r'

FEBRUARY 1985
Commissi on Decisions
02- 04-85
02- 04- 85
02 - 13-85

UMWA/Rowe, et.al. v . Peabody Coal Co .
Youghiogheny & Ohio Coal Company
Old Ben Coal Company

KENT 82- 103-D
LAKE 83- 86
LAKE 83-50-R

Pg . 197
Pg . 200
Pg . 205

LAKE 84-106
WEST 81-338-M
KENT 83- 283-D
CENT 84-39
WEVA 84- 353- R
VA
84-25-D
\VEVA 84-65-C
WEST 82-204-H
KENT 83-39
SE
83-51
KENT 84- 27
WEST 82-144-RM
KENT 83-155-D
CENT 84-26- M
WEST 84-49-M
WEST 84-50- M
WEST 84-51-M
WEST 84- 54- M
YORK 84-15-DM

Pg. 213
Pg . 215
Pg . 219
Pg. 231
Pg. 232
Pg. 234
Pg. 236
Pg. 243
Pg . 245
Pg. 263
Pg. 266
Pg. 269
Pg. 272
Pg. 287
Pg . 289
Pg. 293
Pg . 295
Pg. 297
Pg. 299

Administrative Law Judge Decisions
02-01-85
02-01-85
02-12-85
02-12- 85
02-13- 85
02 - 13-85
02-15-85
02-15- 85
02-19-85
02- 22-85
02-25-85
02-25-85
02-26-85
02-27- 85
02-27- 85
02- 27-85
02-27-85
02 - 27- 85
02 - 28-85

Zeigler Coal Company
Creole Mining, Inc .
John C. Gross v. Leeco, Inc.
Peabody Coal Company
Monument Mining Corporation
MSHA/Sam Griffith v. Bowman Coal Co . , Inc.
UMWA v . Pine Tree Coal Company
Fair Chance Mines, Inc.
W R W Corporation
Jim \llal ter Resources, Inc.
Mitch Coal Company, Inc.
U. S. Borax & Chemical Corporation
Robert Simpson v. Kenta Energy, Inc.
Specialty Sand Co., Inc .
Western Rock Products Corp .
Western Rock Products Corp.
Western Rock Products Corp .
Western Rock Products Corp.
Marion Adams v . J.L . Ov1ens , III Contr . ,
a/k/a Eastern Aggregates, Inc.

.·

FEBRUARY
The Commission did not direct any new cases during the month of February.
Review was denied in the following case during the month of February:
Secretary of Labor , MSHA on behalf of Larry Duty v. West Virginia Rebel
Coal Company, Docket No. KENT 83-161-D, KENT 83-232-D . (Judge Broderick,
January 18, 1985) .

COMMISSION DECISIONS

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

February 4, 1985
UNITED MINE t~ORKERS OF AMERICA
(UMWA)

on behalf of
JAMES ROWE, et. al. 9
JERRY D. MOORE
and
LARRY D. KESSINGER

Docket Nos. KENT 82- 103-D
KENT 82- 105- D
KENT 82-106-D

v.
PEABODY COAL COMPNAY
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of
THOMAS L. WILL IANS

v.

Docket No . LAKE 83-69-D

PEABODY COAL COMPANY
ORDER
On December 27, 1984, the Secretary of Labor filed a motion ~-lith the
Commission to dismiss or vacate a portion of the direction for review in
these consolidated discrimination cases. The Secretary's motion states
that respondent Peabody Coal Company ("Peabody") and Thomas L. Williams,
the individual complainant in Docket No . LAKE 83- 69- D, have entered into
a written agreement settling the issue of Peabody ' s liability to Mr. Williams
for monetary damages. A copy of the signed settlement agreement is appended
to the Secretary's motion .
The settlement agreement recites that it "does not constitute an admission by Peabody of any vio l ation of section 105(c) of the Federal
Mine Safety and Health Act of 1977." The Secretary requests that the
Commission dismiss or vacate only that portion of the direction for
review in Docket No. LAKE 83- 69-D pertaining to Peabody's liability for
damages to Mr. Williams . The Secretary emphasizes that the granting of
his motion would not affect Commission consideration of the other issues
presented in this docket--namely, whether a violation of section lOS(c)
of the Mine Act occurred and, if so, the appropriate civil penalty to be
assessed.

Because Peabody had not joined in signing the dismissal motion and
the Commission wished to ascert ain whether the parties were in agreement
as t o the limited scope of the dismissal sought, the Commission , on
January 9, 1985, ordered Peab?dy ,. to file a response to the Secretary's
motion . On January 18, 1985 , Peabody filed its response . Peabody
indicates that it joins in the Secretary ' s request to vacate the
direction for review "so as to indicate that the issues involving
Respondent ' s liability to Mr. Williams for damages ••• have been settled
and are no longer the subject of review."
Upon consideration of the Secretary's motion, Peabody's response
thereto, and the underlying settlement agreement, we grant the Secretary~ s
motion. The direction for review in Docket No. LAKE 83-69-D is di smissed
and vacated only insofar as it pertains to the issue of Peabody' s l i ability
to Mr . Williams for monetary damages . The other issues presented in that
docket are not affected by today's order, and remain for our review and
decision.

James A .

Las~ow~

~

1H8

Commissioner

Distr ibution
Dennis D. Clark, Esq.
1100 17th St. , N. W.
Suite 800
Washington, D. C. 20036
Mary Lu. Jordan, Esq.

UMW4
900 15th St ., N. W.
Washington, D.C. 20005
Michael 0 . McKown , Esq .
Peabody Coal Company
P.o. Box 373
St. Louis , Missouri 63166
Li nda Leasure, Esq .
Office of the Solicitor
U.S. Department of Labor
4015 t.J'ilson Blvd.
Arlington, Virginia 22203

1S9

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

February 4, 1985

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

v.

Docket No. LAKE 83- 36

YOUGHIOGHENY & OHIO COAL COMPANY
DECISION
This civil penalty case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1982). The Secretary of
Labor has filed a motion to dismiss the proceeding and to vacate the
underlying .citation alleging that Youghiogheny & Ohio Coal Company
("Y&O") violated 30 C.F . R. § 75 . 308. a methane control standard . 1/ y (;,Q
does not oppose the motion . The Secretary filed t he dismissal motion
after we granted Y&0 9 s petition f or discretionary revie~v of a Commission
administrative law judge's decision concluding that Y&O had violated the
standard. 5 FMSHRC 1581 (September 1983)(ALJ). For the reasons that
follow, we grant the Secretary ' s motion.
1/
30 C.F.R. § 75.308, entitled "Methane accumulations in face a r eas ,"
is identical to section 303(h)(2) of the Mine Act , 30 U. S. C. § 863(h)(2) ~
and provides:
If at any time the air at any working place, when tested at a
point not less than 12 inches from the roof, face, or rib, contains
~.0 volume per centum or more of methane, changes or adjustments
'shall be made at once in the ventilation in such mine so that such
air shall contain less than 1.0 volume per centum of methane .
While such changes or adjustments are underway and until they have
been achieved, power to etectric face equipment located in such
place shall be cut off, no other work shall be permitted in such
place, and due precautions shall be carried out under the direction
of the operator or his agent so as not to endanger other areas of
the mine. If at any time such air contains 1 . 5 volume per centum
or more of methane, all persons, except those referred to in section
104[(c)] of the Act, shall be withdrawn from the area of the mine
endangered thereby to a safe area , and all electric power shall be
cut off from the endangered area of the mine, until the air in such
working place shall contain less than 1.0 volume per centum of
methane.

2.0 0

The relevant facts are essentially undisputed. On July 19, 1982,
during a roof control inspection of Y&O's Nelms No. 2 underground coal
mine located in Harrison County, Ohio, an inspector of the Department of
Labor's Mine Safety and Health Administration ( "MSHA") issued Y&O an
imminent danger order of withdrawal pursuant to section 107(a) of the
Mine Act. 30 U.S.C. § 817(a). The order, which also alleged a
violation of section 75.308, was issued by the inspector after he took a
methanometer test showing a 5% level of methane in the E entry, an area
immediately adjacent to the main working section.
The inspector had arrived on the main working section during the
day shift about 9:00a.m. , and had issued the withdrawal order at 10:45
a.m. Following a roof fall in the E entry during the previous shift,
Y&O had abandoned the E entry and dangered it off shortly before the
inspectorqs actions. Because of the abandonment , Y&O had begun cutting
coal in the crosscut approximately 40 feet from the E entry . To provide
air to the face of the new mining area, an auxiliary fan ,.,as employed.
Use of the auxiliary fan required extending the fan tubing into the
crosscut. The inspector testified that the position of the auxiliary
fan and the extended tubing caused air to bypass the E entry, permitting
methane to accumulate in the entry .
The section foreman had taken a methane reading in the E entry a t
the beginning of the day shift, about 8:40-8:45 a.m., before turning on
the power in the section. He testified that at that time the methane
level was below 1%, and that he had found everything normal except for
the roof fall. Some 20 minutes or more before the inspector's methanometer test, the foreman had also taken a second methane reading in the
E entry, showing a methane level of .2%.
In addition to the methanometer reading, the inspector took an ai~
sample, a more accurate measure of the concentration of methane. After
laboratory analysis, the air sample showed a methane level of 6. 34%.
The inspector testified that the methane level in the E entry was
potentially explosive, and could cause death or serious injury. Nelms
is a gassy mine with a history of previous ignitions and is on a fiveday inspection cycle pursuant to section 103(i) of the Mine Act. 30
u.s.c'. § 813(i).
At the time the inspector found the excessive methane concentration,
electrical equipment--the continuous miner, the shuttle cars, and the
auxiliary fan--was operating and eleven miners were working in the
section. Upon issuance of the withdrawal order, the operator immediately
turned off the fan and the continuous miner, stopped mining operations,
removed all miners from the affected area, except those needed to abate
the hazardous condition, and took precautions not to endanger other
areas of the mine. The inspector terminated the citation at 11:50 a . m.,
after the operator had reduced the methane level below .1%.
The only issue litigated by the parties below and considered by the
judge was whether Y&O had violated section 75.308 . The operator did not
challenge either the existence of an excessive level of methane or the
presence of an imminent danger. Y&O argued that section 75.308 requires
an operator to take specific remedial actions once concentrations of 1%
or more of methane are found, and that an operator violates the standard

2.Gl

only if it fails to so act upon becoming aware of the presence of 1% or
more of methane. Y&o'contended that because it took the actions specified
in the standard, as soon as it became aware of the methane accumulations,
it had not violated section 75.308. The Secretary argued below that
regardless of whether Y&O had taken the actions required by section
75 . 308 upon the discovery of excessive methane, Y&O violated the standard
because its foreman had inadequately monitored for methane and th~reby
negligently allowed the methane to accumulate to an explosive level .
The administrative law judge concluded that Y&O ' s fail ure to t~ke
"necessary and reasonabi e steps to control and dissipate methane concentrations before they reached the explos i ve range" constituted a violation
of section 75.308. 5 FMSHRC at 1584 (emphasis in original) . The j udge
reasoned that because Congress intended to prevent methane accumulations ,
it was "not enough that a mine operator take steps to eliminate explosive
levels of methane after they are found by an inspector and a withdrawal
order is issued . " 5 fl1SHRC at 1585 (emphasis in orginal) . I n the
judge ' s view, the presence of certain conditions--either a l one or in
combination--require an operator to take extra precautions to prevent
methane from reaching explosive levels: (1) if a mine liberates excessive
methane; (2) if there is a recent roof fall ; or (3) if there is an
abandoned area near the working face . Id . The judge found that a ll of
these factors were present at the time Of the citat i on, that Y&O was
aware of them, and that Y&O knew or should have known that the pl acement
of the fan and tubing would short-circuit the air to the abandoned
entry. Id. Based on these findings, the judge concluded that Y&O's
failure to take necessary and reasonable steps "to assure that there
would not be a methane buildup in entry E" constituted a violation of
the standard. 5 FMSHRC at 1585-86. The judge also found that the
foreman checked for methane at the beginning of the shift, and once
again some 20 minutes before the inspector arrived, when he found a
concentration of about . 2%. 5 FMSHRC at 1582.
The Secretary's motion to dismiss the proceeding and to vacate the
citation asserts that on the facts as found by the judge ·~o violation
of 30 C.F.R. § 75.308 can be proved. " The Secretary states that "the
judge found that [the foreman] had checked the methane concentration in
the affected area only 20 minutes before the inspector performed his
test , " and that there is " probably sufficient evidence in the record to
support [this finding.]" The Secretary does not , however, set forth his
position with respect to the judge's interpretation of the standard--that
conditions existed which required Y&O to take extra precautions to
prevent methane from r eaching explosive levels and that when Y&O failed
to take these precautions and methane reached explosive levels , it
violated the standard. 2/
2/
The Secretary asserts, however , that in his view the evidence might
have established a violation of 30 C.F . R. § 75 . 301 (requiring operators
to maintain a "volume and velocity of air .• • sufficient to . .• render
harmless and •• • carry away ••• harmful gases") and, posslbly , of 30
C.F.R. § 75 . 316 as well (requiring operators to comply with their approved
ventilation plans), but that it is too late in this proceeding to amend
the citation to allege such violations. Sec ' y Mem. at 5.

202

Y&O does not oppose the Secretary ' s dismissal motion . Thus , this
case comes to us in an unusual procedural posture--the prevailing party
below seeks now to have the decision in his favor vacated .
Our responsibility under the Mine Act is to ensure that a contested
case is terminated, or continued, in accordance with the Act . Climax
Molybdenum Co . , 2 FMSHRC 2748, 2750- 51 (October 1980) , aff ' d sub nom.
Climax Molybdenum Co. v. Secretary of Labor, 703 F. Zd 447 (lOth Cir •.
1983). For that reason, we do not automatically grant motions to vacate
citations that have been contested and thereby placed before the Commission for decision. See 30 U.S.C. § 815(d). Such motions are granted
only where adequate reasons to do so are present . Kocher Coal Co .,
4 FMSHRC 2123, 2124 (December 1982).
We conclude that adequate reasons exist in the present case .
First, there is no longer a true adversarial contest suitable for
judicial resolution. The Secretary, who is charged by the Mine Act with
the responsibility of prosecuting civil penalty actions, has by his
motion indicated that he no longer wishes to participate actively as a
party . Further, the Secretary has not informed us as to what, in his
view , is r equired for compliance with the standard. The failure of the
Secretary in this regard is significant. Section 75 . 308 is one of a
series of standards, critical to mine safety , aimed at methane detection
and control . To construe this important standard without adversarial
argument and without benefit of the views of the party charged with its
enforcement \vOuld be contrary to principles of sound j udicial administration. See Climax Holybdenum Co . v. Secretary , 703 F.2d at 451-52.
Second, Y&O did not respond to the Secretary's motion to dismiss
this proceeding. Y&O could have repeated its r equest for a decision on
the merits. We interpret Y&O's silence as acquiescence in the Secreta r y ' s
motion. Nor has Y&O requested declaratory relief pursuant to section
lOS(d) of the Mine Act, 30 U. S.C. § 815(d), and s e ction 5(d) of the
Administrative Procedure Act, 5 U. S.C . § 554(e), asserting that it faces
a continuing legal dilemma in being forced to act at its peril absent an
interpretation of section 7 5. 308. ~· Climax Molybdenum , 2 FMSHRC at
2752- 53; and Climax Molybdenum Co. v . Secretary, 703 F.2d at 452-53.
Third, even in the face of the Secretary's motion to vacate and
Y&O's silence, we could decide this case on the merits if , in our view,
the public inter est demanded such a course. However, no third party
asserts, and it does not otherwise appear from our revie~v of the record ,
that such action is necessary in this case. Rather , the Secretary's
motion appears to be based upon a bona fide belief that he lacks the
evidence to prove a violation and perhaps upon confusion as to the
proper standard under which to proceed in the circumstances presented.
Finally , vacation of the underlying citation requires vacation of
the judge's decision affirming the citation. Thus , dismissal of this
proceeding will not prejudice Y&O, because. the vacation of the citation
and the judge's decision will expunge the violation and the penalty , and
negate the possibility that the violation charged will become part of
its history of previous violations. In short , no prejudicial collateral

20 3

consequenc,es will arise from our granting the Secretary's motion.
Robinson v·. Rodgers, 481 F. 2d 1110, 1112 (D.C. Cir. 1973) .

Cf.

For all of these reasons, the Secretary's dismissal motion is
granted. The citation contained in the order of withdrawal alleging a
violation of section 75.308 is vacated, as is the judge's decision, and
the civil penalty proceeding is dismissed.

,

a~es A. La~ t~

~n,

Distribution
Robert C. Kota, Esq .
Youghiogheny & Ohio Coal Company
P.O. Nox 1000
St. Clairsville, Ohio 43950
Michael McCord, Esq.
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church, Virginia 22203

204

Commissioner

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

February 13, 1985

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSl~)
Docket No. LAKE 83-50-R

v.

OLD BEN COAL COMPANY
DECISION
This proceeding arises under the Federal Mine Safety and Health Act
of 1977 9 30 U. S. C. § 801 et ~· (~982). The quest ion presented is
whether an operator that has contested the allegation of violation in a
citation is precluded f r om pur suing that contest by choosing to pay t he
civil penalty subsequently proposed for the violation. The Commission 9 s
administrative law judge concluded that, under the circumstances of this
case , Old Ben Coal Company ' s payment of the pr oposed penalty extinguished
i t s right to continue its pr eviously filed contest of the citation. On
the bases explained below, we affirm.
On January 31 , 1983, an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued Old Ben a citation
alleging that it had violated 30 C.F.R. § 77 . 1401, a mandatory safety
s t andard , by hoisting men wi th a crane that had an inoperable overwind
devi ce. 1/ Old Ben abated the alleged violation wi t hin the time required
by the inspector.

);/

30 C.F . R.
provides:

§

77.1401, entitled "Automatic controls and br akes,"

Hois t s and elevators shall be equipped with overspeed, overwind,
and automat ic stop controls and with brakes capable of stopping the
elevator when fully loaded .

205

On March 2 , 1983, Old Ben filed a notice of contest of the citation
pursuant to section lOS(d) of the Mine Act. 2/ In its contest, Old Ben
denied the violation of 30 C.F . R. § 77 . 1401.- The Secretary answEred on
March 21, 1983, asserting that the citation properly described a violation
of 30 C.F.R. § 77.1401 . The parties submitted the case to the administrative law judge on the basis of stipulated facts and legal briefs; no
hearing was held.
On March 23, 1983, pursuant to sections lOS(a) and llO(a) of the
Mine Act, MSHA's Office of Assessments mailed to Old Ben a notice of
proposed assessment of civil penalties for four violations, including
the violation at issue here . 3/
A penalty of $192 was proposed for Old
Ben's alleged violation of 30-C .F.R. § 77.1401.
2/

Section lOS(d) states in part:
If, within 30 days of receipt thereof, an operator of a
mine
notifies the Secretary that he intends to contest the issuance • o o
of an order issued under section [104], or citation or a notification
of proposed assessment of a penalty issued under [section lOS] (a)
or (b) • •. ,or the reasonableness of the length of abatement time
fixed in a citation • •• issued under section [104]. the Secretary
shall immediately advise the Commission of such notification, and
the Commission shall afford an opportunity for a hearing • o o ' and
thereafter shall issue an order o••• affirming, modifying, or
vacating the Secretary's citation, order, or proposed penalty, or
directing other appropriate relief.
000

30 u.s.c. § 815(d).

11

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

30 U.S . C. § 81S(a).
Section llO(a) states in part:
The operator of a • • • mine in which a violation occurs of a
mandatory health or safety standard •.• shall be assessed a civil
penalty by the Secretary which penalty shall not be more than
$10,000 for each such violation .
30 U.S.C. § 820(a) .

'; 6
, -~

t:..-C

Old Ben did not contest the proposed assessment of penalties.
Instead, on April 5, 1983, Old Ben submi tted a check to MSHA for the
total amount of the penalties proposed. The letter from Old Ben ' s Law
Depar tment that accompanied the check stated that the check was issued
"in full payment and settlement of the violations as shown on the
voucher •••• " (emphasis added). The voucher also read, in part,
"In full payment and settlement of the following violations:
[30
C. F . R. §J 77.1401." Subsequently, on May 12, 1983 , the Secretary filed
a motion to dismiss Old Ben ' s contest of the citation . Noting that the
civil penalty proposed for the alleged violation had been paid in full ,
the Secretary ' s motion stated that "such payment of civil penalty moots
the notice of contest and constitutes an admission by the (c]ontestant
that the conditions al l eged in the citation [constituted] a viol ation •• • • n
Secretary ' s Motion 1 .
In granting the Secretary 7 s motion , the judge relied primarily on
section lOS(a) of the Mine Act . The j udge reasoned that section lOS(a)
" clearly stat es that i f no formal protest i s made of the issuance of the
proposed assessment 'the citation and the proposed assessment of penalty
shall be deemed a final order of the Commission and not subject to review.' "
Slip op . at 2 (August 30 , 1983)(ALJ)(unpublished decision)(emphasis in
original) • The judge concluded that Old Ben 9 s right to have the ci ta·tion
at issue reviewed on the mer i ts was " f orfei ted " ~.,rhen it fa i led t o cont e s t
the Secretaryt s proposed penalty asse ssment within the 30-day period
provided by section l05(a). Id . 4/ Accordingly , the judge granted t he
Secretary ' s motion and dismissed the proceeding.
On review, Old Ben argues that section 105(d) of the 11ine Act
grants operators an immediate right to contest a citation and the right
to continue that contest regardless of a later payment of the subsequently proposed penalty . Thus, according to Old Ben, an operator that
has contested a citation pursuant to section 105(d) can choose not to
contest the proposed penalty , but pay the penalty and continue to pursue
its contest of the citation. The Secretary responds that an operator
cannot continue its contest of a citation if it pays a proposed penalty .
The Secretary argues that payment of a proposed penalty is an admission
of the cited violation underlying the penalty . Like the judge, the
Secretary rel ies heavil y on the language in section lOS(a) of the Act
that failure to contest the penal ty proposed for the cited violation
results in the citation and penalty being "deemed a final order of the
Commission • . • not subject to review by any court or agency."
In Energy Fuels Corporation, 1 FMSHRC 299 (May 1979) , the Commission
held that section lOS(d) of the Mine Act permits a mine operator to
contest an abated citation before the Secretary proposes a penal ty for
the violation. We recognized that an operator woul d , in some circumstances , need an immediate hearing \~ith respect to a citation. 1 FMSHRC
at 307- 09. Analyzing the l anguage of section 105(d) and its relationship
4/
The judge declined to hold that in all circumstances an operator ' s
notice of contest becomes "moot " because a proposed penalty is paid i n
full. He intimated that i f O.ld Ben had paid the penalty by "mistake, "
he might have "ruled otherwise 11 • Slip op. at 1.

to section lOS(a), we concluded "that t he purposes of the Act and t he
interests of the parties are best served by permitting an operator to
contest the citation immediately upon its issuance." 1 FMSHRC at 309.
He neither stated nor intimated, however , that an operator's right to a
hearing on its citation is exercised in a manner wholly divorced from
its response to the Secretary's subsequent proposal of a penalty for the
cited violation. To the contrary, our decision in Energy Fuels clearly
reflects our expectation that an aggrieved operator must al so follow the
statutory scheme set forth in section lOS(a):
Even if [the operator] were to immedia tely contest
all of a citation but lacked an urgent need for a
hearing, we see no reason why the contest of the
citation could not be placed on the Commission ' s
docket but simply continued unt i l the penal ty i s
proposed, contested, and ripe for hearing . The two
contests could then be easily consolidated for
hearing upon motion of a party or the Commissi o n ~ s
or the administrative l avl j udge 1 s own moti on.
Energy Fuels, supra, 1 FMSHRC at 308 (emphasis added) . The focus of our
concern in Energy Fuels was whether a citation could be contested prior
t o the proposal of a penalty . The present case poses t he further quest i on
of whether a contest of a citation can cont i nue after the operator has
decided not to challenge the proposed penalty . As t he language quoted
above indicates, Energy Fuels anticipated this quest i on by contemplating
the institution of two separate contests with their subsequent consoli dation in most circumstances.
Old Ben's suggested severance of the two contests runs directly
contrary to the administrative scheme of the Mine Act described in and
successfully followed since Energy Fuels, and set forth in the Commission ' s
rules of procedure. Commission Procedural Rules 20 and 22 permit, but
do not require, an operator to contest a citation at the time of its
issuance. 29 C.F . R. §§ 2700 . 20 & .22 . Rules 25 and 26, however, require
that a notification of proposed assessment of penalty be contested
within 30 days of receipt of the notification. 29 C.F.R. §§ 2700.25 &
.26 • .: Further, Old Ben's suggestion of severance undercuts the Mine
Act's enforcement scheme . The allegation of a violation contained in a
citation is an initial step in the enforcement of the Mine Act and of
its mandatory safety and health standards. The Act requires that the
Secretary propose and the Commission assess an appropriate civil penal ty
for a violation . See generally Sellersburg Stone Co . , 5 FMSHRC 287,
290-94 (March 1983), aff'd, 736 F.2d 1147 (7th Cir . 1984); u.s . Steel
Mining Co., Inc., 6 FMSHRC 1148 , 1149- 50 (May 1984); Tazco, Inc., 3
FMSHRC 1895, 1896-98 (August 1981) . The validity of the allegation of
violation, and of any special findings made in connection with the
alleged violation, all bear upon the appropriate penalty to be proposed
by the Secretary prior to adjudication and to be assessed by the Commission if a violation is ultimately found. The Act requires that the
penalty reflect the facts surrounding the vio l ation and correlate with
the nature of the violation through consideration of the statutory

208

penalty criteria contained in section llO(i) of the Act. 5/ See s. Rep.
No. 181, 95th Cong., lst Sess . 40-41 (1977), reprinted in-Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 628-29 (1978).
Moreover, under section lOS(a) of the Mine Act, an uncontested
proposed penalty becomes "a final order of the Commission . •. not subject
to review by any court or agency." (Emphasis added.) If a.n operator
were permitted to continue its contest of a citation following its
payment of the proposed penalty, the Commission t-1ould be foreclosed from
considering the penalty amount because under the very words of the
statute the Commissionvs jurisdiction would be divested by the operator ' s
failure to contest the proposed penalty within the time specified . The
Commission would thereby be deprived of its power to assess penalties i n
accordance with section llO(i) of the Act.
Finally? as ~·re have repeatedly emphasized in our cases, a penal tv
under the Mine Act is predicated upon the existenca of a violation.
See, e.g., Tazco, Inc., supra, 3 FMSHRC at 1896-98 ; Co-op Mining Co • • 2
FMSHRC 3475, 3475-76 (December 1980) . Therefore, an operator cannot
deny the existence of a violation for purposes connected with ·the Mine
Act and at the same time pay a civil penalty . For purposes of the Act. ,.
paid penalties that have become final orders reflect violations of the
Act and the assertion of violation contained in the citation i s regardet.i
as true. See generally Amax Lead Co . of Missouri, 4 FMSHRC 975, 977-80
(June 1982).
Therefore, in view of the language of sections lOS(a) and lOS(d),
and Congress' intent to tie penalties to the particular facts surrounding
a violation, 've hold that the fact of violation cannot continue to be
contested once the penalty proposed for the violation has been paid.
Our holding imposes no burden on operators that have immediately contested
a citation. If there is a "burden," it comes from the statute. Old
Ben's right to a hearing on its notice of contest would have remained ,
provided that it had merely indicated within 30 days of receipt of the

S}

Section l lO(i) of the Act provides:
The Commission shall have authority to assess all civil
penalties provided in this [Act). In assessing civil monetary
penalties, the Commission shall consider the operator's history of
previous violations, the appropriateness of such penalty to the
size of the business of the operator charged, whether the operator
was negligent, the effect on the operator's ability to continue in
business, the gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after notification of a violation. In proposing civil
penalties under this [Act], the Secretary may rely upon a summary
review of the information available to him and shall not be
required to make findings of fact concerning the above factors.

30 u.s.c. § 820(i).

209

Secretary's proposed penalty that it contested the penalty. 6/ In
Energy Fuels, we recognized the right of operators to contest immediately
a citation or order. \-le also clearly noted that the Act requires an
operator to contest the subsequently proposed civil penalty if it wishes
a hearing on that issue. In this regard, there has been no departure
from procedures followed under the 1969 Coal Act, 30 U. S.C. § 801 et
seq. (1976)(amended 1977) .
For t he foregoing reasons, we affirm the j udge's dismissal of Old
Ben's notice of contest. 7/

Richard V. Backley ,

~

6/
Old Ben did not claim below or argue to us that the penalty was
paid by error. In fact, the transmitted documents from Ol d Ben's legal
departMent indicate that payment of the penalty while its contest of the
citation was pending was a deliberate decision . Like the judge, we
might rule differently in a case where a penalty was paid by genuine
mistake . See note 4, supra.
7/
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 "all
of thf: powers of the Commission."

.~.

~- .S..

0

Commissioner Nelson, concurring :
I concur in the result reached by my colleagues . I woQld prefer to
decide the case solely on the basis that Old Ben's intentional payment of the
Secretary's proposed penalty, in full settlement of the cited violation, constituted an admission of the violation for purposes of Mine Act proceedings
and thereby mooted its contest of the citation in this proceeding.
Also, while I agree that an operator cannot pay the penalty proposed
by the Secretary and thereafter maintain before the Commission its challenge to
the underlying citati.on, I do not share the view that absent such a payment , an
operator must file a notice of contest of the Secretary's subsequently proposed
civil penalty in order to continue to press its earlier filed challenge to the
underlying citation . Under that scheme , an operat or mus t separately contest a
penalty proposed by the Secretary or face an absolute fo rfeiture of its right
to contest the underlying citation.
Requiring the operator to formally contest the Secretary 1 s penalty
proposal where the operator has contested the underlying citation does not
enhance or advance the proceeding inasmuch as the Commission judge, should
he find a violation of the }line Act, will assess a penalty on the basis of
the record evidence and the section llO(i) penalty criteria (30 U. S .C . §8 20( 1)) ~
and not on the basis of the Secretaryts proposed penalty. Thus , in a case where
the Commission 's jurisdiction rests upon the operator ' s contes t of a citation ,
the Conunission judge will assess any penalty on a de novo basis. Accordingly ,
I do not perceive a need to require the operator to-contest any penalty proposed
by the Secretary when the operator 's earlier filed notice of contest of the underlying citation necessarily places the penalty amount in issue . In that regard, at
the administrative hearing on the validity of the citation, the Secretary will
have the opportunity to introduce evidence as to the appropriate penalty and the
operator will have the opportunity to rebut that penalty-related evidence. The
judge then will independently assess any penalty.
Finally, although today's holding imposes no undue burden on operators
that have contested a citation pursuant to section lOS(d), placing an additional
filing burden upon mine operators (as well as this Commission) appears without
benefit , or statutory requirement . Instead, as stated above, I believe that once
an operator contests a citation, that operator need not file a separate notice of
contest in response to the Secretary's subsequent penalty proposal. In such an
event, the Secretary's proposed penalty is but part of the case involving the
contest of the underlying citation . At the administrative hearing, the Secretary
may introduce evidence establishing both the fact of the violation and the appropriate penalty to be assessed by the presiding Commission judge. The operator, in
turn, may seek to rebut some or all of the Secretary's case . I believe that this
procedure is consistent with the !-line Act and procedurally efficient .

L . Clair Nelson , Commissioner

211

Distribution
Barry F. Wisor, Esq.
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mark M. Pierce , Esq .
Old Ben Coal Company
333 \v. Vine Street
Lexington, Kentucky 40507
Administrative Law Judge Charles C. Moore
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, lOth Floor
Falls Church, Virginia 22041

ADMINISTRATIVE LAW JUDGE DECISIONS

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

FEB 1 1985
SECRETARY OF Lll.BOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 84-106
A.C. No. 11-01845 - 03554

v.
Zeigler No. 5 Mine
ZEIGLER COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Kennedy

This matter is before me on the parties 1 motion to
approve settlement of the captioned matter.
The penalties initial ly assessed amounted to $130 each
for ( 1 ) a permissibility violation that could have resulted
in a fire or explosion and (2) an electrical maintenance
violation that could have caused an electrical shock of
unspecified , but obviously lethal , severity. Both violations were the result of run- of - the- mine negligence , i . e.,
negligence that repeatedly recurs.
Despite the gravity
and negligence involved , MSEA rewarded the operator with a
30% discount for prompt abatement . This resulted in a net
penalty of $9! each for the violations charged .
Based on an independent evaluation and de novo review
of the cixcumstances, I find the discount for-prompt abate ment excessive and serve notice that in the future I may
feel compelled to deny settlements where the formula discount
is awarded without proper regard for the gravity and negligence
invol ved in serious violations. For this case , however, I f ind
the settlement proposed acceptable .
Accordingly , it is ORDERED that the motion be, and hereby
is, GRANTED .
It is FURTHER ORDERED that the operator pay the
amount of the settlement agreed upon , $182 , on or before
Friday , February 15 , 1985 , a n d
t/ t
) subject to payment t he
captioned matter be DISMISSED.

11/

~-··

v.

f

·M~

eph B. ennedy
Administrative Law Judge
"J
' ' f,

( ; . ...&.,

3

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, u.s. Department
of Labor, 230 South Dearborn Street, Chicago, IL 60604
(Certified Mail)

J. Halbert Woods, Esq., Zeigler Coal Company, 2700 River
Road, Suite 400, Des Plaines, IL 60018
(Certified Mail)

/ejp

214

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

FEB 1 1985

333 W. COlFAX AVENUE, SUITE <100
DENVER, COlORADO

.

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

80204

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-338-M
A.C. No. 42-01708-05002

v.

Little Joe Mine

CREOLE MINING, INC.,
Respondent
DECISION
Appearances :

James H. Barkley 6 Esq .u Office of the Solicitor u
U.S. Department of Labor, Denveru Colorado u
for Petitioner~
No appearance for Respondent .

Before :

Judge Vail

STATEMENT OF THE CASE
This civil penalty proceeding was filed by the Secretary of
Labor (Secretary) against Creole Mining, Inc., respondent,
pursuant to section llO<a> of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 820(a), seeking civil penalty assessments for three alleged violations of mandatory safety standards.
Respondent failed to timely answer the Secretary's petition for
proposal for a penalty in this case. However, following the
issuance of an order to show cause why it should not be placed in
default, respondent replied by letter which was accepted as its
answer. In that letter, Mark Truman related he was replying for
his father Karl I. Truman, owner, under a power of attorney, as
his father was on a L.D.S. Mission overseas.
A notice of hearing was mailed to the parties on January 31,
1984, setting the hearing for April 3, 1984, in Salt Lake City,
Utah. The undersigned was notified that a settlement agreement
had been reached between the parties and the hearing was
cancelled. On April 23, 1984, counsel for the Secretary, mailed
a stipulation and motion to approve the settlement agreement
along with an order to Mark Truman for the respondent and
requested he sign the necessary papers and forward them for
approval. On May 21, 1984, a letter was sent to Mark Truman
requesting he either sign the stipulation and forward it, or
indicate his reason for not doing so. Also, if he did not wish
to sign, the case would be reset for hearing.

!

)

i

:::..J.

5

Respondent failed to answer either the Secretary ' s letter or
that of the undersigned . On July 16, 1984, a notice of hearing
was mailed to the respondent rescheduling the hearing for July
31, 1984, in Salt Lake City , Utah. Counsel for the Secretary
appeared at the hearing with his witness on that date ready to
proceed. Respondent's representative failed to appear. After
waiting for a period of time, counsel for the Secretary advised
the undersigned that he had a witness present and wished to
proceed with the hearing and present evidence. This motion was
granted.
On August 2, 1984 , an order was issued and sent to t he
respondent to show cause why he should not be held in default f or
failure to appear at the hearing and have penalties assessed
against him. Kar l I. Truman replied by letter dated August 13 ;
1984 wherein he stated he had originally paid a fine of
$1,000 . 00, that he was contacted again and after several telephone calls, filled out some pape r s , paid a f ee and considered
the matter of th e Little Joe Mine r e solved.

ISSUES
The issues presented i n this p roceeding a r e : \1} whether
respondent has violated the provisions of the Act and imple menting regulations as alleged in the proposal for assessment o f
civil penalties filed in this proceeding, (2) whether respondent
defaulted in its failure to appear at the hearing set for July
31 , 1984; and if so, {3) the appropriate civil penalty that
should be assessed against respondent for the alleged violations
based upon the criteria set forth in section llO(i) of the Act.
At the hearing, James H. Barkley, counsel for the Secretary ,
stated that prior to the hearing, he had attempted to contact
Karl Truman on several occasions regarding returning the proposed
settlement agreement. Messages were taken on Truman's telephone
which was located at either his business or residence which
appeared to be one and the same. Truman never returned Mr.
Barkley ' s telephone calls. Then when the hearing was re scheduled , Mr. Barkley called again and left the message that the
hearing was being set because he did not return the settlement
papers and that if he would sign the papers and send them back it
was assumed the Court would entertain a motion for a continuance.
Mr. Barkley believed the telephone conversation was with Mr.
Truman ' s wife. There was no reply from Mr. Truman (Tr. at pages
41

5) o

Based upon the above representations by counsel for the
Secretar y , failu r e on the part of respondent to commun i cate with
the undersigned , and failure to receive any document other than

.' , 6

~ ...i. )

"Lhe letter of 7~;.;ou~.t. 13 , l~b :;}o;,; hc.11 ] . '.iT'ui:,:".r! in ansv.>er to
the Ord~r to Show Caus~, I f nd thE rsspo ndent h&s fa il ej to show
good ca use for his failur~ to appe&r at the rescheduled hearing
and is in default as to the three citations and the penalties
proposed for each .

The evidence shows that on October 23, 1980, an accident
occurred in the Litt le Joe Mine located approximately 50 miles
West of Green Riv er , Utah. An explosion occurred in the mine
fo l lowi ng a misfire re sult ing in a 2e rious eye injury to a mine r.
Two citations were issued by the Secre tary for operator 1·s
violation o f mandatory safety standards in allowing men to return
to misfired holes in the heading in less than 30 minutes {Tr. at
14). Respondent paid penalty assessments o f $500.00 each for a
total of $1,000.00c
As a result of the above accident , respondent was issued
three additional citations during an accident investigation on
Nov ember 5 , 1980 . These three citations were termed technical
violations by the issuing inspector Kenneth Joslin. Citation No .
576609 issued as section 104(a) type violation of 30 C.F.R.
§ 41.11 .alleged that the opera t or of the Little Joe Mine fa iled
to file a Form 2000-7 wi th the Mine Safety and Hea l th Administration. Citation No. 576610 issued as type 104(a) vi olation of
30 C.F.R. § 57.26-1 a lleged the operator failed to notify the
nearest Sub-district office of Mine Safety and Health Administration about the opening of the Little Joe Mine. Citation No.
576612 issued as type l04(a) violation of 30 C.F.R. § 50.10
alleged that the operator did not immediately notify the Mine
Safety and Health Administration of a blasting accident occurring
on October 23, 1980 at the Little Joe Mine.
Inspector Kenneth Joslin testif ied that on November 5 , 1980,
he performed an investigation at the Little Joe Mine of the
blasting accident.
In a conversation with Eldred M. Garrick,
operator's geologist, he determined that a misfire occurred in
the mine on October 23, 1980 as a result of the primer going off
but the ammonium nitrate in the hole not firing. As a result, a
miner was injured when he approached the face and the prior round
detonated {Tr. at 7, 8). Based on the evidence of record, Mine
Safety and Health Administration was not notified of the accident
immediately thereafter. Also, the operator of the Little Joe
Mine had failed to notify the MSHA Sub-district office at Moab,
Utah, and also failed to file the required Form 2000-7 {Tr. at
11). I find that failure of the operator to perform the above
three acts are violations of mandatory safety standards of the
Act.
PENALTIES
The Secretary has proposed a penalty of $36.00 be assessed
for each of the three violations in this case. Respondent
originally contested these violations in his letter {Answer)

•' "7

" -~'
;_.

dated November 24, 1981. However, the operator has failed to
appear at the rescheduled hearing set for July 31, 1984, and
therefore is found in default. Further, I find no evidence that
these citations were "taken care of" as alleged in the letter
signed by Karl I. Truman and dated August 31, 1984. Therefore, I
find that the proposed penalty of $36 . 00 for each violation in
this case or a total sum of $108 . 00 is reasonable and appropriate .
ORDER
The respondent i s ORDERED t o pay civil penal ties in the
tota l amount of $108 . 00 wi t h i n 40 days o f t he d a t e o f th i s
dec is ion and order , and upon rece i p t ~ t h i s case is d ismissed .

~~~ ?-- ~~

qc~~1.~~ 0/~~e-Ad~istrative Law Judge

Distr i bution ~

James H. Barkle y v Esq ov Offi ce of the Sol ici tor v U.S" Depar'cme nt
of Labor, 1585 Federal Building ; 19 61 Stout Street u Denver u
Colorado 80294 (Certified Mail}
Mark Truman, Power of Attorney for Karl I. Truman, Creole Mining,
Inc., P.O . Box 286, Minersville, Utah 84752 (Certified Mail)
/blc

'8

·~
~..l

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204 1

FEB 121985

DISCRIMINATION PROCEEDING

JOHN C. GROSS,
Complainant

Docket No. KENT 83-283-D

v.
BJl.RB CD 83-30
LEECO, INC . ,
Respondent.

DECISION AND ORDER OF DISMISSAL
Appearances :

John Lang, Esq . r Bruce 1 Clarke and Lang .•
London, Kentucky, for the Respondent .
John C. Gross, Yeaddiss, Kentucky , pro se ,
Complainant.
--- --

Before :

Judge Lasher

This proceeding, which was initiated by the filin g with
the Federal Mine Safety and Health Review~ommission of a
complaint of discrimination by John C. Gross on September 23 ,
1984, arises under section 105{c) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq . {1976 & Supp.
v. · l981), hereinafte:r: 11 the Act·;."
-By letter dated August 24, 1983, the Complainant had
been notified that his complaint of discrimination, filed
July 25, 1983, with the Mine Safety·and Health Administration
{MSHA) had been investigated and the determination made that
a violation of section 105(c) had not occurred. Under the
Act, a complaining miner has an independent right to bring
a complaint before this Commission and this proceeding is
based on that right.
On October 26, 1983, the Respondent filed a Motion to
Dismiss on the grounds that the Complaint was not timely
filed, i.e., not filed within the 60 day statutory time limit .
Subsequently Respondent sought dismissal for the further
reason that the Complaint fails to state a claim under the
Act . A preliminary hearing to determine the two issues raised
by the motion to dismiss was held on the record in Manchester,
Kentucky on November 29, 1984 , at which Respondent was
represented by counsel and Complainant appeared pro se.

219

The Complainant, a 29 year old truck driver with a tenth
grade education , had been employed by Respondent for
approximately 6 months when he was discharged on September 20,
1982 , after the truck he was driving struck a "belt structure."
(Tr . 4,5.)
There is no indication on the record that he
previously had filed safety complaints with any governmental
agency or made safety complaints to his employer . After his
discharge he filed no complaints, grievances or . actions other
than that involved in this proceeding. Complainant is not
a union member -- Leece's employees are unrepresented. However,
Complainant lives in a community of 200 to 300 people and
most of the working men living there are miners (Tr. 41, 42).
Two of his brothers , Denton and Sylvan, wer e at the time of
his discharge, coal miners for Blue Diamond Coal Company
and are union members (Tr. 23, 43, 44). Sylvan lives near
the Complainant. At the preliminary hearing Complainant,
who was accompanied b y brother Denton~ was asked what he
told .his brother Sylvan about his discharge 1 leading to the
following d~alogue:
THE COURT : Did you talk ·to him about
being discharged?
THE WITNESS:
THE COURT:
THE W:I;TNESS:
THE COURT:

Well, I

told him I got fired.

Did you tell him why·?
Yeah .
What did you tell him?

THE WITNESS: Well, I told him just how
everything happened , you know; the brakes
went out on the truck, the fuel stuck , and
hit the beltline and got out to check the
truck, and they fired me.
( Tr . 4 4.)
The termination slip which was handed to Complainant by
his foreman, Kenneth Haskins , on September 20 , 1982, charged
as follows:
Name, John Gross ; Company, Leeco ; Date
of Termination, 9/20/82; Department or
Mine, 31; Reason for Termination, abuse
equipment, run truck into the tunnel belt.

The discrimination complaint (Court Exh. 2) filed by Complainant
with MSHA on July 21, 1983, in pertinent part indicated that:
Complainant was notified after the brakes
went out on Mack truck he was driving that
he was fired for abuse of equipment.
(The
truck ran into the belt line . )
Note: The complainant was not aware of the
60 day time limit on filing a discrimination
complaint.
It should be initially noted that Respondent has neither
alleged or established any specific prejudice it suffered as
a result of the filing delay . ~/
With respect to any justification for the filing delay ,
Complainant gave the following explanations :
THE COURT: All right, Mr. Gross, why did you
not file a Complaint before July 21, 1983, when
you were discharged on Septembe+ 20 , 1982?
THE WITNESS: Well, I didn 1 t know there was a
time limit on it. And it kept ~othering me,
you know, to think that I had been done that
way, just fired.

*

*

*

*

*

*

*

*

*

*

THE COURT: You said you didn't know there was
a time limit?
THE WITNESS:
THE COURT:

Yes.
Okay .

THE WITNESS: And I kept talking to people, you
know. And I didn ' t know where to go, you know,
to file a Compl aint.

1/ The question of whether general prejudice can be inferred
from the fact of the passage of many months before a mine
operator is put on notice that it must defend a claim of
discrimination was not argued and is not dealt with in view
of the decision ultimately reached .

·' ,., j

.J ....
:.._. J...

-

*

*

*

*

*

*

*

*

*

THE COURT: Okay, you were saying that you kept
talking to people, or something to that effect.
Continue where you were;- could you do that?
THE WITNESS: Then I found out where to go to,
to file this Complaint. And so I went ahead
and filed it.
THE COURT: Okay; is there any other reason why
there was a delay in your filing?
THE WITNESS:

No.

( Tr • 11 , 12 • )
THE COURT: Okay. I'm not trying to put words
in your mouth. You say yes, if you did .
Okay. You said specifically, as to who that you
talked to after you were discharged , that you
talked to Steve Lewis , Ronald Baker ; and your
family; right?
THE WITNESS:

Yes.

THE COURT: Now when you say fam~ly, is that -what? Who does that include?
THE WITNESS:
THE COURT:
like that?

Wife.
Anybody else?

Father, brother , anybody

THE WITNESS: Well, I talked to Mom. and Dad, you
know, about it. They didn't know nothing about
it, either.
THE COURT: Okay. And did you talk to your brother,
who's here today with you in the courtroom, about
it?
THE WITNESS:

No.

THE COURT: You didn't talk to him .
do for a living?

What does he

THE WITNESS:- He' s a underground miner.

THE COURT:

And where does he work?

THE WITNESS :

And was he working there in 19 82

THE COURT :
and 1983?
THE WITNESS:

*

*

Blue Diamond .

*

Yes ;

*

THE COURT :

Okay.

THE WITNESS :

No.

THE COURT :
THE tVITNESS :
THE COURT:
THE WITNESS :
THE COURT :
THE WITNESS :

.....

*

-J:

*

,,,.

*

.
?
Was y our fa ther o. m1ner
.

Is your brother in a union?
Yes.
What union does he belong to?
Southern Labor.
ff>ihat?
Southern Labor.

( Tr . 2 3 , 2 4 • )
As to his efforts in attempting to learn of his rights ,
he testified as follows:
BY MR. LANG:

Q. Mr. Gross, if I understand your testimony,
you were discharged from Leece on or about
September 20th, 1982; is that correct?
A.

Yes.

Q. And you recall you -- the Judge showed you a
copy of the Complaint which you filed in connection
with that discharge; is that correct?
A.

Yes.

Q. You just testified that you had an occasion
to file a Discrimination Complaint with the Federal
Mine Safety and Health, with MSHA , on or about
July 21st, 1983; is that correct?
A.

Yes.

Q. And that would be .a . period of , if my
mathematics is correct, 302 days after you were
discharged. Now Mr. Gross, you've just testified
pursuant to questions from the Judge, that you
were not aware of the 60-day filing requirement;
is that correct?
A.

Yes.

Q. Do you want to tell this Court why it took you
302 days to file the Comp l aint?
A. Well, I didn't know. And I kept talking t.o
people .
I didn't know where to file the Complain·t
at, didn 1 t know how to go about it , didn 1 t have no
money, laid off.
Did you have an occasion to call an attorney ,.
to ask an attorney what the filing requirements
would be?

Q.

A.

Didn r t have no phone.

Q.
Did you have a quarter ·to go to a pay phone and
call an attorney?

A. Well , the closest pay phone is Hyden, and
that ' s 26 miles.
Q. So you did not have an occasion at any point in
time for the 302 days, to call an attorney, to ask
him what the filing requirements would be1 is
that correct? And that in the 302 days, you did
not have occasion to get to a telephone to call an
attorney?
A. Well, our attorneys in Leslie County, if you
go in and talk to them, you pay them 10 or 12 dollars .
I took a couple of letters in after I filed this case,
and they charged me $10 to read the letter and tell
me what it was about.
Q. Mr. Gross, if I understand your testimony,
then, you made no effort to contact counsel in
this 302- day period to attempt to ascertain what,
if any, filing requirements there would be; is that
correct?

21:4

A.

Yes , I talked to different people about it.

Q. No, I asked counsel; whether or not you spoke
to any attorney during this time period.
A.

No , I didn ' t speak to an attorney.

Q. Okay; so my question then, Mr. Gr oss, is
during the 302 - day period that e l asped from the
time you were discharged and the time you file d
your Complaint, you did not make a ny effort t o
contact an attorney, to ascertain what , if any ~
filing requirements there would be in connection
with a Discrimination Complaint; is that correct ?
A.

No , I didn ' t contact an attorney .

Q. Okay . You testified that you spoke with some
people to try to find out what , if any , requirements
there was; what people are you referring to?
A.

Friends .

Q.

What are their names?

A.

Well , Steve Lewis was one of them .

Q.

Where does he live?

A.

He lives on Big Fork .

Q.

Big Fork?

A.

First cousin .

Q.

What does Mr. Lewis do for a living?

A.

He ' s a miner.

Q.

What , if anything, did Mr. Lewis tell you?

A.

Well he didn ' t know very much about it, he just

Is he any relation to you?

Q. When did you contact Mr. Lewis in connection
with th~s matter?
A.

I don ' t remember what the date was .

Q. Well , do you recall whether or not it was
immediately after you were discharged, or could

22 5

it have been two months after you were dis charged, or a year after you were discharged?
Do you have any recollection of approximately
the time frame in which you had this conversation?
A. It might have been anywhere from two to three
months.

Q. Who else, if anybody, did you speak to in
connection \'lith 'ch].s matter?
A. Well, I talked to different people about i t .
Not nobody, you know , particular.
Q. I understand you spoke with different people.
What I 8 m trying to f ind ou·t is , who those people
are. Their names, where do they live; what do
they do for a living .
A. Well, I talked to Ronald Baker; he was the
one that told me --

Q.

Excuse me .

A.

Ronald Baker.

Q.

Ronald Baker.

A.

He lives on Baker Fork.

Q.

Do you know what Mr. Baker doe s for a living?

A.

He's a underground miner .

Q.

What, if anything, did Mr. Baker tell you?

A.

He told me to go to MSHA and file, at Hyden.

Q.

Do you recall when that conversation took place?

A.

It was a few days before I filed the case.

Who ?

Where does he live?

Q. That was the first time you spoke with Mr. Baker;
is that correct?
A.

ABout the discrimination, yes.

Q. Who else, if anybody, did you speak with in
connection with this matter?

A. Well, I talked to my family about about it ,
you know .

Q.

Your immediate family?

A.

Yes .

Q.

Are you married?

A.

Yes.

Q.

You spoke with your wife?

A. We talked about it, you know , on how I ' d been
fired, you know, without a reason .
I had a good
work record . Drove a truck for six years . Never
had no complaints, you know , about my work , driv ing.
Q. But you didn ' t speak to your wife or your
family concerning what your rights would be, is
that correct, insofar as filing an administrative
complaint?
A. Well, we ' d heard that , bu t we wasn ' t even
sure that, you know , there was such a ·thing.
You wouldn't exp.e ct your wife or family to
know something like that , would you?

Q.

A.

Yes.

( Tr. 13 - 17 . )
The complaint was filed with MSHA on July 21, 1983 ,
(Tr . 43) , an interval of 10 months from his discharge and ,
consequently an 8 month filing delay. There being no question
but that it was not timely filed wi~h the Secretary within
the 60-day period prescribed in section 105(c) (2) of the Act ,
the question comes down to the existance of any justification
for · the delay. The Commission has held that the purpose of
the 60- day time limit is to avoid stale claims but that a
miner's late filing may be excused on the basis of "justifiable
circumstances, " Joseph w. Herman v. IMCO Services, 4 FMSHRC
2 1 35 (December 1'982). The Mine Act ' s leg;tslatlve history
relevant to the 60-day time limit states:
While this time - limit is necessary to avoid
stale claims being brought , it should not be
construed strictly ~here the f;tling of a

227

complaint is delayed under justifiable circumstances. circumstances which could warr ant the extension of the time- limit would
include a case where the miner within the
60- day period brings the complaint to the
attention of another agency or to his employer,
or the miner fails to meet the time limit
because he is misled as to or misunderstands
his rights under the Act. S. Rep . No . l81,
95th Cong., l st Sess. 36 (1977), reprinted
in Senate Subcommittee on Labor, Committee
on Human Resources, 95th Cong . , 2d Sess .r
Legislative History of the Federal Mine Safety
and Health Act of 1977, at 624 (1978) (Emphasis
added.). Timeliness questions must be resolved
on a case-by-case basis, taking into account
the unique circumstances of each situation . (Emph asis added}
Here, the filing delay is prolonged.
Scrutiny of the entire
r e cord reveals that the essence of Complainant ' s excuse for the
delayed filing is that he was unaware o f his rights . However ,
Complainant has not asserted or established any specific
justification for his ignorance or tardiness , only genera l
allegations that he " didnrt know where to file the Complaint ,
didn ' t know how to go about it, didn't have no money , (and
was) laid off . 11
This is not a case (1) where the Complainant was misled
as t o his rights under the Act or the filing period, or (2)
where he misunderstood such. He brought no other claims
or complaints before other agencies , state or federal, which
might have lulled him into a false sense of security, nor
did he express any complaint or disagreement concerning abstract
r ights granted under the Act to his employer either at the
time of his discharge or thereafter. He said he talked over
his discharge with his wife and parents, but from all
indications they obviously were not capable of advising him
in a meaningful way. Inexplicably, he failed to discuss the
matter with his brother, Denton, a miner and union member,
who was working at a mine at the time of Complainant's discharge.
There is no indication that he sought advice from any government
agency, attorney , legal aid society or other informed person
or agency wherein there would be any realistic chance to
determine his rights or remedies within a reasonable period
after his discharge. Nor did he indicate that he asked any
friend or family member ~ to seek advice or find out for him.

2/ Again, two of his brothers were employed as miners at
the time and were unipn .members.

: '• i )

8

.,::, r.w .

It was only until a few days before filing the MSHA complaint
that he apparently came upon another miner who told him of
the right to file a complaint under the Act .
Is a miner who believes he has been discriminated against
entitled to remain in long-term ignorance of his rights and
remedies because of inaction, lack of initiative, or reasonable
good-faith effort? I conclude that in the situation such
as that involved here, where a miner's filing delay is not
occasioned by a specific justification such as - or similar to those enumerated in the Act's legislative history, and is
explained primarily by lack of knowledge of the rights provided
for in the Act, there exists an obligation to make meaningfu l
and good faith efforts to ascertain such rights. Such efforts
should be of a nature to create a realistic opportunity for
finding out one 1 s rights, should commence within a reasonable
time after the employer 1 s alleged discriminatory action, and
be continuing until the miner is informed one way or the
other.
The 60-day statutory limitation is not a particularly
long filing period in view of the lack of sophistication of
the average Complainant and the complexity of some of the
legal bases for bringing a discrimination action. On the
other hand, the placement of limitations on the time-periods
during which a plaintiff may institute legal proceedings is
primarily designed to assure fairness to the opposing party
by preventing surprises through the revival of claims that
have been allowed to slumber until evidence has been lost ,
memories have faded, and witnesses have disappeared. The
theory is that even if one has a just claim it is unjust not
to put the adversary on notice to defend within the period
of limitation and that the right to ·be free of stale claims
in time comes to prevail over the right to prosecute them.
Here, the filing delay of 8 months is a lengthy one , no
specific or clear justification therefor was shown , and there
was no reasonable or meaningful effort on Comp lainant's part
to ascertain his rights, or otherwise obtain assistance. Such
mandates the conclusion that Complainant's delay in filing
his complaint was not justified 3/ and that the· complaint
was not timely filed. _!/
·-

3/ Cf . Walter A. Schulte v. Lizza Industries, Inc., 6 FMSHRC 8
TJanuary 1984) ( 31-da delay) .
4/ In view of this holding, the question of whether the complaint states a cause of action under the Act is not reached.

ORDER
Respondent's motion to dismiss is granted and this
proceeding is dismissed.

~.d;~r /. ~~1./~

Michael A. Lasher, Jr .
Administrative Law Judge

Distribution:
Mr . John c. Gross, Box 457, Yeaddis , KY 41777 (Certified Mail )
Gene Clark, Esq . , Reece , Clark & Lang , 304 Bridge Street 0
Manchester , KY 40962 {Certified Mail)

slk

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

F£81 21985

CIVIL PENALTY PROCEEDING

.

Docket No. CENT 84 - 39
A.C. No. 23-00402-03505

v.
Power Surface Mine
PEABODY COAL COMPANY ,
Respondent
DECISION APPROVING SETTLEr1ENT
Before:

J udge Kennedy

This matter is before me on the parties' motion to
approve settlement of the captioned matter at the amount
initially assessed .
Based on an indepe ndent evaluation and de novo review
of the circumstances as set for t h in the record-or-this
proceedin g , I find the settlement proposed_is in accord
\'lith the purposes and policy of the Act .
Compare, United
States Steel Corporation, 5 FMSHRC 954 (1982), appeal pending
Eighth Circuit .
Accordingly, i t is ORDERED that the operator pay the
amount of the penalty agreed upon, $241, on or before Friday ,
March 1, 1985, and that subject to
yment the cap tioned
matter be DISMISSED .

Joseph B . Kennedy
Administrative Law Judge
Distribution :
RobertS. Bass, Esq., Office of the Solicitor, u.s . Department of Labor , Rm. 2106, 911 Wa lnut St., Kansas City , MO
64106
(Certified Mail)
Kristi L . Vaiden , Esq., Peabody Coal Company , P. O. Box 373,
St. Louis, MO 63166
(Certified Mail)
/ejp

.2 31

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

FEB 13 1985

CONTEST PROCEEDINGS

MONUMENT. ·MINING CORPORATION,
Contestant

Docket No . WEVA 84-353-R
Order No. 2274263 ~ 7/16/84

v.

Docket No. WEVA 84 - 354 - R
Order No. 2274263 - 01; 7/17/8 4

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

Docket No . WEVA 84 - 355-R
Order No . 2142667 < 7/17/84
:

Docket No. WEVA 84-356- R
Order No . 2142668; 7/17/84
Docket No . WEVA 84-374-R
Order No . 2438645 ; 8/l/8 4
No. 1 Surface Mine
ORDER DISMISSING PROCEEDINGS
Before:

Judge Koutras

The contestant has failed to respond to my previously
issued orders and show cause orders directing it to furnish
the name, address, and telephone number of its representative ,
and to advise me whether or not it wishes to pursue these
contests further.
In addition, the contestant has refused
to accept service of said orders , and the postal service has
returned the certified mailings as "unclaimed , " " addressee
unknown, " or " postal box closed. " Contestant's previously
retained counsel has been dismissed on his own motion as the
representative of the contestant on the ground that he is
no longer authorized to represent the contestant in these
proceedings .
In view of the foregoing, and in light of the contestant ' s
failure to communicate further with this Commission with
respect to the pursuit of the contests, these cases ARE
DISMISSED, and the reasons for this action are (1) the
contestant ' s failure to respond to the presiding Judge ' s orders,

')3' '.)low

. ,..__

(2) the failure by the contestant to comply with Commission
Rule 5, 29 C.P.R. § 2700.5, which req~ires a party to inform
the Commission of any changes of representation, and (3) the
obvious failure by the contestant to pursue its claims, or
to otherwise explain why it is avoiding service of all further
communications in the proceedings.

~~K{(;~
Administrative Law Judge

Distribution:
Monument Mining Corp. , Box 618 , Holden , WV 25625 (Certified Hail )
Jonathan M. Kronheim, Esq ., u.s. Department of Labor, Office
of the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Gertified Mail
Covette Rooney , Esq. p U. S. Department of Labor , Office of
the Solicitor , 3535 Market St . 0 Philadelphia, PA 191 04
(Certified Mail)
Mr. Samuel Coyles, Representative of Miners, c/o Monument
Mining Corp., Box 618, Holden, WV 25625 (Certified Mail)

slk

233

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

22041

FEB 131985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
ON BEHALF OF
SAMUEL E. GRIFFITH ,
Complainant

DISCRIMINATION PROCEEDING
Docket No. VA 84-25-D
MSHA Case No. NORT CD-84-3
No. 2 Mine

VQ

BOWMAN COAL COMPANY , INC . ,
Respondent
ORDER
Appearances :

Mary K. Spencer r Esq. , Office of the Solicitor ,
u. s. Department.of Labor , Arlington f Virginia 1
for Complainant;
Keary R. Williams, Esq., Williams & Gibson,
Grundy, Virginia, for Respondent.

Before:

Judge Broderick

On January 14, 1985, I issued a decision on the merits
in the above case in which I concluded that Complainant was
discharged on February 21, 1984 , as a result of activities
protected under section 105(c) of the Mine Safety Act .
I
directed Complainant to submit a statement of the amount due
as back wages together with interest, and allowed Respondent
10 days to respond to the statement.
On January 25, 1985, Complainant filed a statement of
back wages and interest claimed through January 14, 1985.
Respondent has not replied to the statement .
Pursuant to the findings and conclusions in my decision
Respondent IS ORDERED to pay Complainant back wages at
the rate of $50 per day from February 23, 1984 through
April 25, 1984, in the gross amount of $2,250 with interest
thereon , at the rate of 11 percent per annum from February 23,
1984 through December 31, 1984, and at the rate of 13 percent
per annum from January 1 , 1985 through January 14, 1985, for
a total interest payment of $172 . 91. The total amount due
through January 14, 1985 is $2,422.91.

~34

Respondent is FURTHER ORDERED to pay interest on the
gross amount of back wages ($2 , 250) at the r ate of 13 percent
per year ( . 0361 percent per day) until paid .
Respondent is FURTHER ORDERED to pay the sum of $100
within 30 days of the date of this order as a civil penalty
for the violation of section lOS(c) of the Act.

A

I

/'

ti1-·u~~ .,~/j "-r;; d.:-!''t eft
•

I

'

ames A. Broderick
'Administrative Law Judge

Distribution :
Mary K. Spencer, Esq., Office of the Solicitor, U. S.
Department of Labor, 4015 Wilson Boulevard, Room 1237A ,
Arlington, VA 22203 (Certified Mail)
Keary R. Williams , Esq. , Williams & Gibso~ , P . O. Box 84 9 v
Grundy, VA 24614 (Certified Mail)
/fb

235

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

LOCAL UNION 8454, DISTRICT 17
UNITED MINE WORKERS OF
li..MERICA (UMV.JA) ,
Complainants
v.

COMPENSATION PROCEEDING
Docket No . WEVA 84 - 65 - C
No . 5 Mine

PINE TREE COAL COMPANY 9
Respondent
and
BUFFALO MINING COMPANY., an
affiliate of THE P I TTSTON
COMPANY, a corporation
Respond ent
DECISION
Appearances :

Joyce A . Ranula , Legal Assistant, UMWA ,
Washington, D. C. f or Complainants;
Carter Elkins, Esq ., and W. N. Reynolds , Esq .,
Campbell , Woods , Bagley , Emerson, McNeer a n d
Herndon , Huntington, West Virginia, for
Respondent Pine Tre e;
Donald R. Johnson , Esq ., Lebanon , Virginia,
for Respondent Buffalo.

Before:

Judge Broderick

STATEMENT OF THE CASE
The United Mine Worker s union Local 84 54 (UMWA) , representing the miners employed at the Pine Tree Coal Company's
(Pine Tree) No. 5 Mine , brought this action against Pine
Tree , claiming compensat ion for the miners who were idled as
a r esult of an order of withdrawal issued by MSHA on
October 4, 1983. The withdrawal order was issued under
section 107(a) of· the Act , alleging an imminent danger,
because an active gas well was mined into in the subject
mine .
On March 6, 1984 , Pine Tree filed a ~ Third - Party
Complaint 11 against Buffalo Mining Company (Buff a lo ) alleginq
(1) that the condition resulting in the withdrawal order was
the result of Buffalo ' s failure to provide proper engineering

23 6

services to Pine Tree, and (2) that Buffalo had agreed to
indemnify Pine Tree for claims asserted against the latter
with respect to matters related to the October 3, 1983,
accident. Buffalo filed a Motion to Dismiss the Third Party
Complaint. Complainants filed an amended Complainant naming
Buffalo as an additional Respondent . All parties f iled brief s
and I denied the motion by order issued May 7, 1984 .
Pursuant to notice, t he case was called for hearing in
Charleston, West Virginia, on December 20 , 1 984 . Complainants
did not call any witnesses. Gale B . Stepp testified on behalf
of Pine Tree and Lenox Profitt testified on behalf of Buffalo .
All parties have filed posthearing briefs. Based on the en~lre
record and considering the contentions of the parties , I make
the following decision .
FINDINGS OF FACT
1 . The following miners were employed by Pine Tree at
its No. 5 Mine in Logan County , West Virginia, on October 4 ,
1983. Each was idled as a result of the withdrawal order
issued on that date.
The rate of pay of each and the number
of hours idled are listed beside each name:
Miner
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14 .
15.
16.

Mitchell Hensley
Michael Hensley
Bob Bryant
Woodrow Chambers
Steve Meade
Calvin Tomblin
Clifton· Tomblin
Tim Adams
Billy Tomblin
Thomas Hensley
James Smith
Herbert Stramon
David Meade
Roger Adkins
Michael Bailey
Jim Gullett

Hourly Rate

Hours Idled

13.565
13.565
13 .093
13.565
13.565
13.565
13.565
13.093
12 . 57
13.865
13.460
13.865
13.460
12.87
12.97
12.97

36
36
36
36
36
36
36
40

40
40
40
40

40
40
32
32

2.
Pine Tree operated the subject mine under a contract
with Buffalo. Buffalo had a lease to the mineral rights on
the mine property.
In the contract, Buffalo is described as
the owner and Pine Tree the contractor. Pine Tree agreed to
mine coal and deliver i t to Buffalo's tipple. Pine Tree
agreed to furnish labor, machinery, supplies, and equipment

237

required in the performance of the contract. Buffalo reserved
the right to furnish written plans and projections which Pine
Tree agreed to follow . Title to the coal remained in Buffalo.
Buffalo agreed to furnish "such engineering services as may
in its judgment be required for contractor's guidance and to
protect owner ' s interest in realty, in comply.l,ng with the
terms of this Contract. A reasonable charge will be made for
such service, to be deducted from the proceeds due Contractor
under this contract.~~ Pine Tree was responsible for payment
of its employees' wages and other benefits. Pine Tre e agreed
to comply with applicable State and Federal laws and regula tions including those relating to health and safety .
(Buffalo
Exho 1) o The mine maps were furnished to Pine Tree by
Buffalo. Pine Tree operated the mine with an MSHA ID number
and a license from the s·tate of Wes t Virginia, both issued
i n the name of Pine Tree.
3. On October 3 , 1983, at about 8 :00p.m., the mining
crew told Gail Stepp, Pine Tree~s President: that it had hit
something which appeared to be a gas we ll . S tepp called
Lenox Profitt, the contract manager for B~ffalc. Profitt
consulted the Buffalo engineering department and all avai lab le
maps but found no indication of any gas well. Profitt told
Stepp that there was no gas well in the area, so mining continued. The following morning , Stepp himself went in the
mine and saw what appeared to be a gas well . He again called
Profitt who told him it was probably just a casing someone
had left. Profitt then discussed the matter with Buffalo's
chief engineer and it was "quickly agreed that there had been
a gas well in that area."
(Tr. 60-61) . Profitt called Stepp
and told him to get his men out and shut down the mine.
4 . The matter was reported to State and Federal
authorities and at 11:45 a . m., October 4, 1983, Federal Mine
Inspector Oscar R. Nally Jr. , issued an Order of Withdrawal
covering the entire mine. The condition found was described
in the Order as follows:
"The certified mine map was not
accurate in that an active gas well was mined into in the
No . 2 entry 001 section. This well nor any other well was
shown on the certified map
"
(Union Exh. 1) o
5.. The condition was abated by Pine Tree building a
concrete wall around the well .
Buffalo delivered the
necessary supplies and reimbursed Pine Tree for the wages
paid the miners who did the abatement work. Buffalo also
drew up the plan for sealing the well and directed and
instructed P ine Tree how to do the work.

238

6. On October 28p 1983, Buffalo signed an "Indemnity
Agreement," whereby it agreed to indemnify and hold harmless
Pine Tree "from and against all liability for claims, actions ,
demands, fines, penalties, citations and other actions which
have been or which might be asserted • o o against Pine Tree
o . • by state and/or federal agencies o o o with respect to
matters directly related ·to the o o , a.ccident on October 3,
1983 o"
(Union Exh. 2) .
STATUTORY PROVISIONS
Section lll cf t.he

Ac~:

p:cov:t.des in par·.: o.s

follotv~; ~

If a coal or other mine or area of such mine
is closed by an order issued under s ection :Jz _
secti on 104 !' o:r sect.ior1 :&.07, e.~ l mi::1e:c.::; 'ifi7C~~e::t.11.g·
during the shift vlhen such order was issued who
are idled by such order shall be entitled .
regardless of the result of any review o f such
order, to full compensatio~ by the operate= a~
their regular ra ·tes of pay fer t.he per i.od ::h\~Y
are idled , buJc for not. more than ~:.he ba.la.nce :.::£
such shift .
If such order is not terminated
prior to the next working shift r all miners on
that shift who are idled by such order shall be
entitled to full compensation by the operator at.
their regular rates of pay for the period they
are idled, but for not more than four hours of
such shift .
If a coal or other mine or area of
such mine ~s closed by an order is sued under
section 104 or section 107 of this title for a
failure of the operator to comply with any
mandatory health or safety sta~dardsp all miners
who are idled due to such order shall be fully
compensated after all interested parties are
given an opportunity for a public hearing, which
shall be expedited in such cases r and af·ter such
order is final, by the operator for lost time at
the ir regular rates of pay for such time as the
miners are idled by such closing, or for one week ,
whichever is the lesser.
Section 3(d) of the Act provides as follows:
«ioperator •
means any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent
contractor performing services or construction at such mine."

ISSUES
Is Pine Tree or is Buffalo or are both liable to pay
compensation to the miners idled by the withdrawal order?
CONCLUSIONS OF LAW
1. Pine Tree is liable under secti on 1 11 to pay compe nsation to miners idled as a result of the order o f withdrawal .
Pine Tree operated the mine , employ ed and p aid wag es to the
miners and was served with the withdrawa l order . P ine Tre e
is liable even though the condition giving rise t o the withdrawal order was the responsibility of Buffalo . Fault i s not
an element in determining liability under section 111 .
2. Buffalo is liable , jointly and sever al ly with P ine
Tree , under section 111 to pay compensation to the miners
idled as a result of the order of withdrawa l. Buff alo was
the "owner" or " lessee" of the mine . Buf fa lo sup ervi s ed
Pine Tree's activities , in particular with r espect t o p r ojections and mapping. The m~ning into t he g as well which
caused the withdrawal was specif ical l y di rected by B u ffalo ~
Mine owners have been held liable for safety vio l ations
committed by independent contractors. Bi"Cumi'nous Coal
Operators Association v. s ·e creta·ry , 54 7 F. 2d 24 0 (4th Cir.
1977) (under the 1969 Coal Act); Secretary v. Republic Steel
Corporation, 1 FMSHRC 5 (1979) (1969 Coal Act). By analogy ,
the owner may be held strictly liable to pay compensation
to miners idled by a withdrawal order, even though the owner
is not the employer of the miners.
In Secretary v . Phillips
Uranium Cor-poration, 4 FMSHRC 549 (1982) (1977 Mine Act), the
Commiss1on sa1d that the test to determine an owner's
liability depends on "whether the Secretary ' s decision to
proceed against an owner for the contractor's violation was
made for reasons consistent with the purposes and policies
of the 1977 Act." By analogy , the decision to proceed in a
compensation matter against an owner may be upheld if, as is
the case here , the conditions giving rise to the withdrawal
were the responsibility of the owner. I conclude that Pine
Tree and Buffalo are jointly and severally liable to pay the
compensation hereafter awarded to the miners in this case.
3. The Commission is without authority to interpret the
indemnity agreement referred to in Finding of Fact No. 6.
I
do not decide whether under that agreement Buffalo is liable
over to Pine Tree for the compensation due the miners herein.

ORDER
Respondents are ORDERED to pay the following compensation
under section 111 of the Act to the miners named below:
Mitchell Hensley
Michael Hensley
Bob Bryant
Woodrow Chambers
Steve Meade
Calvin Tomblin
Clifton Tomblin
Tim Adams
Billy Tomblin
Thomas Hensl ey
James Smith
Herbert Stramon
David Meade
Rog er Adkins
Michael Bailey
Jim Gul l et t

$ 488 . 34
488.34
471.35
488.34
488 . 3 4
488 . 34
488 . 34
523 . 72
5.02 80
554 . 60
538 . 40
554.60
538.40
51 4. 80
415 . 04
41 5 . 0 4
0

Respondents are FURTHER ORDERED to pay interest on the
above compensation in accordance with the Commission approved formula in Secretary/Bailey v. Arkansas - Carbona,
5 FMSHRC 2042 (1983) .
Interest shall be paid at the rate
of ll percent per annum ( . 03055 percent per day} from
October 4, 1983 to June 30, 1984, and at the rate of
13 percent per annum ( . 0361 percent per day) from July 1 ,
1984 until paid. !/
/}

'

j

110

_/

~

. /

Cu-vt-<..•::. j - _frl.._, f?/ (U,1'1 6IL
James -A. Broderick
Administrative Law Judge

1/ Interest on compensation awards·· was upheld by the
Commission in Mine Workers· Local 5869 v. Youngstmvn Mines
Corp. , 1 FMSHRC 990 (1979). This case was decided prior to
the adoption of the Arkansas-Carbona formula for discrimina tion awards.
I believe the same formula should apply to
compensation awards.

Distribution :
Joyce A. Hanu l a , Legal Assistant, United Mine Workers of
America , 900 15th Street , N.W., Washington, DC 20005
(Certified Mail)
Carter Elkins, Esq . , and W. Nicholas Reynolds, Esq. ,
Campbell, Woods, Bagley, Emerson, McNeer and Herndon ~
14th Floor Coal Exchange Building, P.o. Box 1835 ,
Huntington, WV 25719 (Certified Mail)
Mr. Donald R. Johnson, Assistant General Counsel , Pi t~cston
Coal Group, Buffalo Mining Company , P.O . Box 4000 ! Lebanon 9
VA 24266 (Certified Mail)

/fb

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

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

80204

CIVIL PENALTY PROCEEDING
:.

Docket No . WEST 82 - 204-M
A.C. No. 05 - 03657-05501

v.

Fair Chance Mine

FAIR CHANCE MINES, INC.~
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office o f the Solicitor ,
U.S. Department of Laborv Denver , Colorado ,
for Petitioner;
No appearance for Respondent .

Before:

Judge Carlson

Pursuant to notice, a hearing on the merits in this civil
penalty proceeding was convened at 10:00 a . m. on January 11, 1985
at the Commission's hearing room in Denver, Colorado. No appearance was made by or on behalf of the respondent mine operator.
At 10:33 a . m., counsel for the Secretary of Labor was permitted
to present his case through the testimony of the mine inspector
and introduction of photographic exhibits . At the close o f his
case, the Secretary's counsel moved for the entry of a judgment
by default . The motion was taken under advisement .
By order issued and mailed on January 11, 1985, respondent's
representat i ve was notified that a decision affirming the
viol ations alleged and assessing the proposed civil penalties
would be entered by default unless respondent showed good cause
for its failure to appear . The time for response has now expired, and nothing has been filed.
ORDER
Accordingly, respondent is declared to be in default for
failure to appear. The alleged violations and appropriateness of
the proposed penalties having been proved in open hearing,

24 3

respondent is hereby ORDERED to pay the following civil penalties
immediately: for Citat ion 334930 , $112.00; for Citation 334933,
$20.00; for Citation 2009704, $122 . 00; for Citation 2009706,
$170.00.
SO ORDERED.

~~~

~~n

A. Carlson

Administrative Law Judge

Distribution:
Robert J. Lesnick, Esq. , Office of the Solicitor r u.s. Department
of Labor, 1585 Federal Building, 1961 Stout Street , Denver,
Colorado 80294
<Certified Mail>
Mr. John Noll, 1235 Black Baron Road, Cherry Hill, New Jersey
08034
(Certif i ed Mail)
/blc

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

22041

FEB191985
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 83 - 39
A. C. No. 1 5-12685-0350 2

v.
W R W CORPORATION
Respondent

g

Docke t No . KENT 83-6 3
AoC o No . 15 - 12685 - 0350 3

g

Docket No . KENT 83-65
A. C. No . 1 5-12685-03 50 4
Docket No . KENT 83-68
A. C. No. 15- 12685-03505
Dock et No. KENT 83 - 138
A.C . No . 1 5-12685-0350 6
Docket No. KENT 83 - 179
A.C. No . 15 - 12685 - 03507
:

Docket No. KENT 83-213
A. C. No. 1 5 - 12685-03508
Docket Nu~ - KENT 83-250
A.C. No. 15 - 12685- 03509

:

No. 1 Mine
DECISION
Appearances :

William F. Taylor , Esq . , Office of the
Solicitor , u. s . Department of Labor,
Nas hville , Tennessee , for Petitioner;
Michael T. Gmoser , Esq . , Hamilton , Ohio, for
Respondent.

Befo r e:

Judge Melick

These consolidated cases are before me upon the petitions filed by the Secretary of Labor, pursuant to section
105(d) of the Federal Mine Safety and Health Act of 1 977 ,
30 u. s .c. § 801 et seq . , the "Act " , in which the Secretary
seeks civil penalties against the W R W Corporation (WRW) of

245

$89,999 for 30 violations of regulatory standards. 1;
WRW does not dispute the existence of the cited violations,
nor does it challenge the special "significant and substantial" and unwarrantability findings made by the Secretary in
connection with certain citations and orders herein. In
defense, WRW claims that it was not responsible for the violations because it was not an "operator" within the meaning
of section 3(d) of the Act. WRW argues in the alternative
that even if it was an "operator" under the Act , since the
subject mine was only a small operation from which i t made
no profit and since it has only $10 or $15 remaining i n
c orporate assets, it should not be required to pay the
proposed penalties.
These proceedings were delayed at the request of the
part ies pending resolution of a Federal Grand Jury i nvestigat ion purportedly concerning the deaths of 2 miners resulting
from the same incidents underlying the violations charged
herein. After the lapse of more than a year without an y
s tated disposition by the Grand Jury i t was deemed approp,..r iate. to. proceed on the merits of the cases before th is
..., ornm~ss~on o

rn the early evening of January 5, 1982, Joe Main and
Alfred Gregory, Jr., miners with no training and less than a
months experience, were killed at the WRW No. 1 underground
mine as a direct result of egregious violations of mine
safety regulations. The men died from carbon monoxide
remaining in the mine atmosphere because of grossly inadequate ventilation and after unlawful blasting from the solid
without stemming and blasting simultaneously at six working
faces.
The day shift, consisting of five miners and the uncertified supervisor Paul Jordan, had arrived at the mine
around 9:30a.m., on January 5, 1982. Jordan and four of
the miners loaded and hauled coal to the surface until about
1:00 p.m. After lunch, the crew reentered the mine and
drilled 11 blast holes in each of the faces of the six
working places. After charging each of the holes with caps
and five or six sticks of explosives, (thus totaling 300 to
360 sticks) they were wired for simultaneous blasting. At
about 4:30p.m., Jordan connected a blasting cable to a
220~volt AC circuit and detonated the explosives from the
surface.
1; Citation No. 979006, Docket No. KENT 83-68 was dismissed
at hearing upon the Secretary's request for withdrawal.
Commission Rule 11, 29 C.F.R. § 2700.11.

246

The second shift crew consisted of three surface
employees (slate pickers) and Alfred Gregory, the underground scoop operator. Jordan told Gregory "not to go underground for awhile" so the smoke from the explosives could
clear up. Gregory entered the mine around 5:30 p.m. and
hauled three loads of coal to the surface without incident.
He entered a fourth time, but did not return. Joe Main, one
of the surface employees, then entered the mine to look for
Gregory 6 Main returned once to the surface unable to locate
him. Around 6:30p.m., Main returned underground to continue his search . Main did not reappear after 30 minutes s o
another surface employee, Keith Turner, went for help .
Turner and Ellis Gregory Jr . , brother of the deceased , later
entered the mine and found the bodies of Gregory and Main .
WRW maintains that it was not responsible f or those
deaths or for any violations at its No. 1 Mine , because it
was not an "operator" within the meaning of section 3(d) of
the Act. It contends that it did not exercise control or
supervision over the mine or the miners , and r elinquished
all control and supervision to an independent contractor Q
Paul Jordan .
Section 3(d) of the Act, defines "operator" as "any
owner, lessee, or other person who operates, controls, or
supervises a coal or other mine." It is not disputed that
WRW was lessee of the coal mine at issue (Exh. G-12). The
issue then is whether during relevant times WRW operated,
controlled or supervised that mine. As evidence that it did
not, WRW cites mining agreements reached in May and November
1981 with Paul Jordan, the purported independent contractor
(Exh. G-6, and G-7). Whether or not WRW was operating, controlling or supervising the subject mine does not, however,
depend upon the formalities of a document but rather is a
factual issue determined by all the surrounding circumstances. In this regard, there is substantial credible
evidence to conclude that WRW continued to be an "operator"
within the meaning of section 3(d) of : the Act even after
engaging the services of the purported independent contractor, Paul Jordan.
It is undisputed that the subject mine has always been
operated under an identifiqation number issued to WRW based
upon its application to MSHA', as the responsible mine
operator, and that even after it had been cited by MSHA for
previous violations WRW never sought to change its official
status as responsible mine operator. Under section 109(d)
of the Act, the mine "operator" is required to file with
MSHA its name and address as the operator responsible for
the mine and must promptly report to MSHA any changes in
that relationship.
·.
\

WRW was cited by MSHA at a time when it claims that an
independent contactor was solely responsible for the mine
operation. However the evidence shows that WRW paid for
those citations with checks drawn on its own bank account
and that the "independent contractor" was represented in the
citations as a partner and 9 therefore ~ as an agent of WRW.
There is no evidence, moreover, that WRW disclaimed its
legally established status as " operator" at any time prior
to the initiation of these cases. Accordingly v WRW is
estopped from now denying that relationship .
Secretary v .
Swope Coal Co. , 1 FMSHRC 1067 (1979 }. ~/
In addition to holding itself out as the responsible
mine operator WRW also exercised actua l super v ision and
control over significant mining activities .
It i s undisputed that WRW furnished all equipment and supplies
necessary for the mining operations and had an exclusive
contract to purchase all of the coal produced .
In addition ~
according to Jess Alford , a certified mine foreman with whom
WRW contracted to buy coal f rom J anuar y to Ma y 1 98l p Noah
Woolum, president of WRW u directed Alford 0 s associates in
performing work in the surfaces areas of i ts two mines
including the cutting and hauling of logs to construct a
tipple for the No. 2 Mine. Woolum also made the decision to
begin mining the No. 2 Mine and suggested to Alford that he
work at night to avoid the mine inspectors. ~/
According to one of the miners working for Alford, Roy
Hampton, Noah Woolum had him perform various job assignments
usually through instructions to Alford. On one occasion
however, Woolum directly told Hampton to build a coal tipple
2;

WRW also applied for, and was issued as mine "operator",

a Surface Disturbance Mining Permit f~om the Commonwealth of
Kentucky {Exh. G-44) and a performance bond was obtained by
WRW in its own name in connection with that application
(Exh. G-43). WRW therefore not only held itself out as the
responsible mine operator to MSHA but{ also to state
authorities.

3; Woolum denied that he directed mining activities or that
he suggested methods to avoid inspectors.
I do not find
these denials to be credible. in light of the contrary testimony of Alford, Roy Hamp~on, Tony Evans, Paul Jordan and
Leroy Jordan discussed infra.
In particular no reasonable
motive to falsify has been attributed to Alford, Hampton or
Evans. In addition, because of the consistency and cross
corroboration provided among and by these witnesses to the
testimony of Paul and Leroy Jordan I find the testimony of
these witnesses to be credible also.

248

at the No. 2 Mine. Woolum was at the mine every weekend as
the tipple was being built and directed its construction.
Hampton continued to work for 2 or 3 weeks at the No. 2 Mine
after Alford quit and indeed produced some coal for WRW even
though he was not a certified foreman and Woolum knew he was
not. 4; Hampton later tried to get a certified foreman
for Woolum but was unsuccessful .
Paul Jordan subsequently met Noah Woolum at a gas
station where Jordan was having his car repaired.
Jordan
said that Woolum approached him about running his mine and
even though Jordan told him that he was not a mine foreman .
Woolum nevertheless asked Jordan to be his "foreman ".
Jordan thereafter examined the two mines and agreed to " give
it a try ." They reached a contract on May 30 , 1981, and
Jordan began work the same day .
Marty Smith, Noah and Bill Woolum, Bill Woolum Sr .,
William Eastrich, Paul Jordan, and his brother Leroy Jordan
showed up on the first day of work .
Noah first directed
that the equipment be moved fr om the No . l to the No . 2 Min e .
Later , several men went into the No. 2 Mine to prepare for
production. During this time a rock. fe ll on Leroy Jordan es
foot, crushing it. Noah Woolum later told Leroy that since
WRW did not have workmen's compensation coverage WRW would
pay his hospital bills directly. The evidence shows that
WRW paid Leroy for about 2 months lost work and for some of
his medical bills.
After the accident at the No. 2 Mine Noah told Paul
Jordan to move the equipment back to the No. 1 Mine. Woolum
also asked Jordan around this time whether he had a certified mine foreman's license and when Jordan replied in the
negative, Woolum reportedly said "never mind, we can't make
any money operating legally."
Thereafter, Noah Woolum was reportedly present at the
mine every other weekend, bringing th\9 "payroll 11 and sometimes operating the loader. According to Jordan, Woo l um
also occasionally directed the men to load coal and move
equipment. On one occasion Woolum told Jordan to place a
cable across the mine access road 11 to keep the inspectors
4; Woolum's testimony that Hampton performed 11 clean up"
work in the WRW mines is ·not· inconsistent with Hampton's
testimony that he produced coal for Woolum. Both activities
constitute mining and the evidence that Woolum had a person
known to him not to have been a certified foreman performing
such activities supports Paul Jordan's testimony, discussed
infra, that Woolum retained him knowing that he was not a
certified foreman.

out." According to Jordan, they also began working a midn ight shift on Woolum's instructions in o r der to f urther
avoid contact with the mi ne inspectors .
Accordi ng to J ordan , Woolum also told him where to
drive the headings ; where to p ut powe r l ines r how t o pump
wat er out 0 and h ow ·to ma i ntai n the min ing e quipmen·t .
On one
occas i on , Woolum e ven removed the mine ventilat ion f an ,
·e el U.ng Jord an only thc:.t it belonged to s ome one elsa .
Woo l um then r eportedly had Leroy ,'Jord.s.Yl help him replace the
f an with a s ma ller one and move it to a n e\'\.1' l:::>cation .
The
ventilat ion t-ias s o b a d af ter that. t hat bo·th J or dans comp lai ned t1 numerous stt times t o ~i"ool um about t he p rob lem and on
at l e a st one occ asion Paul Jordan t old Woolum that ~th e guys
V\ e re ge·tt. ing sic k <)n b ad o}. r . rJ
:t:r~ res ponse : t-'Joolurr.
r epor ted l y of fere d only c:J try to h ang net-r ( bratt ice )
curtain s i nside t he m i ne ~
7

Accordi ng to J ordan , Bi l l Woo lum , ano t her V>JRW of fice r
appeared a t t.he mi ne si. t .e on the alter nat.e w·ee ken ds ~ Bi ll
wo:::k e d on t he loade r moving mud and dirt i' ·built a canopy and
set up some elect:r ical '~:iir i.ng and :Lights. He occass i ona lly
u.sed Leroy Jordan t o ass i st hi m. According to Paul Jordan;
all the major decisions c oncerning the mine were made by
Noah or Bi ll Woo l umv including decisions concerning equipment break downs , hauling coal, buyi ng pumps , n i ght work,
and the direction of mi ning . J ordan conceded , however, that
he was never specifically t old how t o mine the coal and that
he hired and fired his own workers and set their level of
,1

pay. ~/

According to Leroy Jordan , he was hired by Noah Woolum
in mid May or early June 1981. On his first day of work ,
Woolum direc ted him to move mining equipment from the No . 1
to the No . 2 Mine . Noah and Bill Woolum were then operating
the "tractor s. " Jor dan later went underground at the No . 2
Mine operati ng a scoop and sett i ng timbe r s . The No . 2 Mine
had been driven a bout 80 feet t o 100 feet at that time.
After his foot was fractured in a roof fall, Noah and Bill
Woolum told him that while they were not insured u they would
take care of " everything ~V. Leroy thereafter received $100 a
week for 6 weeks as compensat i on from WRW , and payment by
WRW for some of his medical bills.

5; Noah Woolum t estified at the hear ing that he "never
Instructed them [Jor dan and his crew] what to do about
anything ". This statement and other s i milar denia l s are
without credibil i ty in l i ght of the over whelming contradictory ev ide~ce o See fn o 3 s upra.

After recuperating, Leroy returned to the No. 1 Mine
and "picked slate". During this time Noah Woolum usually
appeared on Friday and Saturday and performed cleanup,
repair and electrical work. Noah also had Leroy help him do
cleanup work, move rocks and equipment and climb poles to
erect electrical wires. According to Leroy, Noah also told
Paul Jor dan where to mine, and had co-worker Marty Smith
cutting timbers for roof suppot , cleaning up rocks, "picking
slate" and shovelling loose coal. In particular, Leroy
recalled that Noah told him on one occasion to haul a ventilation fan in the njeep" and set it up in a new location .
Noah also reportedly told the miners to avoid contact with
mine inspectors. They were told to run off into the woods
or hide in the mine if the inspectors showed up . Noah also
began the night shi ft to further avoid contact with mine
inspectors .
After the ventilation fan was replaced by a smaller one
Jordan and t he other miners began getting sick from lack of
ventilation and complained to Noah. Noah later brought in
some plywood to ''direct the air. 'g The ventilation v1as stili.
inadequate however and Leroy continued to get sick . He had
dizzy spells , throbbing headaches, nausea and felt like he
was going to pass out. He was taken to the hospital five
times for these problems and finally quit about 2 weeks
before the fatalities.
Tony Evans was a miner hired by Paul Jordan. He had
never previously worked in a coal mine, had no training , and
was not a certified coal miner. On one occasion Noah Woolum
directed him to build a canopy over the mine portal . Woolum
was present for about 4 days during that week.
Noah Woolum testified that he and his brother Bill
inherited the property here at issue, and that they incorporated with a friend, Roger Richardson, to have the coal
mined. They were referred by their attorney to a certified
mine foreman Jess Alford who would obtain the necessary
licenses and permits to mine coal. Woolum knew that it was
necessary to have a certified person run the mine and therefore "hired" Alford.
The corporation, known as WRW, thereafter contracted
with Alford to mine the coal and WRW furnished all the
supplies and equipment , including an $18,000 scoop, a
$10,000 loader and a truck . A charge account was also
established for Alford at supply stores and he was purportedly given free rein to charge the supplies he needed.
Woolum denied ever telling Jess Alford what to do, and
claims that Alford quit because of ~water problems" and not
because of managerial interference. After Alford quit 1 an

251

uncertified employee, Roy Hampton, was retained to "cleanup"
and to "look for" coal in the mines. Hampton was to get a
certified foreman to operate the mine for Woolum but was
unsuccessful.
According to Woolum, Paul Jordan later approached him
at a service station near the mine and asked if "we still
needed someone to run the mine. !i Jordan allegedly represented that he was qualified to run the mine. Without
verifying his qualifications, WRW then contracted with
Jordan to produce coaL As noted, Noah asserts that he
never directed Jordan in any of his activities and was
present at the mine only once a month to pay for the work o
These assertions have not been found credible . fn . 2 and 4 ,
supra. According to Woolum, WRW never made a profit i n the
enterprise and , after the fatalities , sold al l i ts equipment
to satisfy creditors. At the time of hearing , only about
$10 in corporate assets remained. The mines have been
closed and the coal lease terminated.
Within the above framework of evidenee I conc l ude tha·t
WRW not only held itself out in i ts relationship with l'iSHA
and other agencies as the responsible mine " operator ~ wi th i n
the meaning of section 3(d} of the Act but also exercised u
through its officers and agents, sufficient actual supervision and control over mine operations during relevant
times to constitute an "operator" as a factual matter within
that meaning. Accordingly, I find that WRW was a mine
"operator" responsible under the Act for the violations at
its mine. ~/
WRW a·c knowledges -the existence of the violations
charged in these cases and does not dispute the special
"significant and substantial" and "unwarrantable failure"
findings associated with some of the citations and orders at
bar. It is nevertheless necessary to review the gravity of
each violation and the degree of negligence attributable to
WRW for purposes of determining the appropriate civil
penalty to be assessed in accordance with section llO(i) of
the Act. As to all violations, however , I find that WRW was
grossly negligent based on the credible evidence that Noah
Woolum, on behalf of WRW, knowingly engaged a no~-certified
and unqualified person to operate his mines. All of the
6I wmv does not argue irr these cases that the Secretary
failed to properly apply his independent contractor enforcement policy. See Secretary v. Phillips uraniQ~ Corporation,
4 FMSHRC 549 ~198?> ~nd _ Secretary v. Cathedral Bluffs Shale
Oil Company, 6 FMSHRC 1871 (1984). The credible evidence
herein does in any event ~stab1ish that the Secretary did
indeed properly apply this policy .

violations are directly attributable to this negligent act
since the violations were caused by the ignorance and/or
negligence of this unqualified miner. I find further negligence based on the evidence that Woolum, as president of
WRW, knew he was operating the mines illegally and attempted
to conceal these illegal operations from MSHA. Specific
findings of negligence are also designated in the discussion
below where it has been found appropriate to a specific
violation .
Docket No . KENT 83-39
Citation No. 979126 alleges a violation of the standard
at 30 C. F.R. § 75.512 for failure to have a qualified person
employed at the mi ne to perform required e l ectrical i nspections on the electrical equi pment . According to the undisputed testimony of MSHA supervisor Lawrence Spurlock , the
failure to have such a qualified person at the mine contributed to many of the other violations including uninsulated power wires , impermissible mining equipment and
electrical boxes without lids . These v ioiative c onditions
in conjunction with the wet mine f loor and inadequate
methane testing could have resulted in explosions and
electrocution. The violation was accordingly a serious one.
Citation No. 979127 charges a violation of the standard
at 30 C.F.R. § 75.516 and alleges that the underground cable
providing 220 volt power was not installed on insulators.
It is undisputed that the conditions existed as cited and
that because of the bare spots in the insql_a tion of the
220-volt wire and the fact that it was lying on the wet
floor there was a serious electrocution and shock hazard.
The violation was accordingly serious. Inasmuch as Jordan
conceded that the insulation had been -intentionally removed
so the wire could be used to detonate .explosives, the violation was the result of gross negligence.
Citation No. 979128 alleges a violation of the standard
at 30 C.F.R. § 75.1200 and charges that no accurate and
current mine map was available at the subject mine. This
was a serious violation in that without an accurate mine map
it would be difficult for rescuers to quickly locate victims.
This was a particular hazard in this case -because of the
presence of noxious gases. Without an accurate mine map,
there is also the potential of mining into old works with
possible flooding and/or inundation by .. black damp."
Docket No, KENT 83-63
Citation No. 979125 alleges a violation of the standard
at 30 C.F.R. ~ 75.503 and charges that the rubber-tired

253

electrical scoop was not maintained in a permissible condition. · The battery leads were not installed in a conduit,
the control panel box had an opening in excess of ~005 inch
and the battery couplers were not locked. The undisputed
evidence is that these violations created a potential
ignition source for triggering a coal dust or methane
explosion. The hazard was particularly seri ous inasmuch as
there was no methane detector available at the mi ne si t e.
Docket No.

KENT

83-65

Citation No. 979121 alleges a violat i o n of the standard
at 30 C.F.R. § 75.309 and charges that no qualified person
was employed at the mine to perform methane tests . I ndeed ,
Paul Jordan had never even seen a methane detector at that
mine. According to the undisputed testimony of MSHA s upervisor Spurlock , a particularly serious hazard existed from
the failure to perform methane testing because of the
existence of the electrical permissibility v iolati ons.
Citation wo. 979130 alleges a vio l a tion of ~he standa rd
at 30 C. F.R. § 75 . 1713-7 i n that the r e quisite zirst aici
equipment was not available at the mine . According t o
Spurlock, the violation was serious because, for example , in
the absence of a tourniquet, a miner could bleed to death .
Docket No. KENT 83-68
Citation No. 979005 alleges that the operator fa i led t o
withdraw persons who were not necessary tq ~bate c onditions
described in a previously issued section 104(b) order.
According to the undisputed testimony of supervisor
Spurlock, miners were continuing to work in an area affected
by the section 104(b) withdrawal orde~ and which required
additional roof support. The miners were thereby exposed to
the serious hazard of roof falls.
Citation No. 979006 was dismisse~ at MSHA's request as
having been erroneously issuedo
Order No. 979095 alleges a violation of the standard at
30 C.F.R. § 75.307 in that there was no qualified person
employed at the mine to perform methane tests. Such tests
are required at each working· place immediately before
energizing electrical equipment and at intervals during
mining operations. In light of the number and seriousness
of the permissibility violations existent at this time, this
violation was~particularly serious and could have led to
fatal explosions .

Order No. 979097 alleges a violation of the standard at
30 C. P.R. § 75.400 in that loose coal and coal dust accumulations were present throughout the subject mine. In light of
the significant quantities of loose coal and coal dust
throughout the mine , the presence of ignition sources from
permissibility violations and the practice of blasting without stemming, there was indeed a serious hazard of fat a l
explosions.
Order No ~ 979100 alleges a violation o f t he standard at
30 C.P. R. § 75 . 1600 in that there was no t wo- way r ad i o c ommunication available at the mine " According to Sp urlock p
this deficiency would prevent an i njured person inside the
mine from communicating for r escue purposes . It according l y
presented a serious hazard.
Docket No. KENT 83-138
Order No. 979098 alleges a violation of the standard at
30 C.PoR . § 75 . 402 i n that there had been no r ock dust i ng at
the sub j ect mine . Accordi ng t o MSHA vs supervi s or S pu rl ock ~
without rock dus t~ coal dus t becomes suspended in t he air D
thereby creating an explosive environment . The v iolat ion
was particularly hazardous because of inadequate vent i lation
at the mine, · the existence of electrical permissibility
violations, and the practice of blasting without stemming .
Docket No. KENT 83-179
Order No . 979093 alleges a violation p~ the standard at
30 C.P.R. § 75.306 in that there was no qualified person at
the mine performing ventilation tests. It is undisputed
that there was not even an anemometer available at the mine
to perform such tests. MSHA supervisor Spurlock opined that
this violation directly contributed to the fatalities in the
mine. Proper testing would have revealed insufficient ventilation in the area where the miners were killed .
Order No. 979096 alleges a violation of the standard at
30 C.P.R. § 75.314 in that there was no qualified person at
the mine to perform examinations of idled and abandoned
areas. Such examinations would detect low oxygen, the
existence of methane , poor roof conditions and other serious
hazards.
Order No. 979099 alleges a violation of the standard at
30 C.P.R . § 75.517 in that insulation had been removed from
portions of the 220-volt power cable and the cable was lying
on the wet mine floor . Under the circumstances, the serious
hazard of burns, shock, and electrocution existed.

Citation No. 979122 alleges a violation of the standard
at 30 C.F.R. § 77.512 and charges that the cover plate on
the main power box had been removed. Persons could thereby
contact the exposed wires and suffer burns , shock and
electrocution.
Order No. 979123 alleges a violation cf the standard a~
30 C.F.R. § 77.513 in that there was no insulation mat to
insulate people from electrical shock at the s wi t ch box .
The violation could result in electrical shock, burns and
electrocution, and was accordingly serious .
Order No. 979124 alleges a violation of the standard a~
30 C.F.R. § 77.130l(b) in that detonator s a nd deteriorated
explosives were stored together. The ev idence shm~s that c-:.
serious explosion hazard existed from the potential spon-·
taneous ignition of the deteriorated explosives .
Docket No. KENT 83-213
Citation/Order No . 979092 alleges a violat i on of the
standard at 30 C.F.R. § 75.200 in that loose roof had not
been supported and hill seams were not cribbed as required
by the roof-control plan. MSHA supervisor Spurlock found
that an imminent danger of death and serious i njuries
existed from the described hazard . This finding is not
disputed.
Citation No. 979129 alleges a violati.o.n of the standard
at 30 C.F.R. § ?5.1715 and charges that there was no checkin and check-out system in effect at the mine . Without such
a system, there was no way of obtaining positive identification of persons who may have been working underground.
Without such a system, neither management nor potential
rescuers could determine whether any persons remained i n the
mine after an accident . Under the circumstances , rescuers
may be placed at unnecessary risk i.n trying to locate
persons who may no longer be in the mine . The violation was
accordingly serious. It was particularly serious in this
case because rescuers did in fact continue to search the
mine for other possible victims of the noxious gases.
Docket No. KENT 83-250
Order No. 979081 alleges a violation of the standard at
30 C.F.R. § 75.301 in that the working faces of the active
places in the mine were not being ventilated by a current of
air sufficient to dilute, render harmless and carry away
carbon monoxide, smoke, explos~. v·e fumes and other harmful
gases. The evidence reveals that this violat i on was a

256

direct cause of the subject fatalities . The unstemrned
charges had been exploded around 4:00 or 5:00p.m., and
Spurlock was still not able to enter the working places 6
hours later because of the inadequate ventilation. The
evidence shows in fact that it was impossible to devise a
ventilation system that could provide sufficient air in the
working places and the closure order remains in effect in
the subject area. The violation was a serious one and, as
indicated, was a direct cause of the two fatalities. The
violation was also related to the interference by WRW
president Noah Woolum in removing a larger ventilation fan p
and in selecting the direction of headings. Woolum had also
been warned on several occasions of the inadequate ventilation but did nothing to correct i t .
Citation No. 979082 alleges a violation of the standard
at 30 C.F.R. § 75.302 in that no line brattice was being
used to improve the ventilation of the subject mine .
According to Spurlock, this was also a direct cause of the
fatalities in that the failure to have line brattice permitted the buildup of fatal carbon monoxide . The violation
was also attributable to the failure of Noah Woolum t o have
furnished the brattice that he said he would provide .
Order No. 979083 charges a violation of the standard at
30 C.F.R. § 75.304 in that there was no certified person at
the mine to perform on-shift examinations. The evidence
shows that the requisite instrumentation for conducting such
examinations, including a methane detector and a flame
safety lamp, were not even available at the mine. These
were serious violations that could have contributed to the
fatalities in this case.
Order No. 979084 charges a vio+ation of the standard at
30 C.F.R. § 75.320 and alleges that no methane tests were
performed before or after blasting at the subject mine. The
evidence shows that a mine explosion could be triggered by
the blasting if methane or coal dust were present. A
serious hazard accordingly existed.
Order No. 979085 alleges a violation of the standard at
30 C.F .R . § 75.1303 in that the mine operator was blasting
six places at one time with 300 sticks of explosives. As a
result of the use of exc~ssive amounts of explosives, dust
and gases were put into suspension thereby potentially
propagating an explosion of the entire mine. The hazard was
aggravated in this case by the failure to stem the explosives, thereby creating a serious ignition source for any
suspended coal dust or methane that might be present.
Excessive carbon monoxide also resulted from these blasting
practices, and, as noted, was the direct cause of the

257

fatalities in the case.
serious.

The violation was accordingly quite

Order No. 979086 alleges a violation of the standard at
30 C.F.R. § 75.1714(a) in that there was an insufficient
number of self-rescuers available for the number of miners
working. Inasmuch as self-rescuers filter out carbon
monoxide , it i s quite possible that, had the deceased miner s
been equipp~d with self-rescuersp they might have survived .
The viola tion was qu i te serious and may be considered a
contributing cause to t he f atali t i e s i n this case.
Citation No. 979087 alleges a violation of the standard
at 30 C.F . R. § 75 . 48.5 in that the new miners employed at
the subject mine had not received the trainin~ required by
section 115 of the Act . One o f t he dece ased miners had onlv
l week experience and the other began working t he night of -·
his death. It may be reasonably inferred thai had the
miners had the proper training, they would have been able to
understand the hazards they faced in working i n the· subject
mine , thereby possibly p revent ing t he i r death .
Citation No . 979088 alleges a vio lat i on o f t he standard
at 30 C.F.R. § 75.48.7 in that none of the miner vs at the
subject mine had received task training before assignment to
work duties. It may reasonably be inferred that if such
training had been given that the miners would have been
aware of the hazards presented by the subject mine .
Citation No. 979089 alleges a vioration of the standard
lt 30 C.F.R. § 75.300 in that the mine fan ... was neither
installed nor operated in an approved manner. The fan was
installed in front of the mine opening, in a combustible
wood housing and without a water gagge. According to MSHA
supervisor Spurlock, the violation directly contributed to
the fatalities in the case inasmuch as the fan was not
providing sufficient ventilation to remove carbon monoxide
from the area in which the victims were working. The violation was accordingly serious. Since the fan was obtained
and positioned by Noah Woolum himself, WRW was , for this
additional reason, grossly negligent.
Order No. 979091 alleges a violation of the standard at
30 C.F.R. § 75.303 in th~t a· certified person was not
employed at the mi.ne or available to perform preshift
examinations . The violation was quite serious and contributed to the fatalities in the case. The violation is
directly attributable to WRW's failure to have engaged a
certified foreman at its mine .

258

Order No. 979094 alleges a violation of the standard at
30 C.F.R. § 75.305 and alleges that no certified person was
employed at the mine to perform the required weekly examinations, including examinations of the intakes, return air
courses, and escapeways. If such a person had been employed
and had been performing his duties, the evidence shows that
the violations that led to the fatalities in this qase would
probably have been discovered and the fatalities avoided.
The violation was according ly qu i te serious. The violation
was also directly attributable to WRW 's failure to have
engaged a certified for eman at its mine.
In determining the amount of penalties I am assessi ng
in these cases , I have also considered the evidence that WRW
was a small mine operator. I also note that considering i ts
size and the l e ng th of ti me it had been operating f WRW had
only a moderate history of reported violations . That
reported history does not however reflect the evidence that
WRW had been operating its mines without MSHAis knowledge
for at least 7 months . It may r easonably be inferred that
it was operating during this time with many of the same
violative conditions cited in these cases since it was being
operated under the direction of the same unqualified and
uncertified individual. It appears that the violations in
these cases that could be abated , were in fact abated, but
both the No. 1 and No . 2 Mines have been abandoned. WRW is
no longer in the mining business and has no intention to
resume such business .
The evidence also shows that WRW has so depleted its
assets that it has only " $10 or $15" remai'iiing . However
because of the egregious violations in these cases coupled
with the gross negligence on the part of WRW principals , I
find that the substantial penalties , ! am imposing herein are
appropriate. I fully expect thatr should MSH.A find itself
unable to collect these penalties from corporate assets, it
will pursue collection proceedings against the individual
stockholders by piercing the corpor~te veil. The facts in
this case clearly warrant such proceedings. See U.S. v.
Pisan i, 646 F.2d 83 (3rd Cir. 1981 ); and DeWitt Truck
Brokers Vo W. Ray Flemming Fruit Co., 540 F.2d 681 ( 4th Cir.

1976). 7;

Consistent with the goals of the Act the

message~must be crystal clear that unscrupulous mine

operators will not be permitted to use corporations with
little or no assets to escape responsibility under the Act .
It is apparent moreover, because of the direct personal
involvement by WRW president Noah Woolum in several of the
more serious violations, that penalty proceedings against
that corporate officer would also be war ranted under section
llO(c) of the Act.
ORDER
WRW Corporation i s hereby ordered to pay the fol lowing
civil penalties within 30 days of the date of th i s decisio n ~
Docket No . KENT 83-39
Citation No.

Amount of Penalty

$

979126
979127
979128

500
45 0
45 0

Docket No . KENT 83-68
979005
979095
979097
979100

500
500
300
200

Docket No. KENT 83-63
979125

150

Docket No. KENT 83-65
979121
979130

345
100

7; Consider in these cases, for example, the absence of
corporate records such as the corporate minutes allegedly
lost, the apparent failure tp observe corporate formalities,
the undercapitalization of the firm and the maintenance of
its undercapitalization by loaning it money instead of
investing equity in it, the absence of dividends and
eventual insolvency, the in t entional conduct by one or more
stockholders of illegal mining activities and efforts to
deceive Federal inspectors and the fundamental injustice in
these cases of permitting the stockholders to be shielded.

260

Docket No. KENT 83-138

979098

255

Docket No. KENT 83-179

979093
97 90 96
979099
979122
979123
979124

500
400
75 0
400
400
350

Docket No. KENT 83-213

979092
979129

500
300

Docket No . KENT 83-250

lO vOGO

979081
979082
97 90 83
97 90 84
979085
979086
979087
979088
979089
979091
97 90 94

10 , 000
5 , 000
5,000
10,000
10,000
5,000
5,000
10,000
8,000
5, 0
$90, 0

~

Gary

Law Judge

Assi

261

Distribution~

William F. Taylor , Esq., Off ice of the Solicitor, u.s.
Department of Labor, 260 U.S~ Courthouse v 801 Broadway,
Nashville , TN 37203 (Certified Mail)
Michael T . Gmoser, Esq. o Attorney for W R W Corporation, 714
Rentschler Building 1 Bamilton 9 OH 450 11 (Certified Mail )
rbg

262

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, l Oth FLOOR

FEB 2 2 1985

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

CIVIL PENALTY PROCEED I NG
Docke t No . SE 83-51
A.C . No . 01-01247- 03546

v.

No . 4 Mine

JIM WALTER RESOURCES, INC . ,
Resp ond ent.
DECISION
Appearances :

Before :

Robert w. Pollard , Esq .u a nd R. Sta n l ey
Morrow, Esq ., Jim Walte r Resource s 8 Incu q
Bir mingh am ,, Alabama 1 for Petitione r ;
Terry Price , Esq ., Office of the Solic i tor g
U.S . Department o f Labor ? Birmingham, Alabama q
for Respondent .

Judg e Fauv er

The Secr etary o f Labor b r ought thi s a c t ion for a c ivil
penalty under section 105{d) of the Federal Mine Safety
and Health Act of 197 7 , 30 u.s.c . § 801 , et seq . The case
was heard in Birmingham , Alabama. Having-considered the
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.
Respondent is the owner and operator of .an underground
coal mine , known as Mine No . 4 , which produces coal for sale
or use in or substantially affecting interstate commerce.
2 . On March 9, 1983, Federal mine i nspector Milto.n Zimmerman
issued Order No. 2192440, citing Respondent for a violation
of 30 C. F . R. § 75.202, alleging that , in the No . 9 section
track entry, beginning 20 feet inby ' spad No . 1793 and entending
inby for 200 feet, the roof had broken along the ribs in
places , roof bolt heads (bolt plates ) had broken off because
of loose hang ing roof, a nd in several places loose rock was
falling out between roof bolts .
I find that there were
seven or eight sheared off roof bolts, a condition indicating
roof stress requiring additional support; that there was
loose roof material in various places; and that there were
breaks or cracks in the roof along the ribs and between roof
bolts in various places. These conditions were hazardous
and required immediate action to danger off the area and
t a ke corrective action of taking down loose roof material
and providing additional roof support.

3. The conditions cited by Inspector Zimmerman were
abated by the Respondent in good faith and in a reas'onable
time, by installing additional roof support and by taking
down loose ~oof material.
4. The hazardous roof cond i tions found by Inspector
Zimmerman were readily observable and had existed for a
substantial period before his inspection .
DISCUSSION WITH
FURTHER FINDINGS
Respondent contends that there was some scale ~ in t:he
roof , but that this 'iftTas normal and was not "loose roof"
within the meaning of 30 C. F.R. § 75.202 . The regulation
provides that "Loose roof and overhanging or loose faces and
ribs shall be taken down or s~pported e
Respondent acknowledges
that ·"scale" must be taken down o r supported f o:i: the sa.fe'cy
of." the miners .
I find that so-called "scale " i s loose roof
within the meaning of 30 C.P.R . § 75 . 202 if there is a
reasonabl·e risk that the "scale " may work loose and fall
with or without warning.
I find that there was " loose roof "
in the areas cited by Inspector Zimmerman .
I also find that
there were seven or eight broken roof bolts, with the heads
sheared off .
The broken roof bolts indicated roof stress
requiring additional roof support. Respondent offered testimony
that the stress on the roof bolts was horizontal stress
rather than vertical stress, but such opinion evidence did
n ot l essen the need to add roof support and to take down
loose roof material , and to danger off the affected area
while these measures were taken .
0

9

11

Respondent's failure to take necessary corrective
action before the inspection constituted a violation of 30
C.F . R. § 75.202.
The gravity of the violation was very serious because
the affected area was regularly traveled by miners and a
roof fal l could cause death or serious injury. The violation
was thus " significant and substantial" wi.thin the meaning of
section 104{d} of the Act .

26 4

Respondent knew, or with the exercise of reasonable
care should have known, of the hazardous roof condition .
It
was therefore negligent and the violation was " unwarrantable"
within the meaning of section 104(d) of the Act.
Respondent was in a "section 104(d) (2) sequence" at the
time of the March 9 , 1983, inspection. Before that date ,
Responaent had been issued a section 104(d) (1) citation , then
a section 104{d) (1 ) order, and then a section 104(d) (2) order
in every inspection following the issuance of the section
104 (d) (1) order .
Respondent is a medium s i ze operator ? its h istory of
prior violations is average , and imposition o f a civil
penalty would not affect its ability to continue in business.
Considering ' the criteria for assessing a civil penalty
under section llO(i) of the Act f I find that an appropriate
civil penal ty for the v i o l ation in this case is $2 7 000 .
CONCLUSIONS OF LAW
1. Respondent ' s Mine No. 4 is subject to the Act and
the Commission has jurisdiction in this proceeding.
2.
Respondent violated 30 C.F.R. § 75.202 on
March 9, 1983.

ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay a
civil penalty of $2,000 within 30 days of this Decision.

~ ::r~ V'tl2__..

William Fauver
Administrative Law Judge

Distribution:
Terry Price, Esq., Office of the Solicitor, u.s. Department
of Labor , 1929 South Ninth Avenue, Birmingham , AL 35256
(Certified Mail)
H. Gerald Reynolds, Esq., Jim Walter Corporation, 1500 North
Dale Mabry Highway, Tampa, FL 33607 (Certified Mail)

/kg

265

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.

<,·,a·~
FEB.~n '...,-~ 5·,
"',J
i

~,......

CIVIL PENALTY PROCEEDING
Docket No . KENT 84-27
A. C. No . 15-05209-03508

No. 4 E Mine

MITCH COAL CO ., INC. ,
Respondent
DEFAULT DECISION
Appearances :

Mary Sue Ray, Esq. , Office of t he Solici tor ,
U. S . Department of Labo r, Nashville , 1'ennessee 9
f or Petitioner ~
No one appeared a t ·the he ari ng on b e h&.lf o:i:
Re spondent .

Before :

Judge Steffey

When the hearing in the above-entitled proceeding was
convened in Prestonsburg, Kentucky, on December 11 , 1984 ,
pursuant to a written notice of hearing dated October 24 9
1984, and received by respondent on October 26 , 1984 , counsel
for the Secretary of Labor entered her appearance , but no one
was present at the hearing to represent respondent .
Under the provisions of 29 C. F.R. § 2700.63{a) , when a
party fails to comply with an order of a judge, an order to
show cause shall be directed to the party before the entry
of any order of default. An order to show cause was sent to
respondent on December 14 , 1984 , pursuant to section 2700.63{a) ,
requiring respondent to show cause why it should not be found
to be in default for failure to appear at the hearing convened on December 11, 1984.
A r eply to the show- cause order was filed by respondent
on December 31, 1984. Respondent states that its mine has
been closed since October 1 , 1984, because of loss of its
mi ning permit . Respondent 's reply explains that its representative traveled to Frankfort, Kentucky, on December 10,
1984 , and did not return until late on December 11 , 1984.
As a result of respondent ' s concern about being unable to
work, its representative states that he simply forgot about
the date of the hearing .

I am sympathetic about respondent's loss of its m1n1ng
permit and its efforts to achieve the reopening of its mine,
but I must also consider the fact that we can hardly process
the cases that are assigned to us unless we require those who
have asked for hearings to appear at the appointed time.
Surely! respondent could have made a note of the hearing date
on a calendar and could have asked for a continuance if December 10 was the only date that it could have traveled to Frankfort to find out whether it could reacquire its mining permit.
Moreover v it is difficult to communicat.e vJi th respondent
except by mail .
The foregoing conclusion is based on a statement made by the Secretaryis counsel at the hearing in response
to my inquiry as to whether she had any comments she wished
to make about respondent's failure to send a representative
to the hearing (Tr. 3- 4) :
No, Your Honor, except that I have tried to
contact Mr. Sammons, bo·th at the mine and at his
No. 2 Mine, and also at his home phone number
this week, and I had no answer , so I have tried
to be in touch with him several t imes in the past
week .
In t he circumstances described above 1 I find that respondent has failed to give a satisfactory reason for failing to
appear at the hearing convened on December 11, 1984, and that
respondent should be held to be in default for failure to appear at the hearing . Section 2700.63(b) of the Commission's
rules provides that "[w]hen the Judge finds the respondent in
default in a civil penalty proceeding, the Judge shall also
enter a summary order assessing the proposed penalties as
final, and directing that such penalties be paid."
WHEREFORE, it is ordered :
Respondent, having been found to be in default, is
ordered, within 30 days from the date of this decision, to
pay civil penalties totaling $100.00 for the five violations
alleged in this proceeding. The penalties are allocated to
the respective violations as follows:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No .

2183250 10/4/83 §
2183251 10/6/83 §
2 183252 10/6/83 §
2183253 10/6/83 §
2183254 10/6/83 §

48.9
75 .1 722(a)
75.1719-l(d)
75.316
7?.1100-2
•

0

•

•

•

•

0

•

•

•

•

•

0

•

0

•

•

0

..

•

•

•

0

.....

$ 20.00
20.00
20.00
20.00
20.00

Total Civil Penalties Proposed in This
Proceeding •• • •c>•• • • • •• •• ••••• • •••• • •• • •• • o• $100e:OO

~s~~teo/h~

Administrative Law Judge

267

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U. S. Department
of Labor, Room 280, U. S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Mr . Grover Sammons, Mitch Coal Co . , Inc . , Box 12, Minnie, KY
41651 (Certified Mail)

yh

268

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

UNITED STATES BORAX AND
CHEMICAL .CORPORATION,
Applicant

22041

APPLICATION FOR REVIEW
Docket No. WEST 82-144-~~
Citation No. 385177; 2/26/82

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

Docket No. WEST 82 - 145- RM
Order No. 371298 ; 3/9/82

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

CIVIL PENALTY PROCEEDING

Boron Mill

Docket No. WEST 82 - 187-M
A/0 No. 04-03886 -05019 F
Boron Mill Mine

UNITED STATES BORAX AN~
CHEMICAL. CORPORATION ,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 83~100-M
A.C. No. 04-03886 - 05501 A

v.
Boron Mill
ALFRED E. FRENCH,
Respondent
DECISION APPROVING SETTLEMENT
AND DISMISSING PROCEEDINGS
Before:

Judge Broderick

On February 20 , 1985 , the parties submitted a Joint
Motion for the Approval of Civil Penalty Proceedings and
Withdrawal of Contest and Application for Review. With the
motion, they submitted a copy of the MSHA Investigation Report
of March 26 , 1982 , on the fatal accident occurring at the
U.S. Borax facility on February 26 , 1982, and a copy of a

269

computer printout showing U.S. Borax's history of paid violations during the 2-year period prior to the al l eged violation
which is the subject of these proceedings.
On February 26, 1982 , a miner at the subject mine contacted a bare power conductor while cleaning a transformer.
He suffered critical electrical burns and died on March 3,
1982.
MSHA conducted an investigation of the accident fol l o wing which it issued a citation allegin g a v iol a tion o f
30 C.F.R. § 55.12-17 and an order of wit hdrawa l for an imminen t
danger . The standard allegedly v iolated , provides that p ower
circuits shall be deenergized before work is done on themu
warning signs shall be posted and switches shall be locked out
to prevent power circuits f rom being energ ized wi thout t he
knowledg e o f individuals working on them .
The imminent danger
was described in the withdrawal order as resulting f rom
insufficiently supervised and trained laborers being assigned
to cleaning substations with high potenti a l voltage p resent .
The citation a·nd the withdrawal order have b een challenged by
U.S! Borax i n these proceed~ng s .
The Secretary filed a civil penalty proceeding against
U. S . Borax charging a violation of 30 C.F.R. § 55.12- 17 and
proposed a civil penalty of $10,000 .
It filed a civil
penalty proceeding against Alfred E. French, an electrical
foreman at u.s . Borax, alleging that as an agent of u.s .
Borax, he knowingly authorized , ordered, or carried out the
violation of 30 C.F.R. § 55.12- 17 .
It proposed a penalty of
$2 , 500 against French.
The settlement agreement of which the motion seeks
approval, provides for the payment by u.s. Borax of a civil
penalty in the amount of $6 , 000 and by French in the amount
of $1,500 .
It further provides that the settlement shall not
be deemed as an admission by u.s. Borax or French of a violation of the Act or any mandatory stan1ard .
The motion states that the Secretary agreed to the
settlement in part because of the unavailability of a witness ,
MSHA electrical inspector Billy Boult who was the chief
investigate~ of the fatal accident.
Inspector Boult has
suffered a heart attack and was advised by his physician that
testifying would cause a strain on his heart.
The history of prior violations shows that U. S. Borax had
87 paid violations · in the 24-month period prior to the viola tion at issue here . None of the prior violations involved
30 C. F . R. § 55.12- 17.

2''( 0

I have considered the motion in light of the criteria
in section llO(i) of the Act, and conclude that the settlement is in the public interest and should be approved.
Therefore , IT IS ORDERED that the settlement agreement
is APPROVED. It is FURTHER ORDERED that U.S . Borax shall
within 30 days of the date of this order pay the amount o f
$6,000 as a civil penalty f o r the violation alleged aga i nst
it.
IT IS FURTHER ORDERED that Alfred French shall withi n
30 days of the date of this order pay the amount o f $1 , 500
as a civil penalty for t he v iolation agai nst h im.
Upon the payment of these penalties , Docket Nos .
WEST 82-187-!Vl and WEST 83-1 00-M are DISMISSED .
On motion of U.S . Borax , the contest proceeding and
Application for Review docketed as WEST 82-144-RM and
WEST 82-1 4 5-RM are withdrawn and DISMISSED .

1

/1

Uv'VV..£

j

•

l

~ AI':J Vl: kv[;tV/(_

James A. Broderick
Administrative Law Judge

Distribution:
Scott H. Dunham, Esq., O'Melveny & Myers, 400 South Hope
Street, Los Angeles, CA 90071-2899 (Certified Mail)
J. Philip Smith, Esq., Office of the Solicitor, u.s . Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail}
Peter D. Lewis, Esq., Wagy, Bunker, H~slop & Lewis,
2821 "H" Street, P.O. Box 2428, Bakersfield, CA 93303-5503
(Certified Mail)
/fb

~71

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

ROBERT SIMPSON,

DISCRIMINATION PROCEEDING
Complainant

0
0

Vo
g

KENTA ENERGY , INC ., &
ROY DAN JACKSON ,
Respondents

Docket No . RENT 83-155-D
MSHA Case No . BARB CD 83-0 6
No " l Mi ne

0
0

DECISION
---Appearances:

Tony Oppegard, Esq., Hazard , Kentucky , and
Stephen A. Sanders, Esq., Prestonsburg 1
Kentucky 6 for Complainant t
Stephen Do Cundra v Esq .v and Michael R.
Gottfried , Esq . , Thompsonu Hine & Flory 1
Washington , D. C. f or Respondents ?

Before:

Judge Broderick

In my decision of June l, 1984, I concluded that
Complainant Simpson was discharged for activity protected
under the Mine Act and that therefore, his discharge was a
violation of section l05{c) of the Act, 6 FMSHRC 1454 (1984 }.
With respect to the operator of the mine,.I stated that "It
was decided at the hearing that the issue of the personal
liability of Jackson would await a determination of whether
a violation of section 10S(c) was established . If such a
violation was found, the parties would be afforded the opportunity of submitting additional evidence on the question of
Jackson's liability ... Id., 1455 . This followed a lengthy
colloquy between Court and counsel on the record at the hearing on January 11, 1984 (Tr. 344-355}.
Section 105 <c> {1) of the Act provides that '1 no person "
shall discharge or discriminate against a miner for activity
protected under the Act. Liability under this section was
imposed against a successor mine operator in Munsey v.
Smitty Baker Coal Company, 2 PMSHRC 3463 (1980}. The Munsey
decision was based on the case of Golden State Bottling Co.
v. NLRB, 414 u.s. 168 (1973), in which the Supreme Court
upheld a remedial order against a successor employer for an
unfair labor .practice committed by its predecessor. Liability under section ~05 of the Mine Act is not excluded even

272

in a case against one who never employed the miner affected.
Local 9800 UMWA v. Secretary of Labor, 2 FMSHRC 2680 (1980).
Ordinarily, however, relief is only available from the mine
operatoro The term operator is defined in section 3(d) of
the Act as "any owner, lessee or other person who operates,
controls, or supervises a coal or other mine or any independent contractor performing services or construction at such
mine. 11
Complainant argues that "Jackson was the owner and
operator of the Black Joe Mine, that he was the alter ego o f
Kenta Energyv Inc ., and that Jackson should therfore be held
personally liable for the relief due Simpson • " • • ' l
Respondent argut.:s that Complainant has failed to carry " his
burden of showing sufficient unfairness to justify piercing
the corporate veil, and imposing personal liability on
[Kenta'sl former employee Jackson." Although much of the
post-decision evidence, much of Complainant's post-decision
brief, and all of Respondent 9 s post-decision brief are
directed to the questions whether the corporate veil should
be pierced and whether Jackson was the alter ego of Kenta ,.
my v i ew of the issue is a broader one: The question is 1 who
was the person responsible for the discrimination? or,
perhaps, who was the operator of the mine at the time the
discrimination took place? Who ought to be subject to 11 an
order granting appropriate relief?"
(Section 105(c)).
I
have found that Complainant was discharged in violation of
the Act.
I am now obliged to determine who was responsible
for the discharge and who must provide appropriate relief.
My pbligation to make these determination~js not limited ,
as Respondent implies, to deciding "the issues framed by
Complainant's June 27, 1984, Statement of Claim."
Following my decision of June 1, . 1984, Complainant submi tted a Statement of Claim against Roy Dan Jackson, a Statement Claiming Back Pay with Interest, and a Statement of
Attorneys' Fees and Expenses.
Objections were filed to each
of these statements by Respondents. , Further discovery was
permitted by order issued July 30, 1984 . Interrogatories
and Requests for Admission were served on Respondents which
were responded to. Depositions of William R. Forester, Karl
Forester, Paul Bell, Shirley Powell, Barry Rogers, Roy Dan
Jackson, Stanley Gilbert, Danny Noe, Dewey Middleton and
Robert Cox were taken by Complainant.
Pursuant to notice, a hearing was convened in Hazard,
Kentucky, on October 24, 1984 . Robert Simpson testified on
behalf of Complainant . No witnesses were called by
Respondent .
Respondent Jackson did not appear at the

273

hearing, but his deposition was admitted without objection
as Complainant's Exhibit 43.
Following t he hearing , complainant and Respondents
filed written affidavits and other submissions bearing on
the appropriate hourly rate for t he attorneys' fees claim.
Each side then filed posthearing briefs on the issue of
Jackson's liability . Complainant filed a supplemental
statement of attorneys ~ f ees and expenses , and Respondent
filed a statement i n oppos i t i on thereto o
I.

THE ISSUE OF JACKSON 'S LIABILITY
Ao

JACKSON ' S RELATIONSHIP TO KENTA

The s ub ject mi ne 0 des i gnated as t he
No . 1 Mine , was also known as the Black Joe
No. 1 Mine. It was operated by the Black Joe
Coal Company , of which Jackson was 50 percent
owner , and began producing c oal in abou t 1977 .
At some time before September 0 1 980 v the
Black Joe Coal Company "went broke" and mining was discontinued . At that time J ackson
owned or controlled the Helen Ann Coal
Company, Inc., Penelee Coal Company , Inc .,
Sugar Rock Coal Company, Inc., and Doile Coal
Company, Inc .
On September 26, 1980 6 Jackson, Helen
Ann, Penelee , Sugar Rock and Doi le en.t.e red
into a contract with Kenta Energy Inc. and
Associates, described as a limited partnership, wherein Kenta agreed to purchase all
the transferrable assets of Helen Ann,
Penelee, Sugar Roc k and Doile, including coal
mining equipment and coal leases , in return
for the payment · of $6,000,000, to be paid in
specified installments. Jackson agreed to
enter into a "management agreement" for
2 years as the President of Kenta . The agreement was signed by Jack Allen, President of
Helen Ann, Jack Allen, President of Penelee ,
Reston Sturgill, President of Sugar Rock and
Glenn Doile Vandagriff, President of Doile.
It was signed by Jackson as "Guarantor" for
the four corporations, and by Jackson as ·
President of Kenta Energy, Inc . , and
Associates. The employment contract wherein
Kenta agreed to hire Jackson as its President

2'74

for a period of 2 years and pay him a salary
of $100,000 per year , was signed by Jackson
as President for the first party , Kenta, the
employer, and again by Jackson as the second
party, the employee. The agreement states
that Jackson was a principal stockholder in
Helen Ann and Penelee , and t he managing
officer of Sugar Rock. Doile ha,d a contr act 7
signed for Doile by Jackson as President v tc
supply coal through the Virginia ::?uel Company
to the Florida Portland Cement Compan y.
Doile did not mine coal but sold the p roduction of Helen Annv Penelee and Sugar Reck
pursuant to this contract " Doile agreed wi t h
Kenta to assign its interes t in the coal
sales contracts to Kenta. This agreement was
signed by Doile Vandagriff, President of
Doile and by Jackson , President o f Kenta.
In the eve~t of Kenta;s defau~t on 9ayment of the purchase pr i c e i ns t~ll ments 7 the
contract provided that Jackson c ould r epossess the assets sold. Neither the Bl ack Joe
Mine nor the Black Joe Coal Company was named
in the contracts between Jackson and Kenta.
Some time in 1981, the Black Joe Mine
was reopened (on February 24, 1981 , Jackson
applied to the State agency for a lj.cense t o
operate an underground coal mine) . In early
1982, the Sugar Rock Mine was worked outv and
the Black Joe Mine was "leased" to Kenta as a
substitute . The lease was not produced, nor
was any other documentary evidence of an
agreement between Jackson and Kenta to substitute Black Joe for Sugar Rock . Respondents ¥
statement (p. 4 post- trial Brief) that "In
keeping with the Sales Agreement, which was
based upon coal production rathe~ than upon
coal contained in a particular mine, see
Sales Agreement at p. 3(g), Jackson substituted his lease on Black Joe Mine for the
lease on the now non-producing mine" is speculative. In any event, the equipment and
miners from Sugar Rock were transferred to
Black Joe. Jackson applied for a 1982
license to operate Black Joe as Kenta Energy,
Inc.

275

The contract provides (V, 5, {n), Comp.
Exh 16) that if Kenta does not meet its principal or interest payme nts under the contract, Sellers ( Helen Ann, Penelee, Sugar
Rock, Doile) shall notify Purchaser (Kenta)
of the default and if pay ments a r e not
received within 30 days, Jackson a s President
of Kenta is authorized to transfe r b ack to
the sellers suff icient a s sets to pay the
delinquent principal and i nterest a s liqu i dated damages .
In January , 1 981 7 Kenta was
notified by attorney William R. Forester ( o ne
of the original Directors of Kenta) t hat it
was in d e faul t in i ts pa yme nts .
In April ,.
Forester notified Kenta t h at i t was in
default on the January 26 , 1981, payment ,
though the payments due in September an d
November 1980 " have been p a i d i n ful l , eit h er
by the payment of moneys o r the re t rans fer cf
equ i pment to t he v arious · c oal c ompanies ~~
(Comp . Exh . 19) .
In Jun e 1 981 , sep arat e
letters from Helen Ann, Sugar Rock , Penelee
and Doile were sent to Kenta notifying it
that it was in default respecting the May
1981 payment .
(Comp. Exhs. 20-23). Jackson
testified that thereafter , he met with Kenta
representatives and "they paid up until June
of 81 , I think."
(Comp. Exh . 43, p . 60) .
He
also stated that the next payment was. __not due
until June, 1982 . However, the contract
entered into Septem.b er 26, 1980, provides for
payments on the contract date, with subsequent payments 2 months, 4 months, 8 months ,
and 16 months after the contract date (the
last date would thus be January 26, 1982) ,
and the balance payable 24 months after the
contract date. At any rate, Kenta made no
payments after June 1981, and at some time i n
1981 or 1982, Jackson began to repossess the
assets in accordance with the terms o f the
contract.
(Deposition of Jackson August 15 ,
1983, p. 4).
It is not a simple matter to
determine legal ownership of the mine in question as of September, 1982 in view of these
facts, but I conclude that (1) the evidence
does not es-tablish that Black Joe <the subject mine) was ever transferred from Jackson
to Kenta; (2) Kenta was in default under the

276

contract, and repossession had been instituted, although all the assets had apparently
not been repossessed, before the facts giving
rise to this proceeding occurred.
Although Kenta is a Respondent, and has
appeared herein by counsel, its identity and
presence in the evidence in this proceeding
is very shadowy. Jackson was hired as its
President, (by a contract signed by himself
for both parties}, but denied knowing whether
he was formally appointed as a corporate
officer, denied knowing who the officers or
directors were 9 an d denied any knowledge of
the internal affairs of the corporation. The
Respondents ~ attorneys , in support of thei r
motion to withdraw as counsel for Kenta filed
on October 3, 1984 , state that they have been
unable to contact any officer , director or
authorized agent of Kenta.
B.

OPERAT ION OF BLACK JOE MINE

Jackson was the operator of the Black
Joe Mine as Black Joe Coal Company, before he
had any dealing with Kenta. Whether or not
the mine was transferred to Kenta after Sugar
Rock was worked out , the overall operation of
the mine continued under Jackson.
In deal ings with the government mining agenc~ officials , in deciding how to recover the coal,
in hiring and firing miners , Jackson was in
charge. At one time (and the dates are uncertain} the miners were paid by checks from a
Kenta account. The "German investors" who
were or represented Kenta came to the mine
office in the early years under the contract,
but there is no evidence that they had or
exercized any direction or control over the
mining operations at Black Joe or any of the
other Jackson mines .
I conclude that Jackson
was the operator of the ·mine in which
Complainant worked as a miner at all times
relevant to this proceeding.
C.

THE DISCHARGE OF SIMPSON

Whatever Jackson's relation to Kenta,
and whether or not he was the mine operator,

2'77

there is no dispute that he was the "person"
who discharged Simpson in violation of
section 105(c) of the Act. Jackson argues
that he \'las only acting as manager of Kenta
pursuant to his employment contract .
However, he testified that his salary as Kenta}s
president had been discontinued and he was
operating the mine in order to get his equip ment returned .
Th is was the situation when
Compla.i nant was discharged.
The IIJrait h- li k e
German i nvestors had nothing t o do with
Simpson ' s d 5.schar ge g J ackson clear l y did .
BACK PAY AND INTEREST
At. t he t ime o f his a lsc h arge v Comp lainant was e arni:1c;
$10. 64 pe r hour , and was working 40 hours per week .
I
accept the information concerning interim earnings contained
in the statements of back pay and i nterest filed J uly 2,
198 4 and De c ember 21 , 1 98 4 .

The f o l lowing is t he back pay a nd i nterest due as of
December 17r 1 9 84t the intere st being calculated in acco rdance with the formula approved by the Cow~ission i n
Secretary/Bailey v. Arkansas-carbona, 5 FMSHRC 204 2 (1983).
1.

First Quarter, 9/21/82 to 9/30/82
Gross back pay
I n terim Earnings
Net back pay
Interest to 12/17/84

2.

Second Quarter, 10/1/82 to ~2/31/82
Gross back pay
Interim Earnings
Net back pay
Interest

3.

$ 680.96
. 00
680. 96
198.32

$5,617.92
oOO
5,617 . 92
1 , 355.27

Third Quarter 1 1/1/83 to 3/31/83
Gross back pay
Interim Earnings
Net back pay
Interest

$5 , 447 . 68

. oo

5 v447 .6 8
1,095.72

278

4.

Fourth Quarter, 4/1/83 to 6/30/83
Gross back pay
Interim Earnings
Net back pay
Interest

5.

$5,532.80
2,019.01
3,513.79
566.21

Fifth Quarter, 7/1/83 to 9/30/83
Gross back pay
Interim Earnings
Net back pay
Interest

6.

$5,617.92
2,868 . 58
2,749.34
367.05

Sixth Quarter , 10/1/83 to 12/31/83
Gross back pay
Interim Earnings
Net back pay
Interest

7.

$5,532.80
1,000.00
4,532.80
479. 13

Seventh Quarter v 1/l/84 to 3/31/84
Gross back pay
Interim Earnings
Net back pay
Interest

8.

$5,532.80
2,500.00
3,032.80
237.19

Eighth Quarter, 4/1/84 to 6/30/84
$5,61.7. 92
2,500 . 00
3,117.92
158.12

Gross back pay
Interim Earnings
Net back pay
Interest
9.

Ninth Quarter, 7/1/84 to 9/30/84
Gross back pay
Interin Earnings
Net back pay
Interest

$5,617.92
3,000 . 00
2,617 .. 92
60 .7 8

279

10.

Tenth Quarter, 10/1/84 to 12/17/84
Gross back pay
Interim Earnings
Net back pay

$4,341.12
3,612.75
728.37

TOTAL net back pay due
TOTAL Interest due
TOTAL

$32,039.50.
4,517.79
$36,557.29

ATTORNEYS FEES AND EXPENSES
Section 105 (c) ( 3) of the Act provides that ~~whenever an
order is issued sustaining the Complainant 0 s charges • o Q?
a sum equal to the aggregate amount of all costs and
expenses (inclading attorneyvs fees) as determined by the
Commission to have been reasonably incurred by the miner • • •
for , or in connection with, the institution and prosecution
of such proceedings shall be assessed against the person
committing such violation. 11 'I'hree issues are raised in this
case:
(1) the appropriate hourly rate 3 (2i the hours reasonably expended by the attorneys for Complainant ~ (3) whether
all the hours expended represented attorney~s worJ~ and are
properly compensated at the appropriate hourly rate for
attorneys.
A.

THE APPROPRIATE HOURLY RATE

The appropriate hourly rate is the rate
prevailing for similar work in the community
where the attorneys practice law. Johnson v.
Georgia Highway Express, Inc . , 488 F.2d 714
(5th Cir . 1974); Copeland v. Marshall,
641 F.2d 880 (D.C. Cir . 1980). It may, however, vary , depending on such factors as the
kind of work involved, the experience and
skill of the attorneys, the complexity and
difficulty of the case, the resu~ts obtained ,
the undesirability of the case, and whether
the fee is contingent or fixed. The attor neys for Complainant are requesting approval
of an hourly rate of $75 for legal services
performed in connection with the case .
Respondents contend that $75 per hour is
unreasonably high and should be drastically
reduced. Respondents submitted a copy of a
survey conducted by the Kentucky Bar Association showing that in the counties in which

28 0

Complainant's attorneys are located, approximately 73 percent of the responding attorneys
charged less than $60 per hour, while less
than 7 percent charged more than $75 per hour.
They also submitted an affid-avit from an
attorney in Harlan County, Kentucky to the
effect that $45 to $55 per hour is "a reasonable rate for attorneys with experience of
those working for the Appalachian Research
and Defense Fund of Kentucky, Inc ." Complainant's attorneys submitted affidavits detailing their education and experience ; and
affidavits from four attorneys in Eastern
Kentucky to the effect that $75 per hour i s a
reasonable rate for discriminat i on cases
under the Mine Safety Act .
Mr. Sanders has been a member of the
Kentucky Bar since 1978; Mr. Oppegard since
1980 .
Both have had extensive experience i n
mine safety matters and in other matters
i nvolving employee rights . The Court of
Appeals in Johnson , supra , stated that a
young attorney who has demonstrated skill and
ability should not be penalized because he
only recently was admitted to practice.
I
believe this case was complex, legally and
factually .
It was hard - fought and complicated by the Respondents' failure or inability to cooperate in discovery . The Complaint
had been investigated by the Labor Dep·artment
and rejected.
Based on all these factors, I
conclude that $75 is a reasonable hourly rate
for the hours reasonably expended by Complainant's attorneys in this case.
HOURS REASONABLY EXPENDED
Respondents object to Complainant's claim for attorneys
fees and expenses because (1) much of the work for which
compensation is claimed is not strictly legal work and
should not be billed at the attorney's hourly rate; (2) the
two attorneys for Complainant have in some instances both
performed work which could have been performed and billed by
one of them; <3> much of the work performed was unnecessary;
(4) the total fee requested is wholly disproportionate to
the amount recovered by Complainant.

281

A.

Non-Legal Work

The Court of Appeals in Johnson v.
Georgia Highway Express , supra, at page 717
stated: "It is appropriate to dist inguish
between legal work , in the strict sense, and
investigation , clerical work , compilation of
facts and statistics and other work which can
often be accomplished by non-lawyers but
which a lawyer may do because he h a s no other
help availablee Such non-legal work may
command a lesser rate . Its dollar value i s
not enhanced just because a lawyer does it . •
A substantial portion of the work
described in the Statements of Attorneys 9
Fees and Expenses appears to be "non- legal
work" as described above. I conclude that
the work described in the statements as interviewing witnesses (when it is or appears to
be part of investigation rather than preparing for trial) , contacts with MSHA or State
mining officials and the Safety Academy 1
reviewing documents, talking with possible or
potential witnesses , serving subpoenas, and
inspecti ng reports is non-legal work . My
review of the statements shows that 50.7 of
the 411 hours billed by Mr. Oppegard between
December 5 , 1982 and June 5 , 1984 , were for
such work; 7 of the 160.5 hours billed by
Mr. Sanders from May 12, 1983 to Apri! 19;
1984 , were for such work; 38.9 of the
47.8 hours billed for joint work between
May 11, 1983 and September 9 , 1983 , were for
such work ; 16.1 of the 191 . 9 hours billed in
Mr. Oppegard' s supplemental statement were
for such work; 4 of the 102.8 hours billed in
Mr . Sanders supplemental statement were for
such work. I judge this work to ' be properly
billable at $25 per hour. The total hours
affected is 116 . 7. The reduction in the fee
because of this factor is thus, $5 , 835.
B.

DUPLICATION OF WORK

As the Court said in Copeland, supra, at
891, " • • • where three attorneys are present
at a hearing when one "would suffice, compensation should be denied for the excess time."

282

Complainant's two attorneys were present at
the hearings in this proceeding, and at many
of the depositions. They interviewed witnesses together, but have billed for the
hourly rate of only one attorney for such
work.
It has been a difficult matter to
decide whether the presence of two attorneys
at the hearings and depositions was reason- ·
ably necessary.
I conclude that it was notu
and that the time of only one attorney is
properly billable at attorney's fee rates.
The presence of the second attorney was of
value, however, and I will allow billing at
the rate of $25 per hour for the services of
the second attorney. Furtherv where each
attorney has billed at the rate of $75 per
hour for discussi ons in person or by phone
with each other, I have reduced the total
~illable rate to $100 for both attorneys .
(Not all of the discussions between counsel
are billed by both) . The following i t.ems in
the statements are affected ~
1.

Oppegard Statement 8/11/83 0
Sanders Statement 8/11/83.
I conclude that 2 hours
were billed by each for
discussions

2.

Oppegard Statement l/7/84u
item: Phone conversation
with Steve; Sanders Statement
1/7/84, item: phone call to
Tony. One-half hour billed
by both for discussion

3.

Oppegard Statement 8/15/84~
Sanders Statement 8/15/84
One-half hour billed by both
for discussion

4.

Oppegard Statement 10/19/84 r
Sanders Statement 10/19/84.
One hour was billed by both
for discussion

283

5.

Oppegard Staement 8/15/83;
Sanders Statement 8/15/83:
8 hours billed by both for
depositions.

6.

Oppegard Statement 9/8/83;
Sanders Statement 9/8/83.
8 hours billed by both for
hearing.

7.

Oppegard Statement 9/9/83 ;
Sanders Statement 9/9/83 .
3 hours billed by both for
hearing.

8.

Oppegard Statement 1/11/84;
Sanders Statement 1/11/84.
5 hours billed by both for
hearing ~

9.

Oppegard Statement 1/12/84 ;
Sanders Statement 1/12/84 .
7 hours billed by both f or
hearing.

10.

Oppegard Statement 10/15/84;
Sanders Statement 10/15/84.
6.5 hours billed by both for
depositions.

11.

Oppegard Statement 10/24/84i
Sanders Statement 10/24/84.
7.5 hours billed by both for
hearing.
Thus a total of 49 hours were
billed at $150 per hour (75 per
hour for each attorney) for
this partially duplicated work.
I judge that the fee is $50 per
hour too high. The reduction
in fee because of this factor
is $2,450.

C.

NECESSARY LEGAL WORK

Respondents contend that the number of
hours charged by counsel for discovery, and
for the preparation of briefs was excessive

284

and fees should be reduced.
Respondents
contend that much of the discovery was unnecessary.
I take notice that a considerable
part of the discovery undertaken by Complainant resulted from and was made necessary
because of Respondents• lack of cooperation
and the absence of adequate records and documents .
Howev~::. 1 I agree w·i th Respondents
that some of tr:s extraordinary amount of time
devoted to d :~ .'') ..::CN ery was unnecessary and
unproducti ve ;· and that the amount of -c1me
devoted to the posthearing brief was excessive. Mr. Oppegard billed for 102.7 hours
and Mr. Sanders for 36 hours in preparing the
brief subsequent to the January 1984 hearing o
Mr. Oppegard billed for 33 hours and
Mr. Sanders for 19 hours following the
October 1984 hearing.
I will reduce by 50
the number of hours allowed for discovery and
:other trial preparation ; and will reduce f rom
190.7 hours to 150 hours , the allowable a nd
billable ·time for preparation of briefs .
Therefore , the reduction in fee because of
this factor is $6,802.50
D.

DISPROPORTION BETWEEN RECOVERY AND FEES
REQUESTED

Respondents argue that the fees
requested ar e "wholly disproportionate to
Complainant~s claim for back pay and ·fnterest
of $36,557.29 . • • • " This overlooks the
fact that Complainant was awarded job reinstatement as well as back pay and interest .
The amount recovered as back pay does not
determine the reasonableness of the fee
request.
See Copeland, supra , at 906-908 .
The total fees requested amount to $69,550.
I am
deducting $15 , 087.50 and approving fees in the amount of
$54 , 462.50.
EXPENSES
Complainant•s attorneys have requested reimbursement in
the amount of $2,616.72 for eA~enses, including mileage ,
copying , witness fees and service fees, telephone calls,
t ranscripts.
Respondents object to these expenses, but my
review of the statements persuades me that they are reason able. Reimbursement for the expenses will be allowed.

285

ORDER
1. Respondent Jackson is ORDERED to reinstate Complain ant to the position he held on September 20 1982, or to a
similar position at the same rate of pay and with the same
employment benefits.
2. Respondents Kenta and Jackson are ORDERED tc pay to
Complainant the sum of $36,557.29 for b ac 1~ ~¥ages and
interest through December 17 , 1984 . The y are FURTHER
ORDERED to pay to Complainant back wages at the rate of
$425.60 per week with interest , less interim earnings from
December 17, 1984 , until he is reinstated .

3. Respondents Kenta and Jackson are ORDERED to pay
Complainant's attorneys the sum of $54,462.50 as attorneys '
fees and $2,616 . 72 for expenses of litigation .
I

/

.

/.II
. ...v :.t~c'... _,(

)

/. J

,...

1
;·

;-

I

1

I ...7 t-""t.-'d···-"'.. ;-) Cc·flr :/'-

.-t..L~

/\J

..1 /

J" '-

James A. Broderick
Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research and Defense Fund
of Kentucky, Inc., 104 Morgan Street , Hazard o KY 41701
(Certified Mail>
Stephen A. Sanders, Esq., Appalachian Research and Defense
Fund of Kentucky, Inc., 205 Front Street, Prestonsburg~ KY
41653 (Certified Mail)
Steven D. Cundra, Esq., and Michael R.Gottfried, Esq.,
Thompson, Hine and Flory, 1920 N Street, N.W., Washington v
DC 20036 (Certified Mail)
/fb

286

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

CIVIL PENALTY PROCEEDING
Docket No : CENT 84-26-M
A.O . No: 41-0147 2-05503

v.

Deweyville Dredge & Plant
0
0

SPECIALTY SAND COMPANY , INC. r
Respondent
DECISION
Appearances :

Robert A. Fitz 8 Esq. , Office of the Solicitor v
u. s . Department of Labor g Dallas 9 Texas f
for Petitioner ;
Mr. W.A. Keckley, President, Specialty Sand
Company, Houston, Texas, for Respondent

Before:

Judge Moore

At the commencement of the hearing the attorney for the
Mine Safety and Health Administration announced that the
parties had agreed to a settlement of the case. He and
Mr. Keckley for Respondent explained on the record why a
settlement had not been reached until the morning of the
trial. Mr. Keckley misunderstood the Notice of Hearing and
thought he would be appearing at a conference or meeting. In
the Solicitor's office the matter had been handled by two
different attorneys and there was probably a communication
problem. At any rate, the government was of the opinion
that the negligence factor was not ~o high as it originally
thought . The government introduced government Exhibit 2
which shows that during a two-year period respondent had
only 15 citations issued to it and all of them were non-S&S.
After listening to a brief description of the evidence
as found the day after the accident, I agreed to a settlement
in the amount of $2,850. The original assessment was $3,800.
Respondent is accordingly ORDERED to pay to MSHA,
within 30 days, a civil penalty in the amount of $2,850.

e

cJ~q)v&J f)?)~ ~

Charles c; Moore, Jr.
Administrative Law Judge

287

Distribution:
Robert A. Fitz, Esq., Office of the Solicitor, u.s . Department
of Labor, 555 Griffin Square Building, Dallas, TX 75202
(Certified Mail)
Mr. W.A. Keckley, President, Specialty Sand Company, Inc. ,
P.O. Box 9877, · Houston, TX 77015 (Certified Mail }

/db

288

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

. . . .._
-,

333 W. COlfA X AVENUE, SUITE AOO

·..

DENVER. COLORADO

SECRETARY OF LABOR,
tUNE ShFETY AND HEALTH
ADMINISTRATI ON ( MS HA},
Pe titi o ner

~)

::J

80204

CIVIL PENALTY PROCEEDING
Docket No. WEST 84-49-M
A.C. No. 42-01572-05502

v.

Sorenson Pi t

WESTERN ROCK PRODUCTS
CORPORATION,
Re spondent
DECISION
Appearances :

Robert J. Lesnick , Esq., Office of the Solicitor 0
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
No appearanc e f o r respondent o

Before :

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating safety
regulations promulgated under the Federal Mine Safety and Health
Act, 30 U.S.C. § 801 et seg.
After notice to the parties, a hearing commenced on December
5, 1984 in Las Vegas, Nevada .
At the commencement of the hearing counsel for the Secretary
advised the judge that the parties had reached an amicable
settlement.
The citations, the standards allegedly violated, the initial
assessments, and the proposed dispositions are as follows:
Citation No.
2083838 A
2083838 B
2083838 c
2083838 D
2083838 E

30 CFR Section
Violated
56.12-32
56.12-8
56.12-13(b)
56.4-12
56.12-18

Assessed
Penalty
$500
400
300
250
200

DiSEOSition
$120
120
120
120
120

In support of the motion to reduce the proposed penalties
the Secretary states that his Office of Assessments failed to
give full credit for respondent's prior history.

289

The proposed settlement is
approved.

i~

order and it should be

Accordingly, I enter th e following:
ORDER
1.

The settlement agreeme nt is hPPROVED.

2 . The
AFFIRMED.

follo~ing

citations and penalties, as noted , are

Citation No.
2083838 A
2083838 B
2083838 c
2083838 D
2083838 E

Penalty
$120
120
120
120
120

3. Respondent is ordered to pay to the Secretary the sum of
$600.00 within 40 days of the date of this decision o

ohn

J.~1: ~

AdminisErative Law Judge
Distribution:
Robert J. Lesnick , Esq . , Office of the Solicitor, u.s . Department
of Labor, 1585 Federal Building, 1961 Stout Street , Denver,
Colorado 80294 (Certified Mail)
Mr. Darrell G. Whitney, Western Rock Products Corporation, P.O.
Box 856, Cedar City , Utah 84720 {Certified Mail>

/blc

').
':"1 0
f->0

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.

CIVIL PENALTY PROCEEDING
Docket No . SE 84-55-M
A.C . No. 08-00395-05506-A
Gall Silica Mining Company ~
Inc. , No . 2 Mine and Plant

ANTHONY T. HARE,
Respondent

DECIS.ION APPROVING SETTLEMENT
Before:

Judge Broderick

On February 26 , 1985 , the Secretary of Labor filed a
motion for approval of a set.tlement reached by the parties
in this case . The violations were originally assessed at
$400 and the· parties propose to settle for $300.
Respondent was charged as the agent of Gall Silica
Mining Company, a corporate mine operator, with knowingly
author iz ing , order ing or carryi ng out t he two violations of
30 C.P.R. § 56.9- 3. The violations alleged were operating
two front - end loaders without brakes . The corporate oper ator paid penalties of $350 and $250 for the two violations .
The motion proposes a settlement in the case against
Re spondent whereby , Respondent would pay $200 (the amount
assessed) and ~100 for the violations charged. The second
a l leged violation occurred on level, soft ground and there
was little or no foot traffic in the area. For these
reasons , the penalty proposed was reduced.
I have considered the motion in the light of the
in section llO(i) of the Act, and conclude that
the settlement should be approved .

c r iteri ~

Accordingly, the settlement is APPROVED and Respondent is
ORDERED TO PAY the sum of $300 within 30 days of the date
of t his decision.

c:L-vtu-8 _k~S,vcfvz e/,___

J

.

James A. Broderick
Administrative Law Judge

291

Distribution :

J. Philip Smith, Esq ., Office of the Solicitor, u.s. Department
of Labor , 4015 Wilson Boulevard , Arlington, VA 22203
(Certified Mail)
Mr. Anthony T. ·Hare, Gall Silica Mining Company, Inc.;
1901 Highway 60 East, P.O. Box 1680, Lake Wales, FL
33859 - 1680 (Certified Mail)
/fb

292

FEDERAL M INE SAFETY AND HEALTH REVIEW COMMISSION
OFFtCE OF ADMINISTRATIVE LAW JUDGES
333 W . COlFAX AVENUE , SUITE 400
DENVER, COlORADO 80204

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

os

; r.: ~);'. . \ ·"' 1~fl.1Q.
:

1. ...

,.

CIVIL PENALTY PROCEED I NG
Docket No . WEST 8 4- 50 - M
A . C . No . 42 - 01833 - 05505

v.

Delta Pit

WESTE RN ROCK PRODUCTS
CORPORATION,
Respondent
DECIS I ON
Appearances:

Robert J . Lesnick, Esq ., Offic e of t h e Sol i citor,
U.S. Department of Labor, Denv e r, Colorado,
f or Petitione r;
No appearance f or Resp ondent .

Before :

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration , charges respondent with violating safety
r egulations p r omu l gated u nder the Feder a l Mi ne Safety and He alth
Act, 30 U. S.C . § 80 1 et seq .
After notice to the parties, a heari n g commenced on
De cember 5, 1984 in Las Vegas , Nevada .
At the commencement of the hearing counsel for the Secretary
advised the judge that the partie s had r eached an amicable
settlement .
The citations , the standards al l egedly violated, t he initial
assessments, and the proposed disposi tio ns are as fo l lows:
Citation No .
2008 0 16
2008017
2008019
20838 2 0
2083944
2083948
2083949
2083983
2083950
2083982

30 CFR Sec t i o n
Violated
56 . 12-25
56 . 4 - 10
56.12 - 25
56 . 12 - 28
56 . 4-2
56.4- 1 2
56 . 12 - 25

Assessed
Penalty
$98
20
98
20
20
20
68
98
54
20

56 . 12-~5

56 . 9-6
56 . 12 - 1

.293
..-

Di spositio n
$56
20
56
20
20
20
56
56
56
20

In connection with Citations 2008016, 20080 1 9 , 2083949 and
2083983, the Secretary states his Office of Assesments failed to
give full credit for respondent ' s prior history . Accordingly ,
the proposed assessments for those citations should be reduced .
The remaining citations are essentially in accordance with
the Secretary's evaluation and ·the penalties, as originally
assessed, shou l d be affirmed .
The proposed settlement is in order and it should be
approved.
Accordingly, I ente r the following :
ORDER
l .

The settl ement agreement i s APPROVED .

2. The following citations and penalties, as noted, are
AFFIRHED.
Citation No.,
2008016
2008017
2008019
2083820
2083944
2083948
2083949
2083983
2083950
2083982

Pena l ty
$56
20
56
20
20
20
56
56
56
20

3.
Respondent is ordered to pay to the Secretary the sum
of $380 within 40 days of the date of this decision .

Law Judge
Distribution:
Robert J . Lesnick , E~q., Office of the Solicitor , U. S . Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver , Colorado
80294 (Certified Mail)
Mr . _ Darrell G. Whitney, Western Rock Products Corporation, P . O.
Box 856, Cedar City, Utah 84720 (Certified Mail)

/ot

.2 94

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 84-51-M
A. C. No . 42-01833-05506

v.

Delta Pit

WESTERN ROCK PRODUCTS
CORPORATION ,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor ,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
No appearance for Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, charges respondent with violating a
safety regulation promulgated under the Federal Mine Safety
and Health Act, 30 U. S . C . § 801 et seq.
After notice to the parties, a hearing commenced on
December 5, 1984 in Las Vegas, Nevada .
At the commencement of the hearing counsel for the
Secretary advised the judge that the parties had reached an
amicable settlement .
Citation 2083812 alleges respondent violated 30 C.F . R.
56.20 - B(a) and the Secretary originally proposed a penalty
of $20.
§

Counsel for the Secretary advised the judge that the
respondent has agreed to pay· the proposed penalty.
The proposed settlement is in order and it should be
approved .
Accordingly, I enter the following :
ORDER
1.

The settlement agreement is APPROVED.

29 5

2.

Citation 2083812 and the penalty of $20 are AFFIRMED .

3 . Respondent is ordered to pay to the Secretary the sum
of $20 within 40 days of the date of this decision .

~ JJ ·~

hn J . orris
mini rative Law Judge

Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor 1 u. s . Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294 (Certi fied Mail)
Mr. Darrell G. Whitney , t.-7estern Rock Products Corporation , P . O.
Box 856, Cedar Cityr Utah 84720 (Certified Mail)

jot

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

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

CIVIL PENALTY PROCEEDING
Docket No. WEST 84-54-M
A. C. No . 42-01833 - 05507

v.

Delta Pit

WESTERN ROCK PRODUCTS
CORPORATION,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor p
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
No appearance for respondent.

Before:

Judge Morris

The Secretary of Labor , on behalf of the Mine Safety and
Health Administration , charges respondent with violating safety
regulations promulgated under the Federal Mine Safety and Health
Act, 30 U.S . C. § 801 et seq .
After notice to the parties, a hearing commenced on December
5, 1984 in Las Vegas, Nevada.
At the commencement of the hearing counsel for the Secretary
advised the judge that the parties had reached an amicable
settlement.
The citations, the standards allegedly violated, the initial
assessments , and the proposed dispositions are as follows:
Citation No.
2083947 A
2083947 B
2083947 c
2083947 D
2083947 E
2083947 F
2083947 G
2083947 H
2083947 I

30 CFR Section
Violated
56.12 - 25
56 . 12-8
56 . 12-8
56.12-8
56.12-8
56 . 12-8
56 . 12-25
56.12-25
56.12-2

297

Assessed
Penalty
$500
500
200
200
200
200
500
500
700

Disposition
$500
500
200
200
200
200
500
500
700

In support of his motion the Secretary states that he relies
on and agrees with the assessments proposed by his ·Of f ice of
Assessments .
The proposed settlement is in order and it
approved .

should . ~e

Accordingly, I enter the following:
ORDER

1.

The proposed settlement agreement is APPROVED.

2. The following citations and penalties, as noted, are
AFFIRMED:
Citation No.
2083947 p,
2083947 B
2083947 c
2083947 D
2083947 E
2083947 F
2083947 G
2083947 H
2083947 I

Penalty
$500
500
200
200
200
200
500
500
700

3.
Respondent is ordered to pay to the Secretary the sum of
$3 , 500 within 40 days of the date of this decision .

~onJ.Ij~

Adminis~ative

Law Judge

Distribution :
Robert J. Lesnick , Esq. , Office of the Solicitor , U . S. Department
of Labor , 1585 Federal Building , 1961 Stout Street, Denver ,
Colorado 80294 (Certified Mail)
Mr . Darrell G. Whitney , Western Rock Products Corporation , P.O .
Box 856 , Cedar City , Utah 84720 (Certified Mail)

/blc

28 8

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISS10N
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

February 28, 1985
DISCRIMINATION PROCEEDING

MAR I ON L. ADAtviS)
Complainant

Docket No. YORK 84-15-DM

v•

MD 84-23

J. L . OWENS III 1 CONTRACT ING

~,

Eastern Aggregate Mine

a/k/a J . L. OWENS III?
a/k/a EASTER N AGGREGATES ,
INC.,
Respondent

DECISION
Appearances :

Timothy D. Murna ne , Esq •• Davidsonville ,
Maryland ? for Comp1ainant;
l~illiam E. Kirk, Esq. , Annapoli s, l~i arylan d for
Respondent.

Before:

Judge Merlin

This case is a complaint filed under section l05(c}(3) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 815(c)(3) by Marion L. Adams against J. L. Owens III
Contracting, Inc .s (also known as Eastern Aggregates, Inc. , and
J. L. Owens III) alleging that the discharge of Mr. Adams on
April 27, 1984 was a discrimi~atory act in vio lation of section
105(c)(l) of the Federal Mine Safety and Hee~th Act of 1977,
30 U.S.C. § 815(c)(l) (hereinafter called "ihe Act").
Sections 105(c)(l) and (3) of the Act, 30 U.S.C. § 815(c)(l)
and (3), provid~ in pertinent part as follows:
(c)(l) 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

299

agent, or the representative of the
miners at the coal cr other mine of an
alleged danger or safety or health
vio l ation in a coal or other mine, or
because such miner, representative of
rn i n e r s o r a p p 1 i c an t t o r e mp 1o y me n t i s
the subject of medical evalua ti ons and
potential transfer under a standard
published pursuant to section 101 or
because such miner, representative of
miners or applicant for employment has
instituted cir caused to be instituted
any proceedin9 under or related to this
Act or has testified or is about to
testify in any such proceeding, or
because of the exercise by such miner,
representative of miners or applicant
for employment on behalf of himself or
others of any statutory right afforded
by this Act .

*
(3) Within 90 days of the receipt of a
comp-laint filed under paragraph (2) ~ the
Secretary shall notify, in writing, the
miner, applicant for employment, or
representative of miners of his determination whether a violation has occurred.
If the Secretary, upon investigation,
determines that the provisions of this
subsection have not been violated, the
complainant shall have the right, within
30 days of notice of the Secretary's
~etermination, to file an action in his
own behalf before the Commission,
charging discrimination or interference
in violation of paragraph (1). The Commission shall afford an opportunity for
a hearing (in accordance with section
554 of title 5, United States Code~ but
without regard to subsection (a)(3) of
such section), and thereafter shall
issue an order, based upon findings of
fact, dismissing or sustaining the
complainant's charges and, if the
charges are su~tained, granting such
relief as it deems appropriate,
including, but not limited to, an order
requirin~ the.rehiring or reinstatement

of the miner to his former position with
back pay and interest or such remedy as
may be approoriate . Such order shall
become final 3J days after its issuance.
Whenever an order is issued sustaining
the complainant's charges under this
subsection, a sum equal to the aggregate
amount of all costs and expenses
(including attorney's fees) as
determined by the Commission to have
been reasonably incurred by the miner,
applicant fbr employment or representative of miners for, or in connection with, the institution and prosecution of such proceedings shall be
assessed against the person committing
such violation. Proceedinos under this
section shall be expedited . by the Secretary and the Commission . Any order
issued by the Commission under this paragraph shall be subject to judicial
review in accordance with section 106.
Vio l a t ions by any person of paragraph (1) shal l be subject to th e
provisions of sections 108 and l lO(a) .
There is now a well defined body of law setting forth the
principles which govern discrimination cases under the Act. In
order to establish a prima facie case of discrimination under
section 105(c) of the Mine Act, a complaining miner bears the
burden of production and proof to establish (1) that he engaged
in protected activity and (2) that the adverse action complained
of was motivated in any part by that activity. Secretary on
behalf of>Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (October 1980), rev ' d on ether grounds sub nom.
Consolidation Coal Co. v. Marshall , 663 F.2d 1211 (3d Cir . 1981);
and Secretary on behalf of Robinette v. United Castle Coal Co .,
3 FMSHRC 803, 817-18 (April 1981) . The operator may rebut the
prima facie case by showing either that no protected activity
occurred br that the adverse action was in no way motivated by
protected activity . If an operator cannot rebut the prima facie
case in this manner it may nevertheless affirmatively defend by
proving that (1) it was also motivated by the miner ' s unprotected
activities, and (2) it wou l d h~ve taken the adverse action in any
event tor the unprotected activities alone. The operator bears
the burden of oroof with regard to the affirmative defense.
Hare v . Maama Cooper Co., 4 FMSHRC 1935, 1936 - 1938 (November
1982). The ultimate burden of persuasion does not shift from the
complainant . Robinette, 3 FMSHRC at 818 n. 20. See also

301

Boich v. FMSHRC, 719 F.2d 194, 195-196, (6th Cir. 1983); and
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-959 (D. C.
Cir. 1984) (specifically approving the Commission•s
Pasula-Robinette test). The Supre~e Court has approved the
National Labor Relations Board•s virtually identical analysis for
discrimination cases arising under the National Labor Relations
Act. NLRB v. Transportatio~ Mana ement Cor .,
U. S.
76 L.Ed. 2d 66 ' ( 983 •
The plant in this case is an outdoor plant where raw materials are dug out o~ the ground and sent over a se~ies of belts
and conveyors where they are separated into different types of
products such as two-inch gravel, peat gravel, Class A concrete
sand and wash mason sand. The mat erials move through the differ ent processes until smaller and s maller pieces are obtained
( Vol . I , p • 7 6 ) • The. com p 1 a i n ant vi a.s h i red by the operator i n
Nove mber 1977 as a truck driver for this sand and gravel processing operation (Vol . II, p. 10) . He was involve d i n 3 moto r
vehicle accidents in 1979 and 1980 ( Vol . II, pp . 11- 16 ). He was
not reprimanded or otherwise disc i plined for these inci dents bu t
because of them was transferred to the plant on March 11, 1981,
where he became the plant operator (Vol. I, p . 53 ; II, pp . 16-17) .
His duties were to regu l ate the flow of raw material onto t he
main teed belt from the hopper , t o maintain the plan t an d i t s
co mponents, to control t he shu t down switc h, t o s t ar t t he pl ant ,
to clean up spilled mat e rials, an d assist i n r epai rs (V o1. II~
op . 16 - 17 ; Exhibit L).
After becoming the plant operator , complainant was involved
in a number of safety-related incidents . The complainant admitted that in March 1983 he turned the belt on while another
"' o r k e r \'/ a s o n i t , t h 1· o w i n g t h e wo r k e r o f f ( Vo 1 • I , p p • 1 7 4 , 2 3 5 ;
II, pp. 19-20). However, the shed where the switch was located
.had no windows and complainant could not see the belt when he
turned on the switch (Vol . II, p. 19). On December 15, 1983, it
is undisputed that he again turned the belt on while another employee vtas working on the belt (Vol. I, pp. 203, 207, 234; II,
pp. 25-26). Here too, the lack of visibility is relevant. The
operator•s witnesses testified that on December 21, 1983 he
flooded a ditch where the electrician was working but complainant
said he could not remember this incident (Vol. I, pp . 135-136,
223, 225; II, p. 25). I accept the operator•s evidence as more
probative and find this last event occurred . However, I also
accept complainant•s uncontradicted testimony that no one
reprimanded or reproved him about any of these incidents and that
on December 23, 1983 he received a $300 Christmas bonus (Vol. II,
pp. 25-27).

302

There is no dispute that on February 6, 1984 complainant ran
the backhoe into the electric box of the plant causing a shutdown
(Vol. I, pp. 177, 261-262; II, pp. 28, 31-32). No one in authority spoke to him on this occasion nor was any action taken
(Vol. II, p. 32). Although there is some confusion in the tes ti mony as to dates, it appears that on March 29, 1984 complainant
mistakenly turned the power on or twisted up some wires (Vol. I,
pp. 137-139; II, pp. 33-36). No one said anything to him at the
timA about this incident (Vol . II, pp. 33-36) .
The operator's wjtnesses explained that complain.ant was not
spoken to about the foregoing incidents until the middle of April
1984 because his wife was ill (Vol. I, pp . 77-78) . The record
does not indicate how long com~lainant's wife had been ill but
apparently she was very sick on December 5, 1983 and died some
time thereafter (Vol. II, pp. 49-50). The operator's failure to
reprimand or other~ise take action against complainant also was
undoubtEdly due to the iact that by all accounts he was otherwise
a very good employee who was on time, never absent and worked
hard (Vol. I, pp . 58, 71, 236-237, 256). Sometime around the
middle of April 1984 the owner and the superintendent spoke to
complainant about safety . Although it is nowhere ~xpressly
stated. it is clear from the record that by this time complainant's wife had died (Vol . I, pp. 243-244). The complainant
testified that the only specific incident brought up was the one
in March 1983 when another worker was thrown off the belt
(Vol . II, p. 32). The owner did not specify exactly what was
talked about but stated that when the conversation was over he
patted complainant on the back and left him with the idea that
things would straighten out (Vol~ I, p . 83).
The superintendent testified that on April 23, 1984 complainant backed a truck into a wash rack (Vol. I, p. 223). Since this
testimony is uncontradicted, I accept it. There is also testi mony on behalf of the operator that complainant started up the
plant and a rock came out of the chute almost hitting another
_worker (Vol. I, pp. 88 - 90 , 244 - 245). The complainant testified
this could have happened but he did not remember (Vol. II,
pp . 37 - 38). I find more definite and more probative evidence
which indicates that this event occurred. There is however, a
dispute between the operator •s witnesses over when this last
event occurred since the owner testified it happened a few months
before complainant's discharge and before his conversation with
complainant whereas the superintendent stated it happened on
April 24 after the conversation but a few days before the discharge (Vol. I, pp . 89 - 90, 244). I credit the owner ' s testimony
and find this incident happened sometime before the conversation
and discharge.

30 3

The findinos set forth above with respect to the foregoing
safety incidents are based upon the testimony given at the
hearino. The ooerator submitted a series of notes written by the
s up.e r i nt e nd e n t ;. e l a t i n g t o t h e s e e ve n t s ( Ex h i b i t s C- J ) . I d 0 n o t
find these notes probative . The safety director testified that
he tol d the superintendent in December 1982 or early 1983 to document complainant's bad acts and that beginning at that time the
s upe l' i n t E: n de n t g a ve h i m s 1 i p s o f p a p e r to p ut i n c om p 1 a i n an t ' s
personnel file (Vol. I, pp . 192, 195-198; Exhibits C-J). However, the superintendent testitied that the safety director did
not tell him until December 1983 to start keepina records on complainant (Vol. II, pp: 220-221) . He said that b~fore late 1983
he went by h i s cal end a r· book ( Vo 1 • I , p . 2 41 ) . Accord i n g to the
superintendent the slips of paper regarding each of co~plainant's
alleged accidents (Exhibits C-J) were based upon his daily
t· e cords ( Court Ex h i b i.t 1 ) .
But on 1 y the d a i 1y record book for
1984 was submitted to support the notes. Nothing was introduced
to support the notes allegedly relating to incidents in 1983.
Exhibit f is a note relating to an alleged accident on June 8,
1983 with respect to the sand c la ssifier . The complainant denied
this happened and none of the operator's witnesses testified
about it . The note is therefore rejected as evidence of the
event which I find did not happen. Indeed, this note's existence
in the same form as the others casts additional doubt upon the
probi~y of all the notes .
The complainant's credibility is
enhanced by his candid admissions regarding th e occurrence of
nost of the events . Finally, the contemporaneous keeping of
these notes is wholly inconsistent with the operator's admitted
failure to speak to comclainant about any of the incidents
described therein. The notes constitute nothina more than an
after the fact attempt to justify the dismissal:
In addition , the superintendent's 1984 daily record book
itself is suspect in many respects (Court Exhibit 1). For
example, the entry on April 24, 1984 regarding complainant's
starting up of the plant is obviously a subsequent addition
squeezed in between entries already on the page and made with a
different pen. This suspect entry is the basis for the super- ·
intendent's note regarding April 24, 1984 (Exhibit J). But the
note contains information about a falling rock that the sup posed l y supporti ng day-book entry does not have. I find both the
note and the entry unpersuasive. Moreover, the plant manager who
is complainant's immediate supervisor, testified that he had
never seen the superintendent's records and did not even know the
superintendent was keeping them, whereas the superintendent said
exactly the opposite. I believe the plant manager on this point
(Vol. I, op. 167 - 168, 226) . Finally, the entries before April 1
are very sketchy and become detailed only a few weeks before
complainant ' s discharge.

3 04

In sutn therefore, I conclude that the notes (Exhibits C-J)
were not prepared at or about the time of the events described
therein, but rather were constructed after the fact in an attempt
to provide a basis upon which the discharge could be defended.
The safety director's report (Exhibit L) ~ased upon the notes is
therefore, worthless. I further find that the superintendent did
keep a contemporaneous daily fecord book for 1984 (Court Exhibit
1) but that the entries only became detailed shortly before the
discharge, that there are few entries regarding safety and that
the book was never seen by complainant's immediate supervisor .
Clearly, therefore, the boo k is not entitled to the signif icance
regarding safety incidents that the operator would ascribe to i t.
We now turn to the temporary wirinq incident . On April 24 ,
1984, a wire had burned out and temporary wirina was i nsta ll ed
until the electriciari could make a permanent re~air . The route
of the temporary wire is undisputed . The wire ran from a power
box inside the powerhouse through a hole in the trough which held
wires, out through a hole between the wall an d roof of the
powerhouse to a steel support on the main hopper, then into the
steel framework of the conveyor belt between the carrier rollers
and the turn rollers, and then to a steel pipe around which it
was wrapped, and finally down to an open connection box whic h was
next to a water ditch in an area that was subjec t to flooding
(Vol. I, pp . 128 - 130 ; II, pp. 44-46). The operator 1 s saf ety
director admitted that the plant manager and plant superintendent
told him that the wire was strung as shown by pictures taken by
complainant and admitted into the record (Vol. I, p . 129,
Exhibit 11 pp. 1-3). The superintendent said he wound black tape
around the wire where it passed through metal but complainant
said there was no such tape (Vol. I, pp. 270-272; II, pp. 42-43,
93) . The pictures do not show black tape (Exhibit 11 op. 1-3).
I find there was no black tape.
It is undisputed that complainant immediately complained to
his immediate supervisor, the plant manager, about the temporary
wiring because it was unsafe (Vol. I, pp. 49, 51, 179, 183,
186-187, 250, II; pp. 46, 63-64) . The compl~inant threatened to
call the Mine Safety and Health Administration (Vol. I, pp. 49,
51, 179, 183, 186-187, 250; II, pp. 46, 63-64). He testified
that he was afraid debris from the belt mioht hit the wire and
cause it to fall on the wet ground, creating a danger of
electrocution (Vol . II, pp. 54 - 56). The plant mana9er told the
superintendent and the owner about complainant•s dissatisfaction
with the wiring and his threat to call MSHA (Vol. I, pp. 51,
179).

305

The owner and complainant are in agreement about what
happened next. When the owner asked complainant if he threatened
to call MSHA about the tem~orary wiring, complainant admitted he
had an d the operator then said "That's it .
You're fired"
(Vol. I ~ pp . 51-52; I I, po. 46-47). The owner and the superintende nt testified that complainant's complaint and t hreat to call
i'1 SHA v1 a s f u r t h e r

e v i de n c e of

n i s b a d a t t i t u d e ( Vo 1 •

1,

pp • 55- 56 ,

258-259, 287) .
The co mpla inant's fears about the temporary wiring and his
expressed desire to c~ll MSHA fall squarely within the terms of
the Act. Section 105(c)(1), quoted supra. Consolidation
Coal Co. v. l•iarshall, supta . In addition, it is clear that the
complainant had a reas onable good faith belief that a hazard
existed. Robinette v. Un ited Castle Coa l Co •. suora. After observin~ the complain a~ t's demeanor when testifyin~t there can be
no doubt about the sincerity of his belief that the temporary
wiring was dangerous. Also, his perception of the danger was
reasona ble under the circumstances . Indeed, the overwhelming
wei~ht of the evidence demonstrates that the temporary wiring was
very hazardous. An electrica l expert who tes tified on behalf of
complainant 1 analyzed the danger from the temporary wiring at
1 e n 9 t h • He e x p l a i n e d h ow t h e wi r e c o u 1 d b e c om e c h a f e d f 1· o m v i ··
bration or be hit by a rock, wearing away the insulation so that
the 1 ive wire touching the steel ftame of the conveyor, could
electrify the entire frame and electrocute anyone who came in
contact with it (Vol. II, pp. 78-79). As the expert pointed out,
the structure was not grounded because it was set in concrete
vi h i c h i s a n i n s u 1 a t o r , - n o t

a g r o u n d ( Vo 1 •

I I , p . 85 ) •

Th e e 1 e c -

trical current was one hundred times more than enough to kill
someone and was very unsafe and tremendously dangerous (Vol. I I ,
pp. 84, 86, 88). According to the expert it most certainly was
enou~h to vJorry anyone ~,r;ho saw it (Vol. II, pp. 88 - 89).
I recognize that the expert did not actually see the plant but he heard
all the testimony describing how the temporary wire was hung and
he saw the pictures which the operator's safety director agreed
accurately represented the wiring. This provided more than
enough foundation for his expert opinion. The MSHA inspector
also expressed the view there was a danger of e l ectrocution
(Vol. I, op. 114 - 115). The testimony of the operator's electrician attempting to deny the wiring was dangerous is unpersuasive
(Vol. I, pp. 144 - 148). And even he finally admitted that "in due
time" vibration would pop the insulation so that the superstructure (if it was not grounded, which it was not) would become
hot (Vol. I, p. 151) . In light of the foregoing, I find the

008

testimony of complainant's electrical EXpert persuasive and I
accept it. Accordin9ly, I conclude that the complainant's fear
of danger from the temporary wiring was not only reasonable, but
right . His complaint and expressed desire to call MSHA
constituted protected activity under the Act .
In addition, it is uncontroverted that the safety complaint and threat to call MSHA played a part in the discharge .
As set forth abovet both the owner and complainant testified that
the temporary wiring incident was the precipitating factor in the
discharae (Vol. I, pp. 55-57; II, pp. 46 - 47). Indeed, this circumstanc~ permea t es the record so pervasively, it needs no elaboration . I conclude therefore, that the complainant has made out
a prima facie case.
In accordance with applicable Commission precedent , cited
above , the operator may still prevai l if it can show that it was
also motivated by complainant 1 S unprotected activities and would
have discha rged him in any ev ent for these activities alone. As
already set forth, I have found that a number of safety incidents
in which the complainant was involved~ did occur . However, I
conclude that they played no part in the discharge. By his own
account , the owner refused to do anything when his supervisory
staff alleg edly recommended adverse action agairst como la i~ant
because of the accidents (Vol. I , p . 55) . 1/ Mo reove r, no one
even spoke to the complainant about these Tncidents until the
middle of April 1984, shortly before the discharge. The operator
explained that it did not speak to the complainant until then
because his wife was ill. This is accepted to the extent that
the illness was one reason of several for not talking to him
about the incidents. The fact that complainant was a very good
employee also accounted for the operator 1 s failure to act on the
incidents. Moreover, the owner testified that at the end of the
April 1984 conversation he patted complainant on the back and
left him with t he idea things would straighten out (Vol. I,
p. 83) . If the owner kno wi ngly left complainant with this
impression, presumably the owner sincerely felt that way himself 9
as shown by his pat on the back. Except for the temporary
wiring, the only incident which occurred between the conversation
and the discharge was when complainant backed the loader into

!I

The operator's witnesses al l eoed that this recommendation
was made about six months prior toythe discharge (Vol . I, pp. 55~
208, 242). However at t he time, i . e . , October 1983, there had
only been one recorded safety lapse by the complainant at the
plant. I find this recommendation was made shortly before the
discharge.

307

the washstand. Here again, no one even s~oke to complainant
about it. In light of all of these factors I conclude that after
the t e tn p or a r y ~li r i n 9 d i s put e, the operator sou g 11 t to at t r i but e to
the safety incidents an importance they did not have when they
happened.
Only when complainant expressed dissatisfaction with the
wiring and threatened to call MSHA was the harshest of actions,
discharge, taken against him. The operator's repeated leniency
with respect to safety lapses, in stark contrast to what was done
about the wirinR comp l aint demonstrates that the complaint and
threat to call MSHA constituted the sole reason for discharge.
One only had to hear the indignation in the owner's recital of
events to realize that the complaint and threat were viewed as an
unforgiveable betrayal by an employee the operator believed it
had treated well . For t h is perceived betrayal the complainant
11as tired .
The operator's ar9ument that the complaint about the wiring
v.1as further evidence of complainant's 11 bad attitude 11 is without
merit. First, the complaint and threat to call MSHA about the
temporary wiring are entirely different from the safety accidents .
The accidents show some carelessness by complainant althou~h , as
already noted, lack of visibility wh i ch was the operator 1 S r espon sibility was partly to blame in some instances . The temporary
wiring complaint on the other hand demonstrates that in a very
serious situation complainant was safety conscious. In any
event, the operator cannot treat a good faith and reasonable
safety complaint as evidence of a 11 bad attitude 11 , justifying adverse action. The operator well may have been lenient and under standing towards complainant in prior situations . But in firin9
h i m f o r c o i!l p 1 a i n i n g an d t h r e a t e n i n g t o c a 1 1 MSHA a b o u t t h e
temporary wiring the operator did exactly what the Mine Safety
Act forbids.
In light of the foregoing, I conclude that the operator has
tailed to rebut the complainant's prima facie case.
I therefore, conclude the operator discriminated against the
complainant in violation of the Act .

To
I have reviewed the briefs submitted by both parties.
the extent that they are inconsistent with this decision, they
are rejected.
Accordin9ly, it is Ordered that the comolaint filed herein
be AllO\-Ied.
It is further Ordered that complainant is entitled to back
pay beginning April 27, 1984 together with interest thereon in
accordance with the Commission-approved formula set forth in
Secretary on behalf of Bailey v. Arkansas - Carbona Co., 5 FMSHRC
2042 (December 1983) .

308

It is further Ordered that on or before March 14, 1985 the
parties confer and reach an agreement with respect to damages and
that on or before March 15, 1985 complainant submit a written
statement of damages including all the necessary computations of
interest and that complainant's counsel submit a petition for
attorneys' fees .
It is further Ordered that the parties appear on March 21,
1985 at 10:00 a.m. so that an Order with respect to damages
may b e e n t e l' e d •
0

Paul !Vierlin
Ch ief Administrative Law Ju dge
D~st ribution:

Timothy D. Murnane, Esq., P. 0. Box 125, Davidsonville , MD
(Certified Mail)
William E. Kirk, Esq., Me l ridge Bui ldin g, 700 Melvin
Annapolis, MD 21401 (Certified Mail)

/gl

•u.s. GOYERIIMtliT PIW'TXHG OFFICE•

1985-46 1-2S6/24SS4

Avenue~

21035