OCTOBER 2003

COMMISSION DECISION
10-31-2003

Sec. Labor, on behalf of Joseph M.
Ondreako v. Kennecott Utah Copper Corp ..

WEST 2003-403-DM

Pg. 585

PENN 2003-171-R

Pg.589

SE

Pg.594

ADMINISTRATIVE LAW JUDGE DECISIONS
10-08-2003
10-08-2003
10-09-2003
10-14-2003
10-21-2003
10-22-2003
10-27-2003

RS & W Coal Company
Sec. Labor, on behalf of Wyman Owens,
& UMWA v. Drummond Company Inc.
Sec. Labor, on behalf of Joseph M.
Ondreako v. Kennecott Utah Copper Corp.
Drummond Company, Inc. (Corrected version)
Carbon River Coal Corporation
Rockhouse Energy Mining Co.
Drummond Company, Inc.

2002-134-D

WEST 2003-403-DM
2003-101-R
SE
KENT 2003-103
KENT 2003-107
2003-102-R
SE

Pg.612
Pg.621
Pg.63 1
Pg.637
Pg.644

WEST 2002-302-D
WEVA 2003-173
WEVA 2003-222
CENT 2003-165-M

Pg.649
Pg.657
Pg.659
Pg.662

ADMINISTRATIVE LAW JUDGE ORDERS
09-23-2003
10-02-2003
10-29-2003
10-30-2003

Hazel Olson v. Triton Coal Company
Ricky Bryson employed by Elk Run Coal Co.
HLC Trucking Company, Inc.
Allied Custom Gypsum

i

OCTOBER 2003

Review was granted in the following case during the month of October:
Secretary of Labor, MSHA v. CKC Materials Division, Docket Nos. WEST 2003-268-M, et al.
(Unpublished Default Orders issued by Chief Judge Lesnick on September 23, 2003)

Review was denied in the following cases during the month of October:
Secretary of Labor, MSHA, on behalf of Charles Scott Howard v. Panther Mining, Cave Spur Coal,
et al., Docket No. KENT 2003-313-D. (Judge Melick, August 22, 2003)
·
Secretary of Labor, MSHA v. U.S. Steel Mining Co., LLC, Docket No. WEVA 2003-16.
(Judge Zielinski, September 5, 2003)

ii

C01\1MISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE 9500
WASHINGTON, DC 20001

October 31, 2003

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of JOSEPH M. ONDREAKO
Docket No. WEST 2003-403-DM

V.

KENNECOTT UTAH COPPER
CORPORATION

BEFORE: Duffy, Chairman; Beatty, Jordan, Suboleski, and Young, Commissioners
DECISION
BY THE COMMISSION:
This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal
Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. § 815(c)(2) (1994). On
October 15, 2003, the Commission received from Kennecott Utah Copper Corporation
("Kennecott") a petition for stay and review of Administrative Law Judge Richard Manning's
October 9, 2003 decision and order of temporary reinstatement issued pursuant to section
105(c)(2) of the Act. 25 FMSHRC _,slip op. at 9, No. WEST 2003-403-DM (Oct. 9, 2003).
See also 29 C.F.R. § 2700.45. On October 22, the Commission received the Secretary of Labor's
opposition to Kennecott's petition. For the reasons that follow, we grant the petition for review,
deny Kennecott's request for a stay, and affirm the judge's order requiring the temporary
reinstatement of Joseph M. Ondreako ("Ondreako").
Complainant Ondreako was hired by Kennecott in 1999 as a haul truck driver. Slip op. at
2. In 2002, he was promoted to "advanced operator." Id. He was notified on May 8, 2003, that
he had been demoted to the position of"operator B." Id. at 3; Tr. 39-40. In June 2003, he was
laid off. Slip op. at 5.
On July 9, 2003, Ondreako filed a complaint of discrimination with the Department of
Labor's Mine Safety and Health Administration. Id. at 2. After MSHA conducted a preliminary
investigation, the Secretary filed an application for temporary reinstatement alleging that
585

Kennecott, on May 8, 2003, demoted Ondreako and, on June 26, 2003, laid him off because of
safety complaints he made over the course of several months. Application at 2. The application
for temporary reinstatement requested that Ondreako be reinstated to the position which he held
before his demotion on May 8, 2003. Id.
On October 2, 2003, Judge Manning held a hearing on the Secretary's application for the
temporary reinstatement of Ondreako. Slip op. at 1. The judge found that the Secretary
presented evidence sufficient to demonstrate that Ondreako's discrimination complaint was not
frivolously brought, including evidence that Ondreako engaged in protected activity, that
Kennecott took adverse action against Ondreako, that the protected activity and the adverse
action were proximate in time, and that Ondreako's complaints were public and open. Id. at 7-9.
The judge noted that Kennecott presented evidence that may amount to "a convincing defense to
Ondreako's complaint in the underlying discrimination case." Id. at 7. However, the judge
declined to resolve conflicts in testimony at this preliminary stage of the proceeding and
reiterated that "the purpose of a temporary reinstatement proceeding is to determine whether the
evidence presented by the applicant establishes that the discrimination complaint is not
frivolous." Id. The judge ordered Ondreako reinstated to the position he held immediately prior
to his lay-off, or to a similar position at the same rate of pay and with similar benefits. Id. at 9.
Under section 105(c)(2) of the Mine Act, "if the Secretary finds that [a discrimination]
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint." 30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the "'scope
of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as
to whether a miner's discrimination complaint is frivolously brought."' See Sec '.Y of Labor on
behalf ofPeters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993) (quoting Sec '.Y
ofLabor on behalf ofPrice v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd,
920 F.2d 738 (11th Cir. 1990)). The Commission applies the substantial evidence standard in
reviewing the judge's determination.• Sec '.Y ofLabor on behalf of Bussanich v. Centralia Mining
Co., 22 FMSHRC 153, 157 (Feb. 2000).
Thus, the only issue before us is whether Ondreako's discrimination complaint was
frivolously brought. After careful review of the evidence and pleadings, we conclude that the

1

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's) conclusion.'" Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
586

judge's determination that the complaint is not frivolous is supported by the record and is
consistent with applicable law. We intimate no view as to the ultimate merits of this case.2
Accordingly, we affirm the judge's decision reinstating Ondreako.

./

Michael G. Young, Commissioner

2

Kennecott's request for a stay of the temporary reinstatement order fails to demonstrate
extraordinary circumstances and is therefore denied. 29 C.F.R. § 2700.45(f). See Sec '.Y ofLabor
on behalfofBowling v. Perry Transport, Inc., 15 FMSHRC 196, 198 (Feb. 1993).
587

Distribution
James M. Elegante, Esq.
Kennecott Utah Copper Corporation
8362 West 10200
P.O. Box 6001
Magna, UT 84044
Jack Powasnick, Esq.
Office of the Solicitor
U.S . Department of Labor
1100 Wilson Blvd., 22"d Floor West
Arlington, VA 22209-2247
Administrative Law Judge Richard Manning
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

588

ADMINISTRATIVE LAW JUDGE DEOSIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

October 8, 2003
RS&W COAL CO.

CONTEST PROCEEDINGS
Contestant
Docket No. PENN 2003-171-R
Citation No. 3561084; 8/18/03

V.

Docket No. PENN 2003-172-R
Citation No. 3561085; 8/18/03

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

RS & WDrift
Mine ID 36-01818

DECISION
Appearances: Randy Rothermel, President, R S & W Coal Company, Klingerstown,
·
Pennsylvania, for the Contestant.
John Strawn, Esq., U.S. Department of Labor, Philadelphia, Pennsylvania, for the
Respondent.
Before:

Judge Weisberger

Statement of the Case
At issue in the above captioned Notices of Contest, consolidated for hearing on an
expedited basis, are: 1) the validity of two citations issued to R S & W Coal Company alleging
failure to abate two previously issued safeguards, and 2) the validity of the two underlying
safeguards. A hearing was held in Harrisburg, Pennsylvania. Subsequent to the hearing the
parties each filed a brief.
Fin din~s of Fact

RS & W has been operating an anthracite coal mine at the subject site since 1984. In
connection with its operation, men and coal, respectively, are transported from the surface into
the underground mine by five cars, hooked up in tandem to a battery powered locomotive, 1 which
in tum pushes the cars into the mine. The coal and miners are transported out of the mine in
these cars which are pulled out of the mine by the locomotive. Subsequent to the commencement
of operations through the date of the hearing, August 27, 2003, this method of transportation has
not resulted in any accidents or injuries.
The locomotive which travels at a speed of four miles an hour when pushing or pulling a

1

The transport of the cars in tandem along with the locomotive, is called a trip.

589

trip, is operated by a miner who is positioned about ten feet from the leading edge of the
locomotive, and approximately 60 feet from the leading edge of the first car of the trip. The top
of the locomotive is approximately 48 inches above the track, and the top of the cars are about 54
inches above the track. The travelway from the surface into the mine does not have any
illumination; the sole source of illumination are the cap-lights in the miner's helmets. The
locomotive weights approximately 6 tons, and each car weights three to four tons.
In traveling inby, the trip travels up a six tenths of a percent grade, and must negotiate
two turns including one of approximately 90 degrees. Due to the length of the trip, the operator
of the trip can not see the first car after it enters the 90 degree tum. When traveling inby, the
locomotive operator watches the roof and the miners' heads to alert them to low roof2 , and other
hazardous conditions in the roof. In traveling inby, a miner is stationed in the lead car to watch
for debris and other hazardous conditions on the track, and to warn the locomotive of the same.
Should this miner observe a hazardous condition, the practice is for him to tum his head
backward in the direction of the locomotive operator, and to issue a verbal warning.
On July 16, 2003, MSHA Inspector Michael J. Dudash, while inspecting the subject site,
issued a Notice to Provide a Safeguard (No. 7005339) which refers to 30 C.F.R. § 1403-7(c)3,
and which contains the following language:
THE MINE'S GREENBERG SCOUT LOCOMOTIVE (SER. NO. S433) WAS
PUSHING 5 MINE CARS TRANSPORTING 7 MINERS FROM THE
SURFACE TO THE ACTIVE WORKING SECTION OF THE HOLMES VEIN
EAST SIDE (MMU- 0010). THE CARS WERE PUSHED A DISTANCE OF
ABOUT 6000 FEET FROM THE SURFACE PORTAL TO THE SECTION'S
WORKING PLACE. THE MINERS WERE RIDING INV ARIOUS CARS.
EACH CAR HAS A 3 TON CAPACITY AND EACH IS 10 FEET LONG BY
3.5 FEET HIGH BY 4 FEET IN HEIGHT. THIS IS A NOTICE TO PROVIDE A
SAFEGUARD FOR ALL OF THIS MINE'S MAN TRIPS TO BE PROVIDED
WITH LOCOMOTNES PULLING THE MAN CARS INTO AND OUT OF
THE MINE.
On the same date, Dudash issued another Notice to Provide a Safeguard containing the
same language as No. 7005339, supra, except that it refers to "all of the mine's trips" and cites 30
C.F.R. Section 75.03-10(b)4 •

2

In places, the roof is two to three inches above the locomotive operator, who is six feet,
two inches tall.
3

30 C.F.R. § 1403 authorizes the Secretary to provide "other safeguards" to minimize hazards
relating to the transportation of men and materials. Section 1403-7, supr~ provides the following criteria
for mantrips" ... (c) [m]antrips should not be pushed."
'Section 75.1403-10 sets forth criteria for "haulage", and in subsection b provides that "[c]ars on
main haulage roads should not be pushed, .... "

590

On August 18, 2003, Dudash returned to the subject site, and noted that RS& W had
failed to abate the two safeguards at issue . Dudash issued, respectively, two citations for failure
to abate the safeguards, citing, respectively, Section 75.1403-7(c) supra, and Section 75.1403. 1O(b), supra. According to Dudash, after he observed the company's manner of transporting men
and materials into the mine, he concluded that pushing a trip into the mine presented a derailment
hazard, and that pushing, according to the criteria set forth in Section 1403, supra, is a hazard due
to the lack of control. He indicated that on July 16 a hazard existed in the company's mine since
pushing "is inherently less controlled as to visibility than pulling" (sic) {Tr. 57). On crossexamination he indicated that the safeguard was issued "based on the pushing of the locomotives
- of the mine cars and mantrip "(sic) (Tr. 85). He also opined, based on the criteria in Section
1403, supra, that just pushing the cars was a hazard because of less control. Dudash indicated
that because of less control by the operator, and less visibility in pushing the cars, there was a
high potential for derailment. Dudash explained that when the locomotive pushes the trip, the
operator would have less visibility than when pulling the trip because of the distance from the
operator to the end of the trip. Dudash noted that when the locomotive pushes the trip, the
operator is located 60 feet from the leading edge of the first car of the trip, whereas, in pulling the
trip, the operator is located only approximately 10 feet from the leading edge of the locomotive.
Dudash pointed out that the two sharp turns of the track limit the ability of the operator to see
past the lead car of the trip until the trip straightens out. Thus, when traveling inby the operator's
ability to see debris on the track would be limited, contributing to the possibility of derailment.
Further, contributing to this possibility is the presence of water on the track, which would
diminish the stopping ability of the locomotive. In addition, although dispersal of sand increases
breaking power, it is not done efficiently as the method of dispersal is not automatic. Lastly,
Dudash opined that when the trip is being pushed if the lead car of the trip derails, the rest of the
cars might jack-knife into the rib.
Dudash indicated that the miners being transported in the cars could be thrown out of the
open cars in a derailment, and possibly suffer a fracture or a head injury. Also, should a
derailment occur, due to the weight and size of the cars, it is possible that timber supporting the
roof could be dislodged thus causing a roof fall which could cause a fatality.
Dudash indicated that the best way for RS&W to comply with the safeguards is to use a
second locomotive which would be attached to pull the trip out of the mine. He opined that, as
an alternative, RS&W could install another set of tracks and two switches which would allow the
locomotive to be uncoupled after it pulls the trip into the face area, and be re-routed to the other
track. It then could travel outby, then return inby to the trip to pull it out of the mine. However,
he indicated that the only area of the mine that would allow sufficient room for the placement of
these switches was located about 1000 feet outby the face.
Ronald Medina, a professional engineer, indicated that, generally, the following factors,
which are involved in pushing a trip, contribute to the likelihood of derailment: 1) since the first
car is empty when the trip is pushed into the mine, it is thus lighter than the locomotive and
therefore is more likely to be derailed due to rocks on the track, 2)that when a trip is being
pushed, a sideways force is exerted that could cause a car to derail, 3) that becaus~ the visibility
591

of the operator of the locomotive is more limited when pushing rather than pulling, a derailment
is more likely to occur when the cars are being pushed rather than pulled, and 4) that when the
locomotive pulls the cars its headlight illuminates the tracks, whereas, when the trip is being
pushed the only illumination is from the cap light of the miners positioned in the lead car. Also,
he opined that when the trip is pushed, its forward momentum would tend to push the cars
against the ribs, thus causing a greater likelihood of injury as opposed to the likelihood of injury
should the cars be pushed and then derail. Further, according to Medina, when cars are pushed
they tend to jack-knife in a derailment, increasing the likelihood of a serious injury.

DISCUSSION
Validity of the underlying safeguards
Section 314(b) of the Federal Mine Safety and Health Act of 1977 (the Act), authorizes
the Secretary of labor to issue safeguards " ... to minimize hazards with respect to transportation
of men and materials ...."

In general, the Commission has concluded that, regarding safeguards," ... it is within the
Secretary's sound exercise of discretion to issue mandatory standards or to issue safeguards for
commonly encountered transportation hazards." Southern Ohio Coal Co., 14 FMSHRC, 1, 9
(Jan 1992). The Secretary bears the burden of establishing the validity of the underlying
safeguard (Southern Ohio at 13). The Commission in Southern Ohio at 14, elaborated as
follows: "The Secretary is required to demonstrate only that the inspector evaluated specific
conditions at the particular mine and determined that a safeguard was warranted in order to
address a transportation hazard. In rebuttal, the operator would be free to offer evidence that the
safeguard was not based on conditions present at its mine, or that the safeguard was routinely
applied without consideration of conditions at its mine."
Applying the principles set forth above, the issue presented herein is whether the issuance
of the safeguards in question, regarding the pushing of a trip, was a sound exercise of discretion.
In other words, considering the evidence adduced by the Secretary regarding the inspector's
evaluation of the conditions at the mine as well as evidence adduced by RS&W regarding
conditions at its mine, the issue is whether considering the Secretary has met its burden in
establishing that the specific conditions at the mine warranted the issuance of the safeguards. I
conclude, for the reasons forth below, that considering all the conditions at the mine, the issuance
of the safeguards was not warranted, and was not an exercise of sound discretion by the
Secretary.
The inspector noted the specific conditions at the mine which he found to be hazardous
when a locomotive pushes a trip of five cars5, either loaded with men, or coal and other materials.
In his opinion, when the locomotive pushes a trip the following conditions limit the ability of the

5

The inspector indicated, in essence, that these conditions are existent even when the locomotive
pushes only one car.

592

operator to see hazardous track conditions, and contribute to the hazard of a derailment which
could cause serious injuries: the fact that the operator has to see over the tops of the cars which
are higher than the top of the locomotive; the distance between the position of the locomotive
operator and the leading edge of the lead car; and the fact that track is not straight and has two
sharp curves, including one at a 90 degree angle, which deprives the operator of the locomotive
from seeing the lead car and the tracks beyond the car in such bends.
However, I note the uncontradicted evidence proffered by RS& W that the locomotive,
and hence the trip, travel at only four miles an hour; that in normal operations, a miner is
positioned at the front of the lead car in a trip to watch out for hazards on the track and to alert
the operator of such hazards by turning his head and shouting back to the operator; that the
operator would immediately be alerted to such hazards due to the extremely low speed of the trip,
and because in the dark conditions of the underground mine the operator would immediately
notice movement in the miner's caplight when the latter would tum to alert him of a hazardous
condition; that when the locomotive pushes the cars, in contrast to pulling them, the locomotive
operator observes the miners' heads and the roof to warn miners of hazardous conditions in the
extremely low roof, which the operator can not do when the trip is being pulled; and, most
significantly, that trips have been pushed into the subject mine on a daily basis since 1984, and
there have not been any accidents or injuries caused by or related to this manner of operation.
Thus, taking into account all the conditions at the subject mine, I find that the issuance of
the two safeguards herein was not a sound exercise of the Secretary's discretion. The Secretary
has failed to establish that the safeguards were warranted based on a proper evaluation of all
conditions at the mine. Hence, the safeguards herein were not validly issued. Thus, the citations
at issue citing, in essence, failure to abate these safeguards, were not validly issued and therefore
shall be dismissed.
ORDER

It is ORDERED that the Notices of Contest herein are sustained, and that Citation Nos.
3561083 and 3561084 be vacated.

Administrative Law Judge
Distribution:
Randy Rothermel, President, RS&W Coal Company, RD 1, Box 33A, Klingerstown, PA 17941
John Strawn, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, Suite
630E, 170 S. Independence Mall West, Philadelphia, PA 19106-3306
593

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

October 8, 2003
SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION,
on behalf of WYMAN OWENS,
Complainant

DISCRJMINATION PROCEEDINGS
Docket No. SE 2002-134-D
BIRM CD 2002-04

and
UNITED MINE WORKERS OF AMERICA

v.
DRUMMOND COMPANY, INC.,
Respondent.

Mine ID 01-02901
Shoal Creek Mine

SECRETARY OF LABOR, MINE SAFETY
AND HEALTH ADMINISTRATION,
on behalf of GARY WATSON,
Complainant

Docket No. SE 2002-135-D
BIRM CD 2002-05

and
UNITED MINE WORKERS OF AMERICA
V.

DRUMMOND·COMPANY, INC.,
Respondent.

Mine ID 01-02901
Shoal Creek Mine

SECRETARY OF LABOR, MINE SAFETY
AND.HEALTH ADMINISTRATION,
on behalfofHENRY JOHNSON,
Complainant

Docket No. SE 2002-136-D
BIRM CD 2002-07

and
UNITED MINE WORKERS OF AMERICA
V.

Mine ID 01-02901
Shoal Creek Mine

DRUMMOND COMPANY, INC.,
Respondent.

594

DECISION
Appearances: MaryBeth Bemui, Esq. and Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for the Secretary.
Ann C. Robertson, Esq., Gordon, Silberman, Wiggins & Childs, Birmingham,
Alabama, for the Complainants.
Daryl H. Dewberry, Esq., United Mine Workers of America, Birmingham,
Alabama, and Judith Rivlin, Esq., (on brief), United Mine Workers of America,
Fairfax, Virginia, for the Intervenor.
Harry Hopkins, Esq. and Brian Bostick, Esq., Olgetree, Deskins, Mash, Smoak &
Stewart, PC, Birmingham, Alabama, for the Respondent.
Before:

Judge Weisberger

Statement of the Case
On August 12, 2002, the Secretary filed before the Commission three Complainants of
Discrimination under Section 105(c) of the Federal Mine Safety and Health Act of 1977 (the
Act), alleging respectively, that Wyman Owens who was employed by Drummond as a safety
committeeman, Gary Watson who was employed by Drummond as a fireboss and Henry Johnson
who was employed by Drummond as a fill-in fireboss, all engaged in protected activities, and
were discharged on or about March 20, 2002 in violation of Section 105(c) of the Act, because
they had engaged in protected activities. 1 On September 9, 2002, Drummond filed an Answer
denying, inter alia, that Owens, Watson and Johnson had engaged in protected activities. The
answer also denies any causal connection between the protected activities and the adverse
actions, and asserting an affirmative defense that it would have taken adverse action based on
unprotected activities alone. Subsequently, Drummond filed a motion for summary decision,
which was denied in a decision issued on March 6, 2003. On March 11, 12 and 13, 2003, a
hearing was held in Birmingham, Alabama.2 At the hearing, the United Mine Workers (UMW)
appeared as Intervenor, and the individual complainants were represented by private counsel.
Subsequent to the hearing the parties filed the following: proposed findings of fact and
1

1nitially, on June 13, 2002, the Secretary filed applications for temporary reinstatement on
behalf of Owens, Watson, and Johnson. Subsequent to a hearing on July 26, 2002, a decision was issued
granting these applications subject to the parties ' agreement regarding economic reinstatement.
Drummond filed a petition for review before the Court of Appeals, 11th Circuit. The petition was denied
in an unpublished opinion, Drummond v. FMSHRC. Secretary of Labor, and MSH& sub. nom. Owens,
Watson, and Johnson, (No. 02-14394, May 9, 2003).
2 0n March 3, 2003, the Secretary filed a motion in limine seeking to limit the introduction of

certain testimony and documentary evidence. The motion was denied in a telephone conference call with
all parties on March 3, 2003.

595

legal argument, replies to other parties' proposed findings of fact. In addition, Respondent filed a
response to the Secretary's reply brief.
I.

Complainants. Their Protected Activities. and Adverse Actions Taken Against
Them.
A.

Gloy Wyman Owens

Owens worked for Drummond for over 25 years. He worked at the Shoal Creek Mine
from January 1994 through March 22, 2002, when he was terminated. For the last three years
until he was terminated, he worked the 3 p.m. to 11 a.m. ("owl shift") Monday through Saturday,
and occasionally on Sunday.
Owens served as a full-time Health and Safety Committeeman for the United Mine
Workers Union. The committee consisted of three persons including Owens. His duties
included checking for safety violations, accompanying MSHA inspectors on their inspections,
and discussing conditions in the mine with miners.
Owens indicated that if any problems were reported to him, he then inspected for
hazardous conditions. He indicated that if a miner asked him to look at a condition, he would
look at it. Ifhe found the condition hazardous, he contacted whoever was in charge to report the
condition. Owens indicated that when asked by a supervisor for his recommendation as to what
to do to abate or correct the condition, he gave his opinion. Owens testified that if the condition
was not abated, he shut the mine down and notified proper management officials in order to ·
explain the condition.
In February 2001, Drummond was engaged in the construction of an overcast. According
to Owens, there was not sufficient air in the area. He contacted the immediate foreman, Marty
Lewis, and told him to ventilate the area. According to Owens, Lewis said that he could not do
it. Owens shut the mine down until the ventilation was approved. Owens then called the mine
shift foreman, Doug Altizer, and explained the situation. Altizer told Lewis to get air to the area.
The situation was corrected, and the mine was reopened.
According to Owens, in March 2001, he met five or six times with various Drummond
officials regarding a petition for modification relating to the use of a 24,000 volt Miner. Among
these officials were Ken McCoy, the director of operations, Rich Painter, the mine manager, and
Dickie Estep, the director of health and safety. Owens stated that he told them that they had to
agree to various stipulations, or the union would oppose the petition for modification. Owens
indicated that at these meetings, at times, there were differences of opinion.
In June 2001, the safety committee presented a petition to McCoy, Painter, and Estep
regarding the use of truss-bolts. Owens indicated, in essence, that in discussions with the latter,
he presented his position that this equipment would weaken roof support.

596

In July 2001, a petition was re-submitted by Drummond to modify from a 35 foot cut to a
40 foot cut. According to Owens, at a meeting with Painter and Estep, he, along with two other
union members, opposed the petition and said they would not be able to get sufficient air in the
face. Subsequently, the petition was granted for a 40 foot cut, but was not implemented.
On September 11, 2001, at a Stakeholder' s meeting with MSHA officials, Owens
disagreed with McCoy who, in his speech, had advocated more of a role for management.
Owens stated that in disagreeing with McCoy, he noted that rates of citations, accidents, and
severity of citations had not been decreasing.

In March 2002, Drummond asked for a waiver from the State of Alabama to use a backup
fan should another fan not be operative. Owens informed Tom Sheback, the owl shift foreman,
that he opposed this request.
After the state granted the waiver, Owens and Safety Committee Chairman Ronnie
Griffith, held a meeting with union members. At the meeting, Owens and Griffith passed out
flyers with the telephone numbers of Tom Wilson, a member of the international division of the
UMWA, and a Mr. Sanders, an employee of the State of Alabama, and McCoy. Owens and
Griffith told the union members that the granting of the waiver for the backup fan was "taken out
of our hands" and if they opposed it, they should contact the three officials identified in the flyer
who were the officials responsible for the waiver (T.R. Vol I. 39-40).3 All of the owl shift
supervisors attended this meeting with approximately 80 or 90 union members. Owens and
Griffith also passed out these flyers to the union members who worked on the day and evening
shifts.
Owens indicated that he, along with the safety director at the mine, normally met with
MSHA inspectors once a month after their inspections, to discuss any violative conditions noted
by the inspectors, and citations they issued. According to Owens, in the last six months prior to
his termination, the union did not support Drummond's requests to vacate citations it had
received. In the last year prior to his termination he agreed with Drummond, on only one
occasion, that two citations it had received should be combined .
On March 22, 2002, Owens received a letter from Drummond dated March 20, 2002,
which stated that he was suspended with intent to discharge due to "[r]eceiving stolen company
property". Seventeen other Drummond bargaining unit employees, three unrepresented miners
and four members of management were also terminated based on their allegedly having stolen or
received stolen company property, possessed or sold drugs, or consumed alcoholic beverages on

3

T.R. Vol. I, refers to, the volume and page of the Temporary Reinstatement hearing transcript
which, based on the parties agreement is incorporated in the record of the instant proceedings. Tr., refers
to the transcript of the instant proceedings.

597

company property. Owens and six others were not voluntarily reinstated4 On March 27, 2002,
Owens met with management officials regarding this letter. At the meeting, he was told by a Mr.
Eller that he had taken a battery or batteries, either automobile or marine. In response, Owens
said that he did not receive any such items from Terry Clark, who worked at the warehouse.
B.

Gary Lee Watson

Watson worked for Drummond since 1985, and at the Shoal Creek facility since March
1994. He served as a fireboss since 1995. Watson indicated that, as a fireboss, he was
responsible for performing a preshift examination which involved walking the belt lines and
walkways, and inspecting for dangerous conditions. He indicated there were four separate
routes, and the firebosses rotated inspection of these routes on a monthly basis. Any dangerous
conditions were noted in the fireboss book which was kept in the foreman's office, and also
signed by a foreman. Any hazardous condition so noted was to be addressed immediately.
Additionally, he would call a foreman or an assistant foreman. If they were not present, he then
would call the communication office. Between June l, 2001, and December 31, 2001, Watson
wrote up at least 42 hazardous conditions in the pre-shift examination book that had to be
corrected immediately before the oncoming shift could enter the mine.
On February 18, 2002, Watson found 24 inches of water in a primary roadway, noted it as
a hazardous condition in the pre-shift examination book, roped off the area, and reported it to a
foreman.
Between January 1, 2002, and March 18, 2002, Watson wrote up at least five hazardous
conditions in the pre-shift examination book that had to be corrected before the oncoming shift
could enter the mine.
From June 1, 2001, up and until March 18, 2002, Watson noted various and multiple
hazardous conditions in his pre-shift reports on at least 4 7 occasions and noted comments of
various violations on over 50 occasions. Between June 13, 2001, and March 2002, Watson
conducted 17 weekly examinations where he noted, in the weekly examination books, conditions
that needed to be repaired or corrected.
On several occasions he discussed, with various management officials, hazardous
conditions he had noted, and they did not always agree with him. According to Watson, on one
occasion in 2001, at a safety meeting at which Dickie Estep, Don Hendrickson, and Leonard
Woodby were present, Watson told them that if problems with air changes continue to occur
while men are underground," ... we are going to have to address it more severely" (T.R. I, 103).
Watson testified that on one occasion in 2002, between January and March, after he had reported

4

0n July 26, 2002, subsequent to a hearing, an order was entered granting the Secretary's
application for temporary reinstatement of Owens, subject the terms of the parties' agreement regarding
his economic reinstatement.

598

icing on a walkway to his supervisor, Woodby made" ... some little snide comments about it was
fine when I went down it, or, you know, the men said they could go up and down it" (sic) (T.R.,
I., 98-99) Watson said that several times over the last eight years management officials told him
that what he had termed to be hazardous should have been put in the comment section of the
fireboss book. Further, according to Watson, a foreman, John Redmill used to curse him all the
time.
On March 21, 2002, Watson was advised by management that he was being suspended
for theft of property. He said management told him that he had taken five gallons of gas, a bag of
Quickrete cement, cleaning supplies, a pick, an ax, a shovel, a pre-made sandwich, and a soft
drink. Drummond did not subsequently voluntarily reinstate him. 5
C.

Herny Johnson

Johnson has been a Drummond employee since 1975 or 1976, and worked at Shoal Creek
since June 1995, until he was discharged in March 2002. He worked as an outby utility man, but
served as a fireboss four to five days a week during the 11 p.m. to 7 a.m. owl shift. He indicated
that if he found a hazardous condition, he would call his immediate supervisor or the assistant, or
mine foreman, or the company operator. According to Johnson, in addition, on several occasions
in 2001, and 2002, he shut down an area of the mine due to hazardous conditions. According to
Johnson, on one occasion when he had to shut down the main belt due to gas and the problems
were corrected the next day, he was told by Rich Painter, Mine Manager, in his office, "[d]on't
you ever shut my damn belt down again" (T.R. I., 176).
Between June 1, 2001, and December 31, 2001, Johnson wrote up at least six hazardous
conditions in the pre-shift examination book that had to be corrected immediately before the
oncoming shift could enter the mine. During this same time period, Johnson noted least 65
conditions in the comments section of the pre-shift examination books.
Between June 20, 2001, and March 20, 2002, Johnson conducted 13 weekly
examinations, and noted, in the weekly examination book, conditions that needed to be repaired
or corrected. Between January 1, 2002, and March 20, 2002, Johnson entered, in the pre-shift
examination book, at least four hazardous conditions that had to be corrected immediately before
the oncoming shift could enter the mine. Johnson stated that the more conditions he wrote, "the
meaner you got looked at" (T.R., Vol. I, 174). On one occasion, after Johnson noted the
existence of hazardous conditions, Robert Payne, a foreman, told him that other fire bosses on his
shift had not seen these conditions and " ... why did you write it up ." (T.R., Vol. I, 172).
On March 20, 2002, Johnson was notified by the company that it intended to terminate
him. He stated th~t he was told that on two separate occasions he had purchased one pill for
which he paid three dollars. Johnson said that it was a Lortab 5. Johnson was told he also had

5

See footnote 1, infra.

599

stolen soap, paper towels, garbage bags, Windex, a car battery, a No. 9 spray, a wire brush, and
brought 40 dollars worth of marijuana to Terry Clark. Johnson indicated that none of these
allegations are true except for an incident involving the pills. Drummond did not subsequently
voluntarily reinstate him. 6
II.

Drummond's Actions
A.

Investigation

In November 2001, Drummond was told that Terry Clark, whom it had hired on March
19, 2001, to work in the warehouse, was stealing from the company. Thereafter, Drummond
enlisted the services of North American Security, an outside security firm, to perform
smveillance at the Shoal Creek warehouse in an effort to determine who might be engaged in this
alleged theft. North American conducted its surveillance from mid-November until December
12, 2001, when its surveillance team was discovered by Drummond workers who destroyed some
of their surveillance equipment. The video did not show Watson, Owens, or Johnson engaged in
any of the acts of wrong doing alleged in their suspension notices.
In December 2001, Drummond received information from a non employee confidential
informant that she had some of Drummond's stolen property in her possession. The informant
implicated Terry Clark, a supply clerk who worked in the warehouse at the Shoal Creek Mine, as
being involved in the theft of Drummond property. On January 7 or 8, 2002, Tim Mosko,
Respondent's Director of Security, received a list from the confidential informant identifying 20
employees allegedly engaged in misconduct at the Shoal Creek Mine.
The police began an investigation of a theft ring based upon information supplied by the
confidential informant, and recovered Drummond property at the residence of the confidential
informant. During the course of the police investigation, Terry Clark admitted that he had stolen
property from Drummond, and he also identified several other employees as being involved in
theft or the sale or use of drugs and alcohol at the mine. Terry Clark was arrested and charged
with theft by the Jefferson County Sheriffs Department and the Walker County Sheriffs
Department. He was facing potentially 15-20 years in jail. Terry Clark's employment with
Drummond was terminated on January 12, 2002.

In late January 2002, Drummond determined that the police were losing interest in the
investigation, and requested and received permission to pursue its own investigation into the
alleged misconduct. Drummond engaged the services of David P. Frizell, Jr., to conduct an
investigation on its behalf. Frizell is an investigator with past work experience for the U.S.
Naval Investigative Service, the Central Intelligence Agency, and the U.S. Office of Personnel
Management.

6

See footnote 1, infra.

600

Drummond did not direct that Frizell investigate any particular employee, other than
Terry Clark. Drummond gave Frizell a list, compiled by Terry Clark ;:ind the confidential
informant, of those employees allegedly involved in theft. Frizell began his investigation on or
about February 11 , 2002, and met with the Jefferson County Sheriffs Department on February
11, 2002, regarding Terry Clark. He then proceeded to interview seventeen employees, including
management and labor, and the confidential informant. Frizell took several statements from
Terry Clark regarding misconduct by other workers. The investigation provided additional
details of the misconduct of Watson, Johnson, Owens, other unrepresented workers, and
members of management.
On February 22, 2002, Frizell interviewed the confident informant who identified Terry
Clark, Henry Johnson, Gary Watson, Wyman Owens and 17 other employees as involved in
theft, drug use, drug sales, and drug purchases. There is no evidence that the confidential
informant identified Watson, Johnson, and Owens as being guilty of misconduct because they
held jobs that involve safety activities. Further, there is no evidence that she knew that Watson,
Johnson, or Owens held such positions.
On March 8, 2002, Terry Clark, his brother, Teddy Clark, another former employee, and
Drummond entered into an agreement wherein Terry and Teddy Clark agreed to "[f]ull, honest
and complete cooperation and agreement to testify in arbitration or litigation regarding certain
matters....." (T.R., Resp. Ex. 36). Also, the District Attorney's office in charge of their case
proposed to resolve the criminal charges against them.
After Drummond was informed about alleged theft and drug use on its property, Mike
Zervos, Drummond's president, formed a security committee consisting of the following
employees to address these allegations: Ken McCoy, Mike Zervos, Dean Hubble, Rich Painter,
Tim Mosko, Mike Tracy, Ed Sellers, David Muncher, Curt Jones, and for a while, Darryl Riley.
The committee commenced to meet daily, and by early February 2002, it decided it believed
Terry Clark, and was going to use information he had provided.
Subsequently, Frizell informed the Committee that it was his opinion that Terry Clark
was a reliable witness. Frizell told the Committee that he based this opinion on the following:
Terry Clark's numerous statements were "highly consistent;" that Clark "made full admission
without minimizing or rationalizing his own involvement;" that Clark made admissions against
his own interest; that there was "a high percentage of corroboration" between his statements and
the statements of others; that Clark was careful to provide appropriate caveats between "facts and
his own opinions and beliefs"; and that Clark's statements contained "no major or significant
discrepancies and that the evidence that was garnered during the investigation disclosed no
fabrication of facts at all in any instance by [him)" (T.R. II, 97). Frizell recommended to
Drummond that it not rely on Teddy Clark's testimony unless they had independent verification.
Frizell determined Teddy Clark had lied during their interview, and "later admitted so" (T.R. II.,
98). Also, Frizell found that Terry Clark had difficulty focusing on the questions asked, and that
his responses were "all over the road," (id.) Further, Frizell noted that Teddy Clark was unable

601

to give explanations as to his involvement in a coherent manner.
The Security committee requested written reports from Frizell as to the involved persons
with a summary of the misconduct of which they were accused. On or about March 15, 2002,
Frizell provided the committee with a matrix, based on his investigation, setting forth the names
of individual employees of Drummond allegedly implicated in wrong-doing, the allegations
made against them, the source of the allegations and other evidence implicating them. 7
The security committee ranked the severity of the misconduct and the evidentiary support
for the allegations made against each individual listed on the matrix with a grade of A,8 A/B,9
Bl A, 10 B, or B/C 11• Those individuals placed in the A category were considered to have engaged
in the most severe misconduct. Terry Clark's statements constituted the "major part" of these
decisions. (T.R. II, 65) There is no evidence that the security committee ever discussed or
considered any of the claimants' safety related activities in their discussions of the allegations
made against them.
B.

Adverse Actions

1.
Discharge of Employees
The committee concluded that the following 18 bargaining unit employees whom it rated
A, AIB, B/ A, B, or B/C, committed misconduct sufficient to warrant their terminations: Dan
Patrick, Ricky Smith, Ray Wallace, Wyman Owens, Henry Johnson, Clarence Gaines, Eddie
Tucker, Morris Caffey, Gary Watson, Ralph Harper, Terry Short, Mike Alexander, Johnny
Cooley, Rick Marquis, B.G. Evans, Earl Cagle, Marlin Strickland, and Mike Williams. On
March 20, 2002, Drummond issued letters to each of these 18 individuals advising them of their
sumension with intent to discharge. In addition, four members of management, three
unrepresented employees, Terry Clark, Teddy Clark, and John Stewart, were also terminated.
2.

Reinstatement of Some Employees

7

In the matrix, the names of the individuals previously considered, but found by investigation not
to be implicated, were deleted.
8

The following employees were placed in the A category: Dan Patrick, Ray Wallace, Ricky
Smith, Henry Johnson and Ralph Harper.
9

The following employees were placed in the NB category: Gary Watson and Johnny Cooley.

10

The following five employees were place in the "BlA" category: Wyman Owens, Clarence
Gaines, Eddit Tucker, Morris Caffey, and Bob Evans.
11

The following six employees were placed in the B or B/C category: Terry Short, Mike
Alexander, Rick Marquis, Earl Cagle, Mike Williams, and Marlin "Butch" Strickland.

602

On March 21-22, 2002, and on March 27, 2002, Drummond and the local union held 2448 hour meetings for each of the accused. The company was represented at these meetings by
Dean Hubble, Jay Vilseck, Rich Painter and Ken Eller.
As a result of these meetings, one employee resigned and another was reinstated with one
day loss of pay. 12
The company and local union also scheduled 2"d step meetings for the remaining 16
employees for March 29, 2002. The company informed the union that it "would not move"
relating to those nine suspended employees whose cases involved drugs, or those whom "we had
on video" (Tr. 408). 13
On April 3, 2002, pursuant to a settlement with the union, the company reinstated the
following seven employees without back pay: Cagle, Williams, Strickland, Marquis, Evans,
Cooley and Alexander. 14 The company also, based on an agreement with the un.ion, offered to
reinstate the following employees with back pay on the condition that they take and pass a
polygraph test: Tucker, Morris, Caffey, Gaines, Owens, and Watson. In addition, Tucker,
Gaines, and Caffey would be required to take a drug test. These individuals refused to take a
polygraph and/or drug test.
On April 4, 2002, pursuant to a settlement with the union, the company agreed to allow
Harper to remain in sickness and absence ("S&A") status until these benefits expire and then be
allowed to retire on January 3, 2003. As a result, Harper received additional retirement benefits
resulting from the new union contract that took effect on January 1, 2003.
On May 12, 2002, Drummond offered Wallace, who was initially placed on disciplinary
suspension from March 20, 2002, through May 12, 2002, a last chance agreement, and he was
reinstated without back pay.
VII.

Additional Facts and Discussion

12

Dan Patrick, whom Terry Clark had accused of theft of hundreds of dollars of company
property, including over 100 welding torches, resigned on March 21, 2002, in exchange for the
company's agreement not to prosecute him. Terry Short, who was accused of theft of cable based on
video surveillance of him taking cable from a company truck and placing it in his personal vehicle, told
Drummond at the 24-48 meeting that he had permission to take the cable. This was confirmed with
Short's foreman later that same day, and Short was reinstated on March 21, 2002, with one day loss of
pay.
13

These employees are Wallace, Smith, Johnson, Watson, Owens, Tucker, Caffey, Harper, and

Gaines.
14

None of the discharged management employees or unrepresented employees were offered
reinstatement.

603

A.

Case Law

Section 105(c) of the Act prohibits the discharge or discrimination of a miner who made a
complaint under or related to the federal mine safety and health act including"... a complaint
notifying the operator or the operator's agent ... of an alleged danger or safety or health violation
in a coal or other mine ... or because of the exercise by such miner ... on behalf of himself or
others of any statutory right afforded by this act."
Under established Commission Law, the complainant in a Section 105(c) proceeding,
establishes a prima facie case of a violation of Section 105(c), if a preponderance of the evidence
proves 1) that he engaged in a protected activity, and 2) that the adverse action was motivated in
any part by the protected activity. Pasula v. Consolidation Coal Co. ,2 FMSHRC 2786, 27992800 (Nov. 1980), reversed on other grounds, Sub. Norn. Consolidation Coal Co. v. Marshall,
663 F. 2d, 1121 (3rd Cir. 1981). The Operator may rebut the prima facie case by showing either
that no protected activity occurred or that the adverse action was in no part motivated by the
protected activity. Id. If the Operator cannot rebut the prima facie case, it nevertheless may
defend affirmatively by proving that it also was motivated by the miner's unprotected activities
and would have taken the adverse action in any event based on unprotected activities alone. Id.
at 2800; Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(Apr. 1981).
1.

The Prima Facie Case
a.

Protected Activities and Adverse Actions

The record clearly establishes that all three claimants, Owens, Watson, and Johnson,
engaged in protected activity. Owens, as a safety committeeman, examined the mine on a daily
basis for hazardous conditions. Any such conditions were reported by Owens to mine
management. Acting within the scope of his authority, Owens shut the mine down on two
separate occasions in the twelve months prior to his discharge.
Johnson worked as a fill-in fire boss two to three days a week, and Watson worked as a
fire boss on the owl shift. 15 They conducted pre-shift examinations looking for hazardous
conditions, and when found, they notified a mine foreman so that the hazard could be corrected.
From June 2001, thru March 20, 2002, they each recorded hazardous conditions in the pre-shift
books. On one occasion in February 2002, upon noting water accumulations, Watson roped off
the area and recorded the condition to the foreman. Johnson shut the beltline down upon noting
rollers turning in coal, and on another occasion shut the mine down and pulled the men out after

15

1 take cognizance of Drummond's argument that actions performed in execution of one's
required job duties are not protected activities. This argument was initially made by Drummond in its
motion for summary decision. This argument was considered and rejected in the order denying motion
for summary decision, issued March 6, 2003, and the rationale for the rejection, is incorporated herein.

604

he had found an excess of methane.
The record also clearly indicates that Drummond took adverse action against Owens,
Watson, and Johnson, when it notified them of their suspension with the intent to discharge and
by not voluntarily reinstating them after their discharge.
b.

Adverse Action Motivated in any Part by Protected Activities

Commission case law establishes that in evaluating whether the Secretary has proven a
causal connection between protected activities and adverse action, the following factors are to be
considered: 1) knowledge of the protected activity 2) hostility or animus toward protected
activity 3) coincidence in time between protected activity and the adverse action and 4) disparate
treatment. Chacon v. Phelps Dodge Coro., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other
grounds, 709 F. 2d 86 (D.C. Cir. 1983).
Knowledge of Protected Activity
Owens notified various mine foremen when he found hazardous conditions. Watson and
Johnson noted hazardous conditions in examination books that are co-signed by mine foreman.
Hence, management had knowledge of their protected activities.
Animus toward protected activity

On one occasion when Johnson shut down the belt due to having observed a hazardous
condition, Rich Painter, a mine manager, told him "don't ever shut my damn belt down again"
(T.R. I., 176).
According to the uncontradicted testimony of Watson, a management official had cursed
him, and on other occasions other management officials told him that conditions that he had
reported in examination books as being "hazardous" should, instead, have been listed in the
"comments" section. Thus the record contains some evidence of animus towards Johnson and
Watson's protected activities engaged in by Johnson and Watson.
Coincidence in time between protected activity and
adverse action.

In early March 2002, just weeks before he was discharged, Owens handed out fliers with
names and phone numbers of the Drummond officials who had agreed to seeking a waiver of a
back-up fan. Watson shut down the smoke walkway in the first week of January 2002, due to
excessive icing. Also, he noted high water as a hazardous condition on January 21, February 14,
and February 18, 2002, and two days before his discharge. Johnson noted hazardous high water
on January 22, 2002, and noted ice on the slope on January 4, January 16, and February 7, 2002.
Thus, the record contains some evidence of some protected activities engaged in by all three

605

complainants, in a period of time in close proximity to the date of their discharge. This provides
a basis for a finding of some coincidence in time between protected activities and adverse action.
Disparate treatment
The record does contain some evidence of some disparate treatment. Owens was accused
of having received stolen company property and was terminated, and not reinstated. Watson was
accused of taking company property and was terminated, and not reinstated. Johnson, who was
accused of selling drugs was terminated and not reinstated. On the other hand, the following
eight individuals who also had been accused of either theft of company property or selling or
giving drugs to others on company property were subsequently reinstated: Wallace, Alexander,
Cooley, Marquis, Evans, Strickland, Williams, and Harper.
McCoy indicated that, regarding Owens, he was not reinstated because his theft was
premeditated as he had asked Terry Clark to steal a battery on two occasions. In contrast,
Alexander, Cagle, Marquis, and Williams, were subsequently reinstated although they had been
accused by Clark of asking him for stolen goods on two occasions.
Watson, who was not reinstated, had been accused by Clark of taking various items
belonging to the company property including cleaning supplies. In contrast, Cagle, was
reinstated although he also had been accused by Terry Clark of taking cleaning supplies and
another item of company property.
Johnson, who had been accused by Terry Clark of selling drugs on company property,
was not reinstated. However, Cooley and Evans, who had similarly been accused of selling and
giving drugs to other employees were reinstated. Additionally, Harper, who had been accused of
giving drugs to other employees, was allowed to retire under a new union contract which
provided him with additional retirement benefits.
Taking into account all the above factors, in combination, I find that the Secretary has
adduced a sufficient quantum of evidence to establish that Drummond's motivation in taking
adverse action against claimants was based, in any part, on their protected activity. Thus, I find
that Secretary has established a prima facie case.
2.

Drummond's Affirmative Defense
a.

Applicable case law

In Sec. ex. rel. Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov. 1981),
rev'd on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F. 2d, 86 (D.C. Cir. 1983)
the Commission explained the proper criteria for analyzing an operator's business justifications
for an adverse action:

606

... Commission judges must often analyze the merits of an operator's
alleged business justification for the challenged adverse action. In appropriate
cases, they may conclude that the justification is so weak, so implausible, or so
out of line with normal practice that it was a mere pretext seized upon to cloak
discriminatory motive. But such inquiries must be restrained. (Emphasis added).
The Commission and its judges have neither the statutory charter nor the
specialized expertise to sit as a super grievance or arbitration board meting out
industrial equity. Cf. Youngstown Mines Corp., 1FMSHRC990, 994 (1979).
Once it appears that a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate. We and our judges should not
substitute for the operator's business judgement our views on 'good' business
practice or on whether a particular adverse action was 'just ' or 'wise. ' Cf. NLRB
v. Eastern Smelting & Refining Corp., 598 F.2d 666, 671 (!51 Cir. 1979). The
proper focus, pursuant to Pasula, is on whether a credible justification figured into
motivation and, if it did, whether it would have led to the adverse action apart
from the miner's protected activities. If a proffered justification survives pretext
analysis ... , then a limited examination of its substantiality becomes appropriate.
The question, however, is not whether such a justification comports with a judge's
or our sense of fairness or enlightened business practice. Rather, the narrow
statutory question is whether the reason was enough to have legitimately moved
that operator to have disciplined the miner. Cf. R-W Service System. Inc., 243
NLRB 1202, 1203-04 (1979) (articulating an analogous standard).
In William H. Haro v. Magma Copper Co.. 4 FMSHRC 1935, 1938 (Nov. 1982), the
Commission further explained its holding in Chacon as follows:
Thus, we first approved restrained analysis of an operator's proffered
business justification to determine whether it amounts to a pretext. Second, we
held that once it is determined that a business justification is not pretextual, then
the judge should determine whether 'the reason was enough to have legitimately
moved the operator' to take adverse action.
In Haro, id., the Commission also elaborated on the scope of the Judge's examination of
an operator's business justification response as follows:
... we intend that a judge, in carefully analyzing such defenses, should not
substitute his business judgement or sense of "industrial justice" for that of the
operator. As we recently explained, 'Our function is not to pass on the wisdom or
fairness of.such asserted business justifications, but rather only to determine
whether they are credible and. if so. whether they would have motivated the
particular operator as claimed.' Bradley v. Belva Coal Co., 4 FMSHRC 982, 993
(Jun. 1982) (emphasis added).

607

b.

Discussion

In essence, it appears to be the position of Drummond, that its affirmative defense is
predicated upon a business justification for the adverse action taken against complainants, in that
they were discharged for theft and other misconduct. In this regard, it asserts that it had a good
faith belief that the claimants committed misconduct. In contrast, the Secretary argues, in
essence, that Drummond's justification is pretextual, in that its reliance on Terry Clark is not
credible, that Clark was motivated to lie, that there were conflicts and inconsistencies in
McCoy's testimony, that Drummond failed to investigate beyond the word of Terry Clark, and
that the evidence does not support Frizell's testimony regarding Terry Clark's credibility. In
addition to these arguments, counsel for the individual claimants asserts that the latter suffered
disparate treatment, and accordingly the assertion by Drummond of a business justification for
the adverse action taken against them, is only pretextual. For the reasons set forth below, I
conclude that Drummond has established by a preponderance of the evidence, the existence of a
business justification for the adverse action taken against the individual claimants, that was
credible, and that was enough to have legitimately moved it to take the adverse actions (see Haro
at 1938).
A preponderance of evidence establishes that, by March 15, 2002, the company had
become aware that it had a problem relating to the theft of company property and the selling of
drugs on its property. In order to obtain information regarding the individuals involved in these
activities the company arranged for video surveillance of its property, and hired an independent
private investigator. On March 15, 2002, Drummond was presented with a report by the private
investigator based upon the latter's interviews of a former employee, Terry Clark, other
employees, and surveillance tapes. Once the company learned that it had a serious theft and drug
selling problem on its site, it certainly was credible for it to arrange for surveillance and the
services of an investigator. In these regards, there is no evidence that any instructions were given
to the investigator or the firm that conducted the surveillance, to single out or focus in on
Owens, Johnson, Watson, or other firebosses. It certainly is credible that receipt by Drummond
ofFrizell's report implicating Owens, Johnson, and Watson, and other employees, in theft and
or drug activities, would have legitimately moved it decide to suspend them with intent to
terminate. It is not for this body to determine whether the operator should have accepted
Frizell's conclusions knowing that, in main part, they were based on information supplied by
Terry Clark, who had previously been fired by Drummond for having allegedly stolen property
from Drummond, and who had agreed to complete cooperation in exchange for Drummond's
agreement to acquiesce in an agreement proposed by the District Attorney's office to resolve the
criminal charges against him. Also, it is not proper for this body to question Frizell's reliance on
Terry Clark's information provided to him, and Frizell's opinion regarding Clark's credibility.
What is relevant is that Drummond was presented with information from various sources
implicating Owens, Watson, and Johnson in serious misconduct, which it acted upon in
suspending them with the intent to discharge. Within the context of Drummond's concern of
widespread theft of its property and use of drugs on its property, it was legitimate for it to arrange
for an investigation of these alleged acts, and individuals allegedly implicated. Further, on its

608

face, the information provided to it by its investigator implicating Owens, Watson, and Johnson
was, within the above context, credible and legitimate to move it to terminate these individuals.
In this connection, it is significant to note that 15 other Drummond employees who also had been
implicated in videotapes and/or the investigator's report as having been involved in theft of
company property and/or selling drugs, were, along with Owens, Johnson, and Watson,
suspended with intent to terminate on March 21,2002.

It is the contention of Complainants that, subsequent to their being suspended with intent
to discharge, additional adverse action was taken against them when they were not provided, by
Drummond, with the opportunity to bereinstated. In contrast, seven other individuals, who had
been included in the group of eighteen employees who had been suspended with intent to
discharge were all reinstated on April 3, 2002, without back pay, pursuant to a settlement with
the union. Also, two other individuals who had previously been part of the class of employees
who were suspended on March 21, received treatment more favorable than that accorded
Complainants. Harper was continued on sick leave status until those benefits expired and then
was allowed to work one day in the calendar year 2003 and retire on January 3, 2003. As a result
he received additional retirement benefits based on a new union contract that became effective on
January 1, 2003. Wallace, after serving a fifty day suspension, was offered a last chance
agreement and was reinstated without back pay.

In these regards, the record contains some evidence of disparate treatment of Owens,
Johnson, and Watson, as discussed above. (VII, (A)(l)(b)). This quantum of evidence was
found_to have been sufficient, when considered in combination with some evidence of animus,
knowledge of protected activities, and coincidence in time, to have been of sufficient probative
weight to have met the Secretary's burden of establishing that Drummond's motivation in not
reinstating Owens, Johnson, and Watson, was based in any part on their protected activities. (id.)
However, the record as a whole does not contain a sufficient quantum of evidence of disparate
treatment to establish, as argued by complainants, that Drummond's asserted justification was
pretextual. In this connection I find it most significant that Owens, Johnson, and Watson, were
initially suspended with intent to discharge along with fifteen other individuals who also had
been implicated in theft of company property and/or selling or use of drugs. Also, although the
Complainants were not reinstated, they were treated in this regard the same as three other
individuals, Tucker, Caffey, and Gaines, who also had been implicated in theft and/or drug
selling, and were not reinstated. There is no evidence in the record that the latter three
individuals had engaged in protected activities, or that Drummond was motivated in any part in
its decision not to reinstate them based upon their protected activities.
The Secretary argues that Drummond's reliance on the uncooberated statements of Terry
Clark was not credible because he had only been employed at Drummond for nine months before
he had been discharged, was involved in theft of Drummond property, and was not prosecuted
for the alleged theft based upon his agreement to cooperate with Drummond. However, while
such reliance might not have been the wisest business determination by Drummond, the function
of the Commission is not to pass judgement on the wisdom of this determination (See, Bradley v.

609

Belva Coal Co., 4 FMSHRC 982, 993 (June 1982)). Since Drummond hired an independent
investigator to ascertain the facts relating to alleged theft of company property and use of drugs
on its property, and since Frizell, the independent investigator provided his opinion to
Drummond that Clark's accusatory statements were reliable, it can not be found that
Drummond's reliance on Frizell's opinion and conclusions was "plainly incredible or
implausible" Haro at 1937. Accordingly I conclude that, given these circumstances," ... a finding
of pretext is inappropriate." (id.).
The Secretary, in its brief, refers to various inconsistencies in McCoy's testimony and in
his deposition to, in essence, defeat the good faith of Drummond's business justification for
suspending with intent to fire the complainants, and subsequently not reinstating them. In
essence, the main thrust of the asserted inconsistencies relate to the soundness of Drummond's
determinations regarding the classification of the 18 implicated employees by degrees of
culpability, and quality of supporting evidence. It is not for this forum to perform a detailed
inquiry as to the wisdom of Drummond's determinations. I observed McCoy's demeanor and
found him to be a credible witness regarding matters essential to Drummond's affirmative
defense, i.e., that in determining not to offer reinstatement relating to the claimants it relied on
Frizell's report which set forth, for each of these individuals, specific allegations of unprotected
activities, and the supporting witness and additional evidence, if any. On this basis, it appears
that the business justification was not plainly incredible or implausible, and thus a finding of
pretext is inappropriate. (id.).
Lastly, the fact that Drummond offered the Complainants, along with Tucker, Caffey, and
Gaines, the opportunity to take a polygraph test and be reinstated with back pay should they pass
such a test, which all these individuals refused to take, is further credible justification for
Drummond's action.
Therefore, based upon all the above, it is concluded that although the Secretary has
established a prima facie case of discrimination under the Act regarding the three named
Claimants, Drummond has prevailed in its affirmative defense. Therefore the Complaints of
Discrimination are dismissed. 16

16

At the hearing Drummond proffered six polygraph reports of tests administered to Teny Clark
on April 26, 2002. The Secretary objected, and a decision on the admissibility was reserved. Since the
tests were administered to Clark on April 26, 2002, and since the adverse actions taken against Owens,
Watson, and Johnson consisting of their firing on or about March 20, 2002, and their not being reinstated
on April 3, 2002, the reports themselves are not relevant to Drummond's motivation and justification.

610

ORDER
It is ORDERED that these cases be DISMISSED .

_f/:jw~er

Administrative Law Judge

Distribution: (Certified Mail)
MaryBeth Bemui, Esq., Thomas A Grooms, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN 37215
Harry Hopkins, Esq., Brian R. Bostic, Esq., Olgetree, Deskins, Mash, Smoak & Stewart, PC,
1900 Southtrust Tower, 420 N. 20th Street, Birmingham, Alabama, 35203-3204
Ann C. Robertson, Esq., Temple D. Trueblood, Esq., Gordon, Silberman, Wiggins & Childs,
1400 South Trust Tower, Birmingham, AL 35203
Daryl H. Dewberry, Esq., United Mine Workers of America, District 20, 1200 Fourth Avenue
South, Birmingham, AL 35233
Judith Rivlin, Esq., United Mine Workers of America, 8315 Lee Highway, Fairfax, VA 22031

lsc

611

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

October 9, 2003
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOSEPH M. ONDREAKO,
Applicant

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 2003-403-DM
MSHA No. RM MD 03-11
Bingham Canyon Mine

V.

Mine I.D. 42-00149

KENNECOTT UTAH COPPER CORP.,
Respondent

DECISION AND ORDER GRANTING TEMPORARY REINSTATEMENT

Appearances:

John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Applicant;
James M. Elegante, Esq., and Jan Smith, Esq., Kennecott Utah Copper
Corp., Magna, Utah, for Respondent.

Before:

Judge Manning

This case is before me on an application for temporary reinstatement brought by the
Secretary of Labor on behalf of Joseph M. Ondreako against Kennecott Utah Copper Corporation
("Kennecott") under section 105(c){2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. §815(c)(2) (the "Mine Act"). The application was filed on or about September 2, 2003
and Kennecott requested a hearing within 10 days of receipt of the application. The application
alleges that Kennecott discriminated against Ondreako when, on May 8, 2003, Kennecott
demoted Ondreako from shovel operator to dozer operator after he made safety complaints to
mine management. The application further alleges that Kennecott discriminated against
Ondreako when Kennecott laid Ondreako off, effective July 5, 2003, as a result of safety
complaints he made to management and to MSHA. The application states that the Secretary has
determined that the underlying discrimination complaint filed by Ondreako was not frivolously
brought. A hearing in this temporary reinstatement proceeding was held in Salt Lake City, Utah,
on October 2, 2003. For the reasons set forth below, I find that the applicant established that
Ondreako's discrimination complaint was not frivolously brought.

612

II. SUMMARY OF THE EVIDENCE
On or about July 9, 2003, Ondreako filed a complaint of discrimination with the
Department of Labor's Mine Safety and Health Administration ("MSHA"). Ondreako was the
only witness called by the Secretary in this temporary reinstatement proceeding. Ondreako
testified that he worked as a heavy equipment operator for Newmont Gold Company for about
ten years prior to working for Kennecott. He began working for Kennecott at the Bingham
Canyon Mine in November 1999 as a haul truck driver. This mine is a very large, open-pit
copper mine. After about six months, he started working in "roads and dumps," operating
dozers, track hoes, and other heavy equipment building roads and sloping banks. About 18
months later, he became a shovel operator trainee. At Newmont, Ondreako had operated
hydraulic shovels, but Kennecott used large P & H shovels powered with electricity through
trailing cables. Because there were no current openings for shovel operators, Ondreako returned
to roads and dumps after he completed his training, but he would operate shovels when called
upon. Sometime in 2002, Kennecott purchased a hydraulic shovel and needed an _experienced
operator. Ondreako became a shovel operator and began operating both types of shovels. The
job title for shovel operators later changed to "advanced operator."
In late March 2003, Ondreako was operating the hydraulic shovel along the Carr Fork
Road. (Tr. 20-22). Ondreako was working at night and there was snow in the area. He was
concerned that the benches above the area in which he was digging were full of rock. He
estimated that there were at least 100,000 tons of material above him on the benches. He
believed that, if any rock started falling, the benches were too full to catch the falling material
and that this condition created a hazard. He called Mark O'Driscoll on the mine radio to express
his concerns. O'Driscoll, who was a supervisor, looked at the area and told Ondreako that
everything would be fine and to keep on working. Id. Ondreako continued digging in the area.

On April 4, 2003, Ondreako was operating the hydraulic shovel in the Carr Fork area
while it was raining and snowing. (Tr. 22-24). The material he was digging was wet and thick.
He believed that it contained limestone because of the way it was adhering. Visibility was poor.
As he was working, a boulder fell from the area above him and hit the shovel. Some of the
falling material hit the windshield. He called Anthony Hoffman, an operations supervisor, to
complain about the unsafe conditions. Hoffman told him to keep working and that he would get
back to him after the production meeting. Their conversations were over the mine radio. Using
the radio, Ondreako warned others that, because of the wet conditions, "the highwalls would be
moving." (Tr. 24).
On April 26, 2003, Ondreako was operating the #52 electric shovel on the 4940 bench
near the bottom of the pit. (Tr. 27-30). He was assigned to shovel and load previously blasted
ore-bearing rock into haul trucks. The other two electric shovels were loading ore-bearing rock
from an area that produced material that tended to plug up the crusher. As a consequence, mine
management wanted Ondreako to load as much ore-bearing rock as possible so that the crusher
could keep operating. If the rock he was loading was mixed with the rock that the other shovels
613

were loading, the crusher would not get plugged up. As Ondreako loaded out the rock, the area
in which he was working became horseshoe-shaped which limited his visibility along the face
and prevented the haul trucks from being in a good location for loading. (Tr. 30). Ondreako
decided that he needed to reposition his shovel to operate more effectively and safely. Ondreako
wanted to reposition his shovel so that the front of the shovel would be parallel to the line of rock
that he was loading; this is called "squaring the face." Ondreako asked Allen Pearson on the
radio for permission to square the face. Pearson, the dispatch supervisor, told him to keep
working because the rock he was loading was needed at the crusher. (Tr. 3 1). Ondreako kept on
working but he was concerned that he would soon be working in a narrow slot. Ondreako heard
Pearson say to Hoffinan on the radio, "Did you copy that? Joe needs to move." (Tr. 32). To
which Hoffman replied, "Joe, go ahead and stay there. I'll be right down and I'll get with you."
Id. Ondreako kept working without repositioning.
When Hoffinan arrived at the shovel, he told Ondreako to keep loading, a~ least until after
the 11:30 a.m. production meeting. (Tr. 33). Ondreako testified that the material that he was
loading was sitting higher than normal. The benches were 50 feet high, but because of the nature
of the rock in that particular area the material was about 75 feet high in some places after
blasting. (Tr. 34-35). The rock was like aggregate, but some large boulders were also present.
Dust was kicked up as he worked. At one point he noticed a large boulder sitting up on top of
the material above the shovel. (Tr. 35). It is the shovel operator's responsibility to manage large
boulders so that they do not fall and damage the shovel or cause injury to the shovel operator. It
was not clear at the hearing exactly what options the shovel operator is requit:ed to consider, but
Ondreako testified that one option was to block the boulder with the bucket on the shovel.
Ondreako testified that he was keeping an eye on the boulder when he saw it start to move as he
was swinging the shovel toward the haul truck. (Tr. 36). He dumped the load on the ground and
started to swing back toward the boulder to block it. Because the shovel is large, changing
directions takes time and the boulder hit the right side boarding ladder on the shovel before he
could block it with the bucket. Id. Ondreako testified that the boulder gave the shovel a jolt and
caused about $1,700 in damage. (Tr. 37).
Ondreako called Hoffinan to tell him about the incident. Ondreako was tested for drugs
and alcohol, the results of which were negative. When Ondreako returned to work the following
work day, he was sent home without pay pending an investigation. (Tr. 39). Ondreako believes
that whenever there is an accident, a team is formed to investigate and the implicated miner is a
member of the team. Id. Ondreako testified that he was told by Hoffman on May 3, 2003, that
the investigation had been completed and that he was being demoted to a lower paying position
that did not involve operating shovels. (Tr. 39; Ex. G-1). Ondreako was surprised that the
investigation had been completed without any significant input from him. His union, the
Operating Engineers, filed a grievance on his behalf.
On May 12, 2003, Ondreako called the local MSHA office about the boulder incident on
the #52 shovel and the previous events, described above, concerning the hydraulic shovel.

614

(Tr. 42-43). MSHA officials told Ondreako that he should consider filing a discrimination
complaint. On May 23, 2003, MSHA inspected the area around the Carr Fork Road as a result of
another call from Ondreako. (Tr. 44). MSHA issued two citations, one alleging a violation of
section 56.3130 for allowing the benches to overfill with rock, creating a hazard to those working
below, and another alleging a violation of 56.3200 for failing to barricade the area until the
hazardous ground conditions were corrected. (Ex. R-33).

In early June 2003, Ondreako was operating a grader in the bottom of the pit. He testified
that spilled rock was "literally scattered across the road and deep enough to where I had to pull
multiple windrows across the road." (Tr. 45). Ondreako believed that this condition created a
hazard to vehicles driving through the area, particularly at night. (Tr. 46). It appears that the
spillage occurred when shovel operators either overfilled haul trucks or spilled material as they
were loading the haul trucks. When Ondreako talked about it with Hoffinan, Hoffman told the
shovel operators to "load 'em up" and said "we have people who love to chase spillage."
(Tr. 45). Ondreako testified that other miners complained about the spillage. Ondreako talked to
the local MSHA office about this issue on June 16, but no citations were issued.
On June 23, 2003, there was a step-two hearing on his demotion from his advanced
operator position. Ondreako testified that at this hearing, he stated that he could not accept
responsibility for the incident and that he objected to his exclusion from the investigation.
(Tr. 49-50). He believed that management took control of his environment when he was denied
permission to move and that the boulder was unforeseen. (Ex. R-18 p. 4). He testified that
management told him that they could have terminated him for this incident but that they were
willing to pay him for the wages he lost during his suspension. These back wages were paid to
Ondreako, but his demotion remained in place. On June 25, 2003, Ondreako was advised that he
was being laid off along with 119 other Kennecott employees. (Tr. 51 ). He was given a letter
explaining the layoff the next day. (Ex. G-2).
Kennecott produced evidence to show that the mine-wide layoff and.Ondreako's safety
complaints were two separate and unrelated events. Kim Moulton, Kennecott's employee
relations director, testified that the price of copper was at its lowest level since the Great
Depression. (Tr. 94). As a consequence, Kennecott had to increase its efficiency to remain
competitive. It engaged a consulting company to study its operations.· Some of the consultant's
recommendations included more outsourcing, better use of technology, increasing employees'
skills through training, and reducing the workforce. (Tr. 97). Many of these recommendations
have been put into place. For example, the number of hourly job classifications has been reduced
from 172 to 11. (Tr. 99). At the same time that Kennecott was putting more emphasis on
efficiency, its collective bargaining agreement with its unions expired, effective October 1, 2002.
When its "best and final offer" was rejected by the unions, it declared an impasse and

• This case involves the Bingham Canyon Mine, but Kennecott also operates other facilities
in the area including a concentrator and a smelter. Kennecott's undertakings to improve efficiency
were applied across the board to all its facilities.
615

implemented its final offer as the collective bargaining agreement. Apparently, the National
Labor Relations Board approved Kennecott's actions. (Tr. 98-99).
A committee of Kennecott's upper-level supervisors and managers was given the task of
developing a "fair and objective method ofranking employee qualifications to meet the
requirements of the organization." (Tr. 103-06; Ex. R-23). Although seniority was used in the
rankings, it was only one of many factors that the committee decided to consider. After the
committee determined what factors are important to Kennecott, the committee developed a
"Qualifications Assessment" worksheet ("rating form") to be used when ranking employees. (Tr.
109-15; Ex. R-24). This form has seven qualification categories, as follows: (1) Safety-Personal
Safety Plan and Participation; (2) Safety-Incident Rate; (3) Work Output-Effectiveness; (4)
Performance Effectiveness-Working with Others (Team Skills); (5) Performance EffectivenessAdaptability; (6) Work Experience-Number of and Quality of Industrial Experiences; and (7)
Technical Skills-Demonstration of Skills Needed to Complete Job Assignments. Id. Within
each category there are five short statements, each with a box next to it that can be checked.
These forms were given to front line supervisors with instructions to rate employees.
(Tr. 125). They rated each employee by checking the box next to the statement in each category
that most closely matched the employee being rated. These front line supervisors did not
participate in the development of these forms; they were not told that the information provided
would be used in future layoffs, and they were not given the scoring formula. In addition, these
supervisors were told not to discuss the ratings or employees with other supervisors but that they
were to complete the forms independently. Kennecott plans to have every employee rated on a
quarterly basis. Each employee was rated by at least three supervisors who were familiar with
the employee's work. Ondreako was rated by John Simonson, Team Leader Mine Operations;
Dave Lanham, Operations Supervisor; and Allen Pearson, Dispatch Supervisor. (Ex. R-28).
Each employee was given an average score using a computer spreadsheet. (Exs. R-25 & R-30).
Ondreako received a score of2.1271, which ranked him at number 404 out of 410 mine
operations employees. (Tr. 128-29; Ex. R-30). Later that June, when Kennecott determined that
it needed only 371 employees in mine operations, it sent a layoff notice to everyone ranked 372
or below, including Ondreako. Id. About 39 mine operations employees were laid off Each of
these employees is subject to recall if more employees are needed in mine operations. (Tr. 13031 ). Kennecott contends that this objective method of ranking employees did not take into
consideration Ondreako's complaints about safety and that, as a consequence, the application for
temporary reinstatement should be dismissed.
Moulton testified that Ondreako has a history of disciplinary problems that contributed to
his low ranking. (Tr. 63-81; Ex. R-6). He was given a verbal warning for working unsafely on
May 21, 2001; he was given a written warning for refusing to follow a supervisor's instructions
on September 16, 2001; he was given a one-day suspension for committing an unsafe act by
running over the trailing cable with his shovel on October 24, 2001; and he was given a three-day
suspension and was demoted for the events described above that occurred on May 3, 2003. Id.

616

Moulton testified that Ondreako has exhibited "high risk behavior'' that is not typical of
Kennecott employees. (Tr. 90-92).
Tom Lohrenz, a human resources representative for Kennecott, testified that he was
present at Ondreako's second step grievance that occurred on June 24, 2003, and that he took
detailed notes at that meeting. (Tr. 147-49; Ex. R-18). He testified that Ondreako specifically
stated that safety was not an issue at the time Hoffman came to his work area on April 26, 2003
and told him to keep operating the shovel without squaring the face. (Tr. 148; Ex. R-18 at 5). At
this grievance, Hoffman stated that Ondreako told him that he could safely·load that day. (Ex. R18 at 2-3). At the hearing in the present case, Hoffman testified that he did not participate in
Ondreako's rating. (Tr. 156). He also testified that when he went to Ondreako's work area on
April 26, 2003, he told him that he needed to keep working so that the crusher did not get
plugged up. (Tr. 156-57). Ondreako did not raise any safety concerns with him and Ondreako
told him at the second step grievance that safety was not an issue. (Tr. 159). Hoffman stated that
Ondreako could have been terminated for allowing the boulder to damage the shovel.
Ben Stacy, Mine Operations Superintendent, testified that he told the front line
supervisors how to fill out the rating forms. He instructed them to (1) fill out the forms
individually without discussing them with others; (2) review safety and discipline files before
completing; and (3) use "demonstrations of behavior" when filling out subjective parts of the
forms. (Tr. 165). Stacy stated that he accompanied the MSHA inspectors on the May 23, 2003,
inspection and the citations were issued to him. He testified that he had no idea that the citations
were issued as a result ofOndreako's complaint about the conditions to MSHA. (Tr. 170-72).
Mr. O'Driscoll testified that Ondreako complained about safety conditions in January
2003 but he could not remember any complaints in March or April of that year. (Tr. 152).
O'Driscoll did not care that Ondreako had expressed concerns about safety and never disciplined
him. He did not participate in the rating of Ondreako. Mr. Simonson testified that he was not
Ondreako' s supervisor but that they were on the same team and that he had worked with him. He
testified that he did not know that Ondreako had complained to MSHA when he rated him. (Tr.
175-76). Mr. Pearson testified he is the individual who must give approval if a shovel operator
wants to reposition his shovel. He usually gives such permission unless there is a particular
operational need for the shovel to remain in place. He was not aware that Ondreako had called
MSHA when he filled out his rating form and that such complaints would not matter. (Tr. 182).
Lanham was also unaware that Ondreako had raised safety complaints with MSHA when he
filled out his rating form. (Tr. 188).
II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Section 105(c)(2) of the Mine Act prohibits discrimination against miners for
exercising any protected right under the Mine Act. The purpose of the protection is to encourage
miners "to play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners
617

are to be encouraged to be active in matters of safety and health, they must be protected against
any possible discrimination which they might suffer as a result of their participation." S. Rep.
No. 181, 95 1h Cong., !51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee
on Human Resources, 95 1h Cong., 2nd Sess., Legislative History ofthe Federal Mine Safety and
Health Act of 1977 at 623 (1978) ("Legis. Hist.").
Section 105(c)(2) provides, in pertinent part, that the Secretary shall investigate each
complaint of discrimination "and if the Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application of the Secretary, shall order the
immediate reinstatement of the miner pending final order on the complaint." The Commission
established a procedure for making this determination at 29 C.F.R. § 2700.45. Subsection (d)
provides that the "scope of a hearing on an application for temporary reinstatement is limited to a
determination as to whether the miner's complaint was frivolously brought."
"The scope of a temporary reinstatement proceeding is narrow, being limited to a
determination by the judge as to whether a miner's discrimination complaint is frivolously
brought." Secretary ofLabor on behalfof Price v. Jim Walter Resources, Inc., 9 FMSHRC
1305, 1306 (Aug. 1987), ajf'd sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738
{l l 1h Cir. 1990). Courts and the Commission have equated the "not frivolously brought"
standard contained in section l 05(c)(2) of the Mine Act with the "reasonable cause to believe
standard" at issue in Brock v. Roadway Express. Inc., 481 U.S. 252 (1987). It has also been
equated with "not insubstantial." Jim Walter Resources, 920 F.2d at 747. Congress indicated
that a complaint is not frivolously brought if it "appears to have merit." (Legis. Hist. at 624-25).
Mr. Ondreako testified that he engaged in protected activity when he complained to
management about the condition of the benches near the Carr Fork Road in March 2003 and
when he complained to MSHA about these conditions in May 2003. He also alleges that he
engaged in other protected activity, as detailed above. He testified that he was laid off soon
thereafter and believes that these events are related. Kennecott's witnesses testified that
Ondreako 's layoff was part of a mine-wide reduction in force that was totally unrelated to his
protected activity. The Commission has frequently acknowledged that it is often difficult to
establish a "motivational nexus between protected activity and the adverse action that is the
subject of the complaint." Sec '.Y ofLabor on behalf of Baier v. Durango Gravel, 21 FMSHRC
953, 957 (Sept. 1999). The applicant relies on the proximity in time between his protected
activity and his layoff and Kennecott's knowledge of his safety complaints to management.
Kennecott relies on the fact that it was undergoing a comprehensive reorganization of its
operations that required a significant reduction in force. It contends that Ondreako's inclusion in
the reduction in force occurred solely as the result of the application of the company's fair and
objective ranking system of its employees.
Although Kennecott's evidence shows that it may be able to present a convincing defense
to Ondreako's complaint in the underlying discrimination case, the purpose of a temporary
reinstatement proceeding is to determine whether the evidence presented by the applicant
618

establishes that the discrimination complaint is not frivolous. It is not the judge's duty to resolve
conflicts in testimony at this preliminary stage of the discrimination case. Secretary ofLabor on
behalf of Albu v. Chicopee Coal Co., Inc., 21 FMSHRC 717, 719 (July 1999). The judge should
also not consider the probability that the applicant will succeed on the merits of the
discrimination complaint or try to balance the harm to the respective parties.
I find that the applicant showed that the underlying discrimination complaint was not
frivolously brought. Kennecott did not establish "that things could not have happened the way
the [applicant] alleges that they did...." Secy of Labor on behalf ofStahl v. A & K Earth
Movers Inc., 22 FMSHRC 233, 237 (Feb. 2000); aff'd 22 FMSHRC 323 (March 2000).
Kennecott relies on the three rating forms that rated Ondreako quite poorly when compared to
other employees. (Ex. R-28). I do not doubt that Kennecott attempted to develop these forms to
be as objective as possible. Kennecott argues that the front line supervisors who performed the
employee ratings did not know that they would be used during a reduction in force. Moreover, it
also argues that these supervisors were not told how the rating forms would be scored.
Nevertheless, anyone looking at the form could easily determine how to rate an employee highly
or poorly. In every category, the descriptive sentences that are to be checked explicitly indicate
whether the supervisor believes that the rated individual is a good employee. For example, under
"Work Output," the supervisor can check "Disruptive/Negative attitude toward work
assignments" at the low end, "Highly motivated employee" at the high end, or three other choices
in between. Id. It would be easy to figure out how to give an employee that is complaining
about safety conditions a poor score under this system.
Under one of the safety categories, two of the supervisors that rated Ondreako checked
the sentence that reads, in part, "considers possible unsafe conditions but relies on supervision to
remedy." Although I make no finding in this regard, a supervisor might check this sentence if an
employee complains to management about safety conditions. The front line supervisors who
performed the ratings were given little or no training on what to consider when filling out the
forms. As stated above, they were simply told to independently check the appropriate sentence
based on the employee's "demonstrations of behavior." Thus, it would have been possible for a
supervisor who rated Ondreako to consider the safety complaints that he made to management in
this and in other sections of the rating form. Ondreako made these complaints over the mine's
radio system so the supervisors who rated him could have easily known about his complaints.
Given the close proximity in time between his complaints and his layoff, the Secretary
established that the complaint is not frivolous.
Kennecott also relies on Ondreako's statements at the second step grievance hearing that
the incident involving the boulder on April 26, 2003, did not involve a safety issue. It should be
noted, however, that Ondreako also advised management at this hearing that he would take the
entire matter to MSHA to investigate the safety program because Kennecott's investigation of the
incident was not accurate. (Ex. R-18 at 6). Ondreako also complained that other miners who had
damaged the #52 shovel were not disciplined. Id. at 4. As stated above, conflicts in evidence
should not be resolved at this preliminary stage of the discrimination proceeding.
619

Kennecott also argues that Ondreako was not terminated from his employment but that he
was laid off due to lack of work and that he is subject to recall. I find that this layoff constitutes
a termination for purposes of the Mine Act because Ondreako is no longer working at the mine or
being paid for his services. Kennecott also argues that, because Ondreako was let go as a result
of a layoff, there is no position available for him at the mine and the company will be forced to
lay off the next person up the rating list if it is ordered to reinstate Ondreako. (Tr. 132-33). This
argument could be made any time an application for temporary reinstatement is granted
following a layoff. It is important to remember that this proceeding involves the temporary
reinstatement of Ondreako and, ifhe does not prevail on the underlying discrimination case, the
order of temporary reinstatement will be lifted. When a miner's complaint is determined not to
be frivolous, the employer must reinstate the miner regardless of whether it is economically
beneficial for the employer to do so. In enacting this provision, Congress determined that the
employer must run the risk of paying a discharged miner whose claim may ultimately fail, rather
than requiring a miner, who may prevail, to go through the discrimination proceeding without
income. For this reason, it is incumbent on the Secretary to complete her investigation of her
underlying discrimination complaint as quickly as possible.

III. ORDER
For the reasons set forth above, Kennecott Utah Copper Corporati~n is hereby
ORDERED to immediately reinstate Joseph M. Ondreako to the position he held immediately
prior to the layoff that was effective July 5, 2003, at the same rate of pay and benefits for that
position, or to a similar position with the same or equivalent duties, at the same rate of pay and
benefits. The Secretary SHALL COMPLETE as quickly as possible her investigation of the
underlying discrimination complaint.

Richard W. Manning
Administrative Law Judge
Distribution:
John Rainwater, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Fax 303-844-1753 and Certified Mail)
James M. Elegante, Esq., Kennecott Utah Copper Corp., P.O. Box 6001, Magna, UT 84044-6001
(Fax 801-569-6807 and Certified Mail)

RWM

620

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

October 14, 2003
CONTEST PROCEEDING

DRUMMOND COMPANY, INC.,
Contestant
v.

Docket No. SE 2003-101-R
Citation No. 7395286; 03/24/2003

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

Shoal Creek Mine
Mine ID: 01-02901

DECISI ON
Appearances: Timothy M. Biddle, Esq., Bridget E. Littlefield, Esq., Crowell & Moring,
Washington, D.C., for the Contestant;
Thomas A Grooms, Esq., U.S. Department of Labor, Nashville, Tennessee, for the
Secretary.

Before:

Judge Weisberger

Statement of the Case
This case is before me based upon a Notice of Contest filed by Drummond Company, Inc.
(Drummond) challenging the issuance to it by the Secretary of Labor of an Order alleging a
violation of Section 107(a) of the Federal Mine Safety and Health Act of 1977 (the Act). 1 After
an answer was filed by the Secretary of Labor a hearing was held in Birmingham, Alabama on
July 22, 2003. Subsequent to the hearing the parties each filed a post hearing brief.
I.

Findin2s of Fact and Discussion
A.

T he Secretary's case
1.

The Inspector's testimony

Michael Eugene Pruitt, an MSHA inspector, testified that Drummond's underground
Shoal Creek Mine (a coal mine) has a history of methane emissions. According to Pruitt, an

1

This case is hereby severed from Docket Nos. SE 2003-99-R et. al.

621

examination of Drummond's record at the local MSHA office indicated the mine had nine
methane emissions in the year prior to March 24, 2003. Also, the mine liberates 14 million cubic
feet of methane in a 24 hour period. Also, Pruitt noted that an accident occurred in February
2001, at Jim Walter's No. 5 mine in which 13 miners were killed, and in which the liberation of
methane played a part. According to Pruitt, Entry No. 5 mine is in the same seam of coal as
Shoal Creek, the mine at issue.
On March 24, 2003, at approximately 5:45 a.m., Pruitt's field office supervisor, Ken Ely,
told him that over the weekend Shoal Creek had a change in ventilation, and had methane
problems. Ely asked Pruitt to check it out. Pruitt went to the mine, arriving at approximately
7: 15 a.m.. Upon his arrival, he observed men outside the mine and asked Ed Sartain,
Drummond's safety inspector, why the men were outside. The latter told him a ventilation
change was made over the weekend, and that Drummond was in the process of making another
change. Pruitt asked Claude Edwin Sartain, Drummond's safety inspector at Shoal Creek, how
much methane was found at the mine. Sartain told him that from two-tenths of a percent to
seven-tenths of a percent had been reported in the North Mains section.
Pruitt was told that Henry Johnson, a fireboss on the owl shift, wanted to.talk to him.
Pruitt testified that at approximately 8:30 a.m. he spoke to Johnson on the surface, and the latter
told him that when he had proceeded through a man-door in Entry No. 6 on the North Mains
section, heading inby, his portable methanometer ("spotter") issued an audible and visual alarm
indicating the presence of more than one percent of methane. According to Pruitt, Johnson
checked his spotter and it indicated m ethane between two to three percent. Pruitt testified that
Johnson told him he then went to the face in the North Mains and found eight percent methane,
which Pruitt termed as being within the explosive range ofbetwe.e n five and fifteen percent.
Johnson did not tell Pruitt the time or day this had occurred. Pruitt assumed it was on the third
shift that day. According to Pruitt, Johnson also told him that he detected five percent methane
near the face in Entry No. 2 outby a rock-fall, six percent in Entry No. 6 and eight percent at the
face. According to Pruitt, the men who were present, during his conversation with Johnson,
confirmed Johnson's readings. Pruitt indicated that Johnson also told him that the water level in
the Entry No. 8 had reached the roof thus blocking the entry.
Pruitt determined a hazard existed in the North Mains due to a methane reading of eight
percent methane, and he was concerned about ignition or explosion sources such as electricity,
power boxes and water pumps. He was also concerned with rocks falling from the roof causing
sparks as there had been a roof fall in the last cross-cut in Entry No. 7, approximately one month
prior to March 24. He opined that the roof fall in the last open cross-cut in Entry No. 7 and the
condition of water up to the roof in Entry No. 8 caused a ventilation blockage. He concluded that
methane was still present in the explosive range in the area between cross-cuts 41 and 40.
At approximately 8:50 a.m. Pruitt went to the office of Jay Vilseck, the manager for
operations, and issued an oral Section 107(a) order covering the entire mine due to explosive

622

levels of methane. 2 Pruitt explained that he didn't want an explosion to occur like the one that
had occurred at the Jim Walter No. 5 Mine the previous year. Pruitt stated that in his
conversation with Vilseck, he (Vilseck) did not tell him that the problem had been fixed. 3 He
also said that not one of Drummond's managers told him that there was no longer a problem with
methane at the mine.
On cross examination he conceded that he did not know the methane reading at 8:50 a.m.
when he issued his order, and he could have gone to the affected area at that time.

2.

Henry Johnson's testimony

According to Johnson, on March 24, at approximately 2:00 a.m., he along with Otha
Pennick, and J.D. Aaron were assigned to carry a 30 h.p. pump inby in Entry No. 6. At
approximately 2:30 a.m., about three seconds after they and Michael Wayne Sanders, a pump
foreman, went through a door located in Entry No. 6 between cross-cuts 38 and 39, Johnson's
spotter emitted an audible alarm. He looked at the spotter and it went from two percent, to three
percent, to eight percent. The eight percent reading was approximately fifteen to eighteen feet
inby the man-door which was located in Entry No. 6 at cross-cut 39. The other miners with him
obtained methane readings between five and seven percent At the time of these readings the
electric pump was not connected to a power source. Johnson went along the cross-cut to Entry
No. 8. As he proceeded to within five or six feet of Entry No. 8, he saw that the water was up to
the roof. There was not any movement of air, which normally courses outby in that entry.
Johnson had the power cut off in the North Mains area, and started to build temporary curtains or
stoppings, as he was very concerned about sparks from the power center located two and one-half
cross-cuts from his location. He also was concerned that opening the door in the area, which he
thought to be metal, could result in sparks being emitted. Also sparks could be caused by a rock
falling or by the action of dragging the pump through the door. However, he checked the roof
and rib and did not see any problems. The roof was supported and he did not see any bad roof in
the area. Johnson built three curtains to make the area airtight so that the ventilation path would
be changed and methane would be pushed out of the area. He did not take any further methane
readings. Johnson left the area at approximately 6:35 to 6:45 a.m.

B.

Drummond's evidence

Michael Wayne Sanders, a Drummond pump foreman on the owl shift, testified that at

2

0n March 24, Pruitt subsequently modified the order to allow Drummond to have workers enter
the area to take care of the methane. He modified it again to allow miners to return to the rest of the
mine with the exception of the north main area where he continued the order until March 27, at which
time the order was terminated because permanent controls were put into place to vent methane build-up.
3

However, according to Johnson, he told Pruitt that three stoppings had been installed to correct
the condition.

623

approximately 3:00 a.m. on March 24, when he heard a miner shout that he detected six and a
half percent methane, he told Pennick to shut off the power, and then told Johnson to make sure
that everything was shut off. At about 4:00 a.m. Sanders took the men with him outby through
the door that they had entered into fresh air. According to Sanders, at about 4:00 a.m., there were
no other men on the section.
Sanders then told his supervisor, Scott Meadows, that there were problems with methane
on the north main section and help was needed. At approximately 5 :00 a.m. he went with
Meadows to the section and the latter said to build three temporary brattices to redirect the air.
This work was completed at approximately 6:30 a.m. All Sanders' crew had reached the surface
by 7:30 a.m.
Scott Meadows, the general mine foremen at Shoal Creek, went inby in Entry No. 6 at
approximately 4:00 a.m. on March 24. When he was approximately 50 to 60 feet inby the mandoor in Entry No. 6, he observed a metharie reading of approximately two-point-two to twopoint-five percent, and he was concerned. According to Meadows, all power had been cut off
from the North Mains face outby fifteen hundred feet covering all entries in the G-3 south, North
Mains and G-4.
Meadows indicated that after the temporary stoppings were built, he was in Entry No. 8
outby cross-cut 38 and could see that water" ... was whitecapping from the velocity of the air"
(Tr. 176).
At 7 :00 a.m. work started on building permanent stoppings to further bleed off the
methane. The stoppings were constructed and sealed "around 10:00" (Tr. 179).
Meadows indicated that at approximately 10:00 or 11 :00 a.m. after the temporary
brattices were constructed a methane reading of five percent was obtained in Entry No. 6 at
cross-cut 38. An hour later, methane in Entry No. 7 was found to be five percent. Meadows
said that at the time, methane was being released"... at our leisure" (Tr. 188). In addition,
Meadows indicated that at different times during the day of March 24, as Drummond was
coursing methane from the rock fall in Entry No. 7, the methane readings were five percent, and
the pumps were running.
Don Hendrickson, Drummond's production superintendent at Shoal Creek is responsible
for ventilation. On March 24, at approximately 5:30 a.m., he was advised by the Communication
Organization ("CO") clerk that there was methane in the North Mains section. He went to the
section and temporary brattices were being constructed in Entry Nos. 5 and 6, and at cross-cut 40
towards Entry No. 7.
At approximately 6:30 a.m. Hendrickson took methane readings in Entry Nos. 5 and 6
and at cross-cut 40 towards Entry No. 7. He obtained methane readings of one-point-four, fourpoint-five, and two and one-half percent, respectively. In addition to the temporary brattices, a

624

curtain was hung in Entry No. 6 inby cross-cut 40 which provided a complete barrier splitting the
entry. Another curtain was placed in cross-cut 40 between Entry Nos. 6 and 7 up to the edge of
the water. The purpose of the curtains was to sweep these areas immediately of methane and to
push it to cross-cut 44, the most inby cross-cut. Also, some blocks were removed from the
stopping in the 38 cross-cut between Entry Nos. 7 and 8. According to Hendrickson, after all
these changes were made at approximately 6:45 a.m., he monitored air movement in cross-cut 40
and noted it coursing from Entry No. 7 to Entry No. 6. He concluded that the air would have
gone across cross-cut 41 through the fall area, and then down Entry Nos. 7 and 8 and back
through cross-cut 40 to Entry No. 6.
According to Hendrickson, at about 7:30 to 8:00 a.m., the methane level in Entry No. 5 at
cross-cut 38 was four-tenths of a percent; in Entry No. 6 at cross-cut 40 it was five-tenths of a
percent; in cross-cut 40, at the edge of the water towards Entry No. 7, it was seven-tenths or
eight-tenths of a percent; at cross-cut 38 and Entry No. 8 it was nine-tenths of a percent; and in
Entry No. 8 between cross-cuts 38 and 39, at 6:30 a.m., the methane was one-point-two percent.
He concluded that there was air movement, and that methane was being vented.
Claude Edwin Sartain, safety inspector at Shoal Creek, testified that on March 24,
between 5:30 and 6:00 a.m., he was told that there was some methane accumulation at the North
Mains. At 7:30 a.m. he met Pruitt and told him of the accumulation. He also told Pruitt that
miners were outside as ventilation changes were ongoing, and Drummond was in the process of
correcting the condition. According to Sartain, Pruitt did not make any further inquires of him.

C.

Discussion
1.

Commission case law

In essence, it is the Secretary's position that MSHA has wide discretion in issuing a
Section 107(a) order, and that the standard to be applied in evaluating whether the contest to the
107(a) order should be sustained is whether the inspector abused his discretion. The Secretary
argues that if the inspector acted reasonably in issuing the order, it should be sustained and the
contest be dismissed. In order to determine the standard to be applied in deciding whether the
Secretary met its burden herein of establishing the existence of an imminent danger as defined in
Section 3U) of the Act, supra, I am guided by the following Commission precedent.
In Utah Power and Light Co., 13 FMSHRC, 1617, 1621 (1991), the Commission first
reviewed the legislative history of the term "imminent danger" as found in the Act, and
concluded that " ... the hazard to be protected against by the withdrawal order, must be
impending, so as to require the immediate withdrawal of miners." (Emphasis added.)
Continuing further, Utah Power & Light Co., supra, at 1622, the Commission held that to support
a finding of imminent danger, the inspector must determine ''whether the condition presents an
impending threat to life and limb". (Emphasis added) The Commission went on to state that
only by limiting Section 107(a) withdrawal orders to such impending threats does the imminent
625

danger provision assume its proper function under the Mine Act. In this connection, the
Commission reasoned as follows:

If the imminent danger provisions of the Act are interpreted to
include any hazard that has the potential to cause a serious accident
at some future time, the distinction is lost between a hazard that
creates an imminent danger, and a violative condition that 'is of
such nature as could significantly and substantially contribute to
the cause and effect of a mine safety hazard.'
Utah Power, supra, at 1622.
The Commission in Utah Power & Light, supra, clarified its earlier ruling in Rochester &
Pittsburgh, 11 FMSHRC 2159 (November 1989) wherein the Commission, in discussing
imminent danger used the phrase, "at any time". In explaining that phrase, the Commission, in
Utah Power & Light Co., supra, at 1622, stated as follows: "The Commission used the phrase, 'at
any time,' in the sense of, 'at any moment.' " (Emphasis added) In summarizing, the
Commission, in Utah Power & Light, supra, at 1622, held as follows: "To support a finding of
imminent danger, the inspector must find that the hazardous condition has a reasonable potential
to cause death or serious injury within a short period of time," (Emphasis added)
Following Utah Power and Light, supr~ the Commission issued Wyoming Fuel Co., 14
FMSHRC 1282 (1992). In Wyoming Fuel, supr~ the Commission noted its previous decision in
Rochester & Pittsburgh, supra, a 1989 decision which quoted from Eastern Associated, supra,
277, 278, as follows: "an imminent danger exists when the condition or practice observed could
reasonably be expected to cause death or serious physical harm to a miner if normal mining
operations were permitted to proce~d in the area before the dangerous condition is eliminated."
It might appear that the Commission was retreating somewhat from its earlier
pronouncement in Utah Power & Light, supra, linking the term "imminent danger" to a degree of
imminence, in other words, a time-related situation. That is not the case. In Wyoming Fuel,
rn in the paragraph following the Commission's quote from Eastern Associated Coal, Supra,
the Commission, at 14 FMSHRC supra, at 1290, discussed its previous ruling in Utah Power &
Light Co., supra and stated that it had held in Utah Power & Light Co., supra, that, "there must
be some degree of imminence to support a Section 107(a) order." (Emphasis added.) The
Commission in Wyoming Fuel, supra, at 1290, reiterated that in Utah Power & Light Co., supra,
at 1621 the Commission had "noted that the word 'imminent', is defined as ready to take place:
near at hand: impending ... : hanging threateningly over one's head: menacingly near."

In Wyoming Fuel, supra, at 1290 - 1291, the Commission, in further discussing its prior
decision in Utah Power & Light Co., supra, stated that it had previously determined, referring, to
Utah Power & Light Co., supra, "that the legislative history of the imminent danger provision
supported the conclusion that, 'the hazard to be protected against by the withdrawal order must
be impending so as to require the immediate withdrawal of miners"' (Emphasis added). It
626

appears at least through Wyoming Fuel, supra, that the Commission was maintaining its holding
that imminent danger means an imminence of something occurring within a short period of time.

In Island Creek, 15 FMSHRC 339, 346 (1993), the Commission noted its prior holding in
Wyoming Fuel, supra, at 1291, that in imminent danger cases the judge must determine,
"whether a preponderance of the evidence showed that the conditions or practices, as observed by
the inspector could reasonably be expected to cause death or serious physical harm before the
conditions or practices could be eliminated."4 It might be construed that the Commission was
retreating from its position that, as stressed by Utah Power and Light, supra, some degree of
imminence was required to establish an imminent danger, since Utah Power and Light, supra,
was discussed in its decision prior to its discussion of Wyoming Fuel, supra. However, in the
most recent discussion by the Commission of imminent danger Blue Bayou Sand and Gravel, 18
FMSHRC 853 (1996) the Commission, after reviewing the definition in the Act of imminent
danger and noting language from its prior decision in Rochester & Pittsburgh, 11 FMSHRC
supra at 2163, quoted the following language it had set forth in Rochester & Pittsburgh, supra, at
2 163: "an imminent danger exists when the condition or practice observed could reasonably be
expected to cause death or serious physical harm to a miner if normal mining operations were
permitted to proceed in the area before the dangerous condition is eliminated." Blue Bayou,
supra, at 858. However, it is very important to note that in the same paragraph, the Commission
in Blue Bayou, supra, at 858, the most recent commission decision on imminent danger
explained as follows quoting from Utah Power and Light, supra: "[t]he Commission has
explained that '[t]o support a finding of imminent danger, the inspector must find that the
hazardous condition has a reasonable potential to cause death or serious injury within a short
period of time.' (Emphasis added.) Utah Power & Light Co., 13 FMSHRC 16 17, 1622 (October
1991) ("UP & L")."
I conclude that Commission doctrine, at this point in time, requires, regarding the
existence of an imminent danger, that it be established by a preponderance of the evidence, that a
hazardous condition or practice has a reasonable potential to cause death or serious injury within
a short period of time.

4

In V.P. Mining Co. 15 FMSHRC 153 1, 1535, (1993) the Commission again noted the legislative
history of the Act wherein Congress made clear that in defining an imminent danger, the focus is on the
potential of the condition to cause serious physical harm "at any time." The Commission noted that this
reasoning was adopted by the Commission in Rochesterv. Pittsburgh Coal Co., supra, at 2163. However,
in affirming the judge's imminent danger findings, the Commission held that the Secretary met his
burden of establishing that the hazard "was imminent" (id.). In elaborating on this holding, the
Commission stated as follows: "The Secretary' s evidence makes clear that the inspector reasonably
concluded that the conditions in the ... gob presented an impending hazard requiring that the logwall be
shut down immediately." (Emphasis added.) (Id.) Thus, any language in V.P. Mining supra, which
would indicate that a degree of imminence was not required to establish any imminent danger is clearly
dictum.

627

2.

Further Discussion

Considering all the above, I am constrained to find that it has not been established that an
imminent danger still existed when Pruitt issued the 107(a) order at 8:50 a.m. In this connection,
the inspector failed to make a reasonable investigation of the facts that existed after Johnson left
the mine at approximately 6:50 a.m.
Pruitt's decision to issue the Section 107(a) order at 8:50 a.m., was based solely on
conditions reported to him by Johnson earlier that morning, i.e., methane readings in the North
Mains section at eight percent, diminished air flow due to a recent rock fall in the face of Entry
No. 7 water roofing in Entry No. 8, and the presence of ignition or explosion sources such as the
power center, electric pumps, and a metal door. Also of concern, was the recent rock fall in the
area, and the possibility of additional rocks falling causing sparks. The inspector also considered
the following: that there were nine ignitions at the mine in the previous year, that the mine
liberates 14 million cubic feet of methane.in a 24 hour period, and that in the year 2001, 13
miners were killed in a methane explosion at a nearby mine in the same coal seam as the subj ect
mine.
The inspector's concern about preventing a similar disaster by issuing the 107(a) order
was certainly legitimate. Also, there is no evidence that his reliance only on Johnson's
statements was not in good faith. However, his testimony has failed to set forth the existence of
specific conditions, i.e., that there was a reasonable potential of a methane explosion or ignition
causing death or serous injury occurring within a short period of time at the time the order was
issued.
According to Pruitt, Johnson did not indicate to him the date or time when the excessive
readings were noted. According to Johnson, excessive methane readings, in the explosive range,
were taken at approximately 2:30 a.m. on March 24, six hours prior to the issuance of the 107(a)
order. At 4:00 a.m., methane readings 50 to 60 feet inby the man-door in Entry No. 6 were in the
range of two point two percent to two point five percent.
Methane readings, at 6:30 a.m., were four percent in Entry No. 6. However, at
approximately 7 :30 to 8:00 a.m., testing by Hendrickson indicated four-tenths of a percent of
methane in cross-cut 38; five-tenths of a percent in Entry No. 6 at cross-cut 41; and seven-tenths
or eight-tenths of a percent in cross-cut 40 at the edge of the water near Entry No. 7, and ninetenths of a percent at cross-cut 38 and Entry No. 8.
After methane levels were found in the explosive range at 2:30 a.m. three temporary
stoppings or brattices were constructed to provide better ventilation, and were completed by
approximately 6:00· a.m.
Although Johnson had been concerned earlier, at 2:30 a.m., about sparks from opening
and closing the metal man-hole door and dragging the water pump, these activities ceased by
628

6:30 a.m. Further, although rocks falling from the roof were a possible concern, Johnson
indicated that he checked the roof and rib; that he did not see bad roof in the area they were in;
and that he did not see any problems with roof support. Moreover, by the time he vacated the
section, the power was off.
I find that in issuing the imminent danger order at 8:40 a.m., Pruitt relied solely on
Johnson's statements to him regarding conditions Although he was not told by Johnson the time
and date these conditions were existent, Pruitt assumed, without further investigation, that they
existed earlier that day in the mine, i.e., methane levels in the explosive range, and energized
power center and electrical equipment. These conditions were existent at approximately 2:30
a.m., six hours before Pruitt issued his withdrawal order at 8:40 a.m. Pruitt did not investigate
whether the conditions that constituted an imminent danger at 2:40 a.m., were still in existence at
8:40 a.m. Neither did he investigate whether the overall conditions in the North Mains had
changed by 8:40 a.m ., so that the danger of a methane explosion was no longer imminent. Had
he made "a reasonable investigation" of the facts, he would have learnt that by 8:40 a.m.,
although a methane reading in Entry No.6 had been four percent at 6:30 a.m., temporary
stoppings had been completed, and subsequent methane readings at approximately 7:30 a.m. to
8:00 a.m. indicated four tenths of a percent in cross-cut 38; five tenths of a percent in Entry No. 6
at cross-cut 4 1 and seven-tenths of a percent in cross-cut 40.

I, thus, conclude that the record does not contain sufficient evidence to establish that
when the order was issued there was a reasonable potential of an explosion or ignition causing
death or serious injury within a short period of time especially considering the fact that by that
time electricity had been removed from a significant area. 5
Accordingly, I find that it has not been established that when the 107(a) order was issued
there existed an imminent danger. Therefore the notice of contest is sustained and the Order is
Dismissed.

5

Five percent methane had been observed at approximately 11 :00 a.m. and seven percent an hour
later and at different times during the day there were readings at five percent. However, the existence of
methane at these levels can not be related back in time to 8:50 a.m. when the inspector issued his order,
inasmuch as these readings were caused by subsequent action by Drummond intentionally coursing
methane from the rock fall and releasing it.

629

II.

Order

It is Ordered that Drummond's Notice of Contest be sustained, and that Order No.
7395286 be Dismissed.

A
k bk--

Administrative Law Judge

Distribution: Certified Mail
Timothy M. Biddle, Esq., Bridget E. Littlefield, Esq., Crowell & Moring, LLP, 1001
Pennsylvania Ave., N.W., Washington, DC 20004
Thomas A Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd. , Suite B-201, Nashville, TN 37215
/sc

630

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

October 21 , 2003
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 2003-103
A.C. No. 15-18317-03508

v.

CARBON RIVER COAL CORPORATION,
Respondent

Mine No. 8

DECISION
Appearances: Brian Dougherty, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of Petitioner;
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, Lexington,
Kentucky, on behalf of Respondent.
Before:

Judge Zielinski

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor against Carbon River Coal Corporation ("Carbon River"), pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815. The petition alleges a single
violation of a regulation requiring that operators of mobile equipment wear seatbelts, 30 C.F.R. ·
§ 77.403a(g). A civil penalty of $20,000.00 is proposed for the violation, which resulted in fatal
injuries to a miner. For the reasons set forth below, I find that Carbon River violated the
regulation, and impose a civil penalty of $5,000.00.
Findings of Fact - Conclusions of Law
The facts are largely undisputed. Carbon River's No. 8 Mine is a surface coal mine
located near Carrie, Kentucky. On December 17, 2001, a miner was operating a small bulldozer
clearing and leveling rocky ground for the placement of a dewatering pump. About 11 :50 a.m., a
coworker discovered that the bulldozer was lying on its side. The operator was pinned beneath
the dozer's rollover protection device ("ROPS"), and exhibited no vital signs. It was later
determined that the dozer had most likely encountered a large rock that caused it to overturn onto
its side. The dozer was equipped with a functioning seat belt. However, the operator was not
wearing the seatbelt and, as a result, was thrown from the seat and pinned beneath the ROPS
when the dozer overturned.

631

Following an investigation by the Secretary's Mine Safety and Health Administration
("MSHA"), Lester Cox, Jr., an MSHA inspector with over 12 years of experience and over 17
years of previous mining experience, issued Citation No. 7530842, charging Respondent with a
violation of 30 C.F.R. § 77.403a(g), which requires that: "Seat belts ... shall be worn by the
operator of mobile equipment required to be equipped with ROPS." The violation was
designated significant and substantial, and the gravity was assessed as very serious because the
violation resulted in a fatality. The operator's negligence was rated as "High." The Secretary
proposed a specially assessed civil penalty of $20,000.00.
Respondent does not dispute that the regulation was violated, or that the violation was
significant and substantial. 1 It contends that its negligence was no more than low, and that the
civil penalty proposed by the Secretary is excessive.
Negligence
The parties agree that the operator of the bulldozer was highly negligent in failing to wear
the seatbelt. However, the negligence of a rank-and-file miner cannot be imputed to the operator
for purposes of penalty assessment. Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (March
1988); A. H Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983); Southern Ohio Coal Co.,
4 FMSHRC 1459, 1464 (Aug. 1982). "[W]here a rank-and-file employee has violated the Act,
the operator's supervision, training and disciplining of its employees must be examined to
determine if the operator has taken reasonable steps to prevent the rank-and-file miner's
violative conduct."2 Id.

1

A violation is properly designated significant and substantial "if, based upon the
particular facts surrounding that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div.,
Nat 'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981 ).
2

The Secretary's regulations describing criteria for the assessment of proposed civil
penalties define negligence, and assign penalty points for various levels of operator negligence.
The pertinent regulation, 30 C.F.R. § 100.3(d), provides, in part:
The negligence criterion gives appropriate consideration to the factors relating to
an operator's failure to exercise a high degree of care to protect miners from
safety or health hazards. When applying this criterion, MSHA considers actions
taken by the operator to prevent or correct conditions or practices which caused or
allowed the violation to exist. In determining the operator's diligence in
protecting miners in any given hazard situation, due recognition is given to
mitigating circumstances which explain the operator's conduct in minimizing or
eliminating a hazardous condition. Mitigating circumstances may include, but are
not limited to, actions which an operator has taken to prevent, correct, or limit
exposure to mine hazards....
632

The dozer operator was considered to be an experienced and careful equipment operator,
and there is no evidence that he had failed to wear his seat belt on prior occasions. Tr. 60.
Carbon River had a written policy requiring the use of seat belts, a copy of which had been given
to the dozer operator. Tr. 24, 71, 80; ex. R-2. The topic of seat belt use was covered in annual
refresher training, which included the use of two MSHA-produced video presentations on the
subject. Tr. 64-5. That training also included coverage ofMSHA-issued "fatalgrams," bulletins
on fatal accidents, copies of which were distributed at the training, and occasionally posted on
bulletin boards. Tr. 77. The dozer operator had undergone annual refresher training less than
three months before the accident. Tr. 67; ex R-1. There were no conspicuously posted signs
reminding miners of the seat belt policy. Tr. 22, 82. However, equipment operators were
verbally instructed to wear seat belts. Tr. 28. Carbon River did not hold periodic formal safety
meetings. Safety issues peculiar to the day's work were addressed as work assignments were
made at the start of a shift.3 Tr. 69, 78. Although there was no formal program of supervision to
check whether seat belts were actually being used by equipment operators, supervisors would
occasionally "walk up" on them and check whether they were wearing seat belts.4 Tr. 75. If an
equipment operator was found not using his seat belt, he was verbally directed to use it. Tr. 72,
82. Equipment operators have not been formally disciplined for failing to wear seat belts.
Tr. 72. However, that option existed, depending upon the seriousness of the violation. Tr. 84.
Carbon River had not previously been cited for a violation of the regulation requiring use of seat
belts. Tr. 32.
In an enforcement proceeding under the Act, the Secretary has the burden of proving an
alleged violation by a preponderance of the evidence. In re: Contests of Respirable Dust Sample
Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), affd, Sec'y ofLabor v. Keystone
Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 15 FMSHRC 1303,
1307 (July 1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152 (Nov. 1989); Jim
Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987).

3

Cox was critical of the lack of weekly safety meetings, although they are not required
by regulation. Tr. 25, 42, 46-7. He was aware of underground mines that conduct weekly safety
meetings, but was unable to identify a surface mine that did so. Argus Brock, another MSHA
inspector, testified that he knew of surface coal mining companies that hold monthly, not weekly,
safety meetings. He also stated that five to ten minute daily sessions where supervisors discussed
the upcoming dais work, pointing out safety considerations, could be called safety meetings.
Tr. 100.
4

Most of the mobile equipment used at Carbon River had an enclosed cab for the
operator, such that seat belt use could not be easily determined. Tr. 74.
633

The Secretary argues that Carbon River's negligence was high because it failed to
adequately communicate, supervise and enforce its seat belt policy. 5 Carbon River contends that
it took significant steps to prevent the dozer operator from operating the equipment without using
a seat belt, including installing and maintaining a fully functional seat belt on the dozer,
distribution of a written policy requiring the use of seat belts, verbal reminders to use seat belts
and highlighting of mandatory use of seat belts in annual refresher training that was given to the
dozer operator less than three months before the accident.
While the posting of signs and periodic verbal reminders may have enhanced
communication of the seat belt policy, the absence of such measures does not establish that
Carbon River's seat belt policy was not effectively communicated to its employees. The miners
interviewed by Cox uniformly were aware of the policy and had been told to wear seat belts. The
topic was highlighted during annual refresher training and would have been emphasized in the
posting of any fatalgram involving use of a seat belt. Significantly, on the facts of this case, the
dozer operator was given his annual refresher training, which included emphasis on use of seat
belts, less than three months prior to the accident that generated the citation. I find that Carbon
River's seat belt policy was effectively communicated to its employees, in particular, the fatally
injured dozer operator.
Cox concluded that the seat belt policy was not being properly enforced based upon
statements of three miners and a foreman, to the effect that employees did not always wear seat
belts. Tr. 43-44. His interpretation of those interview statements, however, is open to question.
As to the foreman, it was based only on his agreement that the dozer operator had not been
wearing his seat belt at the time of the accident. Tr. 40. The specific content of the other
statements was not disclosed. Michael Fields, one of Carbon River's foremen, testified that
equipment operators had, on occasion, been found not to be wearing seat belts. They were
verbally instructed to do so, but were not formally disciplined. Tr. 72.
An on-the-spot verbal instruction or reprimand appears consistent with a reasonable
progressive discipline system, in which more formal disciplinary action is reserved for repeat
offenders or egregious violations. The Secretary contends, with some justification, that Carbon
River had an unreasonably high threshold for formal discipline, i.e. "a knowing[] commit[ment]
of an unwarranted failure to comply" with a safety rule. Ex. R-2. However, in the absence of
evidence of violations of the company seat belt policy warranting more than a verbal directive,
the fact that there had been no formal disciplinary actions for non-use of seat belts does not
establish that Carbon River's enforcement of its policy was seriously deficient. 6 As noted above,

5

Cox's determination that Carbon River's negligence was high was based, primarily, on
his conclusion that the seat belt policy was not being properly enforced and that regular safety
meetings were not being held. Tr. 46-7.
6

Fields testified that formal disciplinary actions might result in the loss of skilled
operators, who were in short supply. Tr. 84. Such considerations would provide no j ustification
634

Respondent had not been cited for a violation of the seat belt regulation in previous MSHA
inspections.
The essence of the Secretary's argument, and Cox's assessment, is that Carbon River's
seat belt policy was frequently or regularly ignored by miners and supervisors, resulting in the
fatal accident. 7 The evidence does not support such a finding. Considering all of the above
factors, I find that Respondent' s negligence was low.
The Appropriate Civil Penaltv
The parties stipulated that the Respondent is a medium-sized coal mine with a small
controlling entity. It received 19 citations and orders over the course of 108 inspection days in
2001. Imposition of the proposed penalties would not threaten Respondent's ability to remain in
business. Respondent demonstrated good faith in promptly abating the violation. The gravity
and negligence assessments with respect to the violation are discussed above.
Citation No. 7530842 is affirmed as a significant and substantial violation. However, the
operator's negligence was low. The Secretary proposed a civil penalty of $20,000.00 based upon
a special assessment. Upon consideration of the factors itemized in section 110(1) of the Act, I
impose a penalty of $5,000.00.

ORDER
Citation No. 7530842 is AFFIRMED, as modified, and Respondent is directed to pay a
civil penalty of $5,000.00 within 45 days.

Michael E. Zie · ski
Admt ·
1ve Law Judge

for pervasive ignorance of the seat belt policy by employees or supervisors.
7

Cox testified that the sign-in sheet at the training session held to abate the violation
stated that use of seat belts would "now" be company policy. Tr. 26-7. The Secretary argues that
this statement indicates that Carbon River's written policy had not been adequately
communicated, exercised or enforced prior to the accident. As noted above, however, the miners
interviewed by Cox were aware of the policy and had been told to wear seat belts. I find that the
language used on the sign-in sheet indicated a new emphasis on the seat belt policy.
635

Distribution: (Certified Mail)
Brian Dougherty, Esq. Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Road., Suite B-201, Nashville, TN 372 15
Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive,
One Fountain Plaza, Suite 3 10, Lexington, KY 40509
/mh

636

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

October 22, 2003
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. KENT 2003-107
A.C. No. 15-17651-03619

ROCK.HOUSE ENERGY MINING
COMPANY,
Respondent

Mine No. 1

DECISION
Appearances: J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, for Petitioner;
M. Shane Harvey, Esq., Massey Coal Services, Inc., Charleston, West Virginia,
for Respondent.
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty brought by the
Secretary of Labor, acting through her Mine Safety and Health Administration (MSHA), against
Rockhouse Energy Mining Company, pursuant to section 105 of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815. The petition alleges a violation of the Secretary's
mandatory health and safety standards and seeks a penalty of $30,000.00. A hearing was held in
Pikeville, Kentucky. For the re~sons set forth below, I affirm the citation, as modified, and
assess a penalty of $7,000.00.

Backeround
Rockhouse Energy operates Mine No. 1, an underground coal mine, in Pike County,
Kentucky. Rockhouse is a wholly owned subsidiary of A. T. Massey Coal Company.
On March 22, 2002, foreman Keith L. Casey was fatally injured when his head was
struck by the boom of a continuous mining machine that he was tramming through a cross-cut.
After investigating the accident, MSHA Investigator Robert Bates issued Citation No. 7389525,
alleging a violation of section 75.220(a)(l) of the Secretary's regulations, 30 C.F.R.
§ 75.220(a)(l), because:
The safety precautions specified on pages six and fifteen of
the approved roof control plan were not being followed while the
remotely controlled continuous mining machine was being
trammed in the last open crosscut of the 001 section. Page six of
637

the plan requires that while the miner is being trammed from place
to place, all persons will remain outby the boom of the machine.
Page fifteen specifies that while the miner is in motion, no person
will be positioned between the machine and the coal rib.
On March 22, 2002, Keith L. Casey was fatally injured
when he was caught between the tip end of the conveyor boom and
the coal rib while he was tramming the miner in the last open
crosscut of the 001 section. The position of the victim at the time
of the accident indicates that he was located between the machine
and the coal rib, which is a violation of the approved roof control
plan.
(Govt. Ex. 4.) Section 220(a)(l) provides that: "Each mine operator shall develop and follow a
roof control plan, approved by the District Manager, that is suitable to prevailing geological
conditions, and the mining system to be used in the mine."
Findin2s of Fact and Conclusions of Law

MSHA's Report of Investigation found that the accident occurred as follows:
On March 22, 2002, a 33 year old section foreman was
fatally injured when he was caught between the conveyor or boom
of a continuous mining machine and the coal rib. Keith L. Casey
(victim) was using a remote control unit to back the machine
across the last open crosscut of the 001 section when the accident
occurred. According to the only eyewitness, the victim was
kneeling behind the machine, on the right side, while backing it
through the crosscut. As the machine came through the
intersection of the No. 2 entry and the last open crosscut, it
suddenly moved to the right and pinned him against the rib. The
accident occurred primarily because the victim was located too
close to the pinch point created by the boom of the machine and
the coal rib.
(Govt. Ex. 3 at 2.)
The parties stipulated that "there were no operational or physical defects of the
continuous miner that contributed to the accident." (Tr. 24.) Further the company did not
contest at the hearing either the fact of violation or that the violation was "significant and
substantial." (Tr. 29, 32-35, 122.) Accordingly, I conclude that the Respondent violated section
75.220(a)(l) as alleged and that the violation was "significant and substantial."

638

Civil Penalty Assessment
The Secretary has proposed a penalty of $30,000.00 for this violation. However, it is the
judge's independent responsibility to determine the appropriate amount of penalty in accordance
with the six penalty criteria set out in section l lO(i) of the Act, 30 U.S.C. § 820(i). Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151 (7th Cir. 1984); Wallace Brothers, Inc., 18
FMSHRC 481 , 483-84 (April 1996). Section 11 O(i) provides that:

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 the
violation.
With regard to the penalty criteria, the parties have stipulated that the proposed penalty
will not affect the company's ability to remain in business. (Tr. 24.) Therefore, I so find.
I find, as shown on the Proposed Data Assessment Sheet, that Mine No. I is a fairly large
mine and that Massey is an extremely large coal company. (Govt. Ex. 1 at 1.) I further find,
based on the Company's Assessed Violation History Report, the Proposed Data Assessment ,
Sheet and the parties' stipulation, that Rockhouse has an average history of previous violations.
(Tr. 26, Govt. Ex. 1 at 2, Govt. Ex. 3.) I also find that the gravity of the violation was very
severe in that it resulted in the death of a miner.
Although the parties have stipulated that the Respondent demonstrated good faith in
abating the violation, (Tr. 27), they do not agree whether Massey's development of a proximity
device designed to prevent similar accidents is entitled to any credit under this criterion. The
Secretary's position is that, while the development of such a device is commendable, it "should
not be considered as [a] factor[] that can serve to reduce the amount of the assessed penalty by
way of the "good faith" criterion." (Sec. Br. at 7.) On the other hand, the company argues that
"[b]ecause of the very high levels of good faith exercised by Respondent ... the penalty should
be small." (Resp. Br. at 6.) I find that the Respondent has the better argument in this instance.
The Secretary argues that "demonstrated good faith ... in attempting to achieve rapid
compliance after notification of the violation" means "taking certain steps to correct a particular
violation within a relatively short time period immediately following notification of a particular
violation's existence." (Sec. Br. at 5.) Thus, if the steps to correct the violation are not taken
"within a relatively short time-period immediately following notification" of the violation, there
can be no good faith credit. In part, the Secretary bases this interpretation on section 100.3(f) of
the regulations, 30 C.F.R. § 100.3(f), which provides that an operator will receive "a 30%

639

reduction in penalty amount of a regular assessment where the operator abates the violation in the
time set by the inspector."
While there do not appear to be any cases interpreting this specific criterion, I find the
Secretary's argument to be too restrictive. In the first place, the penalty point formula in 30
C.F.R. § 100.3 is not binding on the Commission or its judges. Sellersburg, 736 F.2d at 1152. In
the second place, the Act says nothing about abating the violation "in the time set by the
inspector." In the third place, there are cases, such as this one, where there is nothing to correct.
There were no defects in the continuous miner. Unlike a guarding violation, where a missing
guard can be installed to abate the violation, or an accumulations violation, where the
accumulations can be removed to abate the violation, there was no action of a similar nature for
the operator to take to achieve rapid compliance.
Instead, the inspector required Rockhouse to give training sessions to all personnel who
worked on sections using continuous mining machines "to raise awareness of the hazards that
can exist when walking or working around continuous mining machines." (Tr. 57.) While the
training sessions could not correct the particular violation, they would probably make it less
likely that the same thing would happen again. Nonetheless, because these training sessions were
all completed the same day as the violation, the Secretary asserts that this is the type of rapid
compliance required under the Act.
In essence, the Secretary seems to be arguing that if you take an action to prevent a
violation from reoccurring you are entitled to credit for good faith abatement if the action is taken
within "a relatively short time period," but you are not entitled to credit if the action takes longer
than a relatively short time period. Yet it appears that the Respondent's development of a
proximity device is very likely to really prevent reoccurrences of the accident.
In an MSHA paper entitled "Remote Control Fatal Accident Analysis Report of Victim's
Physical Location with Respect to the Mining Machine," April 26, 2002, an analysis of 18
remote control-related fatal accidents including the one in this case, the authors stated that:
The high incidence of poor work practices in the fatal
accidents also highlights the dangers associated with the
psychological detachment from the machine and complacency that
develops in the minds of the operators with the use of remote
control technology. Because of these factors, established work
practices and training alone are not sufficient to prevent the type
ofaccidents that have occurred.
(Resp. Ex.Cat 6.)"(Emphasis added.) The paper concluded by stating that: "It is estimated that
the use of proximity protection with machine shutdown could have been a preventative factor in
15 of the 18 fatal accidents . . . . The technology for personnel proximity protection currently
exists and its development and use on remote controlled mining machinery needs to be pursued." .
(Resp. Ex.Cat 6.)
640

The company began trying to design such a device as a result of this accident. According
to Inspector Bates, testing of the device has gone well. (Tr. 89.) Although development of the
device had not been completed at the time of the hearing, I conclude that the Respondent's
undertaking of this task, specifically in response to this violation, is entitled to consideration
under the "good faith" element of the penalty criteria.
The final factor to be considered is negligence. The inspector determined that Casey was
"moderately" negligent because "he simply misjudged his location with respect to the moving
machine. He simply made a mistake in judgment ...." (Tr. 55.) Normally, the negligence of a
foreman is imputable to the operator in determining the amount of penalty. Here, the company
argues that Casey's negligence should not be imputed to it based on the so--called Nacco defense.
The Commission has summarized the imputation of negligence and the Nacco defense as
follows:
It is well established that the negligent actions of an
operator's foremen, supervisors, and managers may be imputed to
the operator in determining the amount of a civil penalty. See, e.g.,
Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (August
1982). In Nacco Mining Co., 3 FMSHRC 848 (April 1981 ), the
Commission recognized a narrow and limited exception to this
· principle. The Commission held that negligent misconduct of a
supervisor will not be imputed to an operator if: ( 1) the operator
has taken reasonable steps to avoid the particular class of accident
involved in the violation; and (2) the supervisor's erring conduct
was unforeseeable and exposed only himself to risk. 3 FMSHRC
at 850. The Commission emphasized, however, that even a
supervisory agent's unexpected, unpredictable misconduct may
result in a negligence finding where his lack of care exposed others
to risk or harm or the operator was otherwise blameworthy in hire,
training, general safety procedures, or the accident or dangerous
condition in question. 3 FMSHRC at 851.

Wilmot Mining Co., 9 FMSHRC 684, 687 (April 1987).
The Secretary asserts that the defense is not available in this proceeding because when
Inspector Bates required additional "awareness" training to abate the violation, he "implicitly"
found a deficiency in the operator's training plan which indicates that the training plan was
inadequate. (Sec. Br. at 4-5.) This assertion is contrary to the evidence.
Inspector Bates testified that he required the training, not because he believed the miners
needed additional training, but because it "is a standard course of action in cases of accidents and
fatalities where issues of awareness and other human factors are involved." (Tr. 92.) He further
stated that "(t)he company's training plans were in compliance to the best of my knowledge" and
that all of the witnesses who were interviewed "indicated that they had received training
641

concerning what Massey calls the red zone, which is the area not to stand while the mining
machine is in motion." (Tr. 92-3.)
In addition, the investigation report states that: "A review of the company's training
records indicated that the victim had received task training on the operation of the remote control
continuous mining machine. The victim had also received training regarding the approved roof
control plan." (Govt. Ex. 3 at 8.) Finally, Frank Foster, Safety Coordinator for all of Massey
Energy, testified extensively concerning Massey's safety training program, known as the "S-1
Safety Program," as well as the MSHA training received by Casey and other supervisors,
Rockhouse's weekly safety meetings and the types of discipline administered for safety
violations. (Tr. 107-10.)

No other evidence concerning the Respondent's training and general safety procedures
was presented at the hearing. Consequently, I find that the company's training and general safety
procedures were sufficient.
None of the other Nacco requirements were addressed in the Secretary's brief.
Nevertheless, I find that the operator had taken reasonable steps to preclude the particular class of
accident involved by having a specific prohibition against such conduct in its roof control plan
and providing the training already discussed. I further find that Casey's conduct was not
foreseeable. He was "well respected" as a foreman, (Tr. 110), and, as addressed above, he was
properly trained. There is no evidence that he had performed in an unsafe manner in the past,
took short cuts or otherwise did not perform properly. Furthermore, he exposed only himself to
risk. Inspector Bates testified that the investigation indicated that no one else was in danger at
the time of the accident and that there was no danger of the mining machine running by itself and
putting miners in danger after Casey was struck and dropped the remote control box. (Tr. 61, 945.) Finally, I find that the company was not otherwise blameworthy in this accident.
In Nacco, a "section foreman, while supervising two miners cutting a roof belt trench,
proceeded alone past the last row of permanent supports under loose, unsupported roof, where a
large rock fell on him" causing injuries from which he subsequently died. 3 FMSHRC at 848.
The Commission held that: "Where as here, an operator has taken reasonable steps to avoid a
particular class of accident and the erring supervisor unforeseeably exposes only himself to risk,
it makes little enforcement sense to penalize the operator for 'negligence.' 3 FMSHRC at 850.
I can find no difference between the facts in this case and Nacco. Accordingly, I find that
the Respondent was not negligent.
Taking all of these factors into consideration, I conclude that a penalty of $7,000.00 is
appropriate.

642

Order
fu view of the above, Citation No. 7389525 is MODIFIED by reducing the level of
negligence from "moderate" to "none" and is AFFIRMED as modified. Rockhouse Energy
Mining Company is ORDERED TO PAY a civil penalty of $7,000.00 within 30 days of the date
of this decision.

~~~
Administrative Law Judge

Distribution: Certified Mail
J. Phillip Giannikas, Esq., Office of the Solicitor, U.S. Department of Labor,
2002 Richard Jones Rd., Suite B-201 , Nashville, TN 37215
M. Shane Harvey, Esq., Massey Coal Services, 315 701h Street, Charleston, WV 25304

/hs

643

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W. Suite 9500
Washington, DC 20001-2021

October 27, 2003
DRUMMOND COMPANY, INC.,
Contestant

CONTEST PROCEEDING
Docket No. SE 2003-102-R
Citation No. 7395287; 03/26/2003

V.

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

Shoal Creek Mine
Mine ID: 01-02901

SUMMARY DECISION
Appearances: Timothy M. Biddle, Esq., Bridget E. Littlefield, Esq., Crowell & Moring,
Washington, D.C., for the Contestant;
Thomas A. Grooms, Esq., U.S. Department of Labor, Nashville, Tennessee, for
the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this Notice of Contest proceeding, Drummond Company, Inc., (Drummond) seeks to
contest Citation No. 7395287 issued to it on March 26, 2003, which alleges that Drummond
violated 30 C.F.R. Section 75.363(b). On June 27, 2003, Drummond filed a motion for summary
decision. On September 23, 2003, the Secretary of Labor, (Secretary) filed a statement in
opposition to Contestants motion for summary decision, and a cross motion for summary
decision.

I.

Findin2s of Fact

The parties' motions indicate that there is no genuine issue as to any material fact.
Drummond operates the Shoal Creek Mine, an underground coal mine. During the night shift of
March 24, 2003, in Entry No. 6 of the North Mains section, one miner's methane detector
displayed two point zero percent methane, and another miner obtained a reading in excess of five
point zero percent methane. One of the miners told Mike Sanders that he found six point five
percent methane. Sanders then informed Scott Meadows, the de-watering coordinator at the
mine, and a certified examiner, that there was an accumulation of gas at the mine and requested

644

that he come to the section. 1 Meadows arrived at the section, and his methane detector showed a
reading of two point two, to two point five percent methane. He assumed that if he were to go
further, the level of methane would increase. Meadows then took measures to ventilate the
methane from the area.
Meadows filled out a on-shift examiners report dated March 24, 2003, and noted that at
5:30 a.m., in the location "NO. MAINS'', there was a hazardous condition which he described as
follows: "Excessive Levels of CH4" followed by the notation "2.2%". The comments section of
the on-shift examiners report states that "During supplement exam for pump repairs in No. Mains
return, excessive levels of CH4 exceeding 2% [w]ere detected(.] [P]ower was removed from
North Mains and G-4 area. After further exams water was discovered blocking right return (at
crosscut No. 39]. Management was notified[,] mine[] was evacuated and ventilation was
restored around water to lower CH4. [Sic]. (Emphasis added.)
On March 26, 2003, Inspector Michael Pruitt issued Citation No. 7395287 which states as
follows:
The examiner failed to record the hazardous condition found on the North Mains.
This record shall be kept in a book maintained for this purpose on the surface at
the mine. The examiner found an excess [sic] of 5% percent methane. A 107(a)
imminent danger order was issued and the mine was withdrawn. This condition
was discovered at approximately 0410 and not recorded. The examiner at 0520
put in the book 2.5 percent of methane. [Sic]. This examiner stated that he never
traveled to the face to check the methane, due to the high levels of CH4 methane
and there was no air movement in this area. [Sic].
Citation No. 7395287 alleges a violation of 30 C.F.R. Section 75.363(b) which, as
pertinent, provides as follows:
A record shall be made of any hazardous condition found. This record shall be
kept in a book maintained for this purpose on the surface at the mine. The record
shall be made by completion of the shift on which the hazardous condition is
found and shall include the nature and location of the hazardous condition and the
corrective action taken.

II.

Discussion
Section 75.363(b), supra, requires as pertinent, that 1) a report of"any hazardous

1

Initially, Sanders testified in his deposition that he did not remember whether he reported to
Meadows the six point five percent reading that one of the miners had reported to him. Later on in the
deposition he said that he thought it was accurate that he had told Meadows that six percent methane had
been found at the face.

645

condition" found shall be recorded by the completion of the shift on which the condition was
found, and 2) the report shall include "the nature" and location of the hazardous condition and
the corrective action taken. The uncontroverted facts herein establish that a record was made by
Meadows, a certified examiner, in the on-shift examiner's report of March 24, 2003, reporting
excessive levels of methane at the location ''NO. MAINS" followed by the notation "2.2%".
Further, the comments section of this report state that in the North Mains return there was a
detection of excessive levels of methane "exceeding two percent", and that the following
corrective action was taken: power was removed from the North Mains, the mine was evacuated,
and ventilation was restored to lower the methane. It thus would appear that Drummond fully
complied with the dictates of Section 75.363(b), supra.
It is the position of the Secretary that Drummond did not comply with Section 75.363(b),
supra, because Meadows did not report methane at five percent, which he had measured, and
methane at six percent, which Sanders told him that he had found, both of which readings
indicated methane levels in the explosive range. In this connection, the Secretary relies on the
definition of the term "nature" as set forth Webster's Third New International Dictionary (1993
Edition) as ... 2b: "The distinguishing qualities or properties of something ...." and 2a: "The
essential character or constitution of something." The Secretary argues that, because Meadows
reported only a level of two-point-two percent of methane, he did not convey to management the
distinguishing quality, or property, or the essential character of the hazard which he found.

I find that the report by Meadows clearly complied with the plain meaning of the clear
language of Section 363(b), supr~ specifically, I find that his report of excessive levels of CH4
exceeding two percent, to clearly set forth the nature or distinguishing character of the hazard
that he found, i.e., methane in excess of two percent, which, is clearly a hazardous condition, as
this finding requires withdrawal of miners and the necessity of ventilation changes, (30 C.F.R.
Section 75.323). There is not any requirement in Section 363(b), supr~ on its face, to set forth
each and every hazardous methane reading amount found. A report of methane that exceeded
two percent clearly identifies the nature, or essential character of the hazard.
I thus find that based on the material facts that are not in issue, Drummond was in
compliance with Section 363(b), supra. Accordingly, I find the citation was improperly issued,
Drummond is entitled to summary decision as a matter of law.
Order
It is Ordered 1) that Drummond's motion for summary decision is Granted, 2) that the
Secretary's cross motion for summary decision is Denie~ and 3) the Notice of Contest herein
shall be Sustained.

,/4 L -

Avram Weisberger

Administrative Law Judge
646

Distribution: Certified Mail
Timothy M. Biddle, Esq., Bridget E. Littlefield, Esq., Crowell & Moring, LLP, 1001
Pennsylvania Ave., N.W., Washington, DC 20004
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 2002 Richard Jones
Rd., Suite B-201, Nashville, TN 37215
/sc

647

648

ADMINISTRATIVE LAW JUDGE ORDERS

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

September 23, 2003
HAZEL OLSON,

DISCRTh1INATION PROCEEDING
Complainant
Docket No. WEST 2002-302-D
DENY CD 2001-01
Mine l.D. 48-01355
North Rochelle Mine

v.

TRITON COAL COMPANY,
Respondent

ORDER REOIDRING THE SECRETARY OF LABOR
TO PRODUCE DOCUMENTS FOR IN CAMERA REVIEW
Complainant, Hazel Olson, contends that she was discriminated against by Triton Coal
Company ("Triton") in violation of section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c) ("Mine Act"). Olson asserts that Triton did not hire her because of her
safety activities at another mine. Applicants for employment are protected from discrimination
under section 105(c)(l) of the Mine Act.
Olson filed the discrimination complaint at issue in this case with the Department of
Labor's Mine Safety and Health Administration ("MSHA") on December 15, 2000. MSHA
investigated her complaint. When MSHA declined to file a discrimination complaint before the
Commission on her behalf under section 105(c)(2) of the Mine Act, Olson filed her own
discrimination complaint under section 105(c)(3) of the Mine Act. In order to prosecute her case,
Olson used the Freedom of Information Act (''FOIA"), 5 U.S.C. § 552, to obtain documents from
the file developed by MSHA during its investigation of her discrimination complaint. MSHA
provided most but not all of the documents that Olson requested.
Olson filed a motion in this proceeding to compel production of the statements of
interview of Scott Pribyl and Carrie K.ienzel taken by either MSHA Special Investigator Lana
Passarella or MSHA Supervisory Investigator Judy Peters. 1 Olson indicated that she needed
these statements to prepare her case for trial. Olson also served a subpoena on Ms. Passarella.
The subpoena directed Ms. Passarella to appear at a hearing that was previously scheduled in this
case. In response, I issued an order to the Secretary requiring her to produce the subject
statements of interview for my in camera review. In my order, I provided that if the Secretary

1

Pribyl and Kienzel were employees of Manpower, Inc., a temporary employment agency,
that was involved in hiring workers at Triton's North Rochelle Mine.

649

opposes Olson's motion to compel production, her response to my order should set forth her
reasons and legal argument for her opposition.
The Secretary filed a response in which she objected to my order to compel production on
several grounds and sought to have the subpoena quashed. As a consequence, I canceled the
hearing in order to resolve this issue because Olson believes that the information she seeks is
critical to her case.

I. SUMMARY OF THE ARGUMENT
A. Secretary of Labor
In the Secretary's response to my order to compel production, the Secretary maintains that
the Federal Mine Safety and Health Review Commission ("Commission" or "FMSHRC") Jacks
jurisdiction over MSHA, the Department of Labor, and its employees in this matter. She states
that the Commission is an "agency created under the Mine Act with certain defined and limited
administrative and adjudicative powers." Rushton Mining Co., 11 FMSHRC 759, 764 (May
1989). The present case is a discrimination proceeding brought by a private party under section
105(c)(3) of the Mine Act that does not involve MSHA or the Secretary. Consequently, the
Commission, being a quasi-judicial agency, has no jurisdiction over the Department of Labor,
MSHA, or its employees in this case. ''To require the Secretary to submit to the jurisdiction of
FMSHRC in 105(c)(3) cases is tantamount to directing the maJUler in which the Secretary
chooses to enforce the Mine Act, and thus outside the scope ofFMSHRC's statutory
responsibilities and outside its Congressional grant of authority." (S. Response 6).
The Secretary next argues that the Commission lacks the authority to compel the
production of documents from the Secretary through subpoena. Section 113(e) of the Mine Act
authorizes Commission administrative law judges to issue subpoenas. The Secretary believes
that the word "person" in that section does not include the Secretary. Consequently, the
Commission does not have subpoena powers with respect to employees of the Department of
Labor in proceedings in which the department is not a party.
The Secretary contends that the Commission lacks authority to compel the production of
documents previously determined by the Department of Labor to be non-disclosable under FOIA.
Olson filed a FOIA request in 2002 asking for everything in MSHA's investigation file regarding
her discrimination complaint against Triton. The Secretary states that she supplied "over 200
pages of materials collected by MSHA" during its investigation. (S. Response 8). Some
documents were withheld or redacted because disclosure of the protected information could (1)
"reasonably be expected to divulge the identities of confidential sources;" (2) "reasonably be
expected to constitute an unwarranted invasion of privacy;" or (3) reveal predecisional materials

650

and internal deliberations. 2 Id. The Secretary states that on July 26, 2002, she responded to
Olson's FOIA request and advised Olson of her appeal rights. Olson failed to appeal the
Secretary's FOIA determinations. The Secretary contends that FOIA is the sole vehicle for
obtaining information in federal government files where the government is not a party to an
action. Olson cannot forego her FOIA appeal rights before the Department of Labor and then
attempt to use the Commission to obtain the requested documents. An agency's decision to
withhold documents under FOIA "may be appealed only through FOIA channels." (S. Reply 10).

Next, the Secretary argues that the Privacy Act and the Department's system ofrecords
prohibit disclosure of the sought-after documents. She believes that the requested records are
prohibited from disclosure by the Privacy Act and the disclosure does not fit within any
exemptions established by the Department. The Department is not a party to the litigation and
has no interest in the litigation sufficient to warrant the production of the records. The Secretary
argues that the Commission is not a "court of competent jurisdiction" having the authority to
issue a subpoena to the Secretary that would allow disclosure under 5 U.S.C. § 552a(b)(l 1) of the
Privacy Act. 3
Finally, the Secretary argues that by virtue of the Department's regulations at 29 C.F.R.
Part 2, Subpart C, the Commission lacks the authority to compel the production of documents of
departmental employees in matters in which the department is not a party. The Department's
Deputy Solicitor for Regional Operations has, through directives, the authority to determine the
conditions under which subpoenas shall be complied with. He determined that the Department
will not comply with Olson's subpoena ofMSHA Special Investigator Passarella. Departmental
employees are bound by the Deputy Solicitor's instructions. Although the Deputy Solicitor's
decision is reviewable, such review may only be had in a U.S. District Court. The Secretary
submits that "neither FMSHRC nor its administrative law judges may compel the production of
documents, or compel the testimony of departmental employees, in response to an administrative
subpoena in a case in which the Department is not a party." (S. Response 19).

B. Hazel Olson

In response, Olson states she is asking that ''Ms. Passarella provide testimony concerning
specific witness statements that Ms. Passarella took during her investigation of my claim against
Triton Coal Company." (Olson letter 1). She states that "[b]ecause there seem to be
In order to protect the identities of those who were interviewed by the MSHA Special
Investigators, the Secretary declined to disclose whether Scott Pribyl or Carrie K.ienzel were actually
interviewed during MSHA's investigation. For purposes of this order, I assume that such interviews
occurred.
2

3

In making this argument, the Secretary cites a statement of Eva Kletterman, OMB Privacy
Act Advisor, Office of Management and Budget, dated March 18, 2003.
651

discrepancies between the witness statements now and the statements made subsequent to the
initial investigation, this testimony is critical to my case." Id. Olson maintains that the cases
cited and arguments made by the Secretary do not apply in this instance. First, many of the cases
cited by the Secretary concern subpoenas filed against a federal agency by state agencies and
courts. Federal courts clearly have the authority to order a nonparty agency to comply with a
subpoena "if the government has refused production in any arbitrary, capricious, or otherwise
unlawful manner." Id. (citation omitted).
Olson maintains that a second difference between the cases cited by the Secretary and her
case concerns the fact the she is "seeking witness statements themselves that Ms. Passarella took
as part of her official business." (Olson Letter 1-2). Olson maintains that this important
testimony cannot be replicated and there is no other way to determine what witnesses actually
said during MSHA's initial investigation. These statements are necessary so that the
administrative law judge can determine whether these witnesses "have changed what they said
regarding my job application since Ms. Passarella interviewed them." Id. at 2. Olson believes
that Mr. Pribyl and Ms. Kienzel "are retracting the statements that they gave." Id. Courts look to
see if the documents requested under the subp·oena are otherwise available. In this instance,
"[t]here is no other way to discover what these witnesses said when Ms. Passarella first
conducted her investigation, other than to talk to her and see her documents." Id.
Olson argues that the only complicating factor in this case is that a subpoena was issued
by the Commission rather than a federal court. She contends that·the Commission has compelled
the production of witness statements using a balancing test and that application of a balancing
test in this instance will show that her interests outweigh the interests of the Secretary in
protecting the interview statements. The work product rule and the informant's privilege should
yield to her need for the interviews. Olson believes that it is important to keep in mind that the
statements were made during the initial stages ofMSHA's investigation. Olson asserts that these
two individuals have "first-hand knowledge of what the supervisor said after she saw my job
application." Id. at 4. Because these witnesses made the statements to Ms. Passarella shortly
after the incident that prompted the MSHA investigation, Olson states that she has a substantial
need for them, especially since Olson believes that their statements about the events have
changed over time. Consequently, Olson believes that the "witness statements that Ms.
Passarella took when she conducted the MSHA investigation into my discrimination complaint
should be produced." Id.

II. ANALYSIS OF THE ISSUES
Under section 105(c)(2) of the Mine Act, the Secretary was required to investigate the
discrimination complaint filed by Ms. Olson. If the Secretary determined that she was
discriminated ag~inst, the Secretary must file a complaint with the Commission alleging such
discrimination and propose an order granting appropriate relief. In this instance, the Secretary
determined that Olson was not discriminated against and so notified Olson by letter dated August
29, 2001. Olson filed her discrimination complaint with the Commission under section 105(c)(3)
652

of the Mine Act.
Neither the Department of Labor nor employees of the Department of Labor are parties in
this case. Under section l 13(e) of the Mine Act, however, an administrative law judge has broad
authority to compel the testimony of witnesses and the production of documents. 30 U.S.C. §
823(e). This provision states, in part:

In connection with hearings before the Commission or its
administrative law judges under this Act, the Commission and its
administrative law judges may compel the attendance and
testimony of witnesses and the production of books, papers, or
documents, or objects and order testimony to be taken by
deposition at any stage of the proceedings before them. Any
person may be compelled to appear and depose and produce
similar documentary or physical evidence, in the same manner as
witnesses may be compelled to appear and produce.

In the first sentence of this provision, Commission judges are granted the authority to compel the
testimony of witnesses at a hearing or by deposition. Commission judges are also authorized to
compel the production of books, papers, documents, or objects. In the second sentence,
Commission judges are authorized to compel "[a]ny person" to testify at a hearing or at a
deposition. In addition, "[a]ny person" may be compelled to "produce similar documentary or
physical evidence, in the same manner as witnesses.... "
The Commission's rule implementing this provision provides that the "Commission and
its judges are authorized to issue subpoenas, on their own motion or on the oral or written
application of a party, requiring the attendance of witnesses and the production of documents or.
physical evidence." 29 C.F.R. § 2700.60(a). Nothing in Mine Act or the Commission's rules
limits a judge's subpoena power to witnesses who are called to testify by a party or to individuals
who are employed by a party: The subpoena power applies to any witness and to any person.
Section 113(e) of the Mine Act goes on to state:

In case of contumacy, fai lure, or refusal of any person to obey a
subpoena or order of the Commission or an administrative law
judge ... to appear, to testify, or to produce documentary or
physical evidence, any district court of the United States ... within
the jurisdiction of which such person is found, or resides, or
transacts business, shall, upon application of the Commission or
the administrative law judge ...have jurisdiction to issue to such
person an order .requiring such person to appear, to testify, or to
produce evidence as ordered by the commission or administrative
law judge.

653

This provision grants the U.S. District Court the authority to enforce Commission subpoenas.
The Secretary argues that these broadly written provisions do not apply to her. First, she
argues that neither the Secretary nor employees of the Department of Labor are persons, as that
term is defined in the Mine Act. Section 3 of the Mine Act defines the term "person" to mean
"any individual, partnership, association, corporation, firm, subsidiary of a corporation, or other
organization. 30 U.S.C. § 802. The Commission has held that the term "person" does not
include the Secretary of Labor or MSHA in the context of section 105(c) of the Mine Act.
Wagner v. Pittston Coal Group, 12 FMSHRC 1178, 1184 (June 1990), aff'd, 947 F.2d 943
(table), 1991WL224257 (4th Cir. 1991). Two Courts of Appeal have reached the same
conclusion. Wagner v. Secretary ofLabor, 947 F.2d 943 (table), 1991WL224257 (4th Cir.
1991); Meredith v. FMSHRC, 177 F.3d 1042, 1052-54 ( D.C. Cir. 1999). These decisions hold
that, given the structure of section 105(c), MSHA employees cannot be "persons" subject to
discrimination actions under that provision. These decisions did not hold, however, that the
word "person" can never include the Secretary and her employees. Indeed, the court in Meredith
specifically rejected this approach. 177 F.3d 1053-04 & n.11. That court limited its analysis to
situations in which a discrimination complaint is brought against an employee ofMSHA and its
holding cannot be broadly applied to section 113(e) of the Mine Act. I find that I have
jurisdiction to issue a subpoena to the Secretary in this case to require her to produce the
requested documents. Enforcement of the subpoena would be through the U.S. District Court.
Under section 113(e) of the Mine Act, a Commission judge is specifically authorized to
compel the production of documents. This authority is not tied to witnesses or persons. Nothing
in section 113(e) indicates that the Commission's authority does not apply to official documents
in the custody of the Department of Labor. The cases and arguments supplied by the Secretary
concern situations in which a private party is seeking to obtain information from a Federal
agency in a proceeding totally unrelated to the agency's mission. The moving party is seeking to
use the governrnent as a free source of information or expertise in a state court proceeding or
other unrelated proceeding. For example in Davis Enterprises v. US. E.P.A., 877 F.2d 1181 (3rd
Cir. 1989), the EPA produced documents requested by a party in a state court proceeding but
refused to allow its employees to testify in that proceeding. Among other reasons, the EPA
stated that the "cumulative effect of allowing such testimony would constitute a drain on EPA
resources ... and such testimony was not in the EPA' s interest." Id. at 1186. The court held that
the EPA's position was not arbitrary or capricious.
Although the Secretary is not a party in this case, she is inexorably tied to the events
leading up to this case. Ms. Olson was required by the Mine Act to file her discrimination
complaint with the Secretary. The Secretary, acting through MSHA, investigated the complaint
by interviewing potential witnesses and gathering information. When the Secretary determined
that section 105(c). was not violated, Olson filed a complaint on her own behalf before the
Commission. The documents sought by Olson in this case are a portion of the information
gathered by the Secretary during her investigation of Ms. Olson's complaint. The Secretary is
not a stranger to this proceeding and she is not disinterested in the outcome of this case.

654

It is clear that Congress intended the Secretary to rigorously enforce section 105(c) of the
Mine Act. (S. Rep. No. 181, 95ch Cong., l51 Sess. 36 (1977), reprinted in Senate Subcommittee on
Labor, Committee on Human Resources, 95ch Cong., 2"d Sess., Legislative History of the Federal
Mine Safety and Health Act of 1977 at 624 (1978)). It is also clear that the Secretary, like all
human institutions, is not infallible. Although the Secretary has determined that Triton did not
violate the anti-discrimination provisions of section 105(c), the Secretary should want to see
justice done and should not deliberately obstruct Ms. Olson's ability to pursue her case on her
own behalf. If I find that Triton violated section 105(c), the Secretary will initiate a civil penalty
case against the company to collect a civil penalty. Rather than remaining neutral, however, the
Secretary has chosen to purposely impede Olson's ability to prosecute her case. As stated above,
Ms. Olson believes that the information she has requested is crucial to her case. It is not clear
whether Ms. Olson will be able to establish her case without the requested information.
The Secretary's position with respect to the document request is unnecessarily obstructive
and callous. The Secretary's attitude seems to be that ifMSHA did not find a violation of the
Mine Act then such a violation did not occur. She treats this case as though it is totally unrelated
to her mission under the Mine Act. Nothing could be further from the truth. The Commission
and its judges have found violations of section 105(c) in many instances in which MSHA
determined that a violation did not occur. The Secretary appears to have no regard for the needs
of this potential discriminatee and is content to impede her ability to establish a violation of
section 105(c). Unlike the BPA in Davis Enterprises, the Secretary is not only refusing to allow
one of its employees to testify in a Commission proceeding, she is refusing to provide the two
requested documents.
The Secretary's argument that Olson's only avenue to obtain the two documents is
through FOIA is rejected. Commission administrative law judges have independent authority to
require the production of documents in cases before them. The Secretary's Privacy Act
arguments are rejected as irrelevant in the context of this case. As stated above, the Secretary,
while not a party, is intimately involved in this case. The interview statements were given to the
Secretary's investigators by Mr. Pribyl and Ms. Kienzel with the knowledge that the information
provided could be used in a case against Triton on Ms. Olson's behalf. That the Secretary
determined that she will not pursue this case does not change that fact or raise any special
privileges. The information is being sought by the very same complainant on whose behalf the
Secretary conducted her investigation.

In my initial order, I required the Secretary to provide the requested documents for my in
camera review so that I could analyze them for two purposes: (1) to determine if the statements
contain the information that Ms. Olson believes is present; and (2) if so, to determine whether the
information sought should be withheld because it is protected by a privilege. I did not order the
Secretary to provide the documents to Ms. Olson. In spite of these protections, the Secretary
unreasonably refused to comply with my order. I hold that the Secretary's refusal to provide a

655

copy of the statements is arbitrary, capricious, and an abuse of her discretion 4

III. ORDER
For good cause shown as discussed above, the Secretary of Labor is ORDERED TO
PRODUCE for my in camera review on or before October 16, 2003 any interview transcripts or
statements of interview taken of Scott Pribyl and Carrie Kienzel during MSHA's investigation of
the discrimination complaint filed by Hazel Olson.

If the Secretary refuses to comply with this order to produce documents, I will certify this
order for interlocutory review by the Commission under 29 C.F.R. § 2700.76. Enforcement of
this order to compel production can only be obtained in the U.S. District Court. Prior to such
enforcement, the Commission should have the opportunity to address the issues raised herein.

'

Richard W. Manning
Administrative Law Judge
Distribution:
Ann Noble, Esq., Associate Regional Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)
Ms. Hazel Olson, 16 Whoop-Up Canyon Road, Newcastle, WY 82701-9702
Bradley T Cave, Esq., Holland & Hart, P.O. Box 1347, Cheyenne, WY 82003-1347
RWM

4

I am not requiring the Secretary to produce Ms. Passarella for testimony at this time. Ifthe
requested documents do not contain the information that Olson contends that they do, then that issue
will be moot. If the documents support Olson's position, then Ms. Passarella's testimony may be
necessary.
656

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001

October 2, 2003
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 2003-173
A.C. No. 46-08402-03562 A

v.

RICKY BRYSON, Employed by
ELK RUN COAL COMPANY,
Respondent

Black Knight II

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2003-174
A.C. No. 46-08402-03564 A

CLIFFORD MASSIE, Employed by
ELKRUN COAL COMPANY,
Respondent

Black Knight II

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

CIVIL PENALTY PROCEEDING
Docket No. WEV A 2003-178
A.C. No. 46-08402-03563 A

v.
GARY LILLY, Employed by
.E LK RUN COAL COMPANY,
Respondent

Black Knight II

ORDER DENYING MOTION TO EXCLUDE WITNESS
On September 25, 2003, Petitioner filed a motion to exclude the testimony of Mr. Gary
Hartsog at the hearing now scheduled for October 21, 2003. On September 26, 2003, I convened
a telephone conference to hear arguments from both sides on this motion.
From the arguments of counsel it is clear to me that the Petitioner seeks to exclude the
testimony of Mr. Hartsog as a sanction for alleged discovery irregularities by the Respondents.
657

The alleged irregularities fall in the general class of failure to respond completely to written
interrogatories intended to elicit information on an expert witness. Because of normal delays in
the discovery process, answers to written interrogatories were not exchanged until 30 days before
the scheduled hearing and two weeks before the scheduled depositions. According to counsel,
the expected testimony of the Respondents' expert will focus on a diagram of roof bolt
placement. The diagram was not furnished with the answers to written interrogatories.
Respondents' answers to written interrogatories identified in a very general way the material the
expert is expected to rely upon in offering an opinion but did not identify any document in which
the expert's opinion and the reasons for that opinion were set forth.
Inquiry of Respondents' counsel as to the expert opinion to be obtained from Mr. Hartsog
produced only vague generalizations. Whether Mr. Hartsog will be able to provide expert
testimony consistent with the Daubert requirements is not clear. Counsel for Respondents
has agreed to provide additional material to Petitioner's counsel on an expedited schedule to
assist her in preparing for the depositions. I note that the Federal Rules of Civil Procedure,
Rule 26(a)(2)(C) provide that names of experts as witnesses shall be disclosed no less than
90 days before the hearing date unless the court orders otherwise. In this instance, no court order
on timing of discovery was entered.
Discovery is intended to assist the parties and the Judge in assembling a record adequate
and appropriate for reaching a reasoned decision. I believe for me to exclude now the testimony
of Mr. Hartsog from the hearing as a sanction for discovery irregularities described above would
not serve the intended purpose of discovery. The Petitioner's motion is denied without prejudice
to a renewal of the motion at the hearing in light of the actual experienced difficulties in
conducting a deposition under the circumstances.

~ro~er_.,,,,

.

.-4/

Administrative Law Judge

Distribution:
Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22"d Floor, Arlington, VA 22203
Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC, Spilman Center, 300 Kanawha
Boulevard East, P.O. Box 273, Charleston, WV 25321-0273

658

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 NEW JERSEY AVENUE, N.W., SUITE 9500
WASHINGTON, D.C. 20001

October 29, 2003
CIVIL PENALTY PROCEEDING

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

Docket No. WEV A 2003-222
A.C. No. 46-01438-03501 VVJ

v.
Ireland River Loading Facility

HLC TRUCKING COMPANY, INC.,
Respondent

ORDER GRANTING MOTION
TO AMEND PLEADINGS
This case is before me on a Petition for Assessment of Civil penalty filed by the Secretary
of Labor ("the Secretary") pursuant to section 105(d) of the Federal Mine Safety and Health Act
of 1977 ("the Act"), 30 U.S.C. § 815(d). On September 23, 2002, an inspector of the Mine
Safety and Health Administration ("MSHA") issued Citation No. 7119595 to HLC Trucking
Company ("HLC") at its Ireland River Loading Facility in Marshall County, West Virginia. The
citation alleges a violation of section 77. l 607(p) of the Secretary's safety regulations respecting
operation of loading and haulage equipment, requiring that " Dippers, buckets, scraper blades,
and similar movable parts shall be secured or lowered to the ground when not in use." 30 U.S.C.
§ 77 .1607(p). The "condition or practice" is described in the citation as follows:
A[n] independent contractor mechanic was observed standing between the
rear tandem tires of a Mack tandem dump truck (Ohio License PUV 7596) and
leaning over the truck frame while the trucks dump bed was in the raised position.
The truck bed was not blocked or secured against motion. The contract mechanic
was removed from under the raised bed immediately and instructed [that] the bed
had to be secured against motion before work could resume under the raised bed.
The 104(a) citation is being issued in conjunction with Imminent Danger Order
No. 7119594.
On July 7, 2003, the Secretary filed a petition to assess a $450.00 penalty for the
violation. HLC filed an Answer on July 25, 2003. A hearing is scheduled for November 18,
2003, in Wheeling, West Virginia.
The Secretary has filed a motion for leave to amend Citation No. 7119595 to allege a
violation of a different safety regulation. Respondent opposes the motion or, alternatively, seeks
additional time to conduct discovery respecting the new allegation. For the reasons set forth
below, the motion is granted.
659

The Secretary proposes to change the regulation alleged to have been violated to section
77.405(b), respecting perfonnance of work from a raised position. It requires that ''No work
shall be perfonned under machinery or equipment that has been raised until such machinery or
equipment has been securely blocked in position." The Secretary asserts that the proposed
modification does not alter the substance of the alleged violation and that, therefore, there is no
prejudice to Respondent.
Although there is no provision in the Commission's Rules for amending citations, the
Commission has held that modification of a citation or order is analogous to amendment of
pleadings under Federal Rule of Civil Procedure 15(a). 1 Wyoming Fuel Co., 14 FMSHRC 1282,
1289 (August 1992); Cyprus Empire Corp., 12 FMSHRC 911(May1990). The Commission has
required a liberal application of Rule 15(a) explaining that:

In Federal civil proceedings, leave for amendment "shall be freely given
when justice so requires." Fed. R. Civ. P. 15(a). The weight of authority under
Rule 15(a) is that amendments are to be liberally granted unless the moving party
has been guilty of bad faith, has acted for the purpose of delay, or where the trial
of the issue will be unduly delayed. See 3 J. Moore, R. Freer, Moore's Federal
Practice, Par. 15.08[2], 15-47 to 15-49 (2d ed. 1991) .... And, as explained in
Cyprus Empire, legally recognizable prejudice to the operator would bar
otherwise pennissible modification.

Wyoming Fuel, 14 FMSHRC at 1290.
Guided by Rule l 5(b), the Commission has also recognized that a citation may be
modified even after a hearing, where the parties have, in fact, litigated an unpled claim:
The result is in accord with Rule 15(b) of the Federal Rules of Civil
Procedure, which provides for confonnance of pleadings to the evidence adduced
at trial, and pennits the adjudication of issues actually litigated by the parties
irrespective of pleading deficiencies.

Faith Coal Company, 19 FMSHRC 1357, 1362 (August 1997); see Berwind Natural Resources
Corp., 21 FMSHRC 1284, 1323, at n. 41 (December 1999).
There is no evidence that the Secretary is acting in bad faith or seeking amendment for
the purpose of delay. Respondent's contest of the citation appears to be focused on challenging

1

The Com;mission's Procedural Rules provide that on questions of procedure not
regulated by the Act, the Commission's Rules, or the Administrative Procedure Act, 5 U.S.C.
§ 551 et seq., the Commission and its Judges shall be guided by the Federal Rules of Civil
Procedure so far as "practicable." 29 C.F .R. § 2700.1 (b).

660

the inspector's observations, which remain unchanged, rather than the underlying safety standard
allegedly violated. It follows that, because the standards at issue are very similar in nature,
Respondent's evidence should be applicable to either. In any case, since the hearing is not
scheduled until November l81h, Respondent has ample opportunity to further develop its defense.
Accordingly, the Secretary of Labor's Motion to Amend Pleadings is GRANTED and it
is ordered that Citation No. 7119595 is MODIFIED to allege a violation of 30 C.F.R.
§ 77.405(b). Respondent may conduct additional discovery, as it deems necessary.

fl,
l~iJM~
~eline
R. Bulluck
Administrative Law Judge
(202) 434-9987

Distribution: (Certified Mail)
Javier I. Romanach, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd.,
22"d Floor West, Arlington, VA 22209-2247
Douglas J. Suter, Esq., Isaac, Brant, Ledman & Teetor, LLP, 250 E. Broad Street, 9•h Floor,
Columbus, OH 43215-3742

661

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001

October 30, 2003
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 2003-165-M
A.C. No. 34-01348-05529
Docket No. CENT 2003-166-M
A.C. No. 34-01348-05530

v.
ALLIED CUSTOM GYPSUM,
Respondent

Docket No. CENT 2003-193-M
A.C. No. 34-01348-05531
Mine: Bessie Plant

ORDER DENYING MOTION TO DISMISS
FOR LACK OF JURISDICTION

Before me for consideration is a Motion for Summary Decision filed by Allied Custom
Gypsum ("Allied") asserting that its Bessie Plant ("the Plant"), a gypsum salt processing facility,
is not subject to the jurisdiction of the Federal Mine Safety and Health Act, 30 U.S.C. § 801
et seq. (1994) ("Mine Act or "Act") because it is an off-site facility that is not located where the
raw materials are extracted. I Allied' s motion primarily is based on its assertion that an
Interagency Agreement between the Mine Safety and Health Administration (MSHA) and the
Occupational Health and Safety Administration (OSHA), 44 Fed. Reg. 22827 (April 17, 1979),
provides MSHA with jurisdiction of salt processing facilities only if such facilities are located on
mine property. Allied Mot. at p.5. The Secretary opposes Allied's motion. For the reasons
discussed, Allied's motion shall be denied.
Allied's Bessie facility is a gypsum plant located in Bessie, Oklahoma. Gypsum is a salt.
Specifically, gypsum is the sulfate salt of calcium. Id. The Plant obtains its gypsum from
Allied's Bouse Junction Mine located approximately seventy miles away. Id.

1

Allied also filed for summary decision with respect to 15 of the 34 citations in issue in
these proceedings. Allied's motion for summary decision concerning these citations was denied
during a telephone conference as these citations, in the absence of relevant stipulations agreed to
by both parties, present genuine issues of material fact.
662

The gypsum is transported to the Plant by truck and conveyed through a series of hoppers and
conveyors until it reaches the milling area. 2 At the milling area, the Plant utilizes a Raymond
roller mill to crush and grind the gypsum until it is sized to meet the specifications provided by a
particular customer. Sec '.Y Mot. at pp.2-3.
During the crushing and grinding process, heat is also applied to the gypsum to remove
moisture. The heat is either applied by a burner, or it is generated by the Raymond mill. The
heating process utilized is determined by the degree of moisture in the gypsum. Id.
After the gypsum is sized and dried, it is moved by another series of conveyors and
hoppers to the bagging area where it is prepared for distribution to customers. Allied's
customers include Fleischman's Yeast, Anheuser-Busch, Sara Lee, Earthgrain Bakeries,
Innovative Cereal and Archer Daniels Midland. Id.
A. Whether the Bessie Plant En2a2es in "Milline"
In support of its motion, Allied argues that the processing at its Bessie Plant "is best
characterized as a salt distribution facility" rather than a gypsum milling operation because the
sizing and drying performed does not separate non-ore waste material from the extracted
mineral.3 Allied Mot. at p.4. Allied relies solely on Appendix A of the Interagency Agreement
wherein the term "milling" is described as:
... the art of treating the crude crust of the earth to produce
therefrom the primary consumer derivatives. The essential
operation in all such processes is separation of one or more
valuable desired constituents of the crude from the undesired
contaminants with which it is associated.
44 Fed. Reg at 22829.

2

The information concerning the processing and sales activities at the Bessie facility was
provided in the Secretary's Cross-Motion for Summary Decision. Sec '.Y Mot. at pp.2-3. The
information was obtained from the August 12, 2003, deposition testimony of Randall Gene
Wenninger, the Bessie Plant Manager. Allied has concurred with Wenninger' s deposition
testimony regarding the processes that occur at Bessie. Resp. Reply at p. l. Consequently, there
are no issues of material fact with respect to the Plant's activities.
3

This proposition was advanced in Allied's Motion for Summary Decision filed on
August 21, 2003. Allied did not continue to rely on its "separation of desirable from undesirable
constituents from the earth's crude crust theory" in its subsequent October 14, 2003, Reply to the
Secretary's September 23, 2003, Cross Motion for Summary Decision. Instead, Allied asserted,
" ... regardless of the processes utilized at the Bessie Facility ... ,"the Secretary's Interagency
Agreement limits MSHA jurisdiction only to salt processing facilities located on mine property.
Allied Reply at p.3.

663

Section 4 of the Mine Act provides that "[e]ach coal or other mine" shall be subject to its
statutory provisions. 30 U.S.C. § 803. Section 3(h)(l) of the Mine Act defines a "coal or other
mine" to include "facilities ... used in ... the milling of ... minerals." 30 U.S.C. § 802(h)(l).
Although the term milling is not defined in the Mine Act, in section 3(h)(l), Congress expressly
delegated the authority to the Secretary to determine what constitutes milling. The Secretary's
interpretation of milling is entitled to deference if it is reasonable. Energy W. Mining Co. v.
FMSHRC, 40 F3d 457, 460 (D.C. Cir. 1994); Chevron U.S.A. Inc. v. Natural Res. Def Council,
467 U.S. 837, 843-44 (1984).
To further delineate MSHA jurisdiction, in 1979 the Secretary formulated an Interagency
Agreement between MSHA and OSHA that incorporated the guiding principle that the
elimination of" ... unsafe and unhealthful working conditions on mine sites and in milling
operations ...."will be accomplished through application of the Mine Act's provisions.
44 Fed. Reg at 22827. The Secretary identified the processing activities constituting milling that
gives rise to Mine Act jurisdiction. Id. at 22829, 22830. Sizing and drying are among the
activities identified by the Secretary as "milling."
The Secretary's Promulgation of the Interagency Agreement in furtherance of the
legislative authority delegated to her in section 3(h)(l) establishes reasonable parameters for
milling and may not be disturbed by this Commisson. See Watkins Engineers & Construtors,
24 FMSHRC 669, 673 (July 2002) citing United States v. Mead Corp., 533 U.S. 218, 226-27,
229 (2001) (Congress delegates to an agency the authority to speak with the force oflaw when it
authorizes the agency to clarify ambiguities in a statute). In this regard, the Commission has
noted that the list of "general definitions of the milling processes for which MSHA has authority
to regulate" provided in Appendix A of the Interagency Agreement" ... are commonly
associated with the concept of milling and fall squarely within the Secretary's interpretation of
that term." Id. at 673-74, 675; see also 44 Fed. Reg. at 22829. As the Commission noted, the
ordinary meaning of"to mill" is "to crush or grind (ore) in a mill," and "a mill" is defined as "a
machine for crushing .... " Id. at 674 citing Webster's Third New Int 'l Dictionary (Unabridged)
1434 (1993). The Raymond roller mill at the Bessie Plant crushes, grinds and dries the gypsum.
Sec '.Y Mot. at pp.2-3.
Moreover, the Commission has expressly rejected the assertion that" ... [non-mineral]
separation was critical to a determination that 'milling' took place," because neither the statutory
language nor the legislative history imposes such a technical definition of milling on the
Secretary. Watkins, 24 FMSHRC at 675. In this regard, the legislative history reflects
jurisdictional doubts should be resolved in favor of inclusion under the Mine Act. Id. at 675-76
(citations omitted). Accordingly, the Secretary's interpretation of the term "milling" is entitled to
deference because the interpretation is consistent with the general usage of the term in the mining
industry, consistent with the legislative intent for jurisdictional inclusion, as well as consistent
with the statutory mandate delegated to the Secretary in section 3.( h)(l) of the Mine Act.

664

B. Whether Off-Site Salt Milline Facilities
Are Subject to Mine Act Jurisdiction
Section B(6)(a) of the Interagency Agreement provides that "MSHAjurisdiction includes
salt processing facilities on mine property." (Emphasis added). 44 Fed. Reg. at 22828. Section
B(6)(b) of the Agreement provides that "OSHA jurisdiction . . . includes salt .. . distribution
terminals not located on mine property, and milling operations associated with gypsum board
plants not located on mine property." Id. (Emphasis added).
Allied views the declaration in section B(6)(a) of the Interagency Agreement that
MSHA jurisdiction includes salt processing facilities on mine property as exclusive rather than
illustrative. Thus, Allied argues the Interagency Agreement must be interpreted as reflecting that
the converse is true, i.e., that salt processing facilities located off mine property are not subject to
MSHAjurisdiction. Allied Reply at p.3.
Allied's view of the Interagency Agreement fails for several reasons. As a threshold
matter, as discussed above, Congress expressly delegated to the Secretary the authority to
determine the nature and location of the activities that constitute the milling of minerals that give
rise to Mine Act jurisdiction under section 3(h)(l). Second, Allied's proffered interpretation
rings hollow in that Allied has stipulated that "MSHA has been inspecting the Bessie facility for
more than ten years." Allied Mot. at p.2. Third, Allied's interpretation is contrary to the plain
meaning of Section B(6)(b) that excludes only salt distribution terminals, and, milling operations
associated with gypsum board plants, that are not located on mine property. Since Congress
intended that doubts concerning Mine Act jurisdiction should be resolved in favor of inclusion,
the Secretary's expressed exclusion of only milling associated with off-site gypsum board plants
and salt distribution terminals rather than all off-site gypsum milling is consistent with MSHA's
jurisdictional claim over the Bessie Plant. Watkins, 24 FMSHRC at 675-76. Finally, and most .
significantly, the Commission has expressly rejected the assertion that stand-alone milling
operations are not mines subject to MSHA's Part 48 training requirements simply because the
milling facilities are not part of surface or underground mines. Alcoa Alumina & Chemicals,
L.L. C., 23 FMSHRC 911,916 (September 2001 ).
Accordingly, the Secretary's application of section 3(h)(l) to include the sizing and
drying processes at the Bessie gypsum plant under the penumbra of' facilities used in the
milling of minerals' as contemplated by the Mine Act is reasonable, consistent with
Congressional intent, and consistent with the Secretary's history of dispatching MSHA inspectors
to the Bessie facility during the prior ten year period. Finally, MSHA's exercise ofjurisdiction
over the Bessie faci lity, which is neither solely a salt distribution terminal nor a gypsum board
processing plant, is consistent with the terms of the Secretary's Interagency Agreement.
Accordingly, the Bessie Plant is a milling operation subject to Mine Act jurisdiction.
Consequently, Allied's Motion for Summary decision on the jurisdictional issue IS DENIED.

665

Although these matters had been scheduled for a hearing on September 16, 2003, in the
vicinity of Oklahoma City, Oklahoma, further proceedings were stayed on August 21, 2003,
pending a decision on Allied's Motion for Summary Decision. Having denied Allied's motion,
IT IS ORDERED that the parties initiate, within 14 days of the date of this Order, a telephone
conference with the undersigned to lift the stay and discuss a mutually satisfactory hearing date.

Administrative Law Judge
(202) 434-9967
Distribution: (Certified Mail)
Tina D. Campos, Esq., Office of the Solicitor, U.S. Department of Labor,
525 South Griffin Street, Suite 501, Dallas, TX 75202
Peter T. Van Dyke, Esq., McAfoe & Taft, PC, Two Leadership Tower, l01h Floor,
211 North Robinson, Oklahoma City, OK 73102-7103
/hs

666