection. The judge commented to the
effect that this concession ended the controversy. However, he marked
the inspector's contemporaneous notes for identification and received
them into evidence.
Judge Kennedy questioned the inspector about an entry in his notes
concerning employee comments about the alleged violation. The comments
read: "Been that way for a week or more. Scared to get near it." Exh.
PX-5. When Judge Kennedy asked the inspector, "Who told you that?", Mr.
Welsch objected based upon the informer's privilege. The judge overruled
the objection and continued to seek to determine the identity of the
employee who had made the comments. Mr. Welsch resisted the judge 9 s
inquiry into this area and informed the judge that an assurance of
confidentiality had been extended to the employee. Judge Kennedy nevertheless asked the inspector whether the employee was present in the
courtroom. Mr. Welsch instructed the inspector to answer the judge vs
question. The inspector responded that the employee was present.
Belcher's representative, Mr. Hunt, then informed the judge that he
had just learned that an individual (either his foreman or superintendent)
had known about the condition of the crusher prior to the issuance of
the withdrawal order. This fact apparently conflicted with what Mr.
Hunt had previously been told. After a recess suggested by the judge,
Mr. Hunt advised the judge that Foreman Miles had known about the cracked
support for at least a week prior to the August 1 inspection. Mr. Hunt
then proceeded to offer to pay a civil penalty for the violation.
Judge Kennedy stated that he considered the violation to warrant a
$750 penalty and that, if the parties ldshed to enter into a settlement
agreement to that effect, he would approve it. Mr. Hunt agreed and Mr.
Welsch moved for a $750 penalty assessment. In a bench decision, Judge
Kennedy ordered the settlement approved. The judge subsequently issued
a written decision confirming the bench decision. 6 FMSHRC at 1052.
In his written decision Judge Kennedy found, inter alia, that
"Pursuant to [Department of Labor] policy ••• the inspector repeatedly
evaded my questions about what [Foreman] Miles said about the hazardous
condition [of the anchors]." 6 FMSHRC. at 1053. His decision purported
to contain quotations of the inspector's testimony including the following
statement: "I don't recall whether he said anything about how long it
had been there." 6 FMSHRC at 1053-54. The judge concluded that this
testimony was false and that the Secretary's counsel, Mr. Welsch, "made
no attempt to correct the false testimony." 6 FMSHRC at 1054. Judge
Kennedy also stated that at the time Mr. Welsch offered to furnish the ·
inspector's contemporaneous notes of the August 1 inspection, Mr. Welsch
knew that the notes contained a statement by an employee of the operator
that the anchors had "been that way for a week or more." Id. The judge
opined that "the only employee the inspector had talked toon August 1
about the anchor was Hr. Miles." Id. Judge Kennedy concluded, "But
again the [S]olicitor made no attempt to correct the inspector's false
testimony." ~·

1021

As part of his discussion of the informer's privilege issue raised
by Hr. \~elsch~ Judge Kennedy stated that he found nit hard to accept
that the Solicitor is so legally obtuse and ethically confused as to
believe a grant of confidentiality to an informer takes precedence over
a witness's solemn oath to tell the truth. Or that the informer privilege
justifies palming off perjured testimony in an adjudicatory proceeding."
6 F~SHRC at 1055. The judge stated that he made these observations and
findings "because I am disturbed~ as I believe the Commission will be
disturbed, to learn of the extremes to which the Solicitor may go in
turning a deaf ear to false and misleading testimony." Id. Judge
Kennedy went on to "condemn in the strongest terms possible the subornation that occurred and serve warning that if it happens again I shall
feel compelled to refer the matter to the Commission and the criminal
division for such disciplinary action as they deem appropriate." 6
Ft-1SHRC at 1056. Throughout his decision~ Judge Kennedy also made a
number of comments critical of what he labelled "the admininstration qs
policy" of "cooperative enforcement."
We turn first to · Judge Kennedy's allegations of criminal conduct .
Upon careful review of the record, we conclude that Judge Kennedy rs
accusations of perjury and subornation are not supported by the record
and were inappropriately made in his decision .
Any accusation of criminal conduct is a grave matter, not to be
undertaken lightly, especially by a jurist schooled in the law and aware
of the requirements of due process. Under the United States Code,
perjury and subo~nation of perjury are felonies, punishable by fines of
up to $2,000 and imprisonment of up to five years. 18 U.S.C. §§ 1621,
1622 (1982). Essential elements of the crime of perjury include a
statement on a material matter, willfully made, which the witness does
not believe to be true. Bronston v. United States, 409 U.S. 352~ 357
(1973). The essential elements of the crime of subornation of perjury
include proof that perjury was committed, and that the suborner knowingly
and willfully induced or procured the witness to give false testimony.
See,~·· United States v. Brumley, 560 F.2d 1268, 1275-77 (5th Cir.
1977).

An examination of the portion of the transcript containing the
allegedly perjured testimony indicates that the judge was questioning
Inspector Weaver about Foreman Hiles' reaction to the issuance of the
withdrawal order, what Foreman Miles knew about the damaged condition of

1022

the anchors, and when such knowledge was gained. !/ An examination of
the inspector's answers reveals that he was attempting to respond to the
judge's questions without revealing the identity of the employee who had
informed him of the unsafe condition. On review, the Secretary concedes
this fact. Petition for Review at 11. Answers by a witness that are

!I

The colloquy between Judge Kennedy and Inspector Weaver follows:
JUDGE KENNEDY: Well, Mr. Miles was with you when you-THE WITNESS:

He was with roe that day -- [August 1 9

1984]
JUDGE KENNEDY: What did he say?
THE WITNESS:
Whether or not he was aware of it or not?
He was aware of it. He saw it -- he was right there with
me.
JUDGE KENNEDY: Is that the first time he saw it?
THE WITNESS:
No, sir.
it was the first time.

I don vt think so .

I don 9 t think

JUDGE KENNEDY: What did he say, if anything? If he
didn't say anything, just tell roe; or if he did, tell me
to the best of your recollection what he said.
THE WITNESS:

(Pauses.)

JUDGE KENNEDY: You both walked up and you both looked at
this condition?
THE WITNESS:
I don't recall 'vhether I asked him
specifically how long it had been there
JUDGE KENNEDY: I am not asking you that
I am just
asking you --I assume he looked at it and you made a
decision right then that you were going to issue a
closure order; correct?
THE WITNESS:
Yes, I said, "This is a hazard. I am
going to have to pull the people out of this operation
until ·it is repaired ["J -JUDGE KENNEDY: And I assume -- I assume that -- that came
as a bit of a shock to him or was he perfectly bland about it?
THE WITNESS:

No, sir.

He was -(footnote 2 continued)

1023

merely unresponsive to questions, however, will not support a finding of
perjury. Cf. Bronst'on v. United States, 409 u.s. at 357-62. Furthermore, questllons that are susceptible to different interpretations by a
witness will also not support such a finding. Cf. United States v.
Bell, 623 F.2d 1132, 1135-37 (5th Cir. 1980). We find that Judge
Kennedy's questions themselves are not without ambiguity. Had Judge
Kennedy explicitly asked Inspector Weaver whether he had ever discussed
with Foreman Miles when the latter first learned of the condition of the
anchors, and had the inspector untruthfully denied any such discussion,
the matter might stand in a different light . The questions, however,
are susceptible of different interpretations and on this record the
literal truthfulness of the inspector's testimony can not be discounted.
Thus, we find that the judge's conclusion that the inspector perjured
himself is not supported by this record. Further, the record is silent
concerning any attempt by Mr. Welsch to induce Inspector Weaver to
testify falsely. Thus, we conclude that the judge's charge of subornation is likewise unfounded.

Footnote 2 end.
JUDGE KENNEDY: (Interrupting) You are going to shut his full operation
down here and he is the foreman.
THE WITNESS:
No sir. No sir. I told him, I said, "I will give
you time to get hold of Mr. King here i f you would like ["] -JUDGE KENNEDY: Right.
THE WITNESS:
(Continuing) --and he said, "No,"-- the way I
recall it, he said, "No, that won't be necessary. I will go ahead
and shut it down. And contact Mr. King." Whether or not he did, I
don't know.
JUDGE KENNEDY: That was all he said, then?
THE WITNESS:

That was all he said.

JUDGE KENNEDY: He wouldn't sal an:tthin~ about whether he
THE WITNESS:

(Interrupting) I don't recall if he did.

JUDGE KENNEDY: All right.
o'clock.

So then you shut him down right at 9

Tr. 39-41 (emphasis added).

1024

The Secretary als"o points out that Judge Kennedy supported his
allegation of perjury by misquoting record testimony. A comparison of
the relevant portion of the judge's decision with the corresponding
section of the trans.c ript indicates that Judge Kennedy did misquote
Inspector Weaver. The judge states:
Weaver finally testified that "all Miles said was
that he would shut the crusher down and contact Mr.
King. That was all he said. I don't recall whether
he said anything about how long it had been there."
This was not true.
6 FMSHRC at 1053-54. No testimony identical to the purported quotation
appears in the transcript. Needless to say, Judge Kennedy's attribution
of misquoted testimony to a witness being accused of perjury is inexcusable .
The Secretary further argues that the judgeqs abuse of authority in
making unsupported allegations of criminal conduct is rendered even more
egregious by the fact that the accusations were made in a public written
decision, without prior notice, thereby denying the accused an opportunity to respond to the charges. We agree that Judge Kennedy 9 s methods
violated the due process rights of the accused individuals and applicable
Commission procedural rules .
In a recent decision, the U.S . Court of Appeals for the Eighth
Circuit addressed the propriety of similar judicial accusations of
personal misconduct. Gardiner v. A.H. Robins Co., Inc., 747 F.2d 1180
(1984). In Robins, a U.S. District Court judge attacked the personal
reputations and honor of persons involved in pending litigation. The
court of appeals held that the judge's comments implicated the constitutionally protected liberty interests of those attacked, and that the
accused were entitled to adequate notice and an opportunity to be heard
by an impartial tribunal. 747 F . 2d at 1190- 94. Here, Judge Kennedy's
decision not only attacked the personal reputations of Inspector Weaver
and Mr . Welsch, but also accused them O·f felonious criminal activity.
In this regard, Judge Kennedy assumed the conflicting roles of grand
jury, prosecutor, jury, and presiding judge. in issuing his pronouncements.
Jurisdiction over federal criminal matters resides with the United
States Department of Justice and the federal criminal justice system.
If Judge Kennedy had reason to believe that crimes had been committed,
he should have referred the matter to the appropriate authorities at the
Department of Justice. Cf. Pontiki Coal Corp., 6 FMSHRC 1131 (May 1984).
Furthermore, if Judge Kennedy was of the opinion that Mr. Welsch,
as an attorney practicing before the Commission, had engaged in conduct
warranting disciplinary action, the judge is particularly aware that he
should have referred the matter to the Commission pursuant to Commission
Procedural Rule 80. 29 C.F.R. § 2700.80. Commission Rule 80 provides
the necessary due process protections of adequate notice and opportunity
to be heard denied Mr . \-lelsch by the judge. Recently, we found i t

1025

nec essary to disapprove of Judge Kennedy's continued failure to abide by
Rule 80. See T.P . Mining, Inc., 7 FMSHRC
(FMSHRC Docket No. LAKE
83- 97-D , July 2, 1985). There we stated : --Judge Kennedy's comments with regard to [an
attorney who appeared before him} contain assertions
of unethical and unprofessional conduct which, had
they been well-founded, would have been grounds
for a disciplinary proceeding. We have previously
cautioned Judge Kennedy that such allegations made
in the course of a proceeding~ ~vi thout the required
disciplinary referral, deprive the accused of
elementary procedural safeguards. Canterbury Coal
Co., 1 FMSHRC 335, 336 (May 1979) . By now? Judge
Kennedy should kno'v how to make a disciplinary
referral. Canterbury Coal Co.? l FMSHRC at 336 ;
James Oliver and Wayne Seal , l FMSHRC 23 , (March
27, 1979); In re Kale, 1 BNA MSHC 1699 (FMSHRC
Docket No . D-78- 1, November 15, 1978). In this
case, Judge Kennedy's demonstrated insensitivity
to the legitimate interests and rights of those
appearing before the Commission ~ and his disregard
of the Commission?s rules and our prior warnings
on this subject, warrant our gravest concern.
T.P. Mining, supra, slip op. at 5.
The Secretary also maintains that the judge ' s decision focused on
matters far beyond the scope of a settlement approval. The Secretary
contends that the judge made defamatory remarks in his decision concerning Mr. Helsch's assertion of the informer's privilege, MSHA's
allegedly lax enforcement of the Mine Act, and the personal reputations
of Inspector Weaver and Mr. Welsch .
It is clear from the record that Mr . Welsch advanced a proper
reason for assertion of the privilege, namely, to preserve the anonymity
of one of Belcher's employees who had furnished information to Inspector
Weaver under an assurance of confidentiality . Tr . 95- 101. We recently
outlined the basic principles governing the application of the informer's
privilege to Mine Act proceedings. Secretary of Labor on behalf of Logan
v. Bright Coal Co . , Inc., 6 FMSHRC 2520 (November 1984):
The informer's privilege is the well- established
right of the government to withhold from disclosure the identity of persons furnishing information of violations of the law to law enforcement officials. Roviaro v. ·united States, 353
U.S. 53 , 59 (1957) . See generally Annat., 8 ALR
Fed. 6 (1971) . The purpose of the privilege

1026

is to protect the public interest by maintaining
a free flow of information to the government concerning possible violations of the law and to
protect persons supplying such information from
retaliation, Roviaro, 353 U.S. at 59; Hodgson v.
Charles Martin Inspectors of Petroleum, Inc., 459
F.2d 303, (5th Cir. 1972). The privilege is
qualified, however, and where disclosure is
essential to the fair determination of a case,
the privilege must yield or the case may be
dismissed. Roviaro, 353 U.S. at 60-61.
6 FMSHRC at 2522-23. We also detailed the procedures that an administrative law judge should follow in order to determine the existence of
the privilege '"hile balancing the competing interests of confidentiality
and disclosure:

The judge should order the Secretary to turn over
the ••• material withheld for an in camera inspection. In evaluating this material, the judge
should first determine whether the information
sought by the respondents is relevant and , therefore, discoverable. If he concludes that the
material is discoverable, he should then determine whether the information is privileged .
Application of the informer's privilege should be
based upon the definition of 11 informer" adopted
above.
Recognizing that the informer's privilege is
qualified, if the judge concludes that the
privilege is applicable, he should next conduct a
balancing test to determine whether the respondents' need for the information is greater than
the Secretary's need to maintain the privilege to
protect the public interest. Drawing the proper
balance concerning the need for disclosure will
depend upon the particular circumstances of this
case, taking into account the violation charged,
the possible defenses, the possible significance
of the informer's testimony, and other relevant
factors. Among the relevant factors to be considered are the possibility for retaliation or
harassment, and whether the information is available from sources other than the government.

6 FMSHRC at 2525-26.
In the instant proceeding, the issue of the informer's privilege
arose at the time of the hearing and its invocation obligated the judge
to consider it in a fair and judicious manner. Here the judge made no
attempt to conduct an in camera inspection of material offered to support

1027

the existence of the privilege. Instead, he conducted his inquiry into
the applicability of the privilege in a hostile manner during an open
hearing with the operator and prospective witnesses present. Tr. 95-101.
Although the events in this case preceded our decision in Bright Coal,
supra, the approach adopted by the judge nonetheless violated the requirement in Commission Procedural Rule 59 that "A Judge shall not, except in
extraordinary circumstances, disclose or order a person to disclose to
an operator or his agent the name of an informant who is a miner." 29
C.F.R. § 2700.59 (emphasis added).
The judge's active pursuit of testimony concerning the statements
made by an employee of Belcher to Inspector Weaver blinded him to his
responsibilities under Commission Rule 59. The judge pressed Mr. Welsch
for an indication of the identity of the informant and Mr . \-lelsch resisted
that inquiry. Tr. 96-98 . Then, after narrowing the choice of potential
informants in his own mind down to one of two prospective witnesses for
Belcher 9 the judge asked Inspector Weaver whether the employee referred
to in his notes was in the courtroom. Tr . 100. Mr . Welsch again appropriately objected to the question. Upon being overruled he advised
Inspector Weaver that he must answer the judge and the inspector responded
in the affirmative. Tr. 100-01 .
The judge intimated at the hearing that , since section lOS(c ) (l) o f
the Mine Act prohibits discrimination against miners who testif y or a r e
about to testify in Mine Act proceedings, the claim of informer ' s privilege
was unnecessary. He stated: "I mean, what more protection could a man
have?" Tr. 99. This observation, if made in good faith, is at best
naive. We would expect the judge to recognize that "the possibility of
deterrence arising from post~ disciplinary action is no substitute
for a prophylactic rule that prevents the harm •••• " NLRB v. Robbins
Tire and Rubber Co., 437 U.S. 214, 239-40 (1978). Ou~ Rule 59 is such a
rule, and is intended to prevent the disclosure of the identity of a
miner-informant to the operator or his agent. Only in "extraordinary
circumstances" is such a disclosure justified. The judge made no
attempt, either at the hearing or in his written decision, to set forth
the "extraordinary circumstances" necessary to justify his actions. In
fact, he failed on each occasion to even mention Rule 59. The procedures
adopted by Judge Kennedy at the hearing did serious violence to Rule 59. 11
The record reveals that Mr. Welsch objected strenuously to the
judge's line of questioning and was resolute in his assertion of the
informer's privilege. This earned him a personalized, unsupported,
3/
It is important to stress that proof as to the existence of the
violation would not in any way have been affected by counsel for the
Secretary's attempted reliance upon the informer's privilege. Here, the
inspector testified that he believed the violative condition (i.e., the
defective anchors) had existed for "several l.reeks" because of the presence
of rust on the surface of the breaks. Tr. 37; see also, Tr. 33-36.
Accordingly, the Secretary placed into the record evidence relevant to
negligence.

10.28

defamatory thrashing in the judge's decision. The judge used such
phrases as "legally obtuse," "ethically confused," and "ethical astigmatism."
There is no justification for these comments. 4/
T.P. Mining, supra:

As stated in

[T]he judge's criticism of counsel was unnecessary
and the language used was intemperate. Words such
as "incompetence," "unprofessional," "ineptitude ~ "
"ethically improper," "reprehensible," and "irresponsible , " when published without support and
broadcast to the public, not only wound the
advocate personally--they damage professionally .
In unjustly maligning one who appears before him ?
a judge not only demeans himself , but dishonors
this Commission. Such unwarranted rebukes can
only lessen public confidence in this independent
agency's ability to serve its statutory role as a
temperate and even-handed decision maker.
Slip op . at 5.
Finally, Judge Kennedy ~ s deci sion contains certain passages
expressing his opinion that MSHA was not vigorously enforcing the Mine
Act. The Secretary argues that there is no evidence in this record to
support the judge's charges of lax enforcement on the part of the agency.
He contends that the judge's remarks are merely an attempt to broadcast
his personal perception of enforcement policies, and in no way relate to
a proper order approving settlement in this case.
In evaluating Judge Kennedy's comments it is important to consider
separately the actions of Inspector Weaver and the government agency as
a whole. Inspector Weaver did not agree with the Belcher superintendent's
assessment that the cited condition was not hazardous because the bulldozer
operator was protected by roll bars. The judge noted that Inspector
Weaver, despite this disagreement, reduced the gravity and seriousness
of the violation. The reason offered by the inspector for this "incorrect"
assessment was, "I would tend to be more lenient with the operator than
possibly I should, but I, I feel like that certainly that I don't want
to hurt him bad enough to put him out of business." Tr. 54. Given the

if

Standard 3(a)(3) of the Code of Judicial Conduct provides:
A judge should be patient, dignified, and courteous to litigants,
jurors, witnesses, lawyers, and others with whom he deals in his
official capacity, and should require similar conduct of lawyers,
and of his staff, court officials, and others subject to his
direction and control.

1029

inspector's issuance of an imminent danger ordert his action in reducing
his gravity findings, so as not to "hurt" the operator, was erroneous
and ill-founded. However, this mistake was conceded by the inspector at
trial, and the existence of a greater degree of gravity was argued to
the judge by the Secretary's counsel. In any event, we find no evidence
in the record to suggest that the reduction in the gravity of the violation
made by the inspector was attributable to what the judge averred was
"the administration's 'spirit of cooperation'" and "policy of appeasement."
Thus, Judge Kennedy's comments are unsupported.
Absent record support, we can only assume that Judge Kennedyvs
r emarks were an attempt to disseminate his personal perceptions of
MSHA's enforcement policies. Judicial decisions issued by the Commission and its judges are not appropriate forums for such personal forays .
Based on the foregoing discussion , all remarks in the judge 9 s
decision discussed above and found to be unsupported by the record are
hereby stricken. No party disputes on review the appropriateness of the
civil penalty proposed in the settlement. The $750 penalty was agreed
to by the parties and approved by the judge. We find it appropriate and
supported by the record . Therefore 9 we affirm the judge 9 s settlement
approval on the narrow grounds on which it should have rested in the
first place. Cf. Inverness Mining Co.? 5 FMSHRC 1384, 1388- 1389 (Augus t
1983) (striking offensive statements from a settlement approval decision
issued by Judge Kennedy). 11

5/
Pursuant to section 113(c) of the Mine Act, 30 U.S.C. § 823(c)t we
have designated ourselves as a panel of three members to exercise the
powers of the Commission.

1030

Distribution
Anna L. \ololgast, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Warren C. Hunt, President
Belcher Mine , Inc .
P .O. Box 86
Aripeka, Florida 33502
Administrative Law Judge Joseph Kennedy
Federal ~line Safety and Health Review Commission
5203 Leesburg Pike , lOth Floor
Falls Church, Virginia 22041

1031

ADMINISTRATIVE LAW JUDGE DECISIONS

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

JUL 3 1985
CIVIL PENALTY PROCEEDING

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

:

.
0

Docket No. PENN 85-43
A.C. No . 36-00809-0353 6

v.

.:

BCNR MINING CORPOP~TION ,
Respondent

Ne-v;field Mine

0

CONTEST PROCEEDING

BCNR MINING CORPORATION;
Contestant
v.

0
0

Docket No . PENN 84-173-R
Order No . 2252336; 5/25/84

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

.

Newfield Mine

0

DECISION
Appearances:

James E . Culp, Esq., Office of the Solicitor,
U. S . Department of Labor , Philadelphia,
Pennsylvania , for Peti-t ioner/Respondent;
B. K. Taoras, Esq., Meadow ·Lands, Pennsylvania ,
for Respondent/Contestant.

Before:

Judge Kennedy

This matter came on for an evidentiary hearing in
Pittsburgh , Pennsylvania on Thursday, June 6, 1985 . After
presentation of MSHA's case- in-chief the operator commenced
its defense. During a recess taken during the defense-inchief, the parties, after a discussion with the trial judge,
moved for approval of a settlement of the penalty case and
withdrawal of the review case. Based on an independent
evaluation and res nova review of the circumstances the
trial judge granted~the motion, and directed the _parties
file a confirming written motion.
That motion having been received, it is ORDERED that
the approval given from the bench on June 6, 1985, be, and

1032

hereby is, CONFIRMED.
It is further ORDERED that the operator
pay the amount of the penalty agreed upon, $160, on or before
Friday, July 19, 1985, and that subject to payment the
captioned matters be DISMISSED.

Distribution :
James E. Culp, Esq., Office of the Solicitor u u. s. Department
of Labor , 3535 Market St. v Philadelphia , PA 19104
(Certified
Mail)
B. K. Taoras, Esq., Kitt Energy Corporation, Managing Agent for
BCNR Mining Corp., P.O. Box 500, 455 Race Track Road , 11-ieadow
Lands , PA 15347
(Certified ~1ail)

/ejp

1033

FEDERAL MINE SAFETY AND HEALTH RE·YIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 5 1985
UNITED MINE WORKERS OF
AMERICA, ON BEHALF OF
OLIVER HARVEY,
Complainant.

v.

.

DI SCRIMI NATION PROCEEDING
Docket No. WEVA 85-61-D
MSHA Cas e No~ MORG CD ~4-7

0
0

1

KITT ENERGY CORPORATION ,
Respondent

Kitt No. l Mine

0
0
0
0

DECIS ION
Appearances:

Before :

Michael Alai , Esq . , Manchin & Aloi e Fa i rmont u
West Virgin ia, ·for Complainant ;
B. K. Taoras u Esq .q Kitt Energy Corporation u
Meadowland , Penns ylvani a u for Respondent

Judge Melick

This case is before me upon the complaint of the United
Mine Workers of America (UMWA) on behalf of Oliver Harvey
pursuant to section 105(c)(3) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et ~, the "Act, 11
alleging that Mr. Harvey was suspended without pay from the
Kitt Energy Corporation (Kitt Energy)l in violation of
section 105(c)(l) of the Act.2
In order for the Complainant to establish a prima facie
violation of section 105(c) ( l) of the Act, it must prove by a
preponderance of the evide nce that Mr. Harvey engaged i n a n
activity protected by that section and that his suspension
lMr. Harvey was initially discharged on March 17, 1984, but
this discharge was subsequently modified in arbitratiDn to a
suspension without pay for 30 days.
2section 105(c)(l) of the Act provides in part as follows :
"No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimi nate
against or othe~wise interfere with exercise of the statutory
rights of any miner • • • in any coal or other mine subject
to this act because such miner • • • has filed or made a complaint under or related to this act, including a complaint
notifying the operator or the operator's agent, • • • of an
alleged danger or safety or health violation in a coal or
other mine . • • or because of the e xercise of such mi ner
• • • on behalf of himself or others of any statutory right
afforded by this Act."

was motivated in any part by that protected activity.
Secretary ex rel. David Pasula v. Consolidation Coal Company,
2 FMSHRC 2786 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Secretary, 663 F.2d 1211 (3rd
Cir. 1981). See also Boitch v. FMSHRC, 719 F.2d 194 (6th
Cir. 1983>, and NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), affirming burden of proof allocations
similar to those in the Pasula case.
·
I n this case Mr . Harvey asserts that he refused to
comply with his sup ervisor ~ s \'lor k order on the morning of
March 17r 1 9 84~ because he was afra i d that to do so might
overly strain the muscles in his back . His suspension based
upon that work refusal v it is argued , was therefore based
upon his exercise of an activity protected by the Act . A
miner ' s exercise of the r ight to refuse work is a protected
activity under the Act so long as the miner entertains a good
faith, reasonable belief that to work under the conditions
presented would be hazardous . Robinette v. United Castle
Coal Company f 3 FMSHRC 803 (1981} . In addition , a miner may
under certain circumstances refuse to work on the basis of a
perceived hazard arising from his own physical condition or
limitations . Bjes v. Consolidation Coal Corp .u 6 FMSHRC 1 411
(1984).
Kitt Energy does not dispute that Mr. Harvey was suspended based upon his refusal to carry out his supervisor's
work order but argues that Harvey did not entertain a good
faith, reasonable belief that to carry out the work order
would indeed have been hazardous. The operator also maintains that Mr. Harvey did not communicate his safety concerns
to any representative of management in accordance with the
Commission decision in Secretary ex rel. Dunmire and Estle v.
Northern Coal Company, 4 FMSHRC 126 (1982).
The evidence shows that Oliver Harvey, a miner employed
by Kitt Energy since 1978, was assigned on the morning of
March 17, 1984, to the work crew of section foreman Roger
Davidson. Davidson and his seven member crew entered the
mine shortly after midnight . After conducting his safety
examination Davidson directed some of the work crew including
Mr. Harvey to obtain supplies needed for the roof· bolter.
Without complaint Harvey helped load the supplies (including
roof bolts, plates and 25 pound boxes of resin) onto a scoop.
The supplies were then carried by the scoop and unloaded next
to the roof bolter .
I

Davidson then directed four of the men, including
Harvey, to bring ventilation tubes approximately 100 feet
from the Number 3 entry to the Number 2 entry. After what
Davidson felt was an inordinate amount of time and the miners
had still not returned with the tubing, Davidson traveled to
the Number 3 entry to find out what the problem was. He
found the four miners sitting around the scoop arguing about

1035

how to move the tubes up to the face. Some wanted to first
empty the scoop of some coal spillage and others wanted to
convey the tubes that had already been loaded.
Davidson was somewhat irritated over the delay and the
continued inaction of the crew. According to Davidson the
scoop would not in any event have been able to pass the
parked roof bolter and it would have been faster to handcarry the tubes. Davidson therefore elected to have the crew
hand-carry the tubes. He divided the group into two pairs
and directed them to carry two tubes each. The oval shaped
tubes were 10 feet long and 18 inches wide at the widest
point, were constructed of fiberglass and weighed 49 pounds.
Two of the miners, Randy McAtee and Richard Bolyard , picked
up two tubes and proceeded to carry them as directed but
Harvey and John Howell proceeded to carry only one tube.
Foreman Davidson again directed Harvey and Howell to take two
tubes but they refused without trying~ What then happened is
in dispute.
Harvey alleges that he then told Davidson that he couLa
not carry two tubes because his back was bothering him.3
Harvey says that he also told Davidson that he had taken off
the day before because of his back. Harvey testified that he
"knew if I would carry two tubes I would have to be carried
out of the mine. I know the limits of my back." Harvey also
admitted, however, that he thought Davidson was being unfair
in making the men carry the tubes when he thought the scoop
could have been used. He implied that Davidson was having a
bad night and was taking-it-out on the crew. According to
Harvey, conditions were also bad in the area expected to be
traveled, including water, coal spillage, and a roof clearance of only 4 feet in some locations. Harvey conceded
however that before his work refusal he had not actually seen
the crosscut to be traveled and did not know how deep the
alleged water was. Harvey also acknowledged that McAtee and
Bolyard had successfully carried two tubes through that area
without complaining.
Davidson testified on the other hand that the conditions in the area to be traveled were good . The coal- height
was 5.4 to 5.6 feet · and the bottom was in "excellent" shape.
The one puddle in the 18 foot wide crosscut was only 10 to 12
feet wide leaving a clear 6 foot walkway. According to
Davidson, Harvey made no mention of his back in refusing to
work but said only that there was no way that he was going to
carry two tubes '"in this top." After several refusals
Davidson called outside to Terry Louk the assistant shift
3According to the testimony of Randy McAtee and John Howell at
the arbit~ation proceedings, Harvey did in fact say to
Davidson that he could not carry two tubes because of his
back. Neither McAtee nor Howell testified in the case before
me.

1036

foreman who told Davidson to repeat the order and to advise
the miners that they faced suspension if they disobeyed.
Howell and Harvey were so informed but continued to refuse
the assigned task. It is not disputed that when Louk later
appeared underground and gave Harvey and Howell a chance to
explain their problem both said they had no problem and
offered no explanation for their work refusal. Both Harvey
and Howell were thereafter suspened with intent to discharge.
Even assuming, arguendo, that Mro Harvey did communicate to his foreman i n the manner alleged I do not find that
he has met his burden of proving that he entertained a good
faith, reasonable belief that to perform the requested work
under the conditions presented would be hazardous o
Robinette , supra o
Indeed , credible ev~aence does not exist to support
Harveyis allegations of a bad back. Earlier on his work
shift he helped load supplies u including 25 pound boxes of
resin , without any apparent difficulty or complainto In
additi onu although Mr . Harvey contends that he had been
hospitalized for a .baclt condition 4 o r 5 years earlier and
had reinjured his back the day before this incident, he
provides no corroborating medical evidence . The absence of
any medical corroboration to show the existence of a back
condition at the time of his work refusal is particularly
damaging to the credibility of his case. The fact that
Harvey failed to report his alleged back "reinjury" on the
day before his work refusal (as he admittedly knew was
required by company policy> and his failure to have asserted
this alleged condition as his reason for refusing to perform
the assigned task when given an opportunity ~o do so in the
presence of shift foreman Terry Louk, also reflects negatively on his credibility.
Harvey's past practices are also inconsistent with his
present allegations. Harvey testified that because of his
back problems he had on two occasions, in 1979 and again in
1980, told his then foreman, Lee Hawkins, before the corresponding work shift , that he did not know whether he could
perform the job that day and purportedly told Hawkins .. that if
he could not do the.job he would go home. In contrast, at
the beginning of the shift at issue herein, Harvey gave no
such notice and made no such request of his foreman but
rather waited until he was given an apparently unpleasant
task before raising a complaint about his alleged bad back.
If Harvey was ini fac t suffering from a back .condition before
his shift on March 17, it may reasonably be inferred from his
past practices that he would have , as before, requested light
work · or other special consideration prior to the commencement
of his shifto
The absence of good faith is also evidenced by the
failure of either Harvey or his partner, Howell, to have even

1037

attempted to carry two tubes. Indeed it may reasonably be
inferred from Harvey's testimony that the real reason for
their work refusal was their feeling that Davidson w~s being
unfair in not allowing them to use the scoop to carry the
tubes and that Davidson was somehow taking-it-out on them for
having had a bad night.
I

Under all the circumstances it is clear to me that
Harvey did not at the time of his work refusal entertain a
good faith, reasonable belief that performance of the
assigned task would have been hazardous within the meaning of
the Act. Accordingly, the complaint herei must be denied
and this case dismissed.

Judge
Distribution :
Michael J. Aloi, Esq., Manchin & Aloi, Manchin
Building, 1543 Fairmont Avenue,
(Certified Mail)

fessional

B. K. Taoras, Esq., Kitt Energy Corporation, 455 Race Track
Road, P.O. Box 500, Meadowland, PA 15347 (Certified Mail )
rbg

1038

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

.JUL 8 1985
SECRETARY OF LABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDI NG

.

v.

Docket No: KENT 85 - 67
A. O. No:
15 - 03987 - 03507
River Queen Surface Mine

0

0

PEABODY COAL COMPANY ,
Respondent

.
0

SUMMARY DECISION AND ORDER
Before :

Judge Maurer
STATEMENT OF THE CASE

This case concerns the petiti on f o r c ivil penalty fil e d
by the Secretary o f Labor pursuant to § l OS(d ) o f the
Federal Mine Safety and Health Act of 1977 , 30 u.s.c. § 80l v
et seq . , the "Act 11 , for a violation of the regulatory
standard at 30 C.P.R. § 48 . 30 . The case is before me on
stipulated facts for a ruling on Cross Motions for Summary
Decision, filed pursuant to 29 C. F.Ro § 2700.64 .
Citation No. 2337820 was issued on August 24, 1984 b y
MSHA Inspector Hubert Sparks pursuant to§ 104(a) of
the Act, and the "condition or practice" cited is described
as follows:
A violation of this section exists in that
employees regularly working on the third
shift (12 midnight to 8 A. M.} were required
to receive annual refresher training on the
first shift (8 A.M . to 4 P . M.) on March 30,
1984. The River Queen Mine does not rotate
or cross-shift employees as a normal practice.
APPLICABLE REGULATORY PROVISIONS
The cited regulatory standard , 30 C.P.R. § 48 . 30(a}
reads as follows : " Training shall be conducted during normal
working hours; miners attending such training shall receive
the rate of pay as provided in § 48.22(d) (Definition of
normal working hours} of this Subpart B. "

1 039

Section 48.22(d) referred to above provides as follows:
"Normal working hours" means a period of time
during which a miner is otherwise scheduled to
work. This definition does not preclude scheduling
training , classes on the sixth or seventh working
day if such a work schedule has been established
for a sufficient period of time to be accepted
as the operator Is common practice.. Miners shall
be paid at a rate of pay which shall correspond to
the rate of pay they would have received had they
been performing their normal work tasks .
STIPULATIONS
1.
Peabody Coal Company owns and operates ·the River
Queen surface coal mine located in Muhlenberg County f
Kentucky o
2.
Mine

River Queen surface mine is subject to the Federal
and Health Act of 1977 .

~afety

3.
The Federal Mine Safety and Health Review Commission
has jurisdiction over this proceeding .
4.
River Queen surface mine operates daily, the times
for said shifts being: 1st shift-8:00A.M. to 4:00P.M.;
2nd shift-4:00P.M. to 12:00 P.M.; 3rd shift- 12:00 A.M.
to 8:00 A.M.

5.
In August, 1984, the total numbers of miners working
each shift were as follows: lst shift - 169; 2nd shift - 124;
3rd shift - 66; stagger - 4.
6.
Management at River Queen surface mine does cross
shift employees; cross shifting is the practice of changing
a previously scheduled work shift during the week.
7.
From January 1, 1984 to August 24, 1984, the
following employees were cross shifted for reasons· other than
training:
Name
Win. Bartlett

Jerry Bean ·
Bill Whitaker
Mike Thorpe
Rick Allen
Bill Drake
Bill Johnson

Normal Shift
2nd
2nd
2nd
2nd
3rd
2nd
2nd

1040

Shift Worked
1st
3rd
1st
1st
2nd
3rd
1st

Date
03/12/84
01/14/84
08/16-21/84
08/13-19/84
01/24/84
08/84
01/26/84

Harold Frost
Lee Stone
Welby Sellers
D. Stevens
B. Fleming
B. Larkins
G. Baggett
L. Browning
D. Stevens
G. Stewart
w. Munday

1st
1st
1st
1st
3rd
2nd
2nd
lst ·
2nd
3rd
1st

3rd
3rd
2nd
3rd
1st
3rd
3rd
2nd
3rd
1st
2nd

02/23-3/5/84
All 1984
All 1984
08/1 9/84
08/19/84
05/20/84
. 05/06/84
08/19/84
07/01/84
06/17/84
05/27/84

8.
On August 24, 1984 , MSHA Inspector Hubert Sparks
issued a 104(a) citation to Peabody Coal Company alleging a
violation of 30 C.F.R. Section 48.30 at River Queen surface
mine in that employees working on the third shift were
required to receive annual refresher training on first shift
on March 30, 1984 • .
9·o
In fact , four (4 ) third shift employees were
required to receive annual refresher training on f irst shift
on March 30 u 1984 o

10. Payment of the penalty assessed by the Mine Safety
and Health Administration for the citation involved in this
case would not affect the ability of Peabody Coal Company to
remain in business.
ISSUE
The question presented is whether or not Peabody Coal
· company .had a ",common practice" of cross-shifting at the
ktver···Queen ·Surface Mine on March· 30, 1984, the date of the
alleged violation.
DISCUSSION AND FINDINGS
The facts in this case are not in dispute. Four third
shift employees were admittedly cross-shifted for purposes
of obtaining required annual refresher training on the first
shift on March 30, 1984. Peabody maintains that the operator
has the right to cross-shift miners for the purpose of
·
obtaining this required training if cross-shifting is a common
practice at the mine. There is some support for this position.
See, ~·, Consolidat·i on Coal Compan~, 4 FMSHRC 578 (1982) ·
(ALJ) . Howeve~, the ·:threshold quest1on is whether such a
common practice existed at this mine in March 1984. "Common
practice" to the undersigned administrative law judge
means that which is generally done, the prevalent practice.

1041

While it is acknowledged that Peabody did cross- shift
workers before March 1984 for purposes other than training,
the issue is whether this was of such frequent and ordinary
occurrence so as to rise to the status of a "common practice " .
I conc l ude that it did not . In the three months prior to
March 30, 1984 , three second shift employees out of 124
worked one day each on a different shift and two third shift
employees out of 66 worked a different shif.t durin,g that
period--one man for one day and the other for approximately
two weeks. No first shift employee of which there were 169
was cross-shifted during this time peridd .
In making this
finding , I am cognizant of the' fact that two workers were
stipulated to have been cross- shifted for the entire period
of time covered by the stipulation, i. e ., January 1 to
August 24, 1984 , but I find that this amounts to a de facto
change of sh~ft rather than cross-shifting v Accordingly v
I find as a fact that of 3 63 miners working at this mine u
only five were cross-shifted during the three - month period
prior to March 30( 1984. Therefore , I find that Peabody
Coal Company did not have a "common practice" of crossshifting miners at the River Queen Surface Mine f or reasons
other than training on , or d uring t he three mon·t hs p r i o r
to, March 30 , 1984 .
In view of the foregoing findings, I conc l ude that the
petitioner here has established a violation of 30 C.F.R .
§ 48 . 30(a) inasmuch as the required training was n~t
conducted during normal working hours, and the citation
is therefore AFFIRMED.
Further, considering the criteria in section llO(i) of
the Act, I conclude that a penalty of $20, as proposed, is
appropriate.
ORDER
Respondent IS ORDERED to pay the $20 civil penalty
assessment within thirty (30) days of the date of this
decision.

·~Roy J
rer
Administrative Law Judge

1042

Distribution:
Carole M. Fernandez, Esq., Office of the Solicitor, u.s.
Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
Michael 0. McKown, Esq.,
(Certified Mail)

P.O.B. 373, St. Louis, . MO 63166

Mr. Jack M. Hoeman, Legal Department, Peabody Coal Company ,
301 N. Memorial Drive, St. Louis ,
Mail)

MO

63102 (Certified

Mr. David Hinton, L/U President 1178 , Paradise Roady
Greenville, KY 42345 (Certified Mail }

/db

1043

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

\965
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 85-2
No. 01-01247- 03619

A~C.

v.

No. 4 Mine

JIM WALTER RESOURCES, INC. 9
Respondent
DECISION
Appearances:

George D. Palmer , Esq. ~ Office of the Solicitor J
U.S. Department of Labor ? Birmingham 9 Alabama t
for Petitioner; Harold D. Rice , Esq ., and
R. Stanley Morrow, Esq. , Birmingham , Alabama l
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CAS·E
In this case , the Secretary seeks penalties for two
alleged violations of the mandatory safety standard contained
in 30 C.F . R. § 75.1403-S(g). The parties have submitted
the case for decision on stipulated facts.
STIPULATION
The parties have stipulated to the following facts and
issues:
1. The Operator is the owner and operator of the
s-ubject mine.
2. The Operator and the mine are subject to the
jurisdiction of the Federal M±ne Safety and Health
Act of 1977.
3 . The .Administrative La'tY' Judge has jurisdict;i.on
in this i'case.

1044

4 . The MSHA Inspector who issued the subject
citations was a duly authorized representative of
the Secretary .
5. True and correct copies of the subject citations
were properly served upon the Operator.

6 . Copies of the subject citations and determination
of violation at issue are authentic and may be admitted
into evidence for the purpose of establtshing its
issuance, but not for the purpose of establishing the
tru·thfulness or relevance of any statements asserted
therein.
7
Imposition of a penalty in this case will not
affect the Operator ; s ability to do husine.ss.

8.

The alleged violation was abated in good fai,th.

9.

The Operator ~ s h istory of prior v;lolations is average .

10.

The Operator ' s size is medium .

The parties agree that the condition o~ practice described
in the citation occurred and that the belt described in the
citation was a coal- carryi.ng belt .
The parties furthe~ agree that the decision in Docket No .
SE 84-23 on the coal-ca.rryi.n9 i~sue should deter~ine the
merit of this case . The mine inspector~s evaluation of the
violation is set forth in Section III at the bottom of the
citation attached hereto as "Exhibit A" . The petitioner ' s
analysis of the v i olation against peti.tione::t;' 1 $ re.gulation
for determining the penalties to be proposed ~s set forth
on the second page of tbe proposed asse.s srqent. The parties
agree that the proposed penalties of $119 and $157 are
appropriate if violations are found to haye occ;urre.d.
I accept the stipulation and find the facts stipulated
to.
CONCLUSIONS OF LAW
Subsequent to the submi.ssi.on of the above stipulations 1
the Commission decided the cases of Secretary v. Jim Wa-1 ter I 1
7 FMSHRC
1
Docket No. SE 84 - 23 (April 29, · 1985) and
Secretary~ Jim Walter II, 7 FMSHRC
, Docket No. SE 84- 57
(April 29 , 1985). They decided that Wc . F.l\ . §. 75.1403 - .5(_g)
applied to coal - car~ying belt conveyors . Following that

1045

decision, I conclude that violations have been established
in this case before me. Considering the stipulated facts
in the light of the criteria in section llO(e} of the Act,
I conclude that the penalties assessed by MSH~ are appropriate.
ORDER
Based on the above findings of fact and conclusions of
la-v;, Respo ndent is ORDERED to pay, withi_n 30. days of the
date of the decision , the follow±ng civi-l penalties .
CITATION

PENALTY

2482694
2482622

$119.

'157
$276

.

·j~~,s Pf!1:v~-f! rM_

James A. Broderi c k
Administrative Law Judge

Distribution:
George D. Palmer, Esq., u.s . Department of L~bor, Office ot
the Solicitor, 1929 9.th Ave. South, Birmingham, AL 35256
(Certified Mail)
R. Stanley Morrow 1 Esq., Harold D. Rice, Esq . , Ji.m Walter
Resources, Inc., P.O. Box C- 79 1 Birmingham, AL 35283
(Certified Mail).
H. Gerald Reynolds, Environment?ll Counse.l, Jim Walt er Corp .,
P . O. Box 22601, Tampa, ;FL 33622 CCertifi.ed Mail}.
slk

1046

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

22041

JUL 8 1985
CIVIL PENALTY PROCEEDING

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

Docket No . SE 85 - 4 4
A. C. No . 01 -01247 - 03636

v.

No . 4 Min e

JIM WALTER RESOURCES , I NC.,
Respondent
DECISION
Appearances:

Georg e D. Palmerv Esq. 1 Off i ce o f t he Solicitor r
u.s . Dep artment o f Labo r v Bi rmin g ham 9 Alabama ~
for Petiti oner ; Harold D. Ric e p Esq .; and
R. Stanley Mor row ; Esq. 9 Birminghamv Ala b ama ,
for Responde nt .

Before :

Judg e Broderick

STATEMENT OF THE CASE
In the case, the Secretary seeks pena l ties for two
alleged violations of mandatory safety stand ards . The parties
have agreed to a settlement of one of the alleged vio l ations
and have submitted the other for decision on stipulated fa c ts.
CI TAT ION 2483275
This citation charged a violation of 30 C.F.R. § 75.323
bec ause the mine f oreman , the mine superintendent and the
assistant mine superintendent were not counter.signing the
approved weekly examination book. The violation was originally
characterized as significant and substantial, and was assessed
at $136. Petitioner has modified the citation and deleted
the significant · and substantial characterization. ·· The .settlement
moti on states tHat the gravity criterion was evaluated too
high and the parties pr pose to settle for a payment of
$7 5 .
I conclude that the settlement is in the public interest
a nd should be approved.

1047

STIPULATION
The parties have stipulated to the following facts and
issues concerning citation 2483267 . and submit the case for
decision based on the stipulation:
1. The Operator is the m<~ner and operator of the
subject mine.
2. The Operator and the mine are subject to the
jurisdiction of the Federal Mine Safety and Health
Act of 1977.
3. The Administrative Law Judge has jurisdiction in
this case.
4. The MSHA Inspector who issued the subject order
was a duly author~zed representative of the Secretary .
5. A true and correct copy of the subject order was
properly served upon ·the Operator .
·
6 . The copy of the subject order and determination
of violation at issue are authentic and may be admitted
into evidence for the pur.pose .ef establishing its
issuance, but not. for the purpose of establishing the
truthfulness or relevance. of a,ny statements asserted
therein .
7.
Imposition of a penalty tn this case will not
affect the Operator's ability to do business.
8.

The alleged violat:j.on wa_s abated in gqod faith.

9.

The Operator's history of prior violations is average.

10.

The Operator's size is medium.

,.

The parties agree that the condition or practice described
in the citation occurred and that the belt described in the
citation was a coal-carrying belt.
The parties -further agree that the decision ih Docket No.
SE 84-23 on the coal-carry~ng issue should determine the merit
of this case. The mine inspector's evaluation of the violation
is set forth in Section III at the bottom of the citation
attached hereto as "Exh:j.bit A". The petitioner's analysis
of the viola1fion agai.nst petit;j..qner' s regulation for determining

1048

the penalties to be proposed is set forth on the second
page of the proposed assessment. The parties agree that the
proposed penalty of $136 . 00 is appropriate if a violation
is found to have occurred.
I accept the stipulation and find the facts stipulated
to.
CONCLUSIONS OF LAW
Subsequent to the submission of the above stipulations ~
the Commission decided the cases of Secretary v . J~m Walter ,I';
7 FMSHRC
, Docket No. SE 84-23 (April 29 , 1985). and
Secretary-v:- Jim Walter II, 7 FMSHRC __ , Docket No. SE 84-57
(April 29, 1985). They decided that 30 C.F.~. § 75 . 1403-S(.g )
applied to c0al-carrying belt conveyors . Foll0wing that
decision, I conclude that a violation has bee.n established
in the case before me. Considering the stipulated facts ·
in the light of the criteria in section llO(~l of tha Act ,
I conclude that the penalty ~ssessed by MSHA, $136 is an
appropriate penalty for the violation .
ORDER
Based on the above findings of fact and conclu~i9ns
of law, Respondent is ORDERED to pay , within 30 days of
the date of t his decision , the foilowi.ng civil penalties.
CITATION

PENALTY

2483275
2483267

$ 75. 0.0
136.• 0.0
$211.00

j titM.e5 ~~c~e-t·~ ~!i

James A. Broderi~k
A.clmi.nistrative Law Judge

Distribution:
G~orge D. Palmer,· Esq. 1 U.S . Department of Labor , Off i .ce 9f
the Solicitor, 19.29 9th A.ve. South , Birmingham·, ~L 35256
(Certified Mail)

R . Stanley Morrow, Esq . , Har91d o. ~ice, Esq., Jim Wa.lte;r
Resources , Il'\C · I P.O. a.ox C- 79 , Bi.rmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds , Environmental Counsel, Jim ~alter Corp.,
P.O. Box 22601 , Tampa, FL 33622 (~ertified Mail)
slk

1049

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

JU L 9 1985"
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Peti.tioner

CIVIL PENALTY PROCEEDING
Docket No~ LAKE 84-96-M
A.C o NO o 11-02667-05501

Vo

OZARK-MAHONING COMPANY ,
Respondent

Denton Mine
g

DECISION
Appearances:

Before:

Miguel J. Carmona, Esq. , Office of the
Solicitor , U. S. Department of Labor u Chicago ~
Illinois , for the Petitioner ~
Victor Evans and W~ G. Stacy , Ozark-Mahoning
Company, Rosiclare v Ill inois u f or the
Respondent.

Judge Melick

This case is before me upon the petition for assessment
of civil penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et ~' the "Act," for one violation
of the regulatory standard at 30 C.F.R. § 57.15-4. The
general issue before me is whether the Ozark-Mahoning Company
(Ozark-Mahoning) has violated the cited regulatory standard
and, if so, whether that violation was of such a nature as
could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard i.e. whether the
violation was "significant and substantial." -If a violation
is found, it will also be necessary to determine the appropriate civil penalty to be assessed in accordance with section
llO(i) of the Act.
The Citation at bar (Number 374906) alleges as follows:
Two employees were observed operating jackleg
percussion type drills and were not wearing any
type of eye protection. The employees were
working in the south end drift of the mine.
Flying rock chips from collaring hole's while
drilling could result in an injury to the eyes.

1050

The cited standard provides that " all persons shall
wear safety glasses , goggles , or face shields or other suitable protective devices when in or around an area of a mine
or plant where a hazard exists which could cause injury to
unprotected eyes."
It is undisputed that on May 24u 1984, two OzarkMahoning employees, Dennis Darell and Wendell Hicks , were
collaring drill holes (the process of starting the drill bit
into a hole) and drilling without wearing safety glasses or
other eye protecti on. According to the undisputed testimony
of Inspector George Laumondiere of the Federal Mine Safety
and Health Administration (MSHA> u rock fragments and chips
fly out from the face while drilling and particularly while
collaring holes . He therefore concluded that the miners were
likely to suffer serious eye injuries or the loss of an eye.
L·aumondiere had hi mself once suffered eye injuries losing
five days of work when he was a miner working with a dril l
under similar circumstances without eye protection .
It is not disputed that safety glasses were available
but the decision to wear those glasses was essentially left
to each miner. One miner understood he was to wear them whenever " there is any danger of getting things i n your eyes " but
another miner had never r eceived any instructions relating
ther eto. There is no evidence that any miner had ever been
disciplined for not wearing safety glasses .
Both Darrell and Hicks admitted that during the
drilling process they did occasionally get objects i n their
eye but neither had yet suffered any serious in j uries. In
addition both miners felt that it was a greater hazard to
wear protective glasses because the lens became foggy, greasy
and dirty in the mine atmos~here thereby affecting vision .
during critical operations.
By way of defense Ozark-Mahoning c i tes statements
attributed to unidentified MSHA inspectors that it was not
necessary to wear safety glasses "all of the time " and
evidence that the inspectors themselves do not "always " wear
safety glasses while underground. The purported defenses are
irrelevant however since the violation herein relates specifically to the failure of drillers to wear safety glasses
during drilling operations . The violation is accordingly
proven as charged. In light of the seriousness of the
l ozark- Mahoning does not however raise a "greater hazard"
defense based on this .evidence .

1051

potential injuries and the undisputed evidence of the
probability of such injuries I also find that violation was
"significant and substantial". Secretary v. Mathies Coal
Company, 6 FMSHRC 1 (1984).
In assessing the penalty in this case I have also
considered that the operator is of moderate size and has no
reported history of violations. While Inspector Laumandiere
testified that the violation was abated when the mine superintendant obtained safety glasses for the drillers the
evidence shows that the miners have continued to perform
drilling operations without the use of safety glasses and
without any disciplinary action by management. Under the
circumstances it appears that Respondent has in fact not
abated the violative conditions .
In addition u in light of
the clear absence of past enforcement of the cited standard
by the mine operator I find that the violation was due to
operator negligence. Under the circumstances I find that a
penalty of $350 is appropriate .
ORDER
Ozark-Mahoning Company is hereby
penalty of $350 within 30 days of the

to pay a civil
this decision .

Law Judge
Distribution:
Miguel J. Carmona, Esq., Office of Solicitor, u.s. Department
of Labor, 230 South Dearborn Street, 8th Floor, Chicago, ~ IL
60604 (Certified Mail)
Victor Evans and w. G. Stacy, Ozark-Mahoning, P.O. Box 57,
Rosicare, IL 62982 (Certified Mail)
rbg

1052

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

JUL 9 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.

CIVIL PENALTY PROCEEDING

.
.

Dockst No. PENN 85-56
A.C. No. 36-00837-03536
Lancashire No. 24 - B Mine

0

BARNES & TUCKER COMP.M-lY ,
Respondent

0
0

DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

This matter is before me on the parties u motion to
approve settlement of the captioned matter in the amount o f
$150.
Based on an independent evaluation and res nova
review of the circumstances, I find the settlement proposed
is in accord with the purposes and policy of the Act.
MSHA admits that issuance of the failure to abate closure
order was in error. Further, an exploration of the merits
during the course of a teleconference with counsel on July 1 ,
established that the evidence to support the violation \'las
marginal.
Accordingly, it is ORDERED that the·motion be, ~nd
hereby is, GRANTED. It is FURTHER
ERED that the ope~ator
pay the amount of the penalty agre a pon, $150, on or before
Friday, July 26, 1985, and that s b' ct to payment the captioned
matter be DISMISSED.

,
Joseph B. Kennedy
Administrative Law· Jud

1053

Distribution:
Lind~ M. Henry, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market St., Philadelphia, PA 19104 (Certified
Mail)

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli,
1110 Vermont Ave., N.W., Washington, DC 20005 (~ertified M~il)
Barbara L. Krause, Esq., Smith, Heenan, Althen & Zanolli ,
1110 Vermont Ave., N.W. , Washi.ngton , DC 20.0.05 (Certified Mail )
Mr. Gerald P. Scanlan, Vice President, Production , Barnes &
Tucker Co. , 1912 Chestnut Ave. , Barnesboro , PA 15714 (Certif;i.ed
Mail)

slk

1054

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

July 9, 1985
CIVIL PENALTY PROCEEDING

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

Docket No. SE 84-23
A. C. No. 01-00758- 03569

v.

No. 3 Mine

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

Judge Merlin

This case is before me pursuant to the Cornmission ~ s
Order of Remand dated April 29, 1985 which directed further
proceedings and findings as to whether the conditions cited
constituted a violation of the subject safeguard.
On May 6, 1985, I ordered the parties to submit briefs
on or before June 8 , 1985 with respect to whether or not
the admitted conditions constituted a violation . The operator
now advises that i t and the Solicitor have agreed to a
settlement in the amount of $119 which is the originally
assessed amount. Accordingly, I find the conditions
constituted a violation and APPROVE the recommended settlement.
The
from the

$119 within 30 days

--Chief Administrative Law Judge
Distribution:
George D. Palmer, Esq. , U.S. Department of Labor, Office of
the Solicitor , 1929 S. 9th Ave., Birmingham, AL 35256
(Certified Mail)

1055

R. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter
Resources, Inc., P.O. Box C-79, Birmingham, AL 35283
(Certified Mail)

H. Gerald Reynolds, Environmental Counsel, Jim Walter Corp.,
P.O. Box 22601, Tampa, FL 33622 (Certified Mail)

slk

1056

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

July 9 , 1985
CIVIL PENALTY PROCEEDING

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

Docket No. SE 84- 57
A.C . No . 01 - 00758-03592

v.

No. 3 Mine

JIM WALTER RESOURCES, INC. ,
Respondent

.

DEC!SION APPROVING SETTLEMENT
Before:

Judge Merlin

This case is before me pursuant to the Comrr.ission vs
Order of Remand dated April 29 , 1985 which directed further
proceedings and findings as to whether the conditions cited
constituted a violation of the subject safeguard .
On May 6, 1985, I ordered the parties to submit briefs
on or before June 8, 1985 with respect to whether or not
the admitted conditions constituted a violation. The operator
now advises that it and the Solicitor have agreed to a
settlement in the amount of $119 which is the originally
assessed amount. Accordingly, I find the conditions
constituted a violation and APPROVE the recommended settlement .
The operator i s ordered to pay $119 within 30 days
from the date of this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution :
George D. Palmer, Esq., u.s. Department of Labor , Office of
the Solicitor, 1929 s. 9th Ave ., Birmingham , AL 35256
{Certified Mail)

1057

R. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter
Resources , Inc ., P.O. Box C-79, Birmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds, Environmental Counsel, Jim Walter Corp.,
P . O. Box 22601, Tampa , FL 33622 {Certified Mail)

slk

1058

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

'JUL 101985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)u
ON BEHALF OF
ROBERT RIBEL,
Complainant

v.

DISCRIMINATION PROCEEDING
:

Docket No. WEVA 84-33-D
MSHA Case No. MORG CD 83-18
Federal No . 2 Mine

0

0

EASTERN ASSOCIATED COAL
CORPORATION 8
Respondent

0
0

SUPPLEMENTAL DECISION ON THE MERITS
Beforeg

Judge Koutras

On June 18, 1985, the Commission remanded this matter
to me for consideration, and its remand order states in pertinent part as follows:
[T]he merits portion of this case is
remanded to the judge for the limited purpose
of making specific findings of fact, along
with any credibility determinations necessary
to resolve key, conflicting testimony, and
for an analysis of those findings consistent
with established Commission precedent~
30 U.S.C. § 823(d)(2)(C). On remand, ·the
judge is directed to analyze in detail
whether a prima facie case of discrimination
was established.
In particular, the judge is
to determine what actually occurred at the
August 5, 1983 meeting between longwall
coordinator Michael Toth and the miners of
the midnight shift, and that meeting's relationship, if any, to the allegation that the
decision to suspend Ribel with intent to discharge was a violation of section 105(c).
Supplemental Findings and Conclusions
The record in this case establishes that Mr. Ribel,
along with several of his co-workers, was the focal point
for an on-going dispute with mine management with regard to

1059

the issue of "double cutting" coal on the longwall section.
Mr. Ribel took the position that such a practice was inherently unsafe, and mine management took the position that it
was safe. Mine safety committeeman James Merchant confirmed
that Mr. Ribel and the other complaining miners spoke to him
about the double cutting in May, 1983, and that meetings
were held with Michael Toth, the longwall coordinator, and
representatives of the UMWA, at which the issue was discussed. Mr. Merchant also alluded to discussions with MSHA
several years earlier over the issue of double cutting .
As a result of the dispute concerning the issue of
double cutting, Mr. Ribel and two of his co-workers (Kanosky
and Wells) , informed their supervisor and foreman , Jack
Hawkins , that they would not double cut anymore. As a
result of this, a meeting was held with the safety committee
and mine management, and the decision was made by
Mr. Hawkins' supervisors that the complaining miners did not
have to double cut . Subsequently u in early May u 1983 u
Mr. Hawkins met with the recalcitrant miners u including
Mr. Ribel , and in an effort to convince them to change their
minds about double cutting, he purportedly discussed several
"options" with them. Subsequent allegations by the employees that these "options" included threats by Mr. Hawkins to
take away certain work-related privileges, i.e., overtime,
favorable work assignments, led to a May 31~ l983, discrimination complaint to MSHA by Mr. Ribel and the other miners.
Although Mr. Hawkins denied giving the employees any
"options," and denied threatening them, he conceded that the
issue of "double cutting" was frequently discussed with his
crew as early as March and April, 1983, and that he had
spoken with Mr. Ribel and the other miners on at least 10 or
15 occasions about the matter.
Mr. Hawkins candidly admitted that he spoke with
Mr. Ribel and the other miners on many occasions about their
initial refusal to perform double cutting, and that he did
so out of concern that production on his shift was suffering
and that his shift was far below the production of other
shifts where doubl~ cutting was taking place. Although
Mr. Hawkins denied that he ever threatened Mr . Ribel, or
gave him "options" in connection with his refusal to double
cut, Mr. Hawkins' continuous ·contacts and conversations with
his crew over this.subject supports a conclusion that coal
production was uppermost in Mr. Hawkins' mind. Since
Mr.. Ribel was instrumental in curtailing production on his
shift by his refusal ~o double cut, and since Mr. Ribel
obviously influenced Mr. Wells and Mr. Kanosky to join him
in his protests, as well as the discrimination complaint
filed against Mr. Hawkins, one can reasonably conclude that

1060

Mr. Ribel did not ingratiate himself to Mr. Hawkins, and
that Mr. Hawkins was not too enchanted with Mr. Ribel. As a
matter of fact, Mr. Hawkins testified that his goal of 300
carloads of coal production was not being met, and that
.everyone else on his crew except for Mr. Ribel, Mr . Wells,
and Mr . Kanosky were "willing to go along with me" (Tr.
484}.
Mr . Hawkins testified that he had discussed the fact
that his crew was the only crew which d i d not engage in
double cutting with both his supervisor and the mine safety
department (Tr . 553) . He conceded that production was
"number one in my book" (Tr . 556) q and that . mine management
expected him to "motivate" his crew to get them to double
cut coal so as to increase production (Tr. 601 ) .
Mr. Hawkins also confirmed that he discussed the double
cutting issue with MSHA Inspector Cross, the individual who
conducted the discrimination investigation (Tr . 621> .
In addition to the compl aints over t he ques t ion of
double cutting f Mr . Hawkins alluded to a complaint and a
request for an investigation by the safety committee concerning two face shields being pulled down at the same time, and
while he was not certain whether Mr. Toth spoke to an inspector about the incident, Mr. Toth made a decision to discontinue the practice (Tr. 622). Mr. Hawkins also stated that
the union's complaints to a state mine inspector, including
complaints about the manner in which he was firebossing the
section, resulted in the inspector visiting the mine on
August 4, 1983, and interviewing Mr. Hawkins, members of his
crew, and Mr. Toth. Although Mr. Hawkins testified that the
state inspector found no wrong-doing on the. part of mine
management, he confirmed that the inspector "didn't like
being drug in on it" because the complaints ' were "just a
management-union conflict" (Tr. 624). The inspector suggested that a meeting be held to resolve their differences,
and the meeting held on the midnight shift on August 5,
1983, was for that purpose (Tr. 625).
As the longwall coordinator, Mr. Michael Toth was
responsible for all production and safety on the longwall
section (Tr. 633), and he would also have occasion to review
production delays and loss of production during any particular shift (Tr. 640).
Mr. Toth admitted that he was aware of the problems
between Mr. Hawkins and his crew, and that he had "a definite interest" in these problems. He confirmed that he met
"many times" with the crew and with the safety committeemen

1061

about complaints which were made over alleged unsafe practices (Tr. 697-698). Although Mr. Toth denied that he was
aware of any discussions between Mr. Hawkins and his crew
concerning the issue of double cutting, and could not recall
any specific complaints by the safety committee over that
issue, he conceded that the subject had been "talked about
several times" (Tr. 638). He also confirmed that he was
aware of the fact that Mr . Ribel had filed a discrimination
complaint with MSHA on May 31 , 1983 (Tr. 6.65 > u and that
everyone at the mine was aware of the problems between
Mr. Hawkins and his crew (Tr . 665) o
Mr. Toth testified that the August 5 , 1983 u meeting was
the result of a request made by a state mine inspector that
Mr. Toth meet with Mr . Hawkins and his crew to resolve the
"bickering" or "personal grudge" which existed between
Mr. Hawkins and members of his crew {Tr. 646). Although
Mr. Toth denied threatening anyone at the meeting with the
loss of their jobs , he conceded that it was possible that a
miner could be disciplined or lose his job if he made groundless safety complaints against his foreman u and that taken
in this context, he admitted that he may have said something
about job losses (Tr. 672). Mr. Toth also admitted that he
was somewhat chagrined at Mr. Wells for laughing or smirking
while he was speaking, and that he remarked to Mr. Wells
"Danny, don't think for one minute that you can't be on the
shit end of the stick" (Tr. 650). After making this remark,
Mr. Toth abruptly left the meeting in charge of Mr. Hawkins,
with a remark to Mr. Hawkins that maybe "he could do some
good with them" (Tr~ 650}.
Four of the miners who were at the August 5th meeting
testified that Mr. Toth made the remarks attributed to him.
Mr. Wells testified that Mr. Toth mentioned ' the fact that he
was getting tired of all of the safety complaints and that
if they did not stop, miners could end up losing their jobs
(Tr. 221-222). Mr. Kanosky believed that Mr. Toth was
directing his remarks to him, as well as to Mr. Ribel and
Mr. Wells (Tr. 289).
Mr. Reeseman testified that Mr. Toth became upset at
Mr. Wells during the meeting and remarked to Mr. Wells that
"all of this petty stuff that has been going out to the
safety department, . every day, and every day, is going to
stop, or you will be next" (Tr. 406). Mr. Hayes testified
that Mr. Toth remarked to Mr. Wells that "he would be next"
and would "come out on the shitty end of the stick" over the
safety grievances which had been filed on the section (Tr.
420).

1062

Given all of the aforementioned facts and circumstances,
I conclude and find that it is abundantly clear from this
record that both Mr. Toth and Mr. Hawkins were hostile
towards Mr. Ribel because of his prior safety and discrimination complaints over the issue of double cutting. I also
believe that it is clear from the record that the animosity
which was displayed by mine management (Toth and Hawkins),
was the direct result of Mr. Ribel's resistance to the double
cutting of coal, his leadership role in convincing at least
two other members of his crew to join in on his protestsv and
his filing of a disqrimination complaint against Mr. Hawkins o
It also seems obvious to me that Mr. Ribel vs activities in
this regard impacted on mine production, placed Mr. Hawkins
in the position of being the only section foreman whose crew
did not produce adequately 0 and caused Mr . Toth daily operational problems, all of which adversely impacted on an otherwise smooth min~ng operation.
Although I ultimately held in Docket No . WEVA 84-4-D u
that Mr. Ribel and the other complaining miners had failed
to establish a prima facie case with respect to their discrimination complaint in connection with the double cutting
of coal issue, Mr. Ribel's right to complain about that practice, including his right to file safety or discrimination
complaints, remains intact and protected, and mine management may not retaliate or otherwise discriminate against him
for exercising his rights in this regard.
Mr. Toth discovered that the telephone wire had been
cut after he instructed a mechanic to check the telephone
because it had not been paging. Upon opening the phone, the
mechanic discovered that the wire appeared to have been cut,
and he so informed Mr. Toth. Mr. Toth immediately went to
the head gate to summon Mr. Ribel, and he brought him to the
telphone station and asked him to look at the telephone. In
the presence of at least two mechanics (Toothman and Foley),
Mr. Toth asked Mr. Ribel - "Rob, what's that look like to
you" <Tr. 661). Mr. Ribel responded that it appeared that
the phone wire had been cut, and Mr. Toth agreed with him
(Tr. 661). Mr. Toth then concluded that Mr. Ribel had cut
the wire, and his conclusion was based on his belief that
Mr. Ribel was the only person who had an opportunity to do
so.

.

Given the background of animosity and acrimony which
obviously existed between Mr. Ribel and mine management, I
find it doubtful that Mr. Ribel would openly make himself
vulnerable to discharge by cutting a telephone wire while
his adversaries Mr. Toth and Mr. Hawkins were present on the

1063

section. Further, given the fact that Mr. Toth was personally checking on the telephone system, and in view of management's suspicions that miners were deliberately sabotaging
the telephones, I find it doubtful that Mr . Ribel would
place himself in the position of being "fingered" as the
responsible party . ~ssuming that Mr. Ribel was a party to
the prior acts of alleged telephone sabotage, since the
culpable party or parties had not as yet been discovered ; I
find it rather unlikely that Mr. Ribel would do anything t o
cast suspicion on him. Since Mr . Ribel had a n otherwise
clear employment record v and there is no indication that he
did not perform his job properlyQ or had ever been in any
trouble on the job, I find it doubtful that ,he would ri s k
his livelihood by sabotaging a telephone while his bosses
were on the section .
Mr. Toth has conceded that his conclusion that Mr. Ribe l
was the person who cut the wire was based on " circumstantial
evidence ." Mr . Toth's rationale for pointing the finger at
Mr . Ribel was his belief that Mr o Ribe l was the only person
who had access to the phone and the opportunity to cut the
wire. My previous finding was tha t this was not so , and that
other individuals who were present on the section had ready
access to the telephone and also had an opportunity to cut
the wire in question .
Although it may be true that at the time Mr. Toth confronted Mr. Ribel about the damaged telephone wire, Mr . Toth
believed that he had the "right man,'' I believe that
Mr. Toth's conclusion that Mr. Ribel was the guilty party
was influenced in part by Mr. Toth's hostility and animv~ity
towards Mr. Ribel and certain members of his crew. I believe
that this hostility was the result of the disruptive and protracted safety confrontations between Mr. Hawki~s and his
crew, and the fact that Mr. Ribel and several of his
co-workers chose to make safety and discrimination complaints
over the practice of double cutting and other mining
practices.
I believe that one can reasonably conclude that Mr. Toth
considered Mr. Ribel to be a disruptive force among his c rew,
particularly in light of the decreased production which
resulted from Mr. Ribel 's leadership role in refusing to
double cut. Further, shortly before the discovery of the ; t
wire; Mr. Toth had abruptly left a meeting with Mr. Ribel f~
crew after being provoked by Mr. Wells . The remarks attr ibuted to Mr. Toth against Mr. Wells, which I believe were
made , were construed by several members of the crew as

1064

threats to their jobs. Although Mr. Toth denied that he made
direct threats, he admitted making some remarks about possible disciplinary action against miners who made unfounded
safety complaints. Given the background of conflict and hostility which existed, I can understand why some of the crew
members may have viewed Mr . Toth's comments as job threatening. I can also understand Mr. Toth's frustration over
Mr. Hawkins' inability to control his crew or to get more
production out of them, and the frustration and anger that he
obviously felt over his confrontati on and words wi t h
Mr. Wells. Given all of this turmoil v I believe that
Mr. Toth seized upon the opportunity to blame the wire
cutting on Mr. Ribel , and rather than conduqting a thorough
investigation into the matter u he made a rather cursory dec i sion that Mr . Ribel was the guilty partyo In mak i ng that
decision, I believe that Mr . Toth was motivated in part by
his hostility and animosity towards Mr. Ribel, and that by
singling him out for suspension and discharge , Mr. Toth somehow hoped to end all of the conflict wh i ch had d irectly
affected his operation .

W

/ ~

dV~

if~~

r~ Koutras
Admin1strative Law Judge

Distribution:
Ronald s. Cusano, Esq., Corcoran, Hardesty, Ewart, Whyte &
Polito, Suite 210, Two Chatham Center, Pittsburgh, PA 15219
(Certified Mail>
Vicki Shteir-Dunn, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard , Arlington, VA
22203 (Certified Mail)
Barbara Fleischauer, Esq., 258 McGara Street, Morgantown , WV
26505 (Certified Mail>
/fb

1065

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
SAHARA COAL COMPANYr INC. f
Respondent

.
.

JUL 12198S

CIVIL PENALTY PROCEEDING

0

0
0

Docket No. LAKE 85-28
A.C. No . 11-00784-03553

..,

A.C. No.

~

Mine No . 2)-

Docket Nu. Lake 85-43
11-00784~03557

DECISION
Appearances:

Before:

Miguel J. Carmona, Esq., Office of the
Solicitor, u.s . Department of Labor , Chicago ,
Illinois 0 for Petitioner r
Charles N. viheatley u Esq. 11 Sahara Coal Company ~
Inc ., Chicago, Illinois , for Respondentv

Judge Melick

These cases are before me upon the 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 et seq., the "Act," for two violations of regulatory standards. The general issues before me are whether
Sahara Coal Company, Inc. (Sahara) has violated the regulations as alleged and, if so, whether those violations were of
such a nature as could significantly and substantially contribute to the cause and effect of a mine safety or health
hazard, i.e. whether the violations were "si~nificant and
substantial." If violations are found, it will also be
necessary to determine the appropriate civil penalty to be
assessed in accordance with section llO(i) of the Act.
DOCKET NO. LAKE 85-28
The one citation at issue in this case (Number 2322574)
alleges a significant and substantial v iolation of the
standard at 30 C.P.R. § 75.1710-1 and charges as follows:
The canopy on the continuous mining machine in
working section ID003-0 was not located and
installed in such a manner that the operator,
when at the tram controls would have been protected from falls of roof. The machine however
was being operated by remote control and the
operater was positioned outside the canopy
approximately 8 feet from the canopy. This

1066

condition existed at the time of a fatal roof
fall accident.
It is not disputed that the cited standard required
that the continuous mining machine "be equipped with substantially constructed canopies or cabs, located and installed in such a manner that when the operator is at the
• • • controls • • [he is] protected from falls of roof ,
f ace , o r r i b, o r f rom r ib and face rolls . " The Secretary
acknowledges, however v that pri or to the alleged viol ation he
had authorized Sahara to operate its continuous mining
machines by remote control so long as those controls were
"located so that the operator would not be in danger by roof
falls that may occur near the equipment . 1 The Secretary is
now c l aiming that Sahara violated this pol icy exception i n
that the operator of the continuous mining machine was purportedly operating this machine in an area endangered by a
roof fall .
i

The Secretarial policy exception herein i s s~m1~ar to
t he attempted modification of a standard d iscussed in
Secretary v . King Knob Coal Company, Inc ., 6 FMSHRC 141 7
(1981). The Commission held in King Knob that the Secretary's attempted modification of a regulatory standard lacked
the force and effect of law. The standard cited therein was
accordingly construed without reference to the Secretarial
policy. Within this legal framework and considering the
undisputed evidence that the continuous mining machine cited
in this case was being operated outside the protective
canopy, it is apparent that there was a violation of the
cited standard.
Reliance by Sahara on Secretarial poli~y may however
affect the negligence chargeable and thereby the amount of
penalty to be imposed in this case. Accordingly the fact
that the continuous mining machine operator was using the
remote control unit outside the protective canopy would not
in itself demonstrate negligence in light of Secretarial
policy permitting the use of such controls under certain
circumstances . The issue is whether the remote controls were
used by the machine operator in an area endangered by roof
falls.
On the basis of the evidence discussed infra in connection with Citation Number 2201537, I find that section foreman Tom Killman indeed had knowledge that the subject work
area was in fact endangered by roof falls. ·It was undisputed
that the miner operator was working near and under drummy
roof and that he was told by Killman to do so. The mine
operator was accordingly negligent and the use of the remote
control device in such close proximity to drummy and fractured roof was a serious and a "significant and substantial"

1067

violation.
(1984).

See Secretary v. Mathies Coal Company, 6 FMSHRC 1

In determining the amount of penalty to be assessed
herein I have also considered that the operator is moderately
large and has a moderate history of violations. Inasmuch as
this violation is included within and merges with the violation charged in Citation No. 2201537, a reduced penalty of
$300 is warranted and is accordingly assessed.
DOCKET NUMBER LAKE 85-43
The one citation in this case (Number 2201537) alleges
a violation of the regulatory standard at 30 C.F . R. § 75.200
and charges as follows g
Subnormal roof conditions, a separation of the
roof strata at about 30 inches and drummy roof v
were encountered in the face of the 27 northwest
entry outby for about 30 feet and no supplemental
support was installed. The approved roof control plant stipulates that where subnormal roof
conditions are encountered, supplemental support
such as longer bolts , post or crossbars will be
installed. This condition was discovered during
a fatal roof fall investigation that occurred at
the mine.
The operator's roof control plan provides that "in
active working areas, where subnormal roof conditions are
encountered, the minimum roof-control method will be supplemented with either longer and/or additional roof bolts,
posts, or cross bars."
Much of the essential evidence is not in dispute.
Richard Thompson, a continuous miner operator was warned at
the beginning of his shift on August 28, 1984, by the miner
operator from the previous shift about a crack 30 inches into
the roof in the Number 2 Entry. Thompson related this information to co- workers Kane and Hanna and to his section foreman Tom Killman .
Upon Killman's return from his preliminary inspection
of the working places the work crew proceeded to the suspect
entry to check the roof. There is no dispute that the roof
sounded drummy in the area near the face.
Thompson also
observed a crack in the roof running parallel to the entry
and nearby there was an 18 inch drop in the coal seam.
Thompson found the roof in the area to be "rough" and noted
that this too was an indication of poor roof conditions. In
spite of these conditions Foreman Killman decided to take a
ten foot cut in the entry that would allow them to clear the
next crosscut. He apparently intended to later return to the

1068

bad roof and insert longer 48 inch roof bolts into the drummy
area. Before Killman left he told the crew to "be careful"
and "watch the top for movement or falling ...
Another continuous miner operator, Larry Kane, then
took one 10 foot cut on the right side of the entry, backed
the miner up, and took another two loads of coal. ·The rock
at the face then suddenly broke off crushing parts of the
continuous miner. Kane moved further back with the remote
box as he tried to work the continuous mi ner free " At this
point 'l'hompson sattl dust begin falling from the vertical crack .
He yelled, then turned and ran toward the cross-cut . Kane
was unable to escape and was crushed and killed by the
falling roof .
Loreen Hannau an experienced roof bolter u confirmed
that Thompson had warned the crew about the crack 30 inches
into the roof. Killman and the work crew then checked the
roof and found it to be drummy and visually abnormaL
According to Hanna the roof was i ndeed subnormal and
dangerous to work under . Since Hanna then had only 30 i nc h
bolts available Killman sent for 48 inch bolts . Mining
nevertheless proceeded without the 48 inch bolts and the
fatal roof fall occurred before they were installed.
Based on this testimony, MSHA Special Investigator
Edward Richie opined that subnormal roof conditions did in
fact exist at least 30 feet from the face of the Number 2
Entry prior to the first roo f fall and, in accordance with
the roof control planv supplemental support should have been
installed before mining progressed.
According to mine superintendant James Teal, drurnrny
sounding roof, the existance of a crack 30 inches into the
roof and a visible crack running parallel to the entry did
not indicate subnormal roof and, therefore, supplemental roof
support was not in fact required by the roof control plan.
In this regard Teal notes that the union mine examiner did
not cite any subnormal conditions in the mine examiner's book
during the preceding preshift examination. The relevant
entry in the preshift examiner book indicates however that
the Number 2 Entry could have been e}tarnined as early as 7
o'clock the previous evening so that conditions arising in
the entry thereafter would not have been observed. Moreover
since it appears reasonably likely that the drurnrny roof conditions were discovered only late in the second shift, the
preshift examiner could very well have been unaware of the
deficiencies in the Number 2 Entry at the time he made his
entry in the preshift books.
In any event, in light of the convincing and credible
testimony of the experienced miners who observed the roof

1069

conditions firsthand and the equally convincing expert testimony of MSHA Special Investigator Edward Ritchie, I reject
the self-serving testimony of Superintendant Teal. Indeed,
according the the undisputed evidence even Foremen Torn
Killman recognized that drummy sounding roof, visible fractures in the roof running down the length of an entry, and
evidence of gaps and fractures 30 inches up into the roof
were evidence of dangerous subnormal roof conditions. In
obvious recognition of the problem, Killman directed one of
the miners to bring up longer 48 inch roof bolts for supplemental support. The failure of Killman to have required
installation of such supplemental roof support before
allowing mining to continue under the circumstances was
serious and a "significant and substantial" violation of the
operator 0 s roof control plan and the cited standard o
Since it is not disputed that Foreman Killman knew of
the hazardous roof conditions there can be no question but
that he was grossly negligent. in ordering his work crew to
continue mining in close proximity to that hazardous roof o
That gross negligence is attributable to the mine operator o
Secretary Vo Ace Drilling Company u 2 FMSHRC 790 (1980 )o The
evidence indicates that after recovering the buried continuous miner the operator abated the violation by abandoning
the cited entry. Considering the extreme hazard presented by
the violative conditions and the gross negligence exhibited I
find that a penalty of $10,000 is appropriate.
ORDER
Sahara Coal Company, Inc., is hereby directed to pay
civil penalties of $10,300 within 30 days of the date of this
decision.

Judge

1070

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, u.s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago,
IL 60604 (Certified Mail)
Charles N. Wheatley, Esq., Sahara Coal Company, Inc·., 3 First
National Plaza , Suite 3050 , Chicago, IL 60602
(Certified
Mail)
rbg

1071

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W . COLFAX AVENUE , SUITE .&00
DENVER, COLORADO 80204

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-69-M
A.C . No . 48-00152-05512

.

v.

0

FMC CORPORATION,
Respondent

JUL 121985

FMC Mine

.
0

DECISION
Appearances : James H. Barkley , Esq. u and Margaret Miller 0 Esq . u
Office of the Solicitor, U.S. Department of Labor u
Denver, Colorado ,
for Petitioner 3
John A. Snow 0 Esq . u VanCott 0 Bagley u Cornwal l ~
McCarthy v Salt Lake City 8 Utah q
for Respondent .
Before:

Judge Lasher

This proceedin~, arising under the Federal Mine Safety and
Health Act of 1977 _/ calls for interpretation and application of
the mandatory safety standard provided in the second sentence of
30 u.s.c. § 57.9-6 which provides:
57.9-6 Mandatory. When the entire length of a conveyor
is visible from the starting switch, the operator shall
visually check to make certain that all persons are in
the clear before starting the conveyor. When the entire length of the conveyor is not visible from the
starting switch, a positive audible or visible warning
system shall be installed and operated to warn persons
that the conveyor will be started.
(emphasis added).
During an inspection of the FMC Mine on November 22, 1982,
MSHA Inspector William W. Potter issued. Citation No. 2008100
under Section 104(d)(1) of the Act. The citation alleged:
"The conveyor belt for panel 7CM does not have adequate start-up warning system. The visible warning used
1/

30 u.s.c.

S 801 et seq. (1982), herein the Act.

1072

on this conveyor is flashing lights. From the light at
the crusher feeder it is approximately 1000 feet to the
next working light. There was another warning light installed approximately 750 feet from the crusher feeder
but this light was not working. There was approximately
700 feet of this belt that was not protected by a startup warning system. If the other light had been working
there would have still been approximately 400 feet of
this belt that was not protected by a start-up warning
system. The services Supt. allowed this belt to be released to the production crews to use in this condition .
This conveyor has been operating in this condition since
day shift on the 7th of this month. Maintenance and cleanup persons are required to work on and around this conveyor o
This is the 4th cititation (sic) to be issued on this
practice since 5/05/81. The same person has been the
Services Supt. during this time. During previous meetings
with the company it had been determined that these warning
lights should not be over 400 feet apart and at no time
over 500 feet apart, at 400 feet a person would not be
over 200 feet from a warning light. When a belt has been
running there is dust in the air and this will cut the
visibility considerably"o 2j
At the commencement of the hearing 0 the parties stipulated
that the entire length of the conveyor belt in question was not
visible from the starting switch, thus making operative the last
(second) sentence of 30 u.s.c. § 57.9-6. The Respondent had
installed a visible warning system-as distinguished from an
audible warning system which is also authorized by the regulation-consisting of three flashing 200-watt, 250 volt bulbs. ~/
A bulb was placed at each end of the 1000-foot conveyor belt in
question, and the third light was installed 375 feet from the
inby end, making it a distance of approximately 625 feet (Tr. 66)
from the outby end. 4; The three bulbs, which cast a white
light, flash automatically for a period of 30 seconds after the
conveyor belt is started before the belt actually starts to move.
One or more of the three lights can actually be seen-are visible
to the naked eye-from any point along the 1,000-foot length of
the conveyor.

2/ Following the issuance of the Citation, the Respondent abated
the allegedly violative condition by installing two additional
lights along the conveyor belt (Tr. 58, 112, 113; Termination of
Citation).

11

There is no audible warning system along the conveyor.

4/ The inspector indicated the middle (burnt-out) bulb was 750
feet CTr. 12, 14, 34) from one end of the belt and 250 feet from
the other (Tr. 13, 14, 32, 34>. The spacing distances supplied
by Respondent's witness of 625 feet and 375 feet appear to be
more precise and to have resulted from careful measurements and
are accepted (Tr. 66-67, 94-97, 110, 111).

1073

At the time of Inspector Potter's inspection the middle
light was not working. It was the Inspector's opinion that even
had the middle light been working, the "start up warning system"
was inadequate to warn miners working at the more extreme
distances from the nearest warning lights.
The reliable evidence of record indicates that even from a
distance of 750 feet ~/ a flashing light would be visible to the
naked eye if there was not a lot of dust (Tr . 54). The question
posed by this record is whether or not such flashing light, although actually visible, would be sufficient to attract the
attention of a miner working in the area and alert him to the
danger created when the conveyor belt is started up (Tr . 92) .
In
this connection , it should be noted at the outset that there are
no specific spacing distances <including the "400-foot " requirement emphasized by the Inspector) provided in the mandatory regulation cited (30 C.FuR . § 57.9-6 ) nor any other regulation or requirement published i n the Act 1• the Federal Register ( Tr o 26 )u or
any safety or health plan submitted by Respondent and approved by
MSHA. Nor was there any written memorandum of understanding or
agreement with respect to the distances between such lights
reached between MSHA (including the inspector) and Respondent
(Tr . 57 v 132). Although on direct examination Inspector Potter
testified he had discussed the matters with Respondent ~s
management ~/ v Respondent ~ s witnesses adamantly and persuasi v e ly
denied that they acquiesced in the inspector 0 s position as to
spacing distances between lights. Respondent's Mine Safety
Supervisor, David L. Thomas, also testified that the Inspector
had not been consistent in the past with respect to the distances
he thought appropriate (Tr. 125-132>. 7; The Inspector's
testimony also was somewhat confused about prior light-spacing
citations involving the same conveyor belt system (Tr. 16, 20,
22, 25-28).
It should be noted initially that the gravamen of the
alleged infraction-as cited - is that the 3-light system itself
was inadequate even with consideration of the fact that one light
was burned out on the occasion the Citation was issued. This was
the apparent basis upon which the matter was tried by both
parties.

5/ The maximum distance a miner would be from any light - with
the middle bulb working - would be 625 feet.
6/ Leaving just an inference that some understanding had been
reached.
7/ Since this testimony was not rebutted by Petitioner it is
credited. Further, the similar imprecision of the Citation
itself with respect to distances lends credence to Respondent's
position.

1074

The essential issue is whether the 3-light visual warning
system in place on November 22, 1982, was sufficient to warn
miners working along the conveyor belt. There is no question but
that a miner actually facing any of the lights from any place
along the belt would be able to see the flashing light if he were
facing it (Tr. 52-54, 59). Nevertheless, the Inspector gave the
flat opinion that if one were "turned around facing the conveyor"
when the ligh t came on, "it would not draw Cone's) attention at
all" (Tr~ 53). According to the Inspector, this would be true
even if there were no dust CTr. 53).
In direct contradiction to the Inspector, Respondent 9 s
safety engineer, Charles Wilkinson , Jr., testified that the
visual warning system was adequate because of the "illumination ~
from the lights, and that he had never seen the area so dusty
that the light could not be seen (Tro 91). He indicated that the
illumination from the lights would be seen even in dusty
conditions-and that such conditions do not occur very often {Tr .
69-72 , 85-86 , 89-92 , 102).
Since there is no precise standard as to spacing distances
for lights under a positive visible warning system 6 no approved
plan for such , nor even a voluntary agreement or understanding
between the operator and MSHA u the question of adequacy must rest
upon the subjectiv e j udgments and opinions of witnesses G The
Inspector's opinion that the visible warning system in question
was not adequate to warn miners working in the area along the
conveyor is weakened by the convergence of several factors. To
begin with, as noted above, there is no clear standard with
specific subfactors against which the alleged infraction can be
tested. The looseness and generality in the wording of the
Citation itself was repeated at hearing by the government ' s
witness. There were discrepancies and possibly confusion, both
as to the spacing distances between the lights and the areas
involved in Citations which were previously issued. The
Inspector's belief that some concrete standard as to spacing
distances had been created by prior enforcement and or by agreement between the parties was credibly denied by Respondent. The
record otherwise lacks support or corroboration (such as
experimental testing and the testimony of miners) for the opinion
relied upon by the government. By contrast, the opinion of
Respondent's expert witness seemed to be based on a closer
knowledge of the conditions existent in the area of the mine involved and to some extent it was less general and more detailed
in rationale. Evaluation of the system even with the middle
light not functioning leads one to conclude that it was sufficient to warn in view of the superior force of Respondent's
evidence relating to the general visibility of the end lights and
the "illumination" therefrom when they were activated .

1075

Accordingly, on the basis of this record, the position o f
Respondent as to the sufficiency of its positive visible warning
system on November 22, 1982, is accepted. The petition for
Assessment of Civil Penalty is found to lack merit.
ORDER
Citation No . 2008100 dated November 22 , 1982, is VACATED .

~~· ~ ft- .

Michael A. Lasher 0 J r .
Administrative Law Judge

Distribution :
James H. Barkley, Esq., and Margaret Miller u Esq . u Office of the
Solicitor, u.s. Department of Labor, 1585 Federal Bu i lding , 1 961
Stout Street, Denver, Colorado 80294 (Certified Ma i l )
John A. Snowu Esq. 0 VanCott , Bagley , Co rnwa ll & McCarthy , 50 Sa
Main Street 8 Suite 1600 u Salt Lake Cityq Uta h 8 4144 ( Certif i ed
Mail )
/blc

1076

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

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

JUL121985

CIVIL PENALTY PROCEEDING

.
~

v.

CANNELTON INDUSTRIES , INC. ,
Respondent

0
0

Docket No. WEVA 85-101
A.C. No ~ 46-05992-03510
Indian Creek No . 2
Preparation Plant

DECISION
Appearances :

Before~

Jonathan M. Kronheim , Esq. , Office of the
Solicitor, U.S . Department of Labor, Arlington u
Virginia , for the Petitioner u
William C ~ Miller IIu Esq. 8 Cannelton
Industries u Inc . , Charleston , West Vi rg i nia ,
for Respondent .,

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq., the "Act," for one violation of the
regulatory standard at 30 C.P.R.§ 77.1710(g) . The general
issues before me are whether the cited violation was of such
a nature as could significantly and substantially contribute
to the cause and effect of a mine safety or . health hazard,
i.e. whether the violation was "significant and substantial" ,
and the appropriate civil penalty to be assessed in accordance with section llO(i) of the Act.l

lcannelton does not dispute that a violation of the cited
standard did in fact occur but contends that it was merely an
insignificant technicality. Since Respondent did not contest
this section 104(d)(l) citation pursuant to section 105(d) of
the Act, I am without authority to consider the special
"unwarrantable failure" finding in this civil penalty proceeding. See Pontiki Coal Corporation v. Secretary, 1 FMSHRC
1476 (1979) and Wolf Creek Collieries Company, 1 FMSHRC ____ ,
(1979). There is nevertheless ample evidence to support such
a finding. See discussion of operator negligence infra.

1077

Citation number 2147345, issued under section 104(d)(l)
of the Act, alleges a violation of the standard at 30 C.F.R.
§ 77.1710(g) and reads as follows:
Two men were observed working in an unattenable
[sic] position sealing a leak in an overhead pipe.
One man was standing on top of the sieve bend
structure leaning forward up and out applying
compound to a ruptured pipe, about 4-8 feet
higher than the height of the sieve bend
structure. The height of sieve bend structure is
about 15 feet above floor levelo A fall from
said position could result in a serious injury o
The area at the base consisted of sieve bend
structure and a vibrator screen deck o Safety
equipment such as a lifeline v safety belt and
ladder was not used during this work procedure .
The cited standard provides , in relevant part , as
follows :
Each employee working o • o in the surface work
areas of an underground coal mine will be
required to wear protective • • . devices as
indicated below: • • • (g) Safety belts and lines
where there is a danger of falling . . . . . . 2
The violation is 11 significant and substantial" if (1)
there is an underlying violation of a mandatory safety
standard as admitted herein, (2) there is a discrete safety
hazard, (3) there is a reasonable likelihood that the hazard
contributed to or result in injury and (4) there is reasonable injury in question will be of a reasonably serious.
Secretary v. Mathies Coal Company, 6 FMSHRC 1 (1984).
Much of the essential evidence is not in dispute. Gary
King, a Cannelton employee for 14 years, found a leaky pipe
on the third floor of the preparation plant and reported this
condition to his supervisor, foreman Charles Williams.
Williams thereafter directed another employee, Douglas Price
to pick up some "water plug" (a putty-like material used for
patching leaks) for the pipe repairs and they proceeded to
the problem area. Williams had the plant shut d0wn, then
left the work site ~o take a phone call at the plant office.
Before he left, Williams gave no specific instructions ori how

2see Southwestern Illinois Coal Corporation, 5 FMSHRC 1672
(1983) and Southwestern Illinois Coal Corporation, 7 FMSHRC
(May 15, 1985) for the Commission's interpretation of the
standard at issue.

1078

to complete the task. Both Price and King testified that
they had performed similar tasks many times before and therefore knew what to do without any specific instructions.
Price had worked for 10 years and King 5 years at the
Cannelton plant under the supervision of Williams.
After Williams left, King climbed onto the sieve box
platform , 15 inches wide and 54 inches long. Price mixed the
"water plug" and handed it to King from 6-1/2 to 7 feet below.
Using the "water plug" King began repairs on the pipe while
standing on the sieve box and leaning on another pipe . Price
then joined King to assist. In order to get into position he
had to duck walk" on the 8 inch dia~eter pipe some 12 to 14
feet above the floor level o Price then crouched on the pipe
while holding onto a beam with one hand and applied dr y - uvwater plug" with the other hand . At the same time Price was
also apparently able to hold onto a can containing 6 to 8
pounds of the patching material .
11

Both King and Pr i ce had p rev iously perf ormed r epairs
from similar elevated positions t'lli t hout a safety be l·t or
lifeline in the presence of foremen and were never told it
was unacceptable. Price claims that he could not in any
event have used the safety belt available at the plant
because its 30 inch tether was too short. It is undisputed
that there was only one safety belt available near the plant
and that belt had only a short extension or tether of approximately 30 inches . There is no evidence that any lifeline
was available at the plant .
Joseph LonCavish, inspector for the Federal Mine Safety
and Health Administration CMSHA) was conducting a regular
inspection of the plant in the presence of his supervisor
Richard Browning , when he saw Price and King working in an
elevated position without safety belts or lifelines . While
there was some disagreement over the distance the miners
could have fallen (estimated as from 4 to 10 feet) both concluded that there was indeed a danger of falling onto the
vibrator screen or the sharp metal edging around the screen
and receiving serious and permanently disabling injuries e.g.
limb, rib and head fractures. It is not disputed that such a
fall was reasonably likely and that such serious injuries
were likely to result. Accordingly I conclude that the violation was serious and "significant and substantial".
Secretary v . Mathies Coal Company, supra.
The violation was also the result of gross negligence.
Both King and Price had admittedly on prior occasions performed similar tasks from elevated positions while not using
safety belts or lifelines without correction or discipline

1079

from supervisory personnel. There is, moreover, no evidence
that employees had been specifically trained in the use of
safety belts and lifelines. Indeed, from Price's testimony
it appears that he did not know how to use a safety belt and
lifeline in connection with the job he was performing.
Finally, the evidence shows that only one safety belt was
even available at the plant (with only a 30 inch tether) and
that no lifeline was available . Under the circumstances only
one employee could have used a safety belt at a time and ,
without a lifeline, was of little value .
It may reasonably be inferred from the nature of the
job to be performed that superintendant Williams knewu or
could reasonably have expected, that two employees would have
been working on the pipe repairs from an elevated position .
Finally 1 Williams gave no instructions before he left the
repair site to use a safety belt and lifeline and 9 by his
past practices of allowing previous work on such tasks without safety belts and lifelines 11 implicitly condoned the unlawful practice . Within this framework it is clear that superintendent Williams was grossly negligent . This negligence i s
imputed to the mine operator. Secretary v. Ace Drilling
Company, 2 FMSHRC 790 (1980) . Negligence may in any event be
found in this case based alone on the lack of supervision and
training of the two employees concerning the use of safety
belts and lifelines and the lack of discipline for failing to
use that equipment under similarly hazardous conditions.
Secretary v. A. H. Smith Stone Company, 4 FMSHRC 13 (1893) .
In assessing a penalty herein I have also considered
that the mine operator is large in size and has a moderate
history of violations. The evidence shows that the instant
violation was abated by the instruction of employees on the
use of safety equipment to be used in elevated areas of the
plant and the acquisition of necessary safety equipment.
Under the circumstances a civil penalty of $850 is
appropriate .
ORDER
Citation number 2147345 is affirmed. Cann lton
Industries, Inc., is ordered to pay a civil pen lty of $850
within 30 days of this decision.

Gary Mel ~k

Administ~tive

1080

Distribution:
Jonathan M. Kronheim, Esq., Office of the solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Room 1237A,
Arlington, VA 22203
(Certified Mail)
William C. Miller II, Esq., Secretary and Corporate Attorneyu
Cannelton Industries, Inc. , 1250 One Valley Square v
Charleston, WV 25301 (Certified Mail)
rbg

1081

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

.JUL 151985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
~etitioner

.
.
0
0

CIVIL PENALTY PROCEEDING
Docket No. PENN 85-33
A.C . No . 36-00907-0354 4

v.
0

.
0

SHANNOPIN MINING COMPANY ,
Respondent

Shannopin Mine

0

0
0

DECISION
Appearances :

Before :

Joseph T. Crawford , Esq. 9 Office of the
Solicitor, u.s. Department of Labor ,
Philadelphia, Pennsylvania, for Petitioner ~
Jane A.· Lewis , ·Esq .u Thorp 0 Reed & Armstrong 0
Pittsburgh , Pennsylvania q for Respondent .

Judge Melick

This case is before me upon the petition for civil
penalty filed by the Secretary of Labor pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et ~' the "Act", for a violation of the
Respondent's Ventilation System and Methane and Dust Control
Plan under the regulatory standard at 30 C.F.R. § 75.316 .
The general issue before me is whether Shannopin Mining
Company CShannopin> has violated the cited regulatory
standard and, if so, whether that violation is of such a
nature as could significantly and substantially contribute
the cause and effect of a mine safety or health hazard i.e.,
whether the violation was "significant and substantial." If
a violation is found, it · will also be necessary to determine
the appropriate civil penalty to be assessed in accordance
with section llO(i) of the Act.l
The citation at bar (number 2252689) alleges in relevant part as follows:
linasmuch as Respondent did not contest the section 104(d)(l)
citation at bar pursuant to section 105{d) of the Act, I am
without authority to consider the special "1,1nwarrantable
failure" finding in this civil penalty proceeding. See
Pontiki Coal Corporation v. Secretary, 1 FMSHRC 1476 (1979)
and Wolf Creek Collieries Company, 1 FMSHRC
, (1979).
There is nevertheless ample evidence to ~upport such ~
finding. See discussion of operator negligence, infra.

10&2
·'

The ventilation system - methane and dust control
plan was not being complied with in that examinations of the bleeder entries that were open
around the gob area of 4A, 006 section was [sic)
not being recorded and no dates were found in the
area to show that examinations are being made .
It is not disputed that in accordance with Shannopin i s
Ventilation System and Methane and Dust Control Plan then in
effect the assistant foreman or a mine examiner was required
to travel and examine on a weekly basis all bleeder entries
including those in the areas cited. It is further undisputed
that the mine examiner was required to record the results of
such examination in a book retained at the mine for such
purpose and that the mine examiner was required to date and
initial certain locations within- the inspected area to show
that the examinations in fact had been made as required.
On May 7 y 1984 Inspector Joseph Koscho of the Federal
Mine Safety and Health Administration (MSHA } , began his examination of the right side bleeder entries around the gob area
of the 4A, 006 section from point B to point c on the mine
map in evidence (Joint Exhibit 1). According to Koscho no
datBs or other indicia existed to show that this bleeder area
had been inspected within the previous 7 days. Koscho had
been inspecting the Shannopin Mine since 1978 and was
familiar with the practices of its mine examiners in placing
dates and initials along coal - ribs, posts and in other conspicuous places to show that the areas had been examined.
Upon emerging from the right s i de bleeders Koscho met
Shannopin's General Assistant, Frank Klink, and the UMWA
representative of miners, Floyd Hornick. He informed Klink
of the absence of any examination record for the right side
bleeder area and Klink responded by suggesting that the
inspection party proceed to the left side bleeders . The
group then inspected the left side bleeders from point E on
the mine map, past point G to point F on said map (Joint
Exhibit 1).
Although it is admitted that Klink knew the location of
the "dateboards" and other sites the mine examiners used to
note their examinations in the bleeder entries he was unable
to point out to Inspector Koscho any such location where an
examiner had notated an examination within the previous 7
days.
Indeed, it is undisputed that I nspector Koscho was in
fact directed by Klink away from a location where three dateboards were known by Klink to be located . Klink also
admitted at one po i nt that he did not know whether the mine
examinations had in fact been made. Acaord_ing to ·Kos_cho the

.1 083

most recent date of examination found in the approximately
1,000 feet he traveled through the bleeders was not within l
month of the date of the inspection at bar.
Shannopin Safety Director Melvin Pennington was aware
shortly after the inspection on May 7 that Inspector Koscho
was unable to find any initials and dates of inspections in
the areas of the bleeder entries but nevertheless did not
either check the- bleeder entries himself to see whether the
dates and initials appeared nor did he delegate someone to
check that matter. General Mine Foreman James Price also
knew of the impending citation but he too did not seek to
verify whether the inspection dates had been properly
recorded in the bleeder entries .
Richard Gashie was the mine examiner (fireboss) responsible during relevant times for inspecting the cited bleeder
entries . Gashie testified that he was in fact making the
required inspections in these areas and had signed and dated
a number of locations including the three dateboards near t he
point of deepest penetrati on of the section (the area Klink
avoided showing inspector Koscho) and an area near point F
(Joint Exhibit 1) on an angle stopping. Gashie was never
asked by any mine official to point out the location of any
of his initials and- dates that he claims he placed throughout
the cited bleeder entries. He further claims that his
entries in the mine examiners books corresponded to the
written work assignment given him each day.
Following his underground inspection, Inspector Koscho
checked the mine examiner's book to determine whether entries
corresponding to an inspection of the cited bleeder entries
had been made. Based on his experience at this mine since
1978, he concluded from the entries in the book that the
bleeders had not been inspected. Shannopin maintains that
the entry made by Gashie on May 2, 1984, that "4A left return
to 1 left regulator passable" shows that the left bleeder
entries had .been examined by Gashie as required. It also
claims that the entry by Gashie on.May 3, 1984 that "4A right
returned to steele shaft passable" shows that the right
bleeder entries had also been examined as required .
According to Koscho, these entries show only that the mine
examination was made in areas outby the cited bleeder
entries.
At the time of his inspection Koscho asked Safety
Director Pennington whether they were in fact "walking the
bleeder" in the 4A section. Pennington consulted with Mine
Foreman Price. After examining the books they then concluded
that although the book entries were being noted as "returns"
rather than "bleeders" they had never~heless been-in~pected.

1084

Price explained at hearing that the cited area could be
characterized as either a "bleeder" or a "return" although
the area outby the position of the retreat mining would be
properly characterized as a "return" but not as a "bleeder".
Inspector Koscho disagreed and defined "bleeder" as anything
inby the gob area. According to Koscho the term "return"
cannot properly be used for the same area since a 'ireturn"
ventilates the last working place outby the gob area .
Within this framework of evidence I find that a.mine
examination had not in fact been performed within 7 days
preceeding the inspection at bar and, accordingly, the violation has been proven as charged. The credible evidence shows
that the mine examiner vs initials and dates of i nspection di d
not exist in either the right or left bleeder entries of the
cited section. Inspector Koscho testified that he found no
such notations (within the necessary 7-day time frame) in the
cited areas. In addition, the general assistant at
Shannopin, Frank Klink , who accompanied Koscho during the
course of his inspection of the left bleeder entries u was
unable to locate or point out any such notations in that area
of the mine. Indeed it is not disputed that during the
course of this inspection Klink actually directed Koscho away
from three dateboards where proper notations should have been
located.
In addition, even though Shannopin management was
immediately aware of Koscho's inability to find any notations
by a mine examiner in the bleeders it did nothing to prove to
Koscho that the proper notations had in fact been made . It
would have been a very simple matter for mine personnel to
have shown Koscho the dates and initials of the mine examiners. It may reasonably be inferred that they did not do so
because in fact such notations did not exis~ . Within this
framework I can give but little credence to the self-serving
testimony of former mine examiner Gashie that he did in fact
perform the proper examinations and dated and initialed the
required locations in the mine.
Since I have found that the ~otations had not been
placed by the mine examiner in either the right or left
bleeder entries as required by law I am also convinced that
proper inspections of those bleeders had not been performed.
Such notations are.not only required by law, they are the
best evidence to show that a mine examiner has in fact been
present in the areas required to be inspected. It is highly
unlikely that a miner examiner would fail to make such notations if he in fact was performing his job as required.
Since I have found that the mine examinations had not been
made it is also apparent that proper entries could not have

1085

been made in the mine examiners book to show that the required inspections had been made. Accordingly the violations
are proven as charged.
I further find that the failure to have inspected the
bleeders was a "significant and substantial" and serious
violation. A violation is significant and substantial if:
(1) there is an underlying violation of a mandatory safety
standard, (2) there is a discrete safety hazard, (3) there is
a reasonably likelihood that the hazard contributed to will
result in an injury and (4) there is a reasonable likelihood
that the injury in question will be of a reasonably serious
nature. Secretrary v. Mathias Coal Company, 6 FMSHRC l
(1984) . In this regard it is undisputed that in the absence
of the weekly inspections of the bleeder entries 6 methane and
noxious gases could very well accumulate without the knowledge of the mine operator. A change in barometric pressure
or temperature could result in the circulation of explosive
gasses out of the gob areas into the working areas where
electrical equipment could trigger an explosion or fi r e o
Serious injuries or fatalities would likely result o
I also find that the violation was the result of
operator negligence. It is clear from the absence of dates
in the bleeder entries for a period of at least 1 month
preceding the inspection that the inspections had not been
carried out for a significant period of time. In addition,
since neither the General Assistant at Shannopin, Frank
Klink, nor the Safety Director, Melvin Pennington, had any
knowledge as to whether the weekly inspections were being
made when questioned by inspector Koscho on May 7, it is
apparent that responsible officials were not checking to see
that the mine examiner was performing his job. Indeed it
appears that General Mine Foreman Price was 'relying only upon
entries in the mine examiner's book to determine that the
examinations had been taking place. Significantly Price did
not seek to verify, even afte~ Koscho brought the deficiencies to his attention, whether the mine examiner's
notations actually appeared in th~cited bleeder entries.
Under all the circumstances I find that the violation was the
result of operator negligence.
In determining the amount of penalty to be assessed in
this case I am also considering that the mine operator is
medium in size and has a moderate history of violations.
There is no dispute that the cited conditions were abated as
required. Under the circumstances I find that a civil
penalty of $500 is appropriate.

1.086

ORDER
Shannopin Mining Company is hereby ordered
civil penalty of $500 within 30 days of the dat
decision.

pay a
this

Judge
Distribution g
Joseph T. Crawford , Esq., Office of the Solicitor g U.S ~
Department of Labor, 3535 Market Street , Philadelphia , PA
19104 (Certified Mail)
Jane A. Lewis u Esq . 9 Thorp u Reed & Armstrong u One Riverfron t
Center u Pittsburgh u P A 1522 2 ( Certif i e d Ma il)
rbg

1087

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

JUL 1 7 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMIN I STRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING

.
0

·Docket No6 KENT .85-57-M
A.C . No . 15-00061-05508
MJM Mine & Mill

MAGOFFIN- JOHNSON & MORGAN
STONE COMPANY,
Respondent
DECISION
Before : . Judge Kennedy
This matter is before ~e on the parties responses to
my show cause order of June 7, 1985 . This order required
the parties to show cause why the decision in Secretary v.
Adams Stone Corporation and Magoffin , Johnson & Morgan Stone
Company , 7 FMSHRC 692 , Judge Steffey, (May 1985), does not
collaterally estop MJM from claiming that (1) it is not
owned and controlled by Stuart Adams Stone Corporation,
or (2) is not financially capable of paying the $105 penalty
proposed in this proceeding for the single violation charged .
After reviewing the parties' responses, the decision
in Adams Stone, and the undisputed facts of record, I find:
1. That in the prior proceeding the operator
had a full and fair opportunity to litigate
the claim that it was not an instrumentality
owned and controlled by the single enterprise
entity doing business under the name of Stuart
Adams Corpor ation and Subsidiaries (SACS) and
that it is not financially able to pay monetary
penalt~es.

2. That these are the sole issues contested in
this proceeding.
3. That the operator represents it is unable
to attend an evidentiary hearing or to submi t

1088

any evidence on the contested issues that
was not considered by Judge Steffey in the
Adams Stone case . !(
4. That Judge Steffey ' s decision in Adams
Stone was not appealed and has by operation
of law become a final decision of the Commission .
5 . That under the twin doctrines of res
judicata and collateral estoppel Judge Ste~fey's
finding that MJM is an instrumentality owned
and controlled by the single enterprise ~ntity
1/ I note that Judge Steffey strong_ly condemned respondent v s
counsel, David H. Adams, Esq. , for his "contemptuous ~pproach "
to compliance with the Commission 1 s rules and judgese orders .
Judge Steffey also admonished counsel for his repeated failures
to appear at requested hearings or to present witnesses in
support or explanation of his arguments or claims. Since the
Commission has not moved to reprimand or strike sua sponte
Judge Steffey ' s censure of Mr . Adams or to reprimand the judge
for having the temerity to discipline Mr. Adams without referring
the matter to the Commission pursu~nt to Rule SQ, r assume the
Commission believes Judge Steffey '-s derogatory comments on
Mr. Adams professionalism were merit~d and well w~thin the
scope of the judge's jurisdiction and authority.
On other occasions , however, the Commission has declined
to take disciplinary action for such 11 contemptuous'' conduct
on 't he ground that every lawyer that appears before the Commission
is entitled to " flout" a judge's orders and authority on at
least one occasion . Disciplinary Proceeding, D- 84- 1, 7 -FMSHRC
623 (May 1985). The Commission ' s condonation of instances
of unprofessional or unethical conduct also seems to be
influenced by whether errant lawyers enjoy a protected status
as a member of the Office of the Solicitor or· a past close
personal relationship with a member of the Comm~ssion or its
staff . T.P. Mining , Inc. , LAKE 83 - 97-D , decided July 2, 1985,
7 FMSHRC __ ;"Belcher Mine, Inc., SE 84 - 8- M, decided July 10,
1985 , 7 FMSHRC
; Disciplinary Proceeding, D-85-1, decided
June 25 , 1985, 7 FMSHRC
United States Steel Corp .,
6 FMSHRC 1404 (1984) .
This ambivale~ce on the part of the Commission and its
draconian sanctions for even merited criticism of those
who enjoy a specially protected status demeans the status
of its judges; undermines public confidence in the Commission's
neutrality; and encourages condonation of lawyer conduct
that would be deemed unacceptable by the courts.

1089

doing business under the name Stuart Adams
Co~poration and Subsidiaries (SACS) is final
and conclusive on MJM in this proceeding.
6. That Judge Steffey's finding that MJM is
financially capable Of paying moneta~y _ penalties
is final and conclusive in this proceeding.
7. That Judge Steffey's finding in Adams Stone
that r-tJM failed to sustain its burden of .showiiig
that payment of monetary penalties will impair
its ability to do business is final and conclusive
in this proceedin9.
Since the fact of violation is admitted and the sole
issue contested is MJM 9 s ability to pay, this is not a
proceeding to determine responsibility . fqr violating the law
but on~y whether MJM and the single enterprise entity of
which it is a part can pay. the $105 penalty assessed . The
Supreme Court has encouraged the use of the single enterprise
entity theory to penetrate schemes that employ corporate
shells or proprietary corporations to circumvent enforcement
of regulatory statutes. NBC Energy, Incorporated, 4 FMSHRC
1860, 1861 (1982).
Indeed, Congress has exempted regulatory
enforcement proceedings, such as this penalty proceeding,
from the automatic stay provisions of the Bankruptcy Act.
11 ·u.s.c. § 362(b) (4); Leon's Coal Company, 4 FMSHRC 572
(1982).
Since, as Judge Steffey found, MJM i .s a mere instrumental± ty
of the larger SACS enterprise it will be appropriate for the
Secretary to seek recovery from th.e SACS enterprise if MJM
defaults in payment of the penalty assessed. But since this
has not occu~red and since Adams Stone found MJM failed to
sustain its burden of showing that payment of much lar9er
penalties would result in economic jeopardy to MJM it is
unnecessary to reassign liability at this stage.
If, the Secretary is unable to collect the penalty
from MJM, he may pursue collection proce.e din9s against the
SACS enterprise and, if necessary pierce the corporate -veil
and collect from the stockholders of SACS. See NBC Energy,
supra, WRW Corporation, 7 FMSH~C 245, 259 (.1985). ·
Finally, I find that where, as here, there is an
identity of parties and legal issues and where, as here, MJM
has had a full and fair opportunity to litigate its financially

1090

failing operator defense, accepted principles of issue preclusion ,
whether characterized as res judicata or collateral estoppel t
operate to foreclose further redundant litigation of the
defense in this proceeding . Windsor Power House Coal Company ,
6 FMSHRC 2773, 2773 (1984),
For these 'reasons, I conclude that the violation charged
did, in fact, occur and that payment of the small · penalty
assessed will not impair MJM's ability to continue in the
business of mining limestone . Further, after considering
the other criteria I find the gravity was serious, the negligence
high and the amount of the penalty warranted; $105 o.
Accordingly, it is ORDERE~~t for the violation found
the operator pay a penalty of $
on or before F~ida yr
August 2 , 1985 .
1.
J
·
.,
.'7

Joseph

Kennedy
Law

Adm~n~strative

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U. S . Department
of Labor, 280 U.S . Courthouse, 80.:1 Bro~dway, Nashville , TN
37203 (Certified Mail)
Stuart H. Adams, President, Mag off j.._n -Johnson & Morgan Stone
Co ., P.O. Box 2320, Pikeville, KY 41501 (Certified Mail)
David H. Adams, Vice President, George Ward, Superintendent,
MJM Stone Co ., Rock Quarry, P . Q. Box 2320., Pikeville, KY 41501
(Certified Mail)
·

slk

1091

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

22041

JUL 17 1985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING

-

Docket No. PENN 85-185
A.C. No. 36-03298-03507

Vo

Laurel Hine
CONSOLIDATION COAL COMPANY ,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding filed by the petitioner
against the respondent pursuant to section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U. S.C. § 820(a), seeking
a civil penalty assessment in the amount of $500 for a violation
of section 105(c) of the Act.
The citation in question was
issued as a result of the Commission ' s June 15, 1984, affirmation of my previous decision of November 23, 1982, finding· a
violation of section l05(c) in the matter of Richard E . Bjes v.
Consolidation Coal Company , PENN 82-26 - D, 4 FMSHRC 2043 .
.
By motion filed with me on July 11, 1985, pursuant to
29 C.F . R. § 2700.30 , the parties seek approval of a proposed
settlement disposition of the case, the terms of which require
the respondent to pay a civil penalty assessment in the amount
of $400 for the violation in question.
Discussion
In support of the proposed settlement disposition of this
matter , the parties state that they have discussed the alleged
violation and the six statutory criteria stated in section
llO(i) of the Act . · Further, they have submitted a complete
discussion and full disclosure as 'to the facts and circumstances
surrounding the issuance of the violation, and they have filed
full information concerning the criteria found in section llO(i).

1092

Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of this case, I conclude and find that
the proposed settlement disposition is reasonable and in the
public interest. Accordingly, pursuant to 29 C.P.R. § 2700.30u
the motion IS GRANTED and the settlement IS APPROVED.
ORDER
Respondent IS ORDERED to pay a civil penalty in the amount
of $400 in satisfaction of the violation in question u and
payment is to be made to MSHA within thirty (30) days of the
date of this decision and order . Upon receipt of payment , this
proceeding is dismissed.

B~k'~~~
~~A.
Koutras
Administrative Law Judge

Distribution:
covette Rooney, Esq . , Office of the Solicitor, u.s. ·Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Karl T. Skrypak, Esq., Consolidation Coal Company, Consol
Plaza, 1800 washington Road, Pittsburgh, PA 15241
(Certified Mail)
/fb

1093

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

JUL 181985

CIVIL PENALTY PROCEEDING

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

Docket No. PENN 84-27
A. C. No . 36- 03425- 03545
Maple Creek No . 2 M~ne

v.

.

U. S . STEEL MINING CO. ,
INC. ,
Respondent

DECISION
Appearances :

Joseph T. Crawford, Esq ., Office of the
Solicitor , U. S ~ Department of Labor 7
Philadelphia , Pennsylvania , for
Petitioner .
Louise Q. Symons, Esq., u. S. Steel Mining
Company, Inc . , Pittsburgh , Pennsylvania .

Before:

Judge Fauver

This civil penalty case involves a citation,* No.
2105356 , issued by a Federal mine inspector under section
104(d) (1) of the Federal Mine Safety and Health Act of
1977 , 30 u.s.c. § 801 , et seq.
The citation alleges a
violation of 30 C.F.R . ~75 . 200, on the ground that
Respondent violated its roof control plan by failing to put
up a warning sign to keep people from going under uns~pported
roof.

* Originally, the inspector issued an order under section
1 04(d) (2) of the Act , but at the hearing the Secretary
moved to convert the order to a section 104(d) (1} citation,
because a " clean 11 inspection had intervened before the
relevant inspection. The motion was granted.

1094

The case was heard in Pittsburgh, Pennsylvania.
Having considered the hearing evidence and the record
as a whole, I find that a preponderance of the substantial,
reliable, and probative evidence establishes the following:
FINDINGS OF FACT
1 . At all relevant times , Respondent ' s Maple Cr€ek No .
2 Mine , an underground coal mine , produced coal for sale or
use in or substantially affecting interstate commerce .
2 . On August 3l u 1983 u about 7 : 00 a . m. 6 Respondent gs
continuous miner operator made a cut 10 to 13 feet into No .
28 Room, on the midnight to 8:00 a.m. shift .
The continuous
miner operator failed to hang a reflectorized sign on the
· last row of roof bolts, to warn people not to enter the cut
area , which was unsupported roof . The cut was not roofbolted or otherwise roof-supported until approximate ly l 1/2
hours after the cut was made .
3 . Before the end of his shift, Jack Settles, the
midnight shift foreman , called outside and told Ron Franczyk ,
the next shift foreman, that he (Settles) expected to have
No. 28 room roof - bolted before the next s hift came into the
working section . However, a problem with the roof - bolting
operation occurred, and the cut area was not roof - bolted for
at least 1 1/2 hours and not until a Federal inspector
detected that the roof was not roof - supported and there was
no warning sign .
4. When the day shift crew came into the section , they
were accompanied by Federal Mine Inspector Joseph F. Reid
and Barry Armel, the union walkaround.
5. When Reid and Armel entered No . 28 Room, about 9:00
a . m. , the cut area was not roof - supported, a roof-bolting
machine was not in the room , and a reflectorized warning
sign was not in place.
6 . The preshift examination time, date, and initials
in Room 28 were placed there by the day shift foreman, who
knew when he inspected the room that the cut ar~a was not
roof-supported and that there was no warning sign . He did
not report the lack of a warning sign in his preshift
exa mination report and did not take any steps to have a
warning sign put up for his shift, until the inspector cited
a violation .

109 5

7.

The approved roof control plan, at page 12 , provided

that:
"A reflectorized warning device shall
be placed immediately outby each
unsupported area, and at all openings
leading to the unsupported area. Such
sign(s) shall be conspicuously placed
so any person entering such area can
observe the sign. "
8 . When Inspector Reid and Mr o Armel entered Room 2 8 ,
Armel almost walked under the unsupported roof , because
there was no warning sign, but Reid put out his arm and
stopped him from doing so .
DISCUSSION WITH FURTHER FINDINGS
Respondent does not dispute a violation of ·t he roof control plan , and therefore a violation of 30 C.F . R. §
75 . 200, but contends that it was merely a "technical violation 11
because (1) the midnight shift foreman planned to roof-bolt
the area immediately , and this would have been done but for
an unforseen problem with the roof - bolting operation, and
(2) during the time the sign was not there (about 1 1/2
hours) , no one was exposed to the roof and anyone who might
go into Room 28 knew that the area was unsupported and
therefore did not need a sign. In Respondent's view, "it
was simply a case of the man with the responsibility deciding
that the sign was superfluous based upon the facts available
to him at the time that the three people in the section were
fully aware of the condition of No. 28 room . ." Resp. 's Br.
p . 3. However , the area remained unsupported for about 1 1/2
hours , far longer than the continuous miner operator ' s
assumption as to when it would be roof-bolted , and two
persons went into the room that he did not anticipate being
there, i.e. Inspector Reid and the walkaround. The assumption
that a sign was not needed was u nwarranted and led to an
unwarrantable violation of the roof control plan and 30
C.F . R. § 75 . 200. The violation was an act of negligence ,
attributable to Respondent; the negligence was compounde d by
the d ay f oreman's pre shift examination , which e s tablished
ma nageme nt ' s actual knowledge of the missing sign and unsupported
roof.

1096

Respondent contends that the violation should not be
deemed serious, on the ground that no one was endangered.
However, I find that permitting unsupported roof without a
warning sign for 1 1/2 hours was a serious violation that
could significantly and substantially contribute to a serious
or fatal injury. The failure to put up a warning sign
endangered the walkaround and could easily have endangered a
larger inspection team; i t also presented a potential danger
to employees who might have been mislead by the conditions
to assume the whole roof in Room 28 was roof-bolted • . The
assumptions made by Respondent's employees in not complying
with the warning sign requirement are the kind that can lead
to a disaster or serious accident in mining . Safety standards
are there for the protection of personnel who go into the
mines; they are not there to be stretched or bypassed by
individual employees or by mine management.
Respondent produces about 11,000,000 tons of coal per
year and its Maple Creek No. 2 Mine produces about 760 , 000
tons of coal per year. Respondent is a large operator ; the
subject mine is large; a civil penalty otherwise appropriate
for the violation would not have an adverse effect on
Respondent's ability to continue in business.
It is presumed
that Respondent's compliance history at this mine is a least
average.. Respondent made a good faith effort to abate the
violation after i t was cited by the inspector.
Considering the criteria of section llO(i) of the Act
for assessing a civil penalty, I find that an appropriate
penalty for this violation is $1,000.
CONCLUSIONS OF LAW
1.

The Commission has jurisdiction in this proceeding.

2. On August 31, 1983, Respondent violated 30 C.P.R . §
75.200 as alleged in Citation No. 2105356.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay a
civil penalty of $1,000 within 30 days of this Decision.
'

C);J.t.~
~VIA.
William. Fauver
Administrative Law Judge
Distribution:

1097

Joseph T. Crawford, u.s. Department of Labor, Offi.ce of the
Solicitor, 3535 Market Street, Philadelphia, Pennsylvania
19104 (Certified Mail)
Louise A. Symons, Esq., u.s. Steel Mining Company , fnc .~ 600
Grant Street, Room 1580, Pittsburgh, Pennsylvania 15230
(Certified Mail)
kg

1098

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

JUL 2 61985
CIVIL PENALTY PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEAI,TH
ADMINISTRATION (MSHA) 1
Petitioner

Docket No. SE 85 - 43
A.C. No. 01-01247-03633
No. 4 Mine

v.

.

JIM \'1ALTER RESOURCES I INC. I
Respondent

DECISION
Appearances :

George D. Palmer , Esq. , Office of the Solicitor ,
u. s. Department of Labor , Birmingham , Alabama $
for Petitioner ; Harold D. Rice , Esq ., and
R. Stanley Morrow, Esq. , Birming ham, Alabama ,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Petitioner seeks a civil penalty for an alleged violation
of 30 C . F.R . § 77.1710(e), because two employees of a
contractor working on mine property were not wearing protective
footwear . Respondent denies liability for the violation
committed by an independent contractor. Pursuant to notice ,
the case r,,as heard in Birmingham , Alabama, on June 18, 1985 .
Ona L . Jones testified on behalf of Petitioner . Gary Nicosia
testified on behalf of Respondent. Both parties waived their
rights to file post hearing briefs. I have considered the
entire record and the contentions of the parties and make
the following decision .
FINDINGS OF FACT
Ther~ is no significant dispute as to the facts in t his case.
On July 18, · 1984, on the basis of a 103(g) complaint, the MSHA
inspector obse r v·ed two employees of the Dependable Dr:_lling .Company
working on the mine surface drill i ng a hole for a waterpipe

1099

from the surface into the mine . Neither of the employees
had protective footwear. They were handling a drill stem
weighing in excess of 100 pounds, and in the· j .udgment of
the inspecto r, protective footwear was required. This occurred
at about 6 : 30 a.m .
The Inspector did not have an MSHA
I.D . number fo r Dependable Drilling, and the MSHA office
"t-ras not open at . the time. He discussed the matter with
Respondent ' s Safety Director, who said that Dependable Drilling
did not have an MSHA I.D. number, and suggested that the
citation be issued to Respondent. The citation was issued
to Respondent.
It was later modified to show the contractor 9 s
I.D. number, but a penalty was assessed against Jim _Waltero
On December 2, 1981, Respondent entered into a 11 Blanket
Contract" with Dependable Drilling Company whereby the latter
agreed to perform work ~etailed on Purchase Orders issued ~y
Jim Walter. On May 31, 1984, such. a Purchase Order was
issued to the contractor to drill a hole according to certain
specifications for a fixed price. The terms of the December 2 u
1981 contrac~ were incorporated by reference in the purchase
Order. The pontract provides that the contractor shall have
"absolute and entire charge, control and supervision of the
work •
shall hire and discharge all workmen • •
the
contractor agrees to comply
o
•
with the requirements of
all statutes • o o and rules of all governing bodies o o • • ~
Jim Walter did not exercise any control over Dependable
or its employees except to make sure it was drilling the
hole according to the specifications in the Purchase Order.
The work on the contract began June 26, 1984, and was ·completed
August 10, 1984. This was the only work performed by Reliable
at the subject mine . The drilling was performed at a
point about 150 feet from Jim Walter 1 s s-afety office.
Jim Walters had a rule that hard hats and hard toed shoes
be worn on mine property , and it enforced the rule against
its employees .
o

•

o

0

The evidence does not establish that Jim Walter contributed
to the existence of the violation, nor that i t had control
over the existence of the hazard . No Ji~ Walter employees
were exposed to the hazard . The violation was abated on
the same day the citation was issued when Dependable's
employees obtained and were wearing hard-toed footwear.
ISSUE
Whether-- the citation was properly issued to Resl?ondent,
the " production-o·perator"?

1100

CONCLUSIONS OF LAW
In the case of Secretary v. Cathedral Bluffs Shale Oil
Company, 6 FMSHRC 1871 (1984}, appeal docketed,
No. 84-1492 (D.C. Cir. 1984), the Commission held that citing
the production qperator for a violation arising from the
work activities of an independent contractor was improper
in the absence of exposure to the hazard by the employees
of the production operator, or control over the condition that
needs abatement by the production operator~ That decision
is controlling here: Respondent 1 s employees were not even
minimally exposed to the hazard, and there is no evidence
that it had any control over the condition which needed
abatement: obtaining and requiring the. contractor i s
employees to wear hard-~oed shoes "
The Secretary ar.g ues that admini.strat~ve conyen;i..ence
justified citing the production-ope~ator: The inspector
did not know whether the contractor had an MSHA I.D. number .
He also argues that in these circumstances , the Secretary
had discretion to cite the -operator ; the contractor 9 or both.
These arguments :pave been rejected by the Commissi.on .
I conclude that the citation was improperly issued to Respondent .
ORDER
Based upon the above findings of fact and conclusi.ons
of law, citation no. 2482404 issued July 18, 1984 is VACATED,
and the penalty proceeding based on the citation is DISMISSED.

tf,tli~WZ..S ~1Jd/..1rtJ/i_;

j

James A. Broderick
Administrative Law Judge

Distribution:
George D. Palmer, Esq.,. U.S. Department of Labor, Office of
the Solicitor, 1929 9th. Aye. South, Bir~~ngham, AL 35256
(Certified Mail)
R. Stanley Morrow, Esq., Harold D. Rice, Esq., Jim Walter
Resources, .Inc., P.O. Box c-79, Birmingham, AL 35283
(Certified Mail)
H. Gerald Reynolds, Environmental Counse.l, Jim Walter Corp.,
P.O. Box 22601, Tampa, FL 33622 (~ertified H~il}
slk

1101

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

JUL2 91985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
:

Docket No. KENT 84 - 198
A.C. No. 15 - 12977-03508

v.
KING JAMES COAL COMPANY , INC. g~
Respondent

Docket No . KENT 84 - 199
A. C . No. 15-12977-03510

SUMMARY DECISIONS AND ORDERS
Before :

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed
by the petitioner against the respondent pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977,
30 u.s . c . § 820(a) , seeking civil penal ty assessments in the
amount of $236 for eight alleged violations of certain mandatory safety standards found in Part 75 ·, Title 30 , Code of
Federal Regulations.
These cases have been pending in the Commission since
Au gust, 1984 , and they were recently reassigned to me for
adjudication .
In view of the respondent's failure to communicate with the petitioner ' s counsel concerning its present
whereabouts, and its failure to submit certain documentat ion
concerning its financial condition , I issued an Order on
June 13 , 1985 , requiring the parties to show cause as to why
the respondent should not be held in default and the cases
disposed of b y summary order pursuant to 29 c.-F.R. § 2700 . 63,
assessing MSHA's proposed civil penalties as final .
Discussion
The respondent has failed to respond to the pet itioner's
request to furnis~ information concerning its financial condition , and has also failed to respond to my previous order
concerning the proposed disposition of these cases. Under
the circumstances , I conclude and find that the respondent is
in default , and that these proceedings may be disposed of
pursuant to the Commission ' s summary disposition procedures
found in 29 C . F.R. § 2700.63.

1102

ORDER
In view of the respondent's default, and pursuant to the
provisions of 29 C.P.R. § 2700.63(b}, the respondent is assessed
civil penalties for the violations in question, as follows:
KENT ·8·4-T98
·c itat·io·n No.

Date

30 C.P . R. Section

Assessment

2294251
2294252
2294254
2294255
2294256
2294257
2294258

2/23/84
2/27/84
2/27/84
2/27/84
2/27/84
2/27/84
2/27/84

75 . 316
75.1722(b)
75.313
75.1719-l(d)
75.1100-2(e) (2 )
75.1101
75.400

$ 20

Ci t ·ation No .

na·t e

30 C.P.R. Section

Assessment

2294253

2/27/84

75.1719-l(d)

$ 20

39
20
20
39
39
39
$216

KENT '84-'1'99

Respondent. IS ORDERED to pay civil penalties in the amounts
shown above for the violations in question, and payment is to be.
made to the petitioner within thirty (30) days of the date of
this order.

~~.ldi~

Administrative Law Judge

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, u.s. Department
of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Mr. Sherman L. Green, President, King James coal company, Inc.,
Route 1, Box. 7..-c, Sidney, KY 41564 (Certified Mail)
Mr. Jimmie Coleman~ King James Coal Company, Inc., Route l,
Box 7-c, Sidney, KY 41564 (Certified Mail)
/fb

1103

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

July 29, 1985

JAMES 0. TURNER,
Complainant

v.
CHANEY CREEK COA L COMPANY ?
Respondent

DISCRIMINATION PROCEEDING
Docket No. KENT 84-201-D
BARB CD 84 - 26

ORDER OF DEFAULT
On July 13? 1984 ~ Complainant filed a Compla i nt of discrim ination against you based on section 105(c) of the Federal Mine
Safety and Health Act of 1977 . On August 7 ~ 1984~ you were
Ordered to file your Answer to the Complaint or show good cause
for not doing so. No Answer has been received .
Since you have not respo nded to the Order to Show Cause,
judgment by default shall enter in favor of the Complainant.
The Compla i nant is also ORDERED to submit a detailed state ment describing the relief to which he believes he is entitled.

"

Law J udge
Dis t r ibut i on:
Mr. James 0. Turner, Rt. 1, Box 267, Bax t er, KY
(Certified Mai l )

40806

Cha ney Cr eek Co al Compa ny , P. 0. Bo x 282, Manc he ster, KY
(C ert i fied Mail)

1104

409 62

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

JUL 301985

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

CIVIL PENALTY PROCEEDING

v.

Cooper No . 2 Prep. Pl ant

Docket No. PENN 82-91
A.C. No. 36-03247-03021

BRADFORD COAL COMPANY, INC .,
Respondent
DECISION APPROVING SETTLEMENT
Before :

Judge Fauver

This case is before me upon a petition for assessment
of civil penalty under section .lOS(d) of the Federal Mine
Safety and Health Act of l977 u 30 u.s . c . 80l q et seq . Peti tioner
has filed a motion to approve a settlement agreement and to
dismiss the case . I have considered the representations and
documentation submitted, including the hearing transcript
and exhibits, and I conclude that the proffered settlement
is appropriate under the criteria in section llO(i) of the
Act.
ORDER
WHEREFORE IT IS ORDERED that the motion for approval of
settlement is GRANTED and Respondent shall pay the approved
penalty in the amount of $16 within 30 days of this Decision.
Upon such payment this proceeding is DISMISSED~

WJ.t.:........
::r-~ VU\...
William Fauver
Administrative Law Judge
Distribution:
Joseph T. Crawford, Esq., u.s. Department of Labor, Office
of the Solicitor, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail) .
William C . . l{riner, Esq., Kriner and Koerber, Attorneys at
Law, 110 North Second Street, P.O. Box 1320, ~learfield, PA
16830 (Certified Mail)
kg

1105

FEDERAL MIN'E SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE 11\W JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 3 0 1985
DISCRIMINATION PROCEEDING

BENEDICT J. STRAKA,
Complainant

Docket No . PENN 85-231-D

v.
CONSOL PENNSYLVANIA COAL
COMPANY ,
Respondent

·:

PITT CD 85-6

.

Bailey Mine

0

DECISION
Before:

Judge Fauver

This proceeding was brought by Benedict J. Straka under
section 105(c} of the Federal Mine Safety and Health Act of
1977 , 30 u.s.c. § 801 et ~ The Complaint states the
following:
Sometime in February, 1984, I filed an
employment application with Consolidation
Coal Co., at the Bailey Mine • . Sometime
in August of 1984 (either the 22nd to
the 27th) , I took an employment test.
(aptitude test). To my knowledge I
passed this test. Since August of
1984, this company has continued to
hire coal miners, by January of
1985, there were approximately 130 men
employed there.
My complaint is this. I believe I am
being discriminated against, because I
had previously worked for Consolidation
Coal at the Laurel Mine in Central
City and having belonged to the union
therein (Local UMW 1979}. The Bailey
mine at which I applied for employment
is·being operated as a non-union mine.

1106

It is my belief that this mine is to
remain non-union by hiring only nonunion miners and people who have a union
mining background stand little chance
of employment at the Bailey mine unless
~f black or female origin.
On March 19th, I spoke to a man named
Carl Mikolish. He has a brother-in-law
named William Rosner . Mr. Rosner was my
supervisor at times at the L~urel Mine .
He was one of three shift maintainence
foreman at the Laurel Mine, when it was
operating. According to Carl Mikolish ,
Bill Rosner applied for work at the
Bailey mine at the early part of March~
1985. The following week, he was given
a pre- employment interview, a week after
that he was scheduled for a physical
exam.
He began working sometime during
the week of March 19 to the 23rd. He
began working at the Bailey mine as a
general inside laborer.
I held the job
of general inside laborer at the Laurel
Mine the last two years I worked there.
Pursuant to section 105(c) (2) of the Act, Mr. Straka
first filed a complaint with the Secretary of Labor (Mine
Safety and Health Administration). After investigation, the
Secretary found that no violation of section 105(c) had
occurred. Mr . Straka then exercised his right to file a
complaint before this independent Commission .
Respondent has moved to dismiss the Complaint for
failure to state a claim for which relief can be granted
under section 105(c) (1) of the Act .
·-section 105 (c) (1) of the Act provide:
(c) (1) No person shall discharge or
in any manner discriminate against or cause
to be discharged or cause discrimination against
or otherwise interfere with the exercise of the
statutory rights of any miner, representative
of miners or applicant for employment in any
coal or other mine subject to this Act because
such miner , representative of miners or applicant
for employment has filed or made a complaint
under or related to this Act , including a
complaint notifying the operator or the operator ' s

1107

agent , or the representative of the
miners at the coal or other mine of
an alleged danger or safety or health
violation in a coal or other mine, or
because such miner , representative of
' miners or applicant for employment is
the subject of medical evaluations and
potential transfer under a standard
published pursuant to section . 101 or
because such miner, representative o f
miners or applicant for employment has
instituted or caused to be instituted
any proceeding under or related to this
Act or has testified or is about to
testify in any such proceeding, or
because of the exercise by such miner,
representative of miners or applicant
for employment on behalf of himself o r
others of any statutory right afforded
by this Act .
I agree with the motion to dismiss . The Complaint does
not allege or indicate that Mr . Straka was in any manner
discriminated against because of an activity covered by
section 105("c) (1) of the Act or that his exercise of a right
afforded by the Act was interfered with in any way.
ORDER
WHEREFORE IT IS ORDERED that Respondent '.s Motion to
Dismiss is GRANTED and this proceeding is DISMISSED.

U};ft.._·... .. ':1-M-4. v ~

William Fauver
Administrative Law Judge

Distribution:
Mr . Benedict Straka , 44 Walter Street , Jenners, PA 15546
(Certified Mail}
Karl T . Skrypak, Esq. , Consol Pennsylvania Coal Company ,
1800 Washington Road , Pi·ttsburgh, PA 15241 (Certified Mai l )

kg

1108

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

JUL 311985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF CHRIS STEUER, :
Complainant

.

v.

0

DISCRIMINATION ~ROCEEDING
Docket No. LAKE 85-73-DM
MD 84-36
Cliff Sand & Gravel Wash
Plant

CLIFF SAND & GRAVEL , INC. o
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On July 25 and July 29, the Secretary filed a Motion
to Dismiss and approve a settlement in the above proceeding .
The complaint filed herein alleged that complainant Chris
Steuer was discharged from his position with respondent on
August 14, 1984 in violation of section 105(c) of the Act.
The motion states that complainant Chris Steuer has
returned to work for another employer and that he lost
approximately one week of wages after his discharge from
Respondent. Mr. Steuer does not wish to be reinstated at
Respondent. Respondent has agreed to pay Mr. Steuer the
sum of $1,000 as lost wages and the Solicitor has received
a check made out to Mr. Steuer in that amount, less FICA
deductions.
~
Respondent has agreed to post a notice at its offices
that it supports section 105(c) (1) of the Act; Respondent
has stated that i t will not discriminate against any employee
for activity protected under the Act; Respondent states that
none of the personnel records of Chris Steuer contain any
reference to the incidents of August 14, 1984 set forth in
his compl~int and no such reference will be inserted in the
future. The Secretary waives his right to request the
assessment of a'civil penalty for the alleged violation.

1109

I have duly considered the motion and conclude that
it is in the best interest of the complainant and is consistent
with the purposes of the Act.
Therefore, the settlement agreement is .AP?ROVED, and
this proc.eeding is DISMISSED.

~vttr.e-5 ~.z;c:£~~~·

~

James A. Broderick
.
Admi.nistrative Law Judge

Distribution:
Miguel J . Carmona 1 Esq o; U.S. Department ot Labor u Office
of the Solicitorg 230 South Dearborn St. , Chicago, IL 60604
{Certified Mail)
William R. Leser~ Esq~, 309 Davidson Bldg. , P.O. Box 835 ,
Bay City ~ MI 48707 (Certified Mail}

Mr . Chris Steuer, 11094 South .Billman Road, Roscommon, MI
48653 (Certified Mail)
slk

1110

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

SOUTHERN OHI'O COAL COMPANY,
Contestant

JtJL31198S

CONTEST PROCEEDING
Docket No . WEVA 85-69 - R
Citation No. 2412582 ~ 12/ 14/84

v.

Martinka No . 1 ~ine

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

ORDER VACATING CITATION
AND DISMISSING PROCEEDING
Before ~

Judge Broderick

On July 29 , 1985 , the Secretary filed a " motion to wit hdraw" the citation contested herein . The citation was issued
for a violation of section 103(f) because of the failure
of contestant to pay the two UMWA walkaround representativ~s
for the time they accompanied MSHA inspectors during an
inspection of the subject mine. Further investigation
revealed that the two inspectors were travelling together,
and therefore only one walkaround representative need be
paid. The citation is being vacated by MSHA.
Therefore, the above proceeding is moot and this case
is D-ISMISSED.

}~5 .4//Jvodt-1/l&i.__

1

James A. Broderick
Administrative Law Judge

Distribution:
David A. Laing, Esq . , Alexander, Ebinger, Fisher, McAlister
& Lawrence, 1 Riverside Plaza, 25th Floor, Columbus , OH
43215 (Certified Mail)
V. Swirsky, Esq. , u.s. Department of Labor, Office of
the Solicitor, 3535 Market St., Philadelphia, PA 19104
(Certified Mail)

M~rk

David M. Cohen, Esq., American Electric Power Service Corp.,
P.O. Box 700, Lancaster, OH 43130 (Certified Mail)
slk

~U.S. GOVERNMENT PRINTING OFFICE:

1111

19 85

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