JUNE 2005

There were no Commission Decisions in June

ADMINISTRATIVE LAW .JUDGE DECISIONS
06-07-2005 David R. Coleman employed by Lodestar Energy, Inc.
06-08-2005 Baylor Mining, Inc.
06-10-2005 Kentucky Tennessee Clay
06-29-2005 David M. Hall v. Jim Walter Resources, Inc.

EAJ

2004-02

WEVA 2004-35

SE
SE

2005-65-M
2004-61-D

Pg.489
Pg.491
Pg.492
Pg.494

ADMINISTRATIVE LAW .JUDGE ORDERS
06-01-2005 National Cement Company of California, Inc.
06-15-2005 Black Wolf Coal Company, Inc.

i

WEST 2004-182-RM
PENN 2004-157

Pg.506
Pg. 511

JUNE 2005

Review was granted in the following case during the month of June:
Secretary of Labor, MSHA v. Wake Stone Corporation, Docket No. SE 2004-185-M. (Judge
Weisberger, May 11, 2005).

Review was denied in the following case during the month of June:

Vernon Holden v. Ross Island Sand & Gravel Co., Docket No. WEST 2004-364-DM. (Judge
Zielinski, April 28, 2005).

ii

ADl\11NISTRATIVE LAW JUDGE DECISIONS

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

June 7, 2005
DAVID R. COLEMAN, employed by
LODESTAR ENERGY, INC.,
Applicant

EQUAL ACCESS TO JUSTICE
PROCEEDING
Docket No. EAJ 2004-02
Formerly KENT 2003-275

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

Mine ID 15-18015
Bent Mountain

DECISION APPROVING SETTLEMENT
Before:

Judge Feldman

Before me is an application for the recovery of attorney's fees and incidental litigation
expenses filed under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 (1996), on
July 2, 2004, by David R. Coleman who was employed by Lodestar Energy, Inc. (Lodestar).
The EAJA application followed a decision in which Coleman prevailed in the underlying llO(c)
case brought by the Secretary pursuant to 30 U.S.C. § 820(c). 26 FMSHRC 485 (June 2004).
Coleman's net worth does not exceed the limit for individual eligibility under EAJA.
29 C.F.R. § 2704.104(b)(4)(i). The Secretary opposed Coleman's EAJA application on
substantive grounds.
Under EAJA, Coleman, as the prevailing party, is entitled to reasonable attorney's fees
and expenses in connection with any proceeding, or any significant and discrete substantive
portion thereof, in which the Secretary's case was not substantially justified. Cooper v. United
States R.R. Retirement Board, 24 F.3d 1414, 1416 (D.C. Cir. 1994); 29 C.F.R. § 2704.105(a).
The Secretary has the burden of demonstrating that her position was substantially justified.
Lundin v. Mecham, 980 F.2d 1450, 1459 (D.C. Cir. 1992). Substantially justified means that
the Secretary was "justified to a degree that could satisfy a reasonable person" and that the
Secretary had "a reasonable basis both in fact and in law" to continue to proceed with her
litigation. Pierce v. Underwood, 487 U.S. 552, 565 (1988). Determining whether the Secretary's
actions were substantially justified "necessarily requires the court to examine ... the
Government's litigation position and the conduct that led to litigation. After doing so, the court
must then reach a judgment independent from that of the merits phase." FEC v. Rose, 806F.2d
1081, 1090 (D.C. Cir. 1986).

27 FMSHRC 489

In an Interim Decision issued on January 14, 2005, Coleman's BAJA was partially
granted. 27 FMSHRC 104. Specifically, the Interim Decision determined, while the Secretary
initially was substantially justified in bringing the case against Coleman, the Secretary lost her
substantial justification the day before trial after a deposition revealed the testimony of her
primary witness was unreliable. Id. at 112. Consequently, Coleman's BAJA application for
attorney fees and expenses incurred on or after the commencement of the February 11, 2004,
trial was granted. Id. at 113. The Interim Decision established a March 29, 2005, filing
schedule for Proposals.for Reimbursement if the parties could not reach a Joint Stipulation for
Reimbursement.
After several extensions for the filing of reimbursement proposals were granted to
enable the parties to engage in settlement discussions, the parties now have reached an
agreement. In settlement of Coleman's BAJA application, the Secretary has agreed to pay
Coleman the sum of $18,-000.00 in satisfaction of all attorney's fees and other incidental
expenses sought under BAJA.
I have considered the representations and documentation submitted in this matter
and I conclude that the proffered settlement is appropriate and in the public interest.
WHEREFORE, the motion for approval of settlement IS GRANTED, and
IT IS ORDERED that the Secretary, within 45 days of this Order, pay David R. Coleman
$18,000.00 in satisfaction of his claim under the EAJA. Upon receipt of timely payment,
David R. Coleman's EAJA application SHALL BE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Mark E. Heath, Esq., Spilman, Thomas & Battle, PI.LC, 300 Kanawha Boulevard, East
P.O. Box 273, Charleston, WV 25321
Thomas A. Grooms, Esq, Office of the Solicitor, U.S. Department of Labor,
2002 Richard Jones Rd., Suite B-201; Nashville, TN 37215

/hs

27 FMSHRC 490

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

June 8, 2005
SECRETARY OF LABOR,
:MINE SAFETY AND HEALTH
AD1\.1INISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 2004-36
A.C. No. 46-08593-11714

v.
BAYLOR IvIINING, INC.,
Respondent

Jim's Branch No. 3a

ORDER LIFTING STAY
DECISION APPROVING SETTLEMENT
Before:

Judge Hodgdon

This case is before me on a Petition for Assessment of Civil Penalty under section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U .S.C. § 815(d). It was stayed on May·
26, 2004. The Secretary, by counsel, has filed a motion to approve a settlement agreement. The.
Respondent has agreed to pay the proposed penalty in full.
Having considered the representations and documentation submitted, I conclude that the
proffered settlement is appropriate under the criteria set forth in section 1 lO(i) of the Act, 30
U.S.C. § 820(i). Accordingly, the stay is LIFTED, the motion.for approval of settlement is
GRANTED and the Respondent is ORDERED TO PAY a penalty of $60.00 within 30 days of
the date of this order.

~~~-~~
T. Todd Hod on·

Administrative Law Judge
Distribution:
Robert Wilson, Esq., Jack Powasnik, Esq., Toye A. Olarinde, Esq., Office of the Solicitor, U.S.
Department of Labor, 110 Wilson Boulevard, 22nd Fl., West, Arlington, VA 22209
David J. Hardy, Esq., Spillman, Thomas & Battle, PlLC, Spillman Center, 300 Kanawha
Boulevard, East, P.O. Box 273, Charleston, WV 25321

lhs·
27 FMSHRC 491

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

June 10, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2005-65-M
A.C. No. 38-00052-00000

v.
KENTUCKY 'IENNESSEE CLAY,
Respondent

Kentucky Tennessee Clay

DECISION APPROVING SETTLEMENT
Before: Judge Feldman
This civil penalty matter concerns a discrimination complaint filed pursuant to section
105(c)(3) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3)
(1994) (the "Act"), by Stanley Quackenbush against Kentucky Tennessee Clay (K.TC).
Following an evidentiary hearing, it was determined that KTC violated section 105(c) of the Act
by disciplining Quackenbush immediately after Quackenbush communicated safety related
complaints when he accompanied a Mine Safety and Health Administration (MSHA) Inspector
during an inspection of train track conditions. Decision, 26 FMSHRC 913 (Dec. 2004).

In accordance with the provisions of Commission Rule 44(b), 29 C.F.R. § 2700.44(b),
the Secretary was provided with a copy of the Decision so that she could initiate a civil penalty
proceeding for the subject 105(c) violation. On January 24, 2005, the Secretary filed a petition
for assessment of civil penalty under section 105(d) of the Act that has been assigned as
Docket No. SE 2005-65-M. The Secretary's petition initially sought to impose a $3,000
civil penalty.
On May 27, 2005, the Secretary filed a motion to approve a settlement agreement and
to dismiss this case. A reduction in civil penalty from $3,000 to $2,000 is proposed. The
settlement terms include KTC's acknowledgment that its employees have a statutory right to
contact MSHA to report hazardous conditions without fear of retribution.
I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is appropriate under the criteria set forth in Section llO(i)

27 FMSHRC 492

of the Act. WHEREFORE, the motion for approval of settlement IS GRANTED, and
IT IS ORDERED that Kentucky Tennessee Clay pay a civil penalty of $2,000 within
30 days of this Decision, and, upon receipt of timely payment, the civil penalty matter in
Docket No. SE 2005-65-M IS DISMISSED.

Jerold Feldman
Administrative Law Judge

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department qf Labor,
1100 Wilson Blvd., 2200 Floor West, Arlington, VA 22209
·

R. Lee Creasman, Esq., Elarbee, Thompson, Sapp & Wilson, ILP,
800 International Tower, 229 Peachtree Street, NE, Atlanta, GA 303.03
/hs

27 FMSHRC 493

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

June 29, 2005

DAVID M. HAIL,

DISCRIMINATION PROCEEDING
Complainant

V.

JIM WALTER RESOURCES, INC.,
Respondent

Docket No. SE 2004-61-D
BIRM CD 2004-01
No. 7Mine
Mine ID 01-01401

DECISION
Appearances: Gene T. Moore, Esq., and Jonathan A. Spann,1 Esq., Law Office of Gene T.
Moore, PC, Tuscaloosa, Alabama, for Complainant;
Warren B. Lightfoot, Jr., Esq., and Janell M. Ahnert, Esq., Maynard, Cooper &
Gale, P.C., Birmingham, Alabama, for Respondent.
Judge Hodgdon

Before:

This case is before me on a Discrimination Complaint brought by David M. Hall against
Jim Walter Resources, Inc., (JWR), pursuant to section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U .S.C. § 815(c). A hearing was held in Birmingham, Alabama For the
reasons set forth below, I find that the Complainant was not discharged by JWR because he
engaged in activities protected under the Act
Background
JWR is the owner and operator of the No. 7 Mine located near Brookwood, Alabama.

Coal from the underground mine is moved to a preparation plant where it is processed to take out
impurities, such as rocks, sand.and grit. The preparation plant has three shifts, day, evening and
"owl." The day and the "owl" shifts are production shifts and the evening shift is primarily a
maintenance shift. The Complainant began working for JWR in May 1998 as a Heavy
Equipment Coordinator in the heavy equipment shop of the preparation plant. He was
transferred to the position of Preparation Plant Maintenance Foreman on the evening shift in
February 2001. He worked directly under Milford Bailey, the Coordinator, and Buddy Smith, the
Plant Manager.

1

On April 13, 2005, Mr Spann moved to withdraw as co-counsel in this matter because
he had joined another law firm. The motion is GRANTED.

27 FMSHRC 494

On August 22, 2003, Hall was discharged from JWR by Buddy Smith. Alleging that he
was terminated for engaging in activity protected under the Act, Hall filed a discrimination
complaint with the Secretary of Labor's Mine Safety and Health Administration (MSHA), under
section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), on October 2, 2003.2 On November 10,
2003, MSHA informed him that, on the basis of a review of the information gathered during its
investigation, "MSHA has determined that a violation of Section 105(c) of the Act has not
occurred." Hall then instituted this proceeding with the Commission, under section 105(c)(3),
30 U.S.C. § 815(c)(3), on December 4, 2003.3

Findings of Fact and Conclusions of Law
Section 105(c)(l) of the Act, 30 U.S.C. § 815(c)(l), provides that a miner cannot be
discharged, discriminated against or interfered with in the exercise of his statutory rights because:
(1) he 'has filed or made a complaint under or related to this Act, including a complaint ... of an
alleged danger or safety or health violation"; (2) he "is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101 "; (3) he "has instituted or
caused to be instituted any proceeding under or related to this Act or has testified or is about to
testify in any such proceeding"; or (4) he has exercised "on behalf of himself or others . . . any
statutory right afforded by this Act."

In order to establish a prima facie case of discrimination under section 105(c)( 1), a
complaining miner must show: (1) That he engaged in protected activity; and (2) That he was
the subject of adverse action which was motivated at least partially by that activity. Driessen v.
Nevada Qoldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981); Secretary on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev'd on other grounds sub nom
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (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. Pasula, 2 FMSHRC at 2799-800. If the
operator cannot rebut the prim.a facie case in this manner, it, nevertheless, may defend
affirmatively by proving that it was also motivated by the miner's unprotected activity and would
have taken the adverse action for the unprotected activity .alone. Id. at 2800; Robinette, 3
FMSHRC at 817-18; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th

2

Section 105(c)(2) provides, in pertinent part, that: "Any miner ... who believes that he
has been discharged, interfered with, or otheiwise discriminated against by any person in
violation of this subsection may, within 60 days after such violation occurs, file a complaint with
the Secretary alleging such discrimination."
3

Section 105(c)(3) provides, in pertinent part, that: "If the Secretary, upon investigation,
determines that the provisions of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to file an action in his
own behalf before the Commission . .. ."
27 FMSHRC 495

Cir. 1987).

In his complaint to MSHA, Hall claimed that he was discriminated against by JWR
because: "I informed my immediate supervisor that I would no longer do things that would
endanger me or other employees' safety. I was harassed and intimidated for five months in what
I believe was an attempt by management to make me resign. I was fired on August 22, 2003,
after these months of harassment and intimidation." (Resp. Ex. U.) When he filed his complaint
with the Commission, he stated:
On August 22, 2003, I was terminated from my position of
maintenance foreman at preparation plant number 7 at Jim Walter
Resources located in Brookwood, Alabama, by Buddy Smith. On
the final termination papers, the reason for my discharge was "poor
performance."

In February of 2003, Buddy Smith forced me to perform work,
which I am not qualified or equipped to perform safely.... After
performing this dangerous act out of fear of immediate termination
if I refused, I advised Milford Bailey (Buddy Smith's maintenance
planner at mine number 7, and also one of my bosses) that I would
no longer perform work that endangered my life, or the lives of the
men on my crew. After management was informed that I would no
longer perform the unsafe, illegal tasks, he began treating me as an
inferior and harassing me for no founded reason.

***
The events that have elapsed support the fact that I was harassed,
discriminated against and ultimately terminated as a result of
Buddy Smith's dislike for my refusal to perform the tasks which
were in violation of stringent MSHA regulations.
(Resp. Ex. S.) The evidence adduced at the hearing does not support his claims.
Protected Activity

In February 2003, Hall was assigned to temporarily repair a leak in a pipe, located under
the fourth floor of the plant, which was dripping on a decanter motor located on the first floor.
(Tr. 26, 320.) He instructed Glenn Edwards, a washroom operator, to help him. The two looked
for a ladder long enough to reach the area of the pipe and were unable to find one. According to
Smith, Hall then called on the radio and asked why they could not wait until the next day when a
replacement pipe had been fabricated. (Tr. 26.) Smith said that he responded: "No. We've got
to take care of it today." (Tr. 26.) According to Edwards, who listened to the exchange over the

27 FMSHRC 496

radio, Smith asked if the leak had been fixed. Hall responded that he had Edwards helping him
and that they were looking for a ladder; Smith said: "I told you to take care of the problem." (Tr.
236.) According to Hall, Smith cut in while he was talking to Edwards on the radio and said:
"No. I want you to take care of this personally." (Tr. 321, 383.)
As a result, Hall concluded that he had to repair the pipe by himself. (Tr. 321-21, 38485.) He testified that to fix it he performed "a combination of crawl, walk, slid, and stood and
climbed out to wher~ it was and held on to it and held a rag on it, run the tape around first and
put a rag on the end and taped it off and crawled back." (Tr. 322.) He admitted that after he and
Edwards looked for a ladder, he did not further search for a ladder, nor did he try to get a
walkboard or a means of tying himself off, before he fixed the pipe. (Tr. 392-93.) Nevertheless,
Hall concluded that what he had done was unsafe, so on the Tuesday or Wednesday of the
following week he told Milford Bailey that he was not going to do it anymore. He testified:
I told Milford that I wasn't going to do that kind of crap anymore
and neither were my people.

Q. And what did you mean by that when you communicated A. Well, I told him I wasn't going to crawl out and tape pipes like
that anymore. I wasn't going to do anything that dangers me or my
people. And he didn't have any -

Q. Well, did he acknowledge that he heard you?
A. Well, I'm pretty sure he heard me because he got pretty flush in
the face, and he didn't go into any big speech or anything like that.
But he didn't - there was no talk about it.

Q. Did you get the impression he already knew about it, or did you
have an impression one way or the other before you talked with
him.?
A. Well, he knew the pipe had to be taped, and he knew that I was
the one that taped it. So he knew I was - I'm pretty sure he knew I
was supposed to go up there and take care of it.
(Tr. 323.) Bailey testified that: ''The only thing he ever mentioned was . .. that he had no
intention of putting himself or his people in unsafe work conditions again." (Tr. 201.)
In short, Hall, a supervisor, performed work that he later decided was done in an unsafe
manner and told his supervisor that in the future he would not perform work in an unsafe manner
or require his men to do so. This is the protected activity in which Hall claims he engaged. The
27 FMSHRC 497

law is well settled that a miner has the right to refuse to work in conditions that he reasonably
and in good faith believes to be hazardous. See e.g. Gilbert v: Federal Mine Safety and Health
Rev. Commission, 866F.2d1433, 1439 (D.C. Cir. 1989). However, here, Hall had already
perfonned the work and there is no evidence that he ever refused to perfonn any work because it
was unsafe. Consequently, this is not a work refusal case.
Furthermore, although there was apparently pressure on Hall, as Maintenance Foreman,
to get the leak fixed, np one directed him to fix it in an unsafe manner or to fix it by himself.
Hall was the one who decided to fix it alone, in an unsafe manner. Therefore, Hall's "complaint"
was made in response to his own decisions and actions, not in response to something unsafe the
operator required him to perfonn.
Finally, the complaint to Bailey was essentially innocuous. No one would disagree with
it.
Thus, it is a close question whether Hall's statement to Bailey rises to the level of a safety
complaint as contemplated under the Act. However, as the Commission has noted, "[t]he
legislative history of the Act makes clear the intent of Congress that protected rights are to be
construed expansively. See S. Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative
History of the Federal Mine Safety and Health Act of 1977, at 624 (1978)." Swift v.
Consolidation Coal Co., 16 FMSHRC 201, 205 (Feb. 1994). Accordingly, I will resolve any
doubt in the Complainant's favor and conclude that he did engage in protected activity.
Adverse Action
Hall alleges that as a result of his complaint, he was harassed by Buddy Smith and then
discharged. The burden is on him to show that the "harassment" and discharge were the result of
his complaint. An examination of the evidence demonstrates that he has failed to meet this
burden.
Clearly, the reason for Hall's "harassment" and discharge rests with Smith's intent or
motivation. As it is usually difficult to discern what a person is thinking, the Commission has set
out some guidelines for determining motivation. Thus, it has stated:
We have acknowledged the difficulty in establishing a
motivational nexus between protected activity and the adverse
action that is the subject of the complaint. ''Direct evidence of
motivation is rarely encountered; more typically, the only available
evidence is indirect .... 'Intent is subjective and in many cases the
discrimination can be proven only by the use of circumstantial
evidence."' Secretary of Labor on behalf of Chacon v. Phelps
Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other

27 FMSHRC 498

grounds, 709 F.2d 86 (D.C. Cir. 1983) (quoting NLRB v. Melrose
Processing Co., 351F.2d693, 698 (8th Cir. 1965)). In Chacon,
we listed some of the circumstantial indicia of discriminatory
intent, including (1) knowledge of the protected activity; (2)
hostility or animus towards the protected activity; and (3)
coincidence in time between the protected activity and the adverse
action. Id.
Secretary on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999).
Knowledge of the Protected Activity.

There is no evidence that Smith had any knowledge of Hall's complaint. Smith testified
that prior to the time he terminated Hall, Hall had never made a safety complaint to him. (Tr.
130.) He further testified that he was not aware that Hall had made a complaint to Bailey until
the MSHA inspector investigating Hall's discrimination complaint informed him of it in October
2003. (Tr. 17-18, 40, 130.) Hall admitted that he did not make the complaint to Smith. (Tr.
394-95.) Bailey testified that he had no part in the decision to fire Hall and that he did not learn
that Hall had been discharged until after the fact. (Tr. 206, 220.) No one specifically asked him
whether he informed Smith of the complaint.
Bailey testified that in response to Hall saying that he had no intention of putting himself
or his people in unsafe work conditions again, he told Hall: "You're not supposed to put
anybody in jeopardy out there. [Y]our job is to work safe and to see that your men work safe."
(Tr. 220.) From this, I infer that Bailey did not consider Hall's statement a real complaint. It was
more a general statement than a complaint and not something one would likely find significant
enough to pass on to a supervisor.
Therefore, I conclude that Smith had no knowledge of Hall's complaint when he
terminated him.
Animus Toward the Protected Activity.

There is no evidence that Smith or JWR exhibited hostility toward safety complaints. No
one testified that any employee was treated adversely after making safety complaints. No one
said that Smith, or anyone else at the preparation plant, made it clear that they did not appreciate
safety complaints or that they discouraged safety complaints. Indeed, Hall testified that the men
under his supervision did not hesitate to raise safety issues. (Tr. 374-75.) Accordingly, I
conclude that neither Smith nor JWR demonstrated any animus toward protected activity.
Coincidence in Time Between the Activity and Adverse Action.

Hall was terminated more than six months after his safety complaint. Further, the
27 FMSHRC 499

evidence indicates that if Smith wanted to use Hall's poor job performance as a pretext for
discharging him because of his safety complaint, he had several opportunities to discharge him
prior to finally doing so. In short, Hall's termination was not so close in time to his complaint
that one would be led to believe that the former was the result of the latter.
Discharge Not Motivated by Complaint
There is no direct evidence that Hall was terminated because he made a safety complaint.
Further, there are none of the normal circumstantial indicia present to support such a finding.
Therefore, I conclude that Hall has not established that the adverse action taken against him
resulted from his complaint.
JWR Motivated by Business Reasons
'

Furthermore, even if Hall were able to show a nexus between his complaint and his
discharge, JWR has shown that it had a legitimate business reason for terminating Hall. Simply
put, Hall was fired, after many warnings of his need to improve, because he failed to complete an
important assignment.
The Commission has long held that when a business justification is given as the reason
for an action, "[o]ur function is not to pass on the wisdom or fairness of such asserted business
justifications, but rather 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 (June 1982). In determining whether a business justification is credible, the Commission has
offered the following guidance:
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
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. 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 judgment
our views on "good" business practice or on whether a particular
adverse action was ''just" or "wise." The proper focus, pursuant to
Pasula, is on whether credible justification figured into the
motivation and, if it did, whether it would have led to the adverse
27 FMSHRC 500

·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
[take .t he adverse action] .

Cha.con at 3 FMSHRC 2516-17 (citations omitted).
Finally, the Commission has cautioned that:
[T]he reference in Chacon to a "limited" and "restrained"
examination does not mean that such defenses should be examined
superficially or be approved automatically once offered. Rather,
we intend that a judge, in carefully analyzing such defenses should
not substitute his business judgment or sense of "industrial justice"
for that of the operator.

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982).
Contrary to the assertions in his complaints that Smith began harassing him after he
complained about safety, Hall testified at the hearing that he had been constantly harassed by
Smith since he started working for Smith in 1998. (Tr. 358-59, 363.) Further, Hall admitted that
Smith told him in 1998 that if he did not do his job, Smith would have to replace him. (Tr. 357).
Not surprisingly, what Hall called harassment, Smith called counseling. Smith testified that:
"My goal was, you know, to bring Mr. Hall in and talk to him about problems that we were
having and things that weren't being done the way that I thought they needed to be done. And
hopefully through those counseling sessions he would conform and do the things that we asked
him to do." (Tr. 82-83.)

Smith's Counseling of Hall Before the Complaint.
On July 28, 1998, Smith completed a "Record of Discussion" of an exchange he had with
Hall concerning his dissatisfaction with the way Hall was performing, citing his failure to meet
deadlines, his lack of initiative, his failure to communicate and his not being a team player. (Tr.
84-85, Resp. Ex. B.) In a September 14, 2000, Performance Appraisal, Smith gave Hall an
overall rating of ''Fair," which is defined on the form as: "Needs improvement to meet
acceptable standards; performance of job requirements is inconsistent." (Tr. 92, Resp. Ex. C.) In
a typed copy of "Employee Notes" pertaining to David Hall, which Smith testified he typed into
his computer on the dates of the events, there are 21 incidents, covering the period January 25,
2000, through February 2, 2001, in which Smith had discussions with Hall concerning

27 FMSHRC 501

deficiencies in his· performance. (Resp. Ex. V, Tr. 86-87.)
Smith testified that because of continuing problems in the truck shop, and in an effort not
to terminate him, he transferred Hall to the Preparation Plant, where he had some experience, in
February 2001, to give him a second chance. (Tr. 96-97.) Smith told Hall that he would be
meeting with him every two weeks to monitor his progress, and if they were not satisfied with his
performance, he would be terminated; Hall realized that he was "skating on some thin ice." (Tr.
362, Resp. Ex. V.)
On January 11, 2002, Smith made out a "Record of Discussion" on Hall for leaving work
when the Run of the Mine (ROM) was down. (Tr. 103, Resp. Ex. D.) Smith testified that the
ROM is the conveyor belt which takes coal from underground to the stockpile at the preparation
plant and that it is "a very important piece of equipment. You can't get the coal into the coal
stockpile and processed into the preparation plant with this motor burned up." (Tr. 102.) Hall
was counseled never to leave the mine with the ROM down, except in extraordinary
circumstances. (Tr. 102, Resp. Ex. D.) His overall work performance was discussed and he was
informed that this was his "absolute last opportunity ... to perform at an acceptable level." (Id.)
A week after this incident, on January 18, 2002, Hall was given his first Performance
Appraisal since the transfer. He again received an overall rating of "Fair." However, this
appraisal was worse than the previous one, discussed above, in that out of 17 rated "Functional
Skills" and "Work Qualities," Hall received a rating of "Poor," defined on the form as
"[u]nsatisfactory; performance of job requirements is consistently deficient," in 10 of them.
(Resp. Ex. E .) His work was next assessed on a Performance Appraisal Worksheet on June 18,
2002, in which he was given overall ratings of "4," the lowest level of "meets standard," for
"Results," and "Attributes & Behaviors.'>4 (Resp. Ex. F.)
Another Performance Assessment Worksheet, dated February 3, 2003, was only partially
filled out. No numerical assessment was given, but among the comments were: ''Too many jobs
have to be done over," "[t]oo much emphasis has to be put on clean up after jobs" and "[t]here's
far too many items that need improvement." (Resp. Ex. G.) Finally, there are 13 incidents,
covering the period from February 20, 2001, through February 4, 2003, listed in Smith's typed
notes in which he had to reprove Hall about failures to perform. (Resp. Ex. V.)

Smith's Counseling of Hall After the Complaint.
After Hall's safety complaint, there are nine more entries in Smith's typed notes
recounting discussions concerning Hall's shortcomings. (Resp. Ex. V.) The most common of
these have to do with Smith encouraging Hall to take a more active role in the plant maintenance
and looking for things to do instead of waiting to be told what to do. (Id.) In addition to these
entries, Smith filled out a Record of Discussion concerning Hall's failure to carry out instructions

4

This is a different form than the Performance Appraisal.
27 FMSHRC 502

on August 8, 2003. (Resp. Ex. I.)
Smith testified that it had been reported to him that employees being supervised by Hall
were being permitted to stop work at 9:30 p.m. although the shift did not end until 10:45 p.m.
(Tr. 61, 113.) As a result, he said that he counseled Hall on using his men's time completely and
not allowing them to take extended breaks in the lunchroom. (Tr. 113.) Smith said that he
emphasized to Hall that his crew needed to get as far ahead on the maintenance list as possible
because there was a pump that needed to be rebuilt. (Tr. 113.) He telephoned Hall in the middle
of the shift to reiterate his concern. (Tr. 114.)
Smith related that he decided to make a surprise visit to the plant, arriving at 9:40 p.m.
(Tr. 113-14.) He discovered that of the five men Hall supervised, two were in the lunch room
and two had gone home. (Tr. 114, 401, Resp. Ex. I.) Hall told Smith that the men who had gone
home had said they were sick. (Tr. 114, 401, Resp. Ex. I.) When Smith asked him if it did not
seem strange that the two men got sick at the same time on a Friday night, Hall replied, "I'm not
a doctor." (Tr. 114, 401, Resp. Ex. I.) At the trial, Hall claimed that the two men in the
lunchroom had gone there to "cool off," even though he did not know if the men had already had
their lunch break or had previously taken a break. (Tr. 406-07.)
Smith discussed with Hall his dissatisfaction with Hall's lack of supervision and the fact
that he had talked about this with Hall many times before and nothing had changed. (Resp. Ex.
I.) He told Hall that this was his "absolute last warning" and that there had to be an immediate
turn around. (Tr. 112, 115, 401, Resp. Ex. I.)
On August 15, 2003, Smith received an e-mail from the mine safety director strongly
emphasizing that safety violations had to be eliminated and that supervisors were going to be
held accountable. After receiving this e-mail, Smith made a mock inspection of the prep plant on
August 21, 2003. (Tr. 44.) He made a list of 28 possible violations that he found. (Resp. Ex. J.)
He then had a meeting with the supervisors under him, Bailey, Hall and Jerry Yates, Production
Foreman on the day shift, to discuss how to eliminate the violations. (Tr. 49.) The supervisors
were assigned violations to have their men correct. (Tr. 49.) Hall testified that he understood
from the meeting that Smith was going to hold the supervisors responsible for the work of their
crews, that the violations on the list were to be corrected so that they could pass an MSHA
inspection and that he told Smith at the meeting that he understood what was expected of him.
(Tr. 409-11.)
One of Hall's assignments was to clean float coal dust out of the electrical control panel
cabinets in fourth floor control room. Smith had noted on his list that the ''[f]loat coal dust in the
panels is extremely bad." (Resp. Ex. J., Tr. 49.) Hall assigned David Bagley, an electrician, to
clean the cabinets "up to MSHA standards." (Tr. 413.) Bagley cleaned out the cabinets by
blowing the coal dust out with a blower. (Tr. 155.) Hall saw the cabinets after Bagley had blown
them out and "thought it was acceptable at the time we quit working on it." (Tr. 413.) He wrote
"ok" on the violation list to indicate that the job had been completed. (Resp. Ex. J, Tr. 414.)

27 FMSHRC 503

Smith performed a follow-up inspection the next morning. (Tr. 62.) He testified that
when he "saw the 'ok' by [the violation on the list], I expected to go up and find that the cabinets
had been cleaned out and they were ready to be inspected." (Tr. 124.) However, when he
checked the cabinets, he concluded "that the cabinets were not clean to the point that MSHA
would not write a citation." (Tr. 58.) After he had completed his follow-up inspection, he asked
Yates "to go look at the fourth floor cabinets and tell me had they been cleaned out." (Tr. 63.)
He did not tell Yates why he was asking him to do that because he ''wanted his honest opinion on
what the cabinets looke<;l like." (Tr. 126-27.) Yates came back and told Smith that the cabinets
were "not ready for inspection. They're bad." (Tr. 127.) Yates testified that the cabinets had
been blown out, but still needed to be wiped down. (Tr. 497.)
This time, Smith decided to fire Hall. He testified that he did so because, "it had only
been two weeks prior to this that I had given final, absolute last warning. I mean here it is two
weeks later we've got the same issue again. And, obviously, the job was not going to get done.
And it was really the straw that broke the camel's back." (Tr. 131.)

In his brief, Hall has cited this incident and the August 8 incident as examples of Smith's
harassment of him. I do not find this to be harassment. While Hall has an excuse for all of his
shortcomings, the basic facts concerning these incidents are the same whether related by Hall or
by Smith. The only difference is in their interpretation of the facts. I find that a preponderance
of the evidence supports Smith's interpretation.
The other two examples of harassment Hall cites in his brief are even less noteworthy.
Hall asserts that Smith cited him with failing to hold safety/plant maintenance meetings with his
subordinate personnel during the months of June and August 2003. (Comp. Br. at 4.) However,
the transcript cite given to support this claim, (Tr. 111-12), concerns Smith talking to Hall about
being more active in plant maintenance, working off the backlog and the need for him to make an
immediate tum around. It says nothing about safety meetings. While it is true that Smith
chastised Hall about not holding safety meetings, that occurred in 2000, not 2003. (Tr. 358.)
Hall's final example of harassment is that Smith requested that Hall show him a doctor's
excuse for a non-work related cut on his left arm that prevented him from working for two weeks
in February 2003. Smith evidently could not understand how a cut on the arm prevented Hall
from coming to work. (Tr. 441-43.) When Hall did return to work, Smith asked Hall to show
him the injury. Hall maintains that this caused him great embarrassment. (Tr. 335-36.) While
the record is silent as to the exact nature of the injury, it does not appear that Smith's concern
was totally unwarranted. Clearly, Smith did not trust Hall. However, I find that this lack of trust
was based on past experience and that Smith's requests were not made to harass Hall.
Finally, although I am persuaded that Smith fired Hall because of his poor performance, it
makes no difference whether Smith was "counseling" Hall or "harassing" Hall. The fact is that
Smith and Hall had been having problems since shortly after Hall began working for JWR in
1998. The history of their problems is long and documented. Further, there is no evidence that

27 FMSHRC 504

Hall's difficulties with Smith increased after his safety complaint. Thus, even if Smith's
concerns with Hall's performance were totally unjustified, the evidence is overwhelming that this
is the reason Hall was fired. Inasmuch as this had nothing to do with safety complaints, it does
not come within the scope of section 105(c).
Conclusion
Hall has barely established that he engaged in protected activity. He has failed, however,
to show that Smith knew of the protected activity when he discharged him or that any other
indication of a connection between the s~ety complaint and the adverse action is present.
Indeed, the complaint was so unobjectionable that it is easy to understand why Bailey did not
relay it to Smith. Further, even if Hall had shown that Smith was aware of the complaint, it is
hard to imagine that Smith would be so incensed by it that he would go out of his way to fire
Hall. Finally, in addition to Hall's failure to demonstrate that his firing was the result of his
complaint, JWR has conclusively shown that Hall was fired for his poor performance over a
number of years.

Order
Hall has not established that he was fired for engaging in activity protected under the Act.
Accordingly, his Discrimination Complaint filed against Jim Walter Resources, Inc., under
section-105(c) of the Act is DISMISSED.

~~~~
T. Todd Hodgd

Admi~strative Law Judge ·
(202) 434-9973

Distribution: (Certified Mail)
Gene T. Moore, Esq., Law Office of Gene T. Moore, P.C., 1802 Fifteenth Street, Tuscaloosa,
AL35401
Warren B . Lightfoot, Jr., Esq., Maynard, Cooper & Gale, P.C., Attorneys at Law,
1901 Sixth A venue North, 2400 AmSouth/Harbert Plaza, Binningham, AL 35203

/hs

27 FMSHRC 505

ADMINISTRATIVE LAW JUDGE ORDERS

.'";•

..

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

June l, 2005
NATIONAL CEMENT COMPANY
OF CALIFORNIA, INC.,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2004-182-RM
Citation No. 6361036; 02/09/2004

TEJON RANCH CORP.,
Intervenor
v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Lebec Cement Plant
Mine ID: 04-00213

ORDER GRANTING CONTESTANT'S
MOTION FOR SUMMARY DECISION
AND

STAY ORDER
The underlying issue in this matter is whether a private paved 4.3 mile long
two-lane access road to the National Cement Company of California, Inc., ("National") Lebec
Plant is a "mine" within the definition of section 3(h)(l) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 802(h)(l). The subject road is on land owned by Tejon Ranchcorp
(''Tejon"). The jurisdictional issue arose after Citation No. 6361036 was issued on February 9,
2004, citing an alleged violation of the Secretary of Labor's ("the Secretary's") mandatory safety
standard in 30 C.F.R. § 56.9300(a) that requires the construction of berms or guardrails on the
banks of roadways where significant drop-offs exist.
On January 12, 2005, I granted the Secretary's Motion for Summary Decision concluding
that the subject roadway is included within the section 3(h)(l) definition of "a mine" that
includes "private ways and roads appurtenant" to a mine site. 27 FMSHRC 84. On February 2,
2005, National and Tejon, as an Intervenor, by motion, pursuant to Rule 76(a), 29 C.F.R.
§ 2700.76(a), sought my certification to the Commission for an interlocutory ruling on the
jurisdictional question of law. 29 C.F.R. § 2700.76(a). The motion for certification for
interlocutory review was granted on February 7, 2005. 27 FMSHRC 157. The Commission
granted interlocutory review of the jurisdictional question. Unpublished Order, March 1, 2005.
The Commission established March 30, 2005, as the filing date for opening briefs in the
interlocutory appeal. Unpublished Order, March 16, 2005. The parties' briefs on appeal have

27 FMSHRC 506

been filed timely.with the Commission. Despite ongoing Commission review, on
April 19, 2005, MSHA modified Citation No. 6361036 by req'uiring National to award
a contract for and begin construction of guardrails on the subject roadway by May 27, 2005. 1
Presently before me is National's request for an expedited hearing concerning whether the
Mine Safety and Health Administration's (MSHA's) refusal to extend the abatement period
during the pendency of the Commission's interlocutory review constitutes an abuse of discretion.
During the course of a .M ay 9, 2005, telephone conference with the parties, I advised that I
construed National's request for expedited hearing as a motion for summary decision on the
reasonableness of MSHA's action. I set May 16, 2005, as the filing date for the National's brief
in support of summary decision and the Secretary's opposition. The parties' briefs were timely
filed and have been considered.
For the reasons discussed below, I conclude that MSHA has abused its discretion.
Accordingly, the April 19, 2005, modification of Citation No. 6361036 shall be vacated. In
addition, further modification of Citation No. 6361036 shall be stayed pending the Commission's
decision on interlocutory review. As detailed below, the authority for this action is contained in
section 105(d) of the Mine Act that empowers the Commission to rule on the reasonableness of
abatement periods fixed in a citation or modification, and to direct all other appropriate relief.
30 U.S.C. § 815(d).
Statutory Authority
National contends it has received bids for the guardrail project ranging
from $566,007 to $1,136,699. The Secretary notes that she is "not unsympathetic" to
National's plight that it may have considerable unnecessary expenditures if the Commission
determines there is a lack of jurisdiction. Sec'y opp. p.8. Nevertheless, the Secretary's relies on
Energy Fuels Corp., 1FMSHRC299, 306 (May 1979), for the proposition that "[t]he 1977
[Mine] Act does not permit the Commission to stay the abatement requirements of a citation
during litigation." Sec'y opp. p.8. The Secretary's reliance on Energy Fuels is misplaced.
Of course litigation concerning the validity of a citation, alone, does not stay the
requirements that the alleged violative condition must be abated. However, the mine operator
retains the statutory right to contest the validity of a modification, or the reasonableness of the
period for abatement. In this regard, section 104(h) of the Mine Act provides:
Any citation or order issued under this section shall remain in effect until
modified, terminated or vacated by the Secretary ... or modified, tenninated or
vacated by the Commission or the courts pursuant to section 105 or 106.

30 U.S.C. § 814(h). (Emphasis added).
1

Citation No. 6361036 was further modified on May 12, 2005, to extend the abatement
date until June 27, 2005.
27 FMSHRC 507

The vehicle that gives rise to the Commission's authority in this matter is National's
May 4, 2005, Motion for Expedited Hearing of MSHA's April 12, 2005, modification that was
filed pursuant to section 105(d) of the Mine Act. Section 105(d) provides, in pertinent part:

If, within 30 days of receipt thereof, an operator .. . notifies the Secretary that he
intends to contest the issuance or modification of an order issued under section
104, .. . or the reasonableness of the length ofabatement time fixed in a citation
or modification thereof issued under section 104, ... the Secretary shall
immediately advise the Commission of such notification, and the Commission
shall afford an opportunity for a hearing .. . and thereafter shall issue an order,
based on findings of fact, affirming, modifying, or vacating the Secretary's
citation, order, or proposed penalty, or directing other appropriate relief . ..
30 U.S.C. § 815(d). (Emphasis added). Clearly, a mine operator does have recourse if the length
of the abatement time specified in a citation or modification is unreasonable.
The Reasonableness of the Abatement Period
The Secretary's April 19, 2005, modification raises two issues. The first issue is the
general propriety of the modification. The second issue is the reasonableness of the abatement
period set forth in the modification.
Although there is no provision in the Commission' s Rules for amending citations, as a
general proposition, the Commission has noted that modifications to citations should be liberally
granted unless there is a "legally recognizable prejudice to the operator [that] would bar [an]
otherwise permissible modification." Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (August
1992); Cyprus Empire Corp., 12 FMSHRC 911(May1990). In this case, the Commission has
acknowledged legitimate questions of law by virtue of its acceptance of interlocutory review. As
conceded by the Secretary, construction of guardrails and berms before the Commission rules on
jurisdiction effectively eviscerates National's right of appeal. Thus, National clearly is
prejudiced by MSHA' s modification.
However, mine operators invariably are prejudiced by termination dates that expire before
contested citations are litigated. Thus, prejudice alone, does not provide a basis for vacating the
April 19, 2005, modification. Rather, the focus shifts to whether MSHA's refusal to extend the
abatement date during the pendency of the Commission's review is reasonable. Resolution of
this issue requires an analysis of the degree of danger posed by a further delay in construction of
guardrails and berms. Clinchfield Coal Co., 11FMSHRC2120, 2128(November1989).
The initial termination date in Citation No. 6361036 for abatement of the cited condition
was March 20, 2004. MSHA subsequently extended the abatement date on many occasions.
Specifically, the citation was modified: on March 20, 2004, to extend the termination date until
June 20, 2004; on June 21, 2004, to extend the termination date until December 31, 2004; and on
February 1, 2005, to extend the termination date until February 28, 2005. On each occasion the
27 FMSHRC 508

termination date was modified to provide National with additional time to obtain bids for the
installation of guardrails and berms.

In addressing the reasonableness issue in cases such as this where MSHA has liberally
extended the abatement date in the past, we must consider whether MSHA's refusal to grant
further extensions is due to a recalcitrant mine operator, or, an abuse of MSHA' s discretion.
Here the Secretary does not allege that National has acted in bad faith.
Without providing details, the Secretary relies on "[a]n undetermined number of
accidents [occurring on the road] , including the rollover of one heavy truck and the partial
rollover of another. . ." to justify its action. Sec'y opp. p.3,fn.l. However, MSHA' s claimed
exigency for abatement is belied by its numerous extensions. Moreover, since 1966, when the
subject road was paved and when the cement plant was constructed and became operational, until
February 9, 2004, when the subject citation requiring guardrail construction was issued, MSHA
declined to assert jurisdiction in recognition of any serious hazal'd. 27 FMSHRC at 87, 101. In
fact, MSHA withdrew a similar citation issued in March 1992 that cited a lack of berms or
guardrails. The fact that MSHA did not revisit the issue for more than ten years is further
evidence that the degree of danger is insufficient to warrant MSHA' s sudden overriding ·
insistence that construction commence immediately despite interlocutory review.
Finally, while the degree of hazard posed by an absence of guardrails and berms should
not be trivialized, it must be kept in perspective. The hazard is related to a loss of control by the
truck operator. While such occurrences can occur at any time, they are rare. By way of
illustration, a loss of control on this two lane road can result in a head-on collision. Yet, MSHA
has not proposed guardrails separating oncoming traffic. In other words, although there are a
multitude of potential hazards, not all hazards pose a degree of danger sufficient to interfere with
due process. Certainly the degree of hazard relied upon by the Secretary in this matter does not.
If, MSHA and its predecessor did not require the installation of guardrails and berms for almost
30 years, surely it can restrain itself for several months until the Commission has rendered its
interlocutory decision.
According, IT IS ORDERED that the April 19, 2005, modification of Citation
No. 6361036 and any subsequent modifications thereto ARE VACATED: IT IS FUR,..'I'HE~~R
ORDERED further modification of Citation No. 6361036 IS STAYED pending the
Commission' s decision on interlocutory review.

Jerold Feldman
Administrative Law Judge

27 FMSHRC 509

-

Distribution: (Certified Mail)
Michael T. Heenan, Esq., Margaret S. Lopez, Esq., Ogletree, Deakins, Nash, Smoak
& Stewart, P.C., 2400 N Street, N.W., 5th Floor, Washington, DC 20037
Thomas C. Means, Esq., Crowell & Moring I.LP, 1001 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004-2595
Timothy S. Williams, Esq., Office of the Solicitor, U.S. Department of Labor,
1100 Wilson Blvd., 22nd Floor, Arlington, VA 22203

/hs

27 FMSHRC 510

Fl;DERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 New Jersey Avenue, NW, Suite 9500
Washington, D.C. 20001-2021
Telephone No.: (202) 434-9958
Fax No.: (202) 434-9949

June 15, 2005

SECRETARY OF LABOR,
M1NE SAFETY AND HEALTII
ADMINISTRATION·(MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. PENN 2004-157
A. C. No. 36-08746-26476
Quecreek No. 1 Mine

BLACK WOLF COAL COMPANY, INC.,
Respondent
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVILPENALTYPROCEEDING
Docket No. PENN 2004-158
A. C. No. 36-08746-26477 L VY
Quecreek No. 1 Mine

PBS COALS, INC.,
Respondent
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 2004-152
A. C. No. 36-08746-26478 KQN

V.

QuecreekNo. 1 Mine
MUSSER ENGINEERING, INC.,
Respondent

ORDER CONFIRMING DISCOVERY SCHEDULE
ORDER TO CONSOLIDATE
NOTICE OF HEARING
Pursuant to the .parties' agreement and upon my approval, the time allotted for the
completion of written discovery and depositions is extended to June 30, 2005 and August 31,
2005, respectively. Further, in accordance with Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d), the "Act," these proceedings are scheduled for hearing
on the merits at 9:30 a.m. on October 24, 2005, in the Somerset County Courthouse,

Somerset, Pennsylvania.

27 FMSHRC 511

In preparation for the hearing, the parties are directed to do the following on or before
September 15, 2005: (a) confer on the possibility of settlement and endeavor to stipulate as to
all relevant matters which are not in substantial dispute; (b) endeavor to stipulate the issues of
fact and law remaining for hearing, and, if unable to stipulate the issues, exchange written
statements of the issues as contended by the respective parties; (c) exchange lists of exhibits,
and, at the request of a party, produce exhibits for inspection and copying; (d) stipulate as to
those exhibits which may be admitted into evidence without objection and as to others indicate
whether the exhibit i~ accepted as an authentic document; and (e) exchange witness lists with a
synopsis of the testimony expected of each witness.

If the proceedings have not been settled, the parties are further directed to file with the
undersigned Administrative Law Judge on or before September 15, 2005, a written preheating
report setting forth the following: (a) lists of exhibits and witnesses together with the parties'
synopsis of expected testimony; (b) any stipulations entered into; (c) the parties' complete
statement of the issues; and (d) a detailed memorandum of law on any legal issue raised by a
party with citation to the principal authorities relied upon. Failure to comply with any part of
the preheating order may result in sanctions against the defaulting party.

7u~, Le~V\,'L
Robert J. Lesnick
Chief Administrative Law Judge
Distribution: (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2296
J<?seph A. Yuhas, Esq., Black Wolf Coal Co., Inc., P.O. Box 1025, Northern Cambria, PA
15714-3025
Laura E. Beverage, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO
·80202
Marco M. Rajkovich, Jr., Esq., Melanie J. Kilpatrick, Esq., Mickey T. Webster, Esq., Wyatt,
Tarrant & Combs, U.P, 250 West Main Street, Suite 1600, Lexington, KY 40507

/fb

27 FMSHRC 512

.-,

,.

.'

,..
...... __,


JULY2005

COMMISSION ORDERS
07-13-2005
07-21-2005

Wake Stone Corporation
Matthew J. Rizzuto employed by
Tilcon New York, Inc.

SE

2004-185-M

Pg.513

YORK 2005-124-M

Pg.515

SE
SE

Pg.518
Pg.520

ADl\flNISTRATIVE LAW .JUDGE DECISIONS
07-08-2005
07-14-2005

U.S. Steel Mining Company, Inc.
Currituck Sand, Inc.

2002-126
2004-154-M

The July 2005 issue of the Commission decisions is being reprinted because of a publication error.

i

JULY 2005

No cases were filed in which Review was granted during the month of July

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

ii

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

July .13, 2005
SECRETARY OF LABOR,
MINE SAFETY AND }IEALTH
ADMINISTRATION (MSHA)
Docket No. SE 2004-185-M
A.C. No. 31-02071~26994

v.
WAKE STONE CORPORATION

ORDER
On June 29, 2005, the Secretary of Labor filed a motion to dismiss this appeal as moot
because the Secretaiy has vacated the citation that formed the basis for this case. Upon
consideration of the Secretary's motion to dismiss, we hereby grant the motion. The direction for
review in this case is vacated.

27 FMSHRC 513

Distribution
Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 2200 Floor West
Arlington, VA 22209-2247
Ronald L. Massey, Safety Director
Wake Stone Corporation
P.O. Box 190
Knightdale, NC 27545
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
601 New Jersey Avenue, N.W., Suite 9500
Washington, D.C. 20001-2021

27 FMSHRC 514

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
601 NEW JERSEY AVENUE, NW
SUITE9500
WASHINGTON, DC 20001

July 21, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMlNISTRATION (MSHA)
Docket No. YORK 2005-124-M
A.C. No. 30-00082-47411 A

v.
MATTHEW J. RIZZUTO, employed by
TILCON NEW YORK, INC.

BEFORE: Duffy, Chairman; Jordan, Suboleski, and Young, Commissioners
ORDER
BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) ("Mine Act"). On June 23, 2005, the Commission received from Matthew J.
Rizzuto a motion made by counsel to reopen a penalty assessment for a violation of section
llO(c) of the Mine Act, 30 U.S.C. § 820(c), that had apparently become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).
Under section 105(a) of the Mine Act and the Commission's Procedural Rules, an
individual charged with a violation under section llO(c) has 30 days following receipt of the
Secretary of Labor's proposed penalty assessment within which to notify the Secretary that he or
she wishes to contest the proposed penalty. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.26. If the
individual fails to notify the Secretary, the proposed penalty assessment is deemed a final order
of the Commission. 30 U.S.C. § 815(a); 29 C.F.R. § 2700.27.
On January 5, 2005, the Department of Labor' s Mine Safety and Health Administration
("MSHA") mailed a proposed penalty assessment to Rizzuto alleging that he was personally
liable under section l lO(c) of the Mine Act for a citation (No. 6017456) issued to his employer,
Tilcon New York, Inc. Mot. at 1-2. Rizzuto states that the proposed assessment against him was
sent to the wrong address and that he did not receive it before the time to contest it had elapsed.
Id. at 2. Counsel for Rizzuto only learned of the Secretary's section 110(c) allegations against
27 FMSHRC 515

Rizzuto on June 22, 2005 when counsel for the Secretary informed her of difficulties MSHA had
encountered in serving papers on Rizzuto. Id. Rizzuto also asserts that he had every intention of
contesting any proposed section llO(c) penalties against him. Id. at 2-3. The Secretary does not
oppose Rizzuto' s request for relief.
·Here, the proposed penalty assessment was mailed to a nonexistent address. The agency
had in fact previously sent mail to Rizzuto at his proper addresS:- Mot. at Ex. B. Under these
circumstances, we conclude that Rizzuto did not "receive" the penalty assessment, within the
meaning of section 105(a) of the Mine Act and the Commission's Procedural Rules, until at least
June 22, 2005. See Roger Richardson, 20 FMSHRC 1259, 1260 (Nov. 1998). In his motion to
reopen this matter, filed with the Commission on June 23, 2005, Rizzuto clearly states his intent
to contest the proposed penalty assessment against him. We conclude from this that Rizzuto
timely notified the Secretary that he contests the proposed penalty. Id.
Accordingly, the proposed penalty assessment is not a final order of the Commission.
We remand this matter to the Chief Administrative Law Judge for assignment to a judge. This
case shall proceed pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R.
Part 2700.

27 FMSHRC 516

Distribution
Margaret S. Lopez, Esq.
Ogletree, ·Deakins, Nash,
Smoak & Stewart, P.C.
2400 N Street, N. W., Fifth Floor
Washington, D. C. 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
1100 Wilson Blvd., 22nd Floor
Arlington, VA 22209
Chief Administrative Law Judge Robert J. Lesnick
Federal Mine Safety and Health Review Commission
601 New Jersey A venue, N. W., Suite 9500
Washington, D. C. 20001

27 FMSHRC 517

ADMl~STRATIVE

LAW JUDGE DEQSIONS

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

July 8. 2005

CIVIl. PENALTY PROCEEDING

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH
ADMINISTRATION .(MSHA),

Docket No. SE 2002-126
A. C. No. 01-00329-03591

Petitioner
V.

U.S. STEEL .MINING COMPANY, JNC.,

Concord Mine

Respondent

DECISION APPROVING SETTLEI\1ENT
Before:

Judge Melick

This case is before me upon a petition for assessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). The case was remanded by
the Commission on May 16, 2005, for further proceedings. Petitioner has now filed a motion to
approve a settlement agreement and to dismiss the case. A reduction in penalty to $25.00, is
proposed. I have considered the representations and documentation submitted in this case, and I
conclude that the proffered settlement is acceptable under the criteria set forth in Section l lO(i)
of the Act.

WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that Respondent pay a penalty of $25.00, within 40 days of this order.

Gary Melick
Administrative Law Judge
202-434-9977

27FMSHRC 518

Distribution: (First Class Mail)
Dane L. Steffenson, Esq., Office of the Solicitor, U.S. Dept. of Labor, 61 Forsyth Street, S.W.,
Room 7Tl0, Atlanta, GA 30303
Anthony Jeselnik, Esq., U.S. Steel Tower, Fifteenth Floor, 600 Grant Street, Pittsburgh, PA
15219
/lh

27 FMSHRC 519

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

July 14, 2005
SECRETARY OF LABOR,
MINE SAFETY AND HEALTII
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. SE 2004-154-M
A. C. No. 31-02188-22481

V.

CURRITUCK SAND INC.,
Respondent

Bluebird#l

DECISION APPROVING SETTLEMENT
Before:

Judge Melick

This case is before me upon a petition for ~sessment of civil penalty under Section
105(d) of the Federal Mine Safety and Health Act of 1977 (the Act). Petitioner has filed a
motion to approve a settlement agreement and to dismiss the case. A reduction in penalty to
$1,100.00, is proposed. I have considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is acceptable under the criteria set forth in
Section llO(i) of the Act.
WHEREFORE, the motion for approval of settlement is GRANTED, and it is
ORDERED that Respondent pay a penalty of $1,100.00, within 40 days of this order.

Gary Melick
Administrative Law Judge
Distribution: (First Class Mail)
W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson
Boulevard, 22nd Floor West, Arlington, VA 22209-2247
Leslie Paul Brody, Esq., Office of the Solicitor, U.S. Dept. of Labor, 61 Forsyth Street, S.W ., Room
7T10, Atlanta, GA 30303
Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D,
Beltsville, :MD 20705
27 FMSHRC 520
G:l> U.S . GO V!RNMENT PRINTI NG O FFICE: 2005- 31 0-091125302