JULY 1982
Commission Decisions
VA 80- 145
WEST 81-383
VI NC 77-164
PITT 76X241-P
HOPE 76- 197- P
WEVA 80- 532- D

Pg . 1207
Pg. 1216
Pg. 1218
Pg . 1224
Pg . 1229
Pg. 1232

Amherst Coal Co .
WEVA 82- 110
Walter A. Schulte v . Lizza Industries
YORK 81- 53- DM
Allied Products Co.
SE 79-46-PM
PITT 76X203
Eastern Associated Coal Corp .
Fred Ganchuk, Lesko Bugay v. Aloe Coal Co PENN 81-164- D
WEVA 80- 73- D
Roger A. Anderson v . Itmann Coal Co .
Amherst Coal Co.
WEVA 81-355
William A Williamson v. Bishop Coal Co.
VA 80-32-D
National Mines Corp.
KENT 80-130- R
Island Creek Coal Co.
VA 79-74- R
Frederick G. Bradley v. Belva Coal Co .
WEVA 80- 708-D
Omar Mining Co .
WEVA 81-284-R
ln·1WA ex rel Billy Dal e Wise v. Consol .
WEVA 82- 38- D
UMWA ex rel Delmar Shepherd v. Peabody
KENT 81- 186- D
Sol MSHA ex rel Roy Logan v. Bright Coal KENT 81-162-D
William A haro v . Magma Copper Co.
WEST 80-482- DM
WEST 82-68
Co-op Mining Co.
Sellersburg Stone Co.
LAKE 80- 363- M
Wade G. Teets v . Eastern Associated Coal WEVA 82-153-D
YORK 81-67-M
A.H. Smith
Sol ex rel Danny H. Bryant v. Clinchfield VA 80-162-D
Coal Co .
7- 30-82 Emery Mining Corp.
WEST 82-48

Pg. 1236
Pg. 1239
Pg. 1245
Pg . 1246
Pg. 1247
Pg. 1263
Pg. 1265
Pg . 1273
Pg. 1285
Pg . 1287
Pg. 1291
Pg . 1293
Pg. 1307
Pg . 1338
Pg . 1343
Pg. 1350
Pg. 1357
Pg. 1362
Pg . 1367
Pg . 1371
Pg . 1379

7- 02- 82
7- 06- 82
7- 15- 82
7- 15-82
7-16-82
7- 16- 82

East over Mining Co .
Richard Klippstein and W.O. Pickett, Jr.
Inland Steel Coal Co.
Penn Allegh Coal Co., Inc
Itmann Coal Co.
Gerald D. Boone v. Rebel Coal Co.

Administrative Law Judge Decisions
7- 02- 82
7- 06- 82
7-07-82
7- 08- 82
7- 08-82
7- 08- 82
7-09-82
7-13-82
7- 14-82
7- 16- 82
7- 16- 82
7- 16-82
7- 16-82
7- 19- 82
7- 23-82
7- 23- 82
7- 23- 82
7- 26- 82
7- 28-82
7- 28-82
7-29-82

Pg. 1450

Commission Decisions

JULY
The following cases were Directed for Review during the month of July:
Secretary of Labor, MSHA v. Richard Klippstein and W.O. Pickett, Jr., Docket
No. WEST 81-383. (Judge Merlin, Default Decision, June 3, 1982)
Secretary of Labor, MSHA v. United States Steel Corporation, Docket Nos.
LAKE 81-116-M, 81-77-RM. (Judge Vail, May 27, 1982)
Secretary of Labor, MSHA on behalf of John Cooley v. Ottawa Silica Company,
Docket No. LAKE 81-163-DM. (Judge Koutras, June 3, 1982)
Secretary of Labor, MSHA v. United States Steel Corporation, Docket Nos.
LAKE 82-6-RM, 82-35-M. (Judge Broderick, June 8, 1982)
Secretary of Labor, MSHA v. Mathies Coal Company, Docket Nos. PENN 82-3-R,
82-15. (Judge Lasher, June 8, 1982)
Review was Denied in the following case during the month of July:
Gerald D. Boone v. Rebel Coal Company, Docket No. WEVA 80-532-D. (Judge Melick,
January 11, 1982)

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

July 2, 1982

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. VA 80-145

v.

EASTOVER MINING COMPANY
DECISION
In this case we are called upon again to interpret the cab and
canopy standard for underground coal mines, 30 C.F.R. § 75.1710-l(a). l/
This mandatory standard requires installation of cabs and canopies on
self-propelled electric face equipment pursuant to a staggered schedule
coordinated with progressively descending "mining heights. 11 In section

1/ Section 75.1710-l(a) states in part:
[A]ll self-propelled electric face equipment ... which is employed in the active workings of each underground coal mine
on and after January 1, 1973, shall, in accordance with the
schedule of time specified in subparagraph (1), (2), (3), (4),
(5), and (6) of this paragraph (a), be equipped with substantially constructed canopies or cabs located and installed in
such a manner that when the operator is at the operating
controls of such equipment he shall be protected from falls
of roof, face, or rib or from rib and face rolls. The requirements of this paragraph (a) shall be met as follows:
(1) On and after January 1, 1974, in coal mines
having mining heights of 60 inches or more;
(2) On and after July 1, 1974, in coal mines having
mining heights of 60 inches or more, but less than
72 inches;
(3) On and after January 1, 1975, in coal mines having
mining heights of 48 inches or more, but less than 60
inches;

(4) On and after July 1, 1975, in coal mines having
mining heights of 36 inches or more, but less than
48 inches;
(footnote 1 continued)

82-7-2

317(j) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §
801 et seq. (Supp. III 1979), the statutory standard that section
75.1710-l(a) implements, the Secretary is authorized to require cabs and
canopies for such equipment "where the height of the coalbed permits." 2/ The central issues in this case are the meaning and relationship of-the key phrases, "height of the coalbed" and "mining heights."
For the reasons that follow, we hold that "height of the coalbed" in
section 317(j) refers to actual mined height, and that section 75.1710l(a) therefore properly keys compliance to "mining height. 11 We accordingly reverse the judge's decision, which is premised on a contrary
view of the meaning of the statutory language. 1f

footnote 1 cont'd.
(5) (i) On and after January 1, 1976s in coal mines
having heights of 30 inches or more, but less than
36 inches;
(ii) On and after July 1, 1977, in coal mines
having mining heights of 24 inches or mores
but less than 30 inches;
(6) On and after July 1, 1978, in coal mines having
mining heights of less than 24 inches.
In Sewell Coal Company, 3 FMSHRC 1402 (June 1981), we rejected a challenge
to the validity of section 75.1710-l(a). We concluded that in promulgating
this standard the Secretary had "acted properly procedurally in availing
himself of the option to improve the statutory cabs and canopies standard
(section 317 (j)) under the authority of section 101 (a) of the Act. 11 3
FMSHRC at 1408.

±:._/ Section 317(j) of the Mine Act, 30 U.S.C.

§

877(j), states:

An authorized representative' of the Secretary may require in

any coal mine where the height of the coalbed permits that
electric face equipment, including shuttle cars, be provided
with substantially constructed canopies or cabs to protect the
miners operating such equipment from roof falls and from rib
and face rolls.
This language was originally contained in section 317(j) of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et
(1976)(amended 1977), and was unchanged when the Mine Act was enacted.

11

The judge's decision is reported at 3 FMSHRC 1155 (April 1981) .

.1208

I.

The facts of this case are not disputed. On April 10, 1980, an
MSHA inspector observed a continuous mining machine being operated
without a canopy in Eastover's No. 1 mine. 4/ A continuous mining
machine is "self-propelled electric face eq~ipment" within the meaning
of the standard. The machine was being used in the entry of a section
where the coal seam had narrowed due to a roll condition. In order to
give the machine sufficient space in which to operate, approximately 15
inches of top and bottom rock were being extracted along with the coal.
The floor-to-roof extracted height, or actual mined height, of the entry
in question was 53 inches; the height of the coal seam at its lowest
point in the entry was 38 inches. 3 FMSHRC at 1155. The inspector
cited Eastover for a violation of section 75.1710-l(a), and the Secretary subsequently sought a civil penalty for the alleged violation.
Following a prehearing conference, Eastover moved for summary judgment. The company contended the Secretary had exceeded his authority in
promulgating section 75.1710-1 and that as a consequence the standard
was without force and effect. The judge issued an order to show cause
why the Secretary's penalty petition should not be dismissed. The
Secretary responded, asserting the validity of his promulgation of the
standard. However, prior to a ruling on the show cause order or a
hearing on the merits, the
agreed to a settlement which the
Secretary, on behalf of the parties, moved the judge to approve.
The
judge denied the settlement motion and granted Eastovervs prior motion
for summary judgment.
In his decision, the judge concluded that no violation of section
75.1710-l(a) existed at the time the citation was issued and that,
pursuant to our decision in Co-op Mining Co., 2 FMSHRC 3475 (December
1980), the proposed settlement had to be
ected and the case dismissed. In reaching this result, the judge construed the phrase "height
of the coalbed" in section 317(j) of the Mine Act to mean height of the
coal seam. 3 FMSHRC at 1156. He noted that the Bureau of Mines'
Dictionary of Mining, Mineral, an.d Related Terms defines a coalbed as 11 a
bed or stratum of coal." Id. Although the actual extracted height,

!:±../
Eastover had initially operated the machine with a canopy, but had
removed it after MSHA alleged that the canopy configuration being used
made the machine unsafe for the equipment operator.
~/

Eastover did not expressly withdraw its previous summary judgment
motion. The settlement motion does not contain any express admission or
denial by Eastover of the alleged violation. However, the settlement
motion contains references to the seriousness and good faith abatement
of the "violation."

1209

floor to roof, in the mine entry in question was 53 inches, the height
of the coalbed or coal seam was 38 inches. Taking 38 inches as 11 th_e
controlling height for determining the requirement for canopies, 11 the
judge stated that the Secretary had suspended the cab and canopy requirement in "coalbed heights below 42 inches 11 and concluded that no
violation existed at the time the citation was written. Id. at 1155. Ji./

Ji./

Enforcement of some of the standard's requirements was suspended in
1976 and 1977. In order to place the suspension in proper prospective,
we briefly review the history of the standard, both under the Coal Act
when the standard was promulgated by the Secretary of Interior, and since
the enactment of the Mine Act. In 1971, acting under the authority of
section lOl(a) of the 1969 Coal Act, the Secretary of Interior proposed
an improved mandatory canopy standard that made no reference to mining
height or coal seam height. 36 Fed. Reg. 5244 (1971). Based on objections
received, the Secretary scheduled a hearing to determine whether there
should be a "staggered installation schedule ..• dependent upon the
mining height of the particular mine." 37 Fed. Reg. 12643 (1972).
After the hearing, the Secretary concluded that technological problems
mandated a staggered schedule of compliance keyed to descending 11 mining
heights." 37 Fed. Reg. 20689 (1972). The latter phrase was not defined
in either the Secretary's notice of the hearing or his subsequent findings.
Section 75.1710-l(a) was thereafter published with the compliance schedule
contained in subparagraphs (1) through (6). In an internal memorandum
dated September 20, 1973, the Secretary for the first time expressly
defined "mining height," and described it as "the distance from the
floor to finished roof less 12 inches."
During the early enforcement history of section 75.1710-l(a), it
was discovered that certain human engineering problems arose when canopies
were installed at the lower mining heights. Accordingly, on June 9,
1976, the Secretary of Interior extended the dates for compliance with
regard to "mining heights" of less than 30 inches--that is, the heights
covered in section 75.1710-l(a)(5)(ii) and (6). 41 Fed. Reg. 23200
(1976). In this suspension notice, the Secretary retained the definitional
approach to "mining height" set forth in his 1973 memorandum. Application
of that definition meant that the suspension was directed to heights of
less than 42 inches, since the 30 inches referred to in the standard was
a remainder after subtraction of 12 inc.hes. On July 7, 1977, the dates
for compliance in sections with mining heights of less than 30 inches
(that is, 42 inches from floor to finished roof) were indefinitely
suspended to allow time to develop· specifications for cab and canopy
compartment configurations at those lower heights. 42 Fed. Reg. 34876
(1977).
After the Mine Act became effective, the Secretary of Labor continued in effect the Secretary of Interior's suspension notice and
adopted (with minor refinements) his definitional approach to "mining
height." MSHA Policy Memorandum No. 80-4C (August 22, 1980).

1210

The judge rejected the Secretary's various arguments that "mining
height" as used in the standard, meant the actual extracted or mined
height--that is, the distance from the roof to the floor. 3 FMSHRC at
1156-58. The judge reviewed the record of rulemaking as reported in the
Federal Register and found nothing to show that the "plain meaning" of
the statutory term coalbed height had been revised or amended. The
judge acknowledged that the Secretary of Interior's enforcement instructions issued on September 30, 1973, and his suspension of the
enforcement of section 75.1710-l(a)(5)(ii) and (6) (n. 6 above) indicated that "mining height" meant actual mined height. However, the
judge found that neither was issued in accordance with substantive or
procedural rule making requirements. Consequently, he concluded,
neither effected a "legally binding change" in the authority, granted by
section 317(j), to require canopies on the basis of the "height of the
coalbed." Id. Thus, the judge determined that the interpretation
presently contended for by the Secretary had no valid legal basis, and
that the Secretary of Interior, in promulgating the standard, "must be
taken to have ascribed the same meaning to the term 1 mining height 1 as
Congress had ascribed to the term 'coalbed height 1 • 11 Id. at 1157 n. 6.
II.

The two central issues in this case are the meaning of the phrase~
"height of the coalbed" in section 317(j), and whether "mining height 11 in
section 75.1710-l(a) is consistent with that statutory language. To
understand the meaning of section 317(j) we look not only to its words,
but also to the intent underlying the words.
The statutory canopy standard first appeared in the Senate and
House bills that ultimately became the 1969 Coal Act. 7/ A prime motive
in enactment of the 1969 Coal Act was to "[i]mprove health and safety
conditions and practices at underground coal mines" in order to prevent
death and serious physical harm. Legis. Hist. at 128. One of the
problems that greatly concerned Congress was the high fatality and
injury rate due to roof falls. The legislative history is replete with
references to roof falls as the pr.ime cause of fatalities in underground
mines. Ji/

J__I

Section 217(f) of S. 2917 and section 317(k) of R.R. 13950 stated:
An authorized representative of the Secretary may require in

any coal mine where the height of the coalbed permits that
face equipment, including shuttle cars, be provided with
substantially constructed canopies or cabs to protect the
operator of such equipment from roof falls and from rib and
face rolls.
Senate Subcommittee on Labor, Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part 1 Legislative History of the Federal
Coal Mine Health and Safety Act of 1969 as Amended Through 1974, at
79 and 1013 (1975)("Legis. Hist.").

Ji/

See Legis. Hist. at 134, 136, 148, 149, 210, 538-547, 610, 1125-

1126.

1211

To combat the roof fall problem, Congress devised a two pronged
plan. One remedial course of action was aimed at reducing the number of
falls by requiring operators to adopt various roof control practices,
including comprehensive roof control plans. J_I The second important
remedial provision authorized the Secretary to protect miners from those
falls that did occur by requiring the installation of cabs or canopies
on electric face equipment. In the express words of section 317(j), the
devices were to be installed "to protect the miners operating such
[electric face] equipment from roof falls and from rib and face rolls."
The devices were to be installed where lithe height of the coalbed permits."
As the judge noted, the word "coalbed11 may be used in mining parlance to mean bed or stratum of coal. We conclude, however, that when
the drafters used the word "coalbed" as a benchmark for the canopy
requirement, they were not referring literally to the height of the coal
bed, but were conditioning installation on the actual height of the
material being extracted. Although the legislative history does not
contain an express explanation as to why the phrase was used, Congress
was concerned with protecting miners under actual mining conditions. In
practice, sound mining methodology and safety considerations of ten
dictate extraction of more or less than the entire coal seam itself.
Common sense suggests that in practice it is the actual extracted height
in the entry rather than the coal seam height that provides the space in
which to accomodate a canopy. Thus, given Congress' expressed desire to
protect life and limb, we conclude that the drafters used the term
"height of the coalbed" to indicate that the Secretary could require
canopies where the actual extracted or mined height permitted. 101
This conclusion is reinforced by examining the practical consequences
of interpreting "height of the coalbed" in its technical sense, for such
an interpretation yields results that impair the protection Congress so

J_I

See Legis. Hist. 150, 1125-1126.

101 The House Committee on Education and Labor in its report on R.R.
13950 stated that section 317(k) of that bill, which is identical to
section 317(j) of the Act:
authorize[d] the inspector to require protective cabs on
face equipment where the height of the coal permits installation of such cabs to protect the operator from roof
falls, and from rib and face rolls.
Legis. Hist. at 1103. The judge cited to this statement in support of
his conclusion that Congress intended the phrase "where the height of
the coalbed permits" to mean that canopies would be required where the
height of the stratum of coal permits. 3 FMSHRC at 1156. We are not
convinced. The lack of consistency in the use of terms emphasizes to us
that the drafters were not using "height of the coalbed 11 in its technical, geologic sense, but rather in a colloquial fashion to indicate the
Secretary could require canopies where the extracted height provided
sufficient room for their use.

1212

urgently sought to provide. For example, because of adverse top or
bottom conditions an operator may be compelled to take top or bottom
rock when extracting coal. If the coal seam height were lower than that
at which canopies were required but the extracted height were higher, no
canopy protection would be mandated. The same result would follow if,
as here, an operator took top or bottom rock because the mining equipment was higher than a thin coal seam which was being mined.
In mines where it is good practice not to mine the entire coal seam
but to leave top or bottom coal, the judge's interpretation could also
lead to a literal requirement that canopies be provided although the
floor to ceiling space could not safely accommodate them. This could
subject miners to the danger of the canopies striking roof support or to
the danger of being crushed while trying to see around too low a canopy.
In short, we conclud.e that the phrase "height of the coalbed" refers to
the actual mined or extracted height from floor to roof, rather than to
the height of the coal seam itself.
The Secretary 1 s use of the phrase "mining heightu in section
75.1710-l(a) is thus entirely consistent with Congress 1 intent. The
plain meaning of the term "mining height" connotes extracted height -that is, the height mined. Thus, the phrase fulfills the intent of its
authorizing provision, section 317(j). We accordingly reject the judge's
suggestion (3 FMSHRC at 1156-57) that the Secretary revised or amend~d
the meaning of the statutory term 11 height of the coalbed" when he promulgated the regulation. 11/

III.
In light of the foregoing, we cannot affirm the judge's conclusion
that the record on which the parties' proposed settlement is premised
shows that no violation occurred. There is no dispute that the cited
continous miner lacked a canopy and that the actual extracted or mined
height in the entry where the machine was being used was 53 inches.
Such a height would be subject to the non-suspended provisions of
section 75.1710-l(a). In short, the judge's conclusion that no violation occurred cannot stand.
11/ We likewise reject the judge's suggestion of procedural infirmities
in the standard 1 s promulgation.·· The .judge takes issue with what he
perceives to be a lack of notice to operators of the meaning of the term
"mining height." 3 FMSHRC at 1157-58. Yet, as we have concluded
above, that term in and of itself connotes extracted height. Furthermore, the chief issue discussed at the public hearing on the proposed
canopy standard (n. 6 above) was whether "substantially constructed
canopies [should] be required on a staggered installation schedule,
dependent upon the mining height of the particular mine." (Emphasis
added) 37 F.R. 11779 (1972). Eastover participated in this hearing, and
has never argued in the present case that it was misled by the Secretary 1 s use of this phrase. The Secretary, in using a term which faithfully reflected what Congress intended and which itself gave notice of
its meaning, did not act in violation of substantive or procedural rulemaking requirements.

1213

For the foregoing reasons, we reverse the judge's rejection of the
proposed settlement and his granting of the earlier summary judgment
motion. In the interest of judicial economy, we have considered the
parties' settlement motion at this time. 29 C.F.R. § 2700.30. The
Secretary originally proposed a penalty of $150 for the violation. The
parties have proposed that a $75 penalty would be appropriate. The
settlement motion and the stipulation to which it refers set forth
reasons in support of the proposed settlement and information relevant
to the six statutory penalty criteria in section llO(i) of the Mine Act.
We have examined the reasons proffered by the parties and have weighed
the statutory criteria. We conclude that the settlement agreement comports with the purposes and policies of the Act, and the motion for
approval of the settlement is granted.

1214

Distribution
Leslie J. Canfield, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Karl S. Forester, Esq.
Forester, Forester, Buttermore & Turner. P.S.C.
P.O. Box 935
Harlan, Kentucky 40831
Administrative Law Judge Joseph Kennedy
FMSHRC
5203 Leesburg Pike, 10th Floor
Skyline Center #2
Falls Church, Virginia 22041

1215

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

July 6, 1982
SECRETARY OF LABOR, MINE.SAFETY
AND HEALTH ADMINISTRATION (MSHA)
Docket No. WEST 81-383

v.
RICHARD KLIPPSTEIN and
W. O. PICKETT, JR.

DIRECTION FOR REVIEW AND ORDER
Respondent, who is pro~' has petitioned for review under the
provisions of section 113 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 823, claiming that the administrative law judge erred
in defaulting him.
Upon reviewing the entire record in this matter, we find that under
our rules of procedure the administrative law judge had a sound basis for
entering the default judgment. 29 C.F.R. § 2700.63, 2700.28 and
2700.7(b). However, because respondent is not represented by counsel,
and because his petition presents a question of jurisdiction under the
Act that has not been presented to the judge below, equitable application
of our rules and the Act in this case persuades us to afford the respondent opportunity to be heard on his claim. It is expected, however, that
from here on the respondent will follow closely the instructions of the
judge and the Commission's rules of procedure. A copy of these rules is
enclosed.
Accordingly, the petition for review received from respondent
Klippstein is granted. The default judgment is vacated and the case
is remanded for further proceedings.

1218

82-7-3

Distribution
Richard M. Klippstein
c/o Power Controllers, Inc.
P.O. Box 466
Rifle, Colorado 81650
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge Paul Merlin
Fed. Mine Safety & Health Rev. Commission
1730 K Street, N.W.
Washington, D.C. 20006

1217

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

July 15, 1982

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

Docket No. VINC 77-164
IBMA No. 77-66

v.
INLAND STEEL COAL COMPANY
DECISION

This proceeding arose under the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. §801 et~· (1976)(amended 1977) • ..!./ The
central issue is whether 30 C.F.R. § 75.1712-1 requires bathing facilities
to be provided for construction employees who perform work on the surface
of an underground coal mine. The administrative law judge concluded
that the standard did not require bathing facilities for such workers,
and, for the reasons that follow, we reverse.
In 1977 Inland Steel Coal Company was developing a new underground
coal mine in Illinois, and employed several contractors for the work.
A major component of the mining complex was a coal preparation plant
being constructed on the surface of the mine by the Roberts and Schaefer
Company, one of Inland's chief contractors. Roberts and Schaefer provided
its employees with changing facilities, but not a bathhouse. A different
contractor was building bathing facilities for the miners Inland would
employ when the mining complex was opened. This building was scheduled
for completion in May 1978, although Inland did not plan to make the
bathing facilities available to the employees of the various construction contractors. ±..!

lf

The appeal was pending befo'e the Interior Department Board of Mine
Operations Appeals as of March 8, 1978. Accordingly, it is before us
for decision. 30 U.S.C. § 961 (Supp. IV 1980). (The Mine Safety and
Health Administration has been substituted for its predecessor agency,
the Mining Enforcement and Safety Administration (MESA)). This proceeding originally arose on review of an unabated notice of violation
issued under section 104(b) of the 1969 Coal Act. For the reasons
stated in our decision in Eastern Associated Coal Corp., 4 FMSHRC 835,
835-36 (May 1982), we will review the merits of the notice at this time.
!.:../ Among the other contractors involved in the development of the mine
was the Zeni, McKinney and Williams Corporation, which was sinking the
shaft. Zeni provided its employees with a temporary bathhouse. In
(Footnote continued)

1218

82-7-8

In August 1977, a MESA inspector ascertained that there was no
bathhouse for the Roberts and Schaefer employees and that a number of
those employees wanted bathing facilities. Subsequently, MESA issued
a section 104(b) notice of violation to Inland for failure to comply
with 30 C.F.R. § 75.1712-1. Section 75.1712-1 provides:
Availability of surface bathing facilities; change
rooms; and sanitary facilities.
Except where a waiver has been granted ••• ,
each operator of an underground coal mine shall
... provide bathing facilities, clothing change
rooms, and sanitary facilities, as hereinafter
prescribed, for the use of the miners at the mine. [1/]
Section 75.1712-1 in turn implements 30 C.F.R. § 75.1712, which states:
The Secretary may require any operator to provide adequate
facilities for the miners to change from the clothes worn
underground, to provide for the storing of such clothes from
shift to shift, and to provide sanitary and bathing facilities. Sanitary toilet facilities shall be provided in the
active workings of the mine when such surface facilities are
not readily accessible to the active workings.
Section 75.1712 mirrors section 317(1) of the 1969 Coal Act and was
carried over intact as section 317(1) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et~· (Supp. IV 1980).
Section 75.1712-1 permits operators to seek waivers from the
standard's requirements, and after receiving the notice of violation,
Inland applied to the MESA District Director of District Eight for a
continued
support of a contention that it was not an industry practice to provide
bathhouses for surface construction workers, Inland argues that Zeni's
provision of a bathhouse to its shaft sinking employees and Roberts and
Schaefer's provision only of changing facilities to its construction
employees were consistent with the collective bargaining agreement that
both contractors had with the United Mine Workers. We need not attempt
to resolve this question of conttactual interpretation since this case
does not require it. This case concerns only the language of regulatory
standards and, in addition, the Zeni employees are not involved in the
present litigation. See generally Loe. Union No. 781, etc. v. Eastern
Assoc. Coal Corp., 3 FMSHRC 1175, 1179 (May 1981).
11
The original notice, which was issued on August 23, 1977, alleged a
violation of 30 C.F.R. § 71.400. Section 71.400 notes that "[s]anitary
facilities at surface work areas of underground coal mines are subject
to the provisions of [ 30 C. F. R. ] § 7 5 .1712 • . • g seq. 11 Relying on this
language, MESA modified the notice of violation on September 30, 1977,
to allege a violation of section 75.1712-1 on the grounds that the construction work in question was being performed on the surface of an
underground coal mine.

1219

waiver from the bathhouse requirements. !:!_/ District Eight denied the
waiver in accordance with its policy of denying waivers unless a survey
of the miners indicated they would not use a bathhouse. 5/ Inland also
applied for review of the notice of violation. 6/ In hi; decision, the
administrative law judge vacated the notice of violation, concluding
that section 75.1712-1 required bathing facilities only for miners
working underground. We disagree.
This case turns on the meaning of section 75.1712-l's provision
that the various facilities to be supplied are "for the use of the
miners at the mine" (emphasis added). The underscored language raises
two questions: whether the Roberts and Schaefer construction workers
were "miners" within the meaning of the 1969 Coal Act and, if so,
whether the provisions regarding bathing facilities applied to them.
With respect to the first question, we agree with the judge that
there is "no doubt that the broad definition of miners in the Act includes
construction workers such as those employed by Roberts and Schaefer in
this case. 11 Dec. at 9. Section 3(g) of the Coal Act, 30 U.S.C. §
802(g)(1976)(amended 1977), defined a miner as "any individual working
in a coal mine." Section 3(h) of the Coal Act, 30 U.S.C. § 302(h)
(1976)(amended 1977), defined a coal mine as:
Section
applications:

sets forth relevant procedures for such waiver

The Coal Mine Safety District Manager for the district in
which the mine is located may, upon written application by the
operator, waive any or all of the requirements of §§ 75.1712-1
through 75.1712-3 if he determines that the operator of the
mine cannot or need not meet any part or all of such requirements, and, upon issuance of such waiver, he shall set forth
the facilities which will not be required and the specific
reason or reasons for such waiver.
In applying for the waiver, Inland did not concede the applicability of
section 75.1712-1 to the Roberts and Schaefer construction employees.
'd.J On appeal, Inland does not argue that a waiver should have been
granted. Accordingly, although we might question the wisdom of the
waiver denial, that issue is not before us. We note that District
Eight's use of surveys on waive.u appli~ations was solely its own policy,
and was not advocated or suggested by MESA headquarters.
!!../ Pending disposition of Inland's applications for waiver and review,
MESA extended the time for abatement of the noticed violation. As of
the issuance of the judge's decision vacating the notice, the alleged
violation remained unabated.

1220

an area of land and all structures, facilities ••• placed
upon, under, or above the surface of such land by any person,
used in, or to be used in ••• the work of extracting ••. coal
••• from its natural deposits in the earth ••• and the work of
preparing the coal so extracted, and includes custom coal
preparation facilities.
(Emphasis added.) The surface coal preparation plant being constructed
here was "to be used ••• in the work of ••• preparing coal," and thus
would clearly qualify as part of a coal mine. Therefore, the construction workers in this case were miners. See Bituminous Coal Operator's
Ass'n, Inc. v. Secretary of Interior, 547 F.2d 240, 244-25 (4th Cir.
1977).
Despite his conclusion that the construction workers were miners
within the meaning of the 1969 Coal Act. the judge reasoned that not
every standard necessarily applies to all miners and determined that the
bathing facility requirements of section 75.1712-1 covered only miners
working underground. Based on the standard's broad language and derivation, we conclude that the bathing facility provisions extended to the
surface construction workers in this case.
The plain language of the regulation expressly states that bathing
facilities shall be provided for "miners at the mine." The regulation
does not limit its coverage only to underground miners, but rather expressly requires bathing facilities for "miners. 11 We cannot discern
from the face of the standard an intent to exclude miners such as the
surface construction workers involved here from the broad sweep of the
standard's coverage. Although the judge focused on the fact that the
standard is contained in safety regulations for underground coal mines,
the location of the standard is explicable and is not legally significant in this case. Indeed, the relevant history of the standard
reinforces our conclusion as to its broad meaning.
To understand the scope of section 75.1712-1, it is necessary to
examine a related standard in Part 71. A bathing facility requirement
for surface miners of underground coal mines was originally contained in
30 C.F.R. § 71.400, the standard Ynder which MESA first cited Inland.
The proposed rules for Part 71 were entitled "Mandatory Health Standards--Surface Work Areas of Underground Coal Mines and Surface Coal
Mines." Subpart E of the proposed rules was entitled "Surface Bathing
Facilities, Change Rooms, and Mnitary_Toilet Facilities." In its
original proposed form, section 71.400 provided:
On and

after June 30, 1971, each operator of an underground
coal mine and each operator of a surface coal mine shall
provide bathing facilities, clothing change rooms and adjacent
sanitary facilities as hereinafter prescribed, for the use of
miners employed in surface installations and at surface work
sites of such mines.

1221

36 Fed. Reg. 254 (1971)(emphasis added). This language and the relevant
titles indicate that bathing facilities were contemplated for the
surface work areas of both underground and surface mines.
After public hearings on the proposed regulations, the Secretary
deleted the reference in section 71.400 to underground coal mines. He
specifically found:
With respect to surface bathing facilities, change rooms, and
sanitary flush toilet facilities, that:
Operators of underground coal mines are presently
required by 30 C.F.R. Part 75 to provide surface
bathing facilities, change rooms, and sanitary
flush toilet facilities for the use of miners.
36 Fed. Reg. 20127 (1971). As already noted, section 71.400 as finally
promulgated applies only to miners at surf ace mines and states that
"[s]anitary facilities at surface work areas of underground coal mines"
are subject to 30 C.F.R. § 75.1712 et
7/ In short, what the Secretary left out of section 71. 400 is precisely what he found was already
covered by section 75.1712--namely a requirement for provision of
sanitary facilities for the use of miners employed in surface installations and at surface work areas of underground coal mines. Thus, section
75.1712-1 was intended to apply to surface miners, as well as underground
miners, at underground coal mines. Since the construction employees in
this case were employed at a surface installation and surface work area
of an underground mine, we conclude that the regulation applied to them.
For the foregoing reasons, the judge's decision is reversed and the
notice of violation is reinstated.

, Cmm:nissioner

7/
The judge expressed his view that the note in section 71.400 that
"sanitary facilities" at surface work areas were subject to section
75.1712 et~· referred only to sanitary toilet facilities. In light
of the history of section 71.400 set forth above, we conclude that the
term was used broadly in this instance to cover various types of sanitary
facilities, including those for bathing.

1222

Distribution
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Richard R. Elledge, Esq.
for Inland Steel Coal Co.
Gould & Ratner
300 West Washington Street
Suite 1500
Chicago, Illinois 60606
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Donald L. Rosenthal, Esq.
Association of Bituminous Contractors, Inc.
2020 K Street, N.W.
Washington, D.C. 20006

1223

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

July 15, 1982
SECRETARY OF LABOR,
MINE SAFETY'AND HEALTH
ADMINISTRATION (MSHA)
Docket No. PITT 76X241-P

v.
IBMA 77-60

PENN ALLEGH COAL COMPANY, INC.
DECISION
This penalty proceeding arose·under section 109 of the Federal Coal
Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1976)
{amended 1977)("the Coal Act 11 ) . 1_/ The administrative law judge concluded that Penn Allegh Coal Company, Inc., violated 30 C.F.R. § 75.1403
and assessed a penalty of $7,500 for that violation. We affirm the
judge.
Section 75.1403 is contained in 30 C.F.R. Part 75, Subpart 0. Part
75 sets forth mandatory safety standards for underground coal mines.
Subpart 0 contains mandatory standards applicable to hoisting and haulage equipment used to transport men and materials. Section 75.1403
reiterates section 314(b) of the Coal Act and provides:
Other safeguards adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with
respect to the transportation of men and materials shall be
provided.
The administrative procedures by which a representative of the Secretary
advises an operator of other safety devices or practices required to be
provided are found in 30 C.F.R. § 75.1403-1. This section in pertinent
part provides:
1/
On March 8, 1978, this case was pending before the Department of
Interior's Board of Mine Operations Appeals. Accordingly. it is before
the Commission for disposition. 30 U.S.C. § 961 (Supp. IV 1980). The
Mine Safety and Health Administration (MSHA) has been substituted for
its predecessor agency, the Mining Enforcement and Safety Administration
(MESA).

1224

82-7-9

The authorized representative of the Secretary shall in
writing advise the operator of a specific safeguard which is
required pursuant to § 75.1403 and shall fix a time in which
the operator shall provide and thereafter maintain such
safeguard. If the safeguard is not provided within the time
fixed and if it is not maintained thereafter, a notice shall
be issued to the operator pursuant to section 104 of the Act.
On March 5, 1973, a representative of the Secretary issued the following
"notice to provide safeguards" to Penn Allegh:
The two overcasts crossing No. 2 entry where the mantrip
passed under were not posted with signs to warn of the low
overhead clearance in the 1st right section.
Abrupt changes in vertical clearance that present a hazard to
persons riding on mobile equipment shall be eliminated where
possible. Otherwise, signs, preferably luminous, shall be
posted to warn of the change in clearance.
On March 1, 1975, a haulage accident occurred in Penn Alleghvs mine in
which a miner was fatally injured while operating a battery powered
scoop in an entry. The evidence indicates that the lamp cord from the
miner's battery lamp caught on a roof bolt or the roof itself. The
miner was lifted out of the vehicle, and apparently squeezed between the
vehicle and the roof. The normal floor to ceiling height of the entry
in which the accident occurred was 48 inches. The judge found, however,
that beginning 24 feet outby the site of the accident the floor of the
entry gradually rose until, at the point of impact, the floor level had
risen 8 inches. Two inches of the buildup occurred near the point of
impact. The judge also found that beginning 10 feet outby the accident
site, the roof of the entry rose 6 inches and then, one foot before the
accident site, the roof dropped down 6 inches.
He concluded that the 6
inch drop in the roof together with the 8 inch rise in the floor resulted
in a reduction in clearance at the point of impact from the normal 48
inches to 40 inches.
The judge's findings further.revealed that the 6-inch rise in the
roof was caused by a cut into the roof above the normal roof line made
in June 1972, and that the floor buildup resulted from slag being
placed on the floor during the summer months prior to the March accident.
Moreover, he found that the entty where the accident occurred was the
mine's main haulage entry and was traveled daily by miners and management
personnel. Although Penn Allegh's general manager testified that
"everyone" knew of the reduced entry height at the point of the accident,
neither reflectors nor other devices were posted to warn of the .reduced
height.
Immediately after the accident, MESA conducted an investigation
which resulted in the issuance of the notice of violation of section
75.1403 at issue. The notice of violation stated:

1225

During the investigation of a fatal accident, March 1, 1975,
it was observed warning lights or other approved devices were
not installed along unit tractor haulage road No. 2 main entry
indicating the change in overhead clearance .••• [N]otice to
provide safeguard No. 1 H.O.W. March 5, 1973.
In finding that the alleged violation occurred, the judge concluded that
the lowering of the roof and the corresponding rise in the floor constituted an abrupt change in vertical clearance which presented a hazard
to persons riding on mobile equipment, and that Penn Allegh's failure to
eliminate the abrupt change or to post warning devices violated the
notice to provide safeguards. The judge further found that the violation was extremely serious and that Penn Allegh was "grossly negligent"
in allowing it to exist.
Penn Allegh argues that the judge erred in concluding it violated
the proscriptions of the safeguard notice. The essence of its argument
is that the condition for which it was cited in the notice of violation
is not encompassed by the safeguard notice. Penn Allegh asserts that
the notice of violation addresses only overhead clearance, whereas the
notice to provide safeguards is concerned with vertical clearance. We
disagree. The judge found, and Penn Allegh does not dispute, that
vertical clearance is the distance between the mine floor and the mine
roof. It is beyond question that changes in the roof, floor, or both
affect that distance. Here 6 inches of the reduction in the floor to
roof distance was directly attributable to the 6 inch change in roof
height. We agree with the judge that citation of the roof condition in
the notice of violation was encompassed by the reference to vertical
clearance in the notice to provide safeguards.
Penn Allegh also challenges the judge's conclusion that the clearance change was "abrupt" within the meaning of the safeguard notice. We
reject this semantic challenge and affirm the judge's conclusion.
The
judge based his conclusion upon findings that at the point of impact the
roof dropped 6 inches and the floor rose 2 inches out of a total 8 inch
rise, and as a result, the entry height was reduced from 48 to 40 inches
within the span of a foot. The element of abruptness also existed in
view of the speed at which a miner was likely to approach that change.
In this regard, we note the unrefuted testimony of one of the inspectors
who issued the safeguard notice that equipment like that involved in
the accident travels 300 to 400 feet a minute and would traverse the 24
feet before the point of impact~in 3 o~ 4 seconds. Thus, we agree with
the judge that the change in clearance at issue was abrupt.
Penn Allegh next disputes the judge's determination that the
reduction in clearance constituted a hazard to persons riding on mobile
equipment. This argument does not warrant extended discussion. We have
found that the change in clearance was abrupt. The record establishes
that in travelling the entry, a miner was fatally injured at the point
of the clearance change. We find that the record amply supports the
judge's conclusion that the abrupt clearance change posed a hazard to
miners.

1226

Accordingly, we conclude that the judge properly found all elements
required to establish a violation of the notice to provide safeguards
and, consequently, the cited standard.
Penn Allegh also takes issue with the judge's findings that it was
"grossly negligent" and that the violation was extremely serious.
Without engaging, as did the judge, in a quantification of degrees of
negligence, we find that Penn Allegh .failed to exercise that care
required by the circumstances. The conditions which constituted the
violation had existed for some time and were known to Penn Allegh. The
evidence also establishes that the change in clearance was observable by
section foremen who traveled the haulageway on a regular basis. Indeed,
as we have noted, Penn Allegh's own witness stated that everyone knew
about the "squeeze.n Thus, we conclude that the record establishes Penn
Allegh's negligence. 'l:J
Regarding the gravity of the violation, the notice to provide safeguards sought to eliminate the hazard posed to miners riding on mobile
equipment by abrupt changes in clearance. In such a situation, should
an accident occur, the resulting injury clearly could be serious, even
fatal. The record establishes that the probability of such an accident
occurring was heightened by the fact that the haulageway where the
violation occurred was frequently traveled by management personnel and
miners. Therefore, we find that the gravity of the violation was serious,
In light of our conclusions that the violation existed, Penn Allegh
was negligent, and the hazard presented was serious, we find that the
penalty assessed by the judge was appropriate and consistent with the
statutory penalty criteria. Accordin y, the judge's decision is affirmed.

2/
Although two of the Secretary's witnesses testified that they did
not believe the operator was negligent, the judge was not bound by their
opinion. Rather, he was required to draw his own legal conclusion based
upon the evidence of record considered as a whole. In our view, that
evidence establishes the company's negligence.

Distribution
Charles M. Thorp, III, Esq.
Thorp, Reed & Armstrong
2900 Grant Building
Pittsburgh, PA 15219
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W.
Washington, D.C. 20006

1228

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

July 16, 1982

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. HOPE 76-197-P

v.
ITMANN COAL COMPANY

IBMA No. 77-58

DECISION
This case arose under the Federal Coal Mine Health and Safety Act of
1969, 30 U. S.C. § 801 et ~· (1976) (amended 1977) ("the Coal Act"). Y
The administrative law judge concluded that Itmann Coal Company committed
two violations of section 103(e) of the Coal Act and regulations implementing that section (30 C.F.R. §§ 80.10 and .11 (1975)). The judge assessed
a penalty of $7,500 for each violation.
Itmann appealed the judge's decision and argues that in both instances
the judge erred in finding violations. In the alternative, Itmann
argues that proper application of the gravity and negligence penalty
assessment criteria requires penalties "substantially less" than those
assessed by the judge.
We have reviewed the judge's decision and the record in this case
in view of the arguments presented by Itmann on appeal. Based on our
review, we conclude that the judge's findings of two violations of
section 103(e) of the Coal Act ar~ supported by the evidence. To the
extent that the judge made credibility findings to resolve conflicting
testimony, we find no basis for disturbing those findings.
We also find that the judge: correctly ruled upon the questions of
law raised by the operator. In particular, we agree that the acquittal
and dismissal of criminal charges brought against Itmann and several of
its employees do not bar the present civil action. The criminal proceedings involved charges that the defendants conspired "to impede the
due and proper administration of law" by fabricating a story about the
l_/
On March 8, 1978, this case was pending on appeal before the
Department of Interior's Board of Mine Operations Appeals. Accordingly,
it is before the Commission for disposition. 30 U.S.C. § 961 (Supp. IV
1980). The Mine Safety and Health Administration (MSHA) has been substituted for its predecessor agency, the Mining Enforcement and Safety
Administration (MESA).

1229

82-7-10

methane ignition at issue and by giving false testimony during the
investigation thereof, and that Itmann willfully violated mandatory
safety and health standards. The violations of the Coal Act at issue in
the instant civil proceeding concern Itmann's failure to properly notify
the Secretary of an accident and to prevent the destruction of evidence
that would assist in the investigation of the accident. Apart from the
differences in the nature of the allegations at issue in the criminal
and civil proceedings, different standards of proof apply, i.e., proof
beyond a reasonable doubt and proof by a preponderance of the evidence.
Therefore, we agree with the judge that the present civil proceedings
are not barred. United States v. Nat 1 1 Assoc. of Real Estate Bds., 339
U.S. 485, 94 L.Ed 1007, 70 S.Ct. 711 (1950).
We also affirm the judge's conclusion that a civil penalty could be
assessed for the failure to innnediately no
MESA of the ignition. As
the Board of Mine Operations Appeals held:
]he element of innnediacy
is to be construed as an integral part of the notification and preservation of evidence obligation of section 103(e) [of the Coal Act}, 11
U.S. Steel Corp., 8 IBMA 230, 236-37 (1977). Therefore, by
to
comply with 30 C.F.R. § 80.11 (1975), Itmann violated section 103(e) of
the Coal Act and a penalty must be assessed for this violation. 'J:./
Finally, based on our review of the record, and in
of the
circumstances of this case, we conclude that the penalties assessed by
the judge reflect consideration of the statutory penalty criteria, are
appropriate for the violations and should not be disturbed.
Accordingly, the decision of the administrative law judge is
affirmed.

~~J.;.~~

2/

Thus, we need not decide whether
itself, a mandatory safety and health

1230

was, in and of

Distribution
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N. W.
Washington, D.C. 20036
Michael McCord, Esq,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge William Fauver
Fed. Mine Safety & Health Rev. Cormnission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1231

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

July 16, 1982
GERALD D. BOONE
Docket No. WEVA 80-532-D

v.
REBEL COAL COMPANY
ORDER

On June 1, 1982, counsel for Rebel Coal Company filed a petition
for discretionary review and a "Motion to Permit Late Filing of a
Petition for Discretionary Review. 11 We construe the latter to be a
request for relief from a final Commission order. 29 C.F.R. § 2700.l(b)
(Federal Rules of Civil Procedure apply in absence of applicable CoIIIIIlission rule); Fed. R. Civ, P. 60 (Relief from Judgment or Order). Cf,
Marshall v. Monroe & Sons, 615 F.2d 1156 (6th Cir. 1980); J.I. Hass Co.
v. OSHRC 648 F.2d 190 (3d Cir. 1981).
On July 8, 1981, a Commission administrative law judge issued a
decision in which he concluded that Gerald D. Boone was discharged by
Rebel Coal Company in violation of section 105(c)(l) of the Federal Mine
Safety and Health Act of 1977. In that decision the judge ordered the
parties to engage in further proceedings to determine the amount of
specific damages due Boone. 3 FMSHRC 1751 (July 198l)(ALJ). The
Commission dismissed as premature Rebel Coal Company's Petition for
Discretionary Review of the judge's decision. The Commission concluded
that, in view of further proceedings ordered by the judge, his decision
was not a reviewable "final decision 11 within the meaning of the Act and
the Commission's rules. 3 FMSHRC ~900 (August 1981).
On January 11, 1982, the judge issued a decision and order awarding
damages and costs to Boone. 4 FMSHRC 37 (January 1982)(ALJ). No petition for discretionary review
~the judge's decision was filed and
forty days after its issuance it became· a final order of the Commission
by operation of law. 30 U.S.C. § 823(d)(l).
In its request for relief from this final order, the operator
details the procedural history of this case including the fact that
review of the judge's finding of discrimination had been sought, albeit
prematurely. The operator further states that previously-retained
counsel 11were under continuous instruction to appeal any decision
directing [the operator] to reemploy Complainant [miner]," but "[f]or
some unknown reason" prior counsel did not file a petition for review of
the judge's final decision of January 11, 1982.

1232

82-7-12

We have reviewed present counsel's request for permission to file a
petition for discretionary review at this time against the standards set
forth in Fed. R. Civ. P. 60(b)(l). "};./ See 7 Moore's Federal Practice§
60.22[2]; 11 Wright & Miller, Federal Practice and Procedure§ 2858.
Although the claims of previous counsel's omission and the operator's
ignorance of the status of the litigation are not supported by affidavit,
in the particular circumstances of this case, we accept the operator's
representations as being made in good faith. We note that the judge's
final decision was served on previous counsel, but not on the operator
itself, and that the request for relief was filed within a reasonable
time after the operator learned of the present posture of the case.
Further, although counsel for the miner opposes the granting of any
relief at this time, no showing has been made that the claims made by
the operator are untrue. ];_/
Accordingly, in the circumstances of this case, we grant the
operator 1 s request for permission
·1e its late-filed petition for
discretionary review. ]_/

1./

Fed. R. Civ. P. 60(b)(l) provides:
On motion and upon such terms as\ar just, the court may
relieve a party or his legal reprts ntative from a final
judgment, order, or proceeding fol\ he following reasons: (1)
mistake, inadvertence, surprise, o excusable neglect •..•
'±_/ The present situation is not.analogous to that involved in Duval
~· v. Donovan & FMSHRC, 650 F.2d 1051 (9th Cir. 1981).
In Duval the
operator's petition for discretionary review was filed on the thirtyfirst day after the issuance of.~the administrative law judge's decision.
Thus, although the petition for review was untimely filed under the Act
and the Connnission's rules, the judge's decision had not become a final
order of the Commission because 40 days had not passed since its issuance.
30 U.S.C. & 823(d)(l). In a Duval situation, the inquiry is whether good
cause for the untimely filing has been established. Valley Rock & Sand
Corp., WEST 80-3-M (March 29, 1982); McCoy v. Crescent Coal Co., 2
FMSHRC 1202 (June 1980). In the present case, however, the judge's
decision became a final order of the Commission and, therefore, the
request for relief is appropriately addressed under Fed. R. Civ. P.
60(b).
]_/
In this order we have not considered whether to grant the petition
for discretionary review. We only rule that the petition may be filed
at this time so that the Commission may proceed to review the issues
raised and act upon the petition. 30 U.S.C. § 823(d)(2).

1233

Distribution
Larry Harless, Esq.
United Mine Workers of America
1300 Kanawha Blvd., E.
P.O. Box 1313
Charleston, West Virginia 25325
Douglas D. Wilson, Esq.
Gardner, Moss, Brown & Rocovich, P.C.
P.O. Box 13606
Roanoke, Virginia 24035
Michael McCord, Esq.
Office of the Solicitor
U.S.Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Gary Melick
Fed. Mine Safety & Health Rev. Commission
5203
Pike, 10th Floor
Falls Church, Virginia 22041

1234

Administrative Law Judge Decisions

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

Civil Penalty Proceeding

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

Docket No. WEVA 82-110

v.

A. C. No. 46-01369-03038

AMHERST COAL COMPANY,
Respondent

MacGregor Cleaning Plant

ION AND ORDER OF
Counsel for the Secretary of Labor filed on June 24, 1982, in the aboveentitled proceeding a motion for approval of settlement. Under the settlement agreement, respondent has agreed to pay reduced penalties totaling $180
instead of the penalties totaling $1,260 as proposed by the Assessment
Office.
The motion for approval of settlement gives the following reason for
reducing the penalties proposed by the Assessment Office (p. 2):
The underlying citations in this action are based on nine
separate violations of 30 CFR 71.208(a), each of which was
originally assessed a penalty of $140. The cited standard requires that each operator take a valid respirable dust sample
from each designated work position on a bimonthly basis. In
this action, subsequent to the filing of the civil penalty petition, respondent presented evidence showing that it had, in
fact, taken the required respirable dust samples and submitted
them to MSHA within the established timeframe. Copies of the
dust data cards indicating that the samples were taken at each
of the nine designated work positions are attached hereto as
Exhibit A. However, due to the transposition of two numbers in
block No. 10 of each dust data card, respondent was not given
credit for having taken and submitted the sampling results to
MSHA. Under the circumstances, the parties agree that respondent's negligence was significantly less than originally assessed
and that a considerable reduction in penalty is warranted.
Each of the nine citations involved in this proceeding alleges that the
operator violated section 71.208(a) by failing to submit a required respirable
dust sample for a certain occupation in a designated work area for the bimonthly sampling cycle of June-July 1981. Seven of the nine citations designate the area involved as the "001-0" section and two of them designate the
area involved as the "002-0 11 section. The seven citations in the "001-0"
section cite seven different occupational codes and the two citations for

1236

the "002-0" section designate two different occupational codes. Each citation is based on an "Advisory of Non-Compliance" sent out by MSHA's
computer.
Each of the Dust Data Cards furnished by respondent in support of its
claim that it did not violate section 71.208(a) shows that respondent did,
in fact, submit a respirable dust sample for each of the occupational codes
involved for the bimonthly sampling cycle of June-July 1981. The only mistake which respondent made was that respondent wrote in Block No. 10 of the
card the numbers "010-0" for the seven samples submitted for section "001-0"
and wrote the numbers 11 020-0 11 for the two samples submitted for section
"002-0". Naturally, when data for respondent's samples were entered in MSHA's
computer, the computer gave respondent no credit for seven samples submitted
for section 001-0 because respondent's samples had an erroneous designation
of section 010-0. Likewise, MSHA's computer did not give respondent credit
for two samples for section 002-0 because respondent had erroneously designated the samples for section 020-0,
Section 71.208(a) provides as follows:
(a) Each operator shall take one valid respirable dust
sample from each designated work position during each bimonthly
period beginning with the bimonthly period of February 1, 1981,
The bimonthly periods are * * i: June 1-July 31 * * *
The evidence submitted with the motion for approval of settlement shows without question that respondent did "take one valid respirable dust sample from
each designated work position during" the bimonthly period here involved of
June 1 to July 31. Section 71.208(a) does not provide that respondent shall
make no mistakes in filling out his dust data card. The requirements of the
regulations were fulfilled when respondent took the required respirable dust
samples for the designated working positions and submitted them within the
June-July 1981 time period.
Computers perform the functions which they have been programmed to
carry out. When mistakes are made by the human beings who feed facts into
a computer, those mistakes are not corrected by the computer. When an operator proves, however, that he took the samples, but made a clerical error in
submitting them to MSHA, the mistake should be corrected so that the operator
may be given credit for the having taken the samples and having submitted
them within the time period required by section 71.208(a).
In Co-Op Mining Co., 2 FMSHRC 3475 (1980), the Commission reversed an
administrative law judge's decision which had accepted a settlement agreement
in circumstances almost identical to those which exist in this proceeding.
In the Co-Op case, a respondent had submitted a respirable dust sample for an
employee who did work for it but had not submitted a sample for a person who
MSHA mistakenly thought worked for respondent. The Commission said that no
violation of section 70.250(b) had occurred in that case. The Commission

1237

observed that the deterrent effect of paying penalties would not be advanced
by having a penalty paid for a violation which had not occurred. I believe
that the Commission's holding in the Co-Op case is controlling in the factual
circumstances which exist in this proceeding. A respondent should not have
to pay penalties for a clerical error. In Old Ben Coal Co., 2 FMSHRC 1187
(1980), the Commission affirmed a judge's decision in which he had held that
an inspector's clerical mistake of writing section 104(c)(l), instead of section 104(c)(2), on four different unwarrantable-failure orders should not be
considered as a reason for invalidating the orders since the inspector's mistake did not in any way
udice respondent.
The purposes of the respirable-dust standards were not thwarted in any
way by the fact that
inadvertently transposed two numbers when
samples, The provisions of section 71.208(a)
submitting nine
were complied with when respondent took the required samples and submitted
time
Therefore, I find that no violations
them within the
of section 71.208(a) occurred, that the citations should be vacated, and
of settlement should be denied.
that the motion for
WHEREFORE, it is ordered:
(A) Citation Nos. 9915322 through 9915330 dated August 13, 1981, were
issued in error and are
vacated.
(B) The Petition for Assessment of Civil Penalty filed January 7, 1982,
in Docket No. WEVA 82-110 is dismissed.
(C) The motion for approval of settlement filed on June 24, 1982, in
Docket No. WEVA 82-110 is denied.
(D) The
now scheduled to be held on August 3, 1982, in this
proceeding is canceled.

~<:.~~

Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
Janine C. Gismondi, Attorney, Office of the Solicitor, U. S.
ment of Labor, Room 14480-Gateway Bldg., 3535 Market St., Philadelphia,
PA 19104 (Certified Mail)
Richard W. Clonch, Esq., Associate General Counsel, Amherst Coal
Company, Port Amherst, Charleston, WV 25306 (Certified Mail)

1238

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

WALTER A. SCHULTE,
Complainant

jUL 6 \982

Complaint of Discharge,
Discrimination, or Interference

Vo

Docket Noc YORK 81-53-DM
LIZZA INDUSTRIES, INC.,
Respondent
DECISION
Appearances:

G. Martin Meyers, Esq., Denville, New Jersey, for Complainant;
Frederick Do Braid, Esq., Mineola, New York, for Respondent

Before~

Judge Melick

This case is before me upon the complaint of Walter A. Schulte, under
section 105(c)(3) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 ~ ~·, the "Act," alleging that Lizza Industries, Inc.,
(Lizza) discharged him on October 15, 1980, in violation of section 105(c)(l)
of the Act. 1/ Evidentiary hearings were held on Mr. Schulte's complaint
in Morristown, New Jersey, on October 13, 1981, and March 29, 1982, and, in a
telephone conference call, on April 16, 1982.
Mr. Schulte can establish a prima facie violation of section 105(c)(l)
of the Act if he proves by a p~eponderance of the evidence that he has
engaged in an activity protected by that section and that the discharge of
him was motivated in any part by that protected activity. Secretary ex rel
David Pasula v. Consolidation ~oal Company, 2 FMSHRC 276 (1980), rev'd. on
other grounds, Consolidation Coal Company v. Secretary, 663 F.2d 1211
(3rd Cir. 1981). Before his discharge on October 15, 1980, Schulte had been
1/

Section 105(c)(l) of the Act provides in part as follows:
"No person shall discharge * * * or cause to be discharged * * * or
otherwise interfere with the exercise of the statutory rights-of any miner
* * * in any coal or other mine subject to this Act because such miner * * *
has filed or made a complaint under or related to this Act, including a
complaint notifying the operator or the operator's agent, or the representative of the miners at the coal or other mine of an alleged danger or safety
or health violation in a coal or other mine * * * or because such miner * * *
has instituted or caused to be instituted any proceeding under or related to
this Act * * * or because of the exercise by such miner * * * on behalf of
himself or others of any statutory right afforded by this Act. 11

1239

employed at Lizza's Mount Hope Quarry as a bulldozer operator ~nd laborer.
He asserts three separate claims of protected activity. First, he alleges
that two weeks before his discharge he made safety complaints to foreman
Jesse Parzero concerning unguarded belts, inadequate 11 stop devices" on moving
machinery, explosive and flammable material stored near electric receptable
boxes, unsafe catwalks and obstructed fire fighting equipment. Second, he
asserts that around the same time he had complained to some unidentified
person or persons that he had not received training needed to safely perform an assigrunent to stem explosives. Third, he alleges that he reported
some of the above safety complaints to an official of the Federal Occupational Safety and Health Administration (OSHA) on October 6, 1980, and later
that same day to Bernard Quinn, an employee of the Federal Mine Safety and
Health Administration (MSHA)o
While the credible evidence of record does not support Schulte 1 s first
two claims of protected activity and indeed he appears to have abandoned
those claims in his posthearing memorandum, there is no dispute that Schulte
did in fact report safety complaints to MSHA on October 6~ 19800 2
These
latter complaints are clearly protected activities under section
5(c)(l)o
Supra note 1, P• 1. Accordingly, following the Fasula analysis, the next
step is to determine whether the operator, in discharging Schulte, was motivated in any part by those protected activitieso
Direct evidence of motivation in section 105(c) discrimination cases
is rare. Secretary ex rel Chacon Vo Phelps Dodge Corporation~ 3 FMSHRC 2508
(1981). In this regard, in the Phelps Dodge case the Commission quoted
with approval from the circuit court decision in NLRB v. Melrose Processing Co •• 351 F.2d 693 (8th Cir. 1965):
It would indeed be the unusual case in which the
link between the discharge and the [protected] activity
could be supplied exclus1vely by direct evidence. Intent
is subjective and in many cases the discrimination can
be proven only by the use of circumstantial evidence.
Furthermore, in analyzing the evidence, circumstantial
or direct, the (NLRB] is free to draw any reasonable
inferences.
In this case, the evidence is undisputed that Mr. Schulte reported his
safety complaints to MSHA on October 6, 1980, and that two MSHA inspector's

'!:_/ The first allegation of safety complaints is denied by Parzero. In addition, presumably available witnesses who it is claimed would have corroborated
Schulte's allegations in this regard were not called by Schulte to testify.
Under the circumstances, it may be inferred that those witnesses would not in
fact have corroborated Schulte. It is not at all clear, moreover, whether
the second complaint was made to any management personnel. In addition,
the credible evidence shows that Schulte was in fact trained in stemming
explosives.

1240

appeared at the Mount Hope Quarry on October 14, and 15, 1980, to conduct
their inspection. On the first day of their inspection, they cited the
operator for inadequate guarding of a conveyor. Mr. Schulte was discharged
on the second day of the inspection by plant manager Fred Oldenburg. The
decision was apparently made at a meeting that day in which Oldenburg, foreman Jesse Parzero, company official Jim Greniti, and shop steward Vincent
"Vinnie" Crawn were present. Both Oldenburg and Parzero admitted that at the
time of Schulte 1 s discharge, they knew of "rumors" that Schulte had initiated
the MSHA inspection.
Oldenburg also testified that "Jimmy [Greniti] may have brought up the
fact [at this meeting] that this [Schulte 1 s discharge] [had] absolutely nothing to do with the MSHA inspectionon This gratuitous statement, while facially a denial that Schulte's complaints to MSHA had anything to do with his
discharge, suggests in the overall context of the circumstances a guilty
awareness that indeed the contrary was trueo The remark is suggestive, moreover, of the existence of a conspiratorial agreement that in the event
Schulte's discharge should be challenged the response of the conspirators
would be that his discharge had "absolutely nothing to do with the MSHA
inspection. 11
The evidence that the Lizza officials had some knowledge, albeit "rumors", that Schulte had called in the MSHA inspectors, the coincidence in
time between the MSHA inspection and Schulte 1 s discharge and the peculiar
gratuitous denial that Schulte's discharge was the result.of the MSHA inspection are relevant circumstantial factor~ in determining motivation. ]_/ From
this circumstantial evidence, it could very well be inferred that Mr. Schulte 1 s discharge was at least partially motivated by his protected activities.
Even assuming, however, that Schulte had therefore established a prima
facie case under Pasula, that 'would not be the end of the matter. The Commission also stated in Pasula that the employer may affirmatively defend
against such a case by proving by a preponderance of all the evidence that~
although part of its motivation was unlawful, (1) it was also motivated by
the miners' unprotected activities, and (2) that it would have taken adverse
action against the miner in any event for the unprotected activities alone.
2 FMSHRC at 2799-2800.
3/ On the subject of motivation, Schulte had also alleged that immediately
after he was notified of his discharge, Parzero told him, in the presence
of co-worker Robert Boisvert, "this is what you get~ Mister, for bringing
in MSHA". However, both Parzero and Boisvert denied that any such statement
was made. Under the circumstances, I give no credence to Schulte's testimony in this regard. Schulte further alleged that shop steward "Vinnie"
Crawn also said to him "you sttrred up a hornet's nest -- it's a new company
they didn't need the trouble, that's why they routed you"o In the absence
of any corroboration from Mr. Crawn himself, I can give but little weight
to this hearsay evidence. Finally, Schulte also claimed that one of the MSHA
inspectors, Robert Held, warned him that Lizza had singled him out for complaining to MSHA. Since Inspector Held flatly denied making any such statement, I am likewise able to accord but little weight to this allegation.

1241

Within this framework, Lizza alternatively defends by claiming that
Schulte was fired for his attendance problems and that he would have been
fired in any event for that unprotected reason alone. In support of this
defense, Lizza produced Schulte's time cards dating from June 30, 1980, and
warning letters evidencing progressive disciplinary action against Schulte
because of attendance problems preceding his discharge. The Commission has
stated that in analyzing this evidence, the function of the Administrative
Law Judge is only to determine whether the asserted business justifications
are credible and, if so, whether they would have motivated the particular
operator as claimed. Frederick G. Bradley v. Belva Coal Company, 4 FMSHRC
(Decided June 4, 1982).
Plant Manager Fred Oldenburg, testified that Schulte was discharged because
of his repeated and unexcused tardiness, early departures, and failure to
show up for work. Referring to Mr. Schulte 1 s time cards (Operator's Exhibit
No. 4) Oldenburg observed that Shulte's problem began on September 14, 1980,
when he "punched out" early. Presumably Mr. Oldenburg was referring to the
time card for the pay period ending September 14, 1980, which reflects that
on September 10, 1980, Mr. Schulte punched the time clock shortly after 2
p.m., giving him only 6-1/2 hours in a regular 8-1/2 hour work day. Oldenburg told foreman Parzero to talk to Schulte about this early departure.
Oldenburg testified that he also had the letter dated September 23, 1980
(Operator's Exhibit No. 3) prepared and that he personally delivered it to
Schulte on September 23, or September 24, 1980. According to Oldenburg,
Schulte signed the letter in his presence and returned it .. without protesL
The body of the letter reads as follows~
Your attendance practices leave much to be desired.
These practices cannot be tolerated. I am, therefore,
formally informing you tqat if these practices continue,
you will be suspended and subsequently terminated. If
you have any questions, please let me know.
Schulte acknowledged receiving that letter by his signature in pencil and
by doing so, also acknowledged the following statement: 11 1 hereby understand
that if my poor attendance practices continue, I will be suspended for 3 days
and terminated thereafter if the practices continue."
Schulte's attendance problems continued, according to Oldenburg, and
led to the issuance of another disciplinary letter and to his later discharge.
Oldenburg observed that Schulte was 6 to 10 minutes late for work on September 23, and on September 24, 1980, that he left work 1-1/2 hours early on
September 30, 1980, and that he did not show up for work or call in
on October 2, 1980. The corresponding time cards (Operator's Exhibit
No. 4) support this testimony. Although Schulte claims that he called
in concerning his absence on October 2, it is clear that none of these
incidents was excused by the operator. Oldenburg told Schulte on
Saturday, October 4, that he was being suspended for 3 days, and that he
was not to report to work on the following Monday, Tuesday, and Wednesday.
Oldenburg followed up with a letter to Schulte dated October 6, 1980,

1242

(Operator's Exhibit No. 2) which he personally delivered to Schulte upon
Schulte's return from the 3-day suspension. The letter reads as follows:
Your attendance practices and work attitude leave much
to be desired. You have been warned about these practices,
yet you continue to be insubordinate. You are therefore
suspended without pay for 3 days. If your performance
does not improve, your employment will be terminated. If
you have any questions, please let me know.
Schulte admits receiving and signing the acknowledgement on this letter,
presumably on Thursday, October 9, 1980. In signing the letter, Mr. Schulte
acknowledged the following statement: "I hereby understand that if my poor
attendance practices and work attitude continue, I will subsequently be
terminated. 11 Schulte reportedly stated upon his receiving the letter, "Ivm
not going to give you any trouble. 1v11 sign it."!!__/
According to Oldenburg, even after the warning letters and suspension,
Schulte continued to show up late and to leave early. Schulte left work
one-half hour early on October 10, 1980, left early on October 14, 1980,
and showed up 6 minutes late on October 14, 1980. Schulte's time cards
corroborate this testimony and indeed, Schulte himself admits that he left
early without an excuse on October 10 and 14. Moreover, although Schulte
alleges that he called in on October 2nd, he presented no affirmative evidence that any of his absences were excµsed.
Schulte was thereafter discharged on October 15, 1980. The discharge
letter (Operator's Exhibit No. 1) of the same date reads as follows:
You had been warned'several times and subsequently suspended without pay as a result of poor attendance practices
and insubordination. At a meeting held on Wednesday,
October 15, 1980, you stated that your attitude had not
improved and would not improve as a result of your no longer
operating the bulldozer out at out Mount Hope plant.
You were reminded on several occasions, and specifically
on Thursday, October 9, 1980, by your foreman, Jesse Parzero,
that your job required over time each day. You have opted to
neglect these instructions and have left your work area prior
to the designated quiting time.

!!_/

Schulte claims that he was handed the disciplinary letters dated September 23, 1980, and October 6, 1980, at the same time, presumably on October 9th,
and signed those letters, one right after the other, using the same pen. The
original letters were subsequently admitted into evidence (Operator's Exhibits 2 and 3) and clearly show that Mr. Schulte signed one in pencil and
one in pen. Under the circumstances, I give no weight to Schulte's allegations in this regard.

1243

Our prior verbal warnings, written warning, and disciplinary suspension have obviously failed to rehabilitate you.
You have therefore left us no choice but to terminate your
employment, effective today, October 15, 1980, at 1:30 p.m.
The uncontradicted evidence of Schulte's poor work attendance clearly
supports the operator's alleged business justification for Schulte 1 s discharge. Schulte contends, however, that his discharge was nevertheless
discriminatory because other employees had equally poor attendance records
but were not similarly disciplined. This contention, if true, could very
well affect the credibility of the operator 1 s alleged business justificationo
Belva Coal, supra. In particular, Schulte claims that co-workers Harley,
Bell, and Brock had attendance records as poor as his own but were not
similarly discharged. The time cards for those employees are in evidence,
however, and Schulte has not shown how those records support his argument.
Moreover, from my own independent appraisal of those records, I do not find
that they support Schulte's contention in this regard.
In conclusion, I find that while Lizza may very well have had a 11 mixed
motivation" for.discharging Schulte, it had credible nbusiness justification
to discharge Schulte exclusive of any protected activities and it
clearly would have discharged Schulte in any event for his unprotected activities alone. Pasula supra., Belva Coal, supra. Accordingly, the complaint
of unlawful
is denied and this case is dismisse •

G
Assist

Distribution:

-'ck
Chief

Denv~

Professional Plaza,
G. Martin Meyers, Esq., Suite 106,
35 West Main Street, Denville, NJ 07834 (Certified Hail)

Frederick D. Braid, Esq., Raines and Pogrebin, P.C., 210 Old Country
Road, Mineola, NY 11501 (Certified Mail)

124·1

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 71982

Civil Penalty Proceeding

SECRETARY OF LABOR,
Petitioner

Docket No. SE 79-46-PM
AC No. 01-00040-05006-F

v.

Montevallo Quarry & Mill

ALLIED PRODUCTS COMPANY,
Respondent

ORDER ON REMAND
In Allied Products Co. v. Federal Mine Safety and Health Review Commission,
No. 80-7935, 5th Cir. Unit B (February 1, 1982), rehearing den. March 9, 1982,
the Court affirmed a final order of the Commission in this case, finding that
Allied Products violated three mandatory safety standards. 2 FMSHRC 2517 (ALJ,
Sept. 1980). The Court found, however, that the penalties assessed were an
abuse of discretion and remanded for further proceedings "with instructions to
recalculate the penalties based on the existing record and on considerations
outlined in this opinion. 11 The Courtvs mandate was received by the C)mrnission
on April 9, 1982.
The Commission remanded the case to me on May 5, 1982, for "the initial
determination of the necessary and appropriate action in light of the Court's
decision and remand."
On June 26, 1982, the parties filed a Settlement Agreement proposing total
penalties of $5,000 for the three violations found in my original decision. I
find this Settlement to be consistent with the Court's decision and remand.
WHEREFORE IT IS ORDERED that:
1.

The proposed Settlement Agreement is APPROVED.

2. The penalties issued in my decision of September 14, 1980 are hereby
changed to read as follows: A penalty of $2,000.00 for Citation No. 81004,a
penalty of $1,000.00 for Citation No. 81007, and a penalty of $2,000.00 for
Citation/Order No. 81053.
3. Respondent shall pay the Secretary of Labor the above penalties, in the
total amount of $5,000.00,within 30 days of this Order.

(.J~
'"itWM VV>../
WILLIAM.· FAUVER, JUGE
Distribution Certified Mail:
Terry Price, Esq., Office of the Solicitor, US Department of Labor, 1929 Ninth
Ave •• South, Birmingham, AL 35205
Gilbert E. Johnson, Esq., 1212 Bank for Savings Building, Birmingham, AL 35203

1245·

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

EASTERN ASSOCIATED COAL CORP.,
Contestant

·.·_Contest of Notice
Docket No. PITT 76X203
Notice No. 1 CPB; 6/24/76

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

Delmont Mine

ORDER OF DISMISSAL
On May 3, 1982, the Commission reversed my decision of April 14, 1977,
vacating the citation issued in this case. At the same time, the Commission
remanded the case to me "for further proceedings consistent with this
decision. 11
On May 24, 1982, I directed the parties to advise me as to whether
they desired to be heard further on the remand.
On June 29, 1982, respondent MSHA advised me that the violation of
June 24, 1976, has been vacated and that a civil penalty was never assessed
against the operator. In addition, MSHA advises that Eastern Associated
Coal Corporation no longer owns the mine in question, and considering
the lengthy time interval si~ce the issuance of the citation, MSHA has
decided that no further enforcement action will be initiated.
On July 1, 1982, Eastern Associated Coal Corporation advised
me that it desires no further opportunity to be heard in this matter,
that it does not believe that there is a necessity of further briefing,
and that it would appear that there are no remaining issues to be decided.
In view of the foregoing, this matter is now DISMISSED.

Distribution:
R. Henry Moore, Esq., Rose, Schmidt, Dixon & Hasley, 900 Oliver Bldg.,
Pittsburgh, PA 15222 (Certified Mail)
Leo McGinn, Michael McCord,
., U.S. Dept. of Labor, Office of the
Solid.tor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)

Ma.tce~~d~~~aAait}q., UMWA, 900 15th St., NW, Washington, DC 20005

12.46

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

JUL

Complaint of Discrimination

FRED GANCHUK,
LESKO BUGAY,
Complainants

Docket No. PENN 81-164-D

v.

Docket No, PENN 81-165-D

ALOE COAL COMPANY,
Respondent
DECISION
Appearances:

Ronald J. Zera, Esquire, Belle Vernon, Pennsylvania, for
the complainants; Robert A. Kelly, Esquire, Pittsburgh,
Pennsylvania, for the respondent,

Before:

Judge Koutras
Statement of the Proceedings

On February 19, 1981, the complainants filed discrimination
complaints with the Secretary of Labor (MSHA),
t --the respondent
pursuant to section lOS(a) of the Fed~ral Mine Safety and Health Act
of 1977, claiming that the respondent had discriminated against them
by issuing two letters concerning an accident which had occurred on mine
property. Both complainants were involved in the accident, and the
letters advised them that should such an accident be repeated, the
respondent company would take "necessary disciplinary steps appropriate
with the accident" against them. Subsequently, on lfay 8, 1981, MSHA
advised the complainants that upon completion of an investigation concerning
their complaints
MSHA determined that violations of section 105(c)
had not occurred. Complainants were advised that if they
with MSHA's disposition of their complaints, they were free to file
complaints on their own behalf with this Commission. Complainants
subsequently filed their complaints ~ se with the Commission on June 3, 1981,
and subsequently retained counsel to represent them.
The letters which prompted the complaints of discrimination are
dated January 2, 1981, are addressed to the complainants at their
residences, and are signed by respondent's Safety Director, P. R. Belculfine.
The content of both letters are identical, and they state as follows
(Exhibit R-2):

1247

This letter is being written in reference to the
incident on January 2, at noon, whereby the 275-B
Hi-Lift backed into the right front side of Company
Jeep #20 at the raw coal feed area of the Coal Washer.
Due to the rash of such accidents happening in the
last two months, we reposted a Notice in reference
to Company Safety Rules and Policy regarding moving
equipment in work areas. Fortunately no one has been
injured by these accidents, but the near misses and
expensive repair bills due to these accidents warrant
us to put you on notice,
Equipment operators should have their equipment in
control at all times and personnel vehicles should
far enough away that they will not be backed into by
heavy equipment.
Should such a similar accident happen again, the Company
will have to take the necessary disciplinary steps
appropriate with the accident,
By agreement of the parties, these cases were consolidated for trial
in Pittsburgh, Pennsylvania,
7, 1982, and the
appeared
and participated fully therein, Pos
briefs were filed, and the
arguments presented have been fully considered by me in the course of
these decisions.
Issues
The principal issue presented in these proceedings is whether or
not the respondent has disc~iminated against the complainants and whether
the letters which they received as a result of the accident in question were
in fact prompted by any protected mine health and safety activities.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 301

et~

2. Sections 105(c)(l), (2) and (3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3).
3.

Commission Rules, 30 CFR 2700.1 ~~

Testimony and evidence adduced by the complainants.
Lesko Bugay testified that he has been employed by the respondent
for 38 years, is a member of the mine safety committee, and also serves
as President of Local Union 9636. On January 2, 1981, he was performing

1248

his duties as a "hi-lift" operator at the coal stock pile located on a
hill above the mine office. In accordance with the usual procedure, he
had been relieved for lunch by Mr. Fred Ganchuk, and he drove a company
jeep to lunch. Upon his return, he parked the jeep in the usual spot.
As he alighted from the vehicle and looked back, Mr. Ganchuk backed
the hi-lift up and struck the jeep. After a few words between them,
Mr. Ganchuk went to the mine office and reported the accident. The
next day, Mr. Pat Belculf:ine gave him a letter concerning the incident
and informed him that "it didn 1 t mean
However, upon reading
the letter Mr. Bugay concluded that the last paragraph of the letter
him on probation for being involved in the accident and he asked
Mr. Belcu:Jfine to withdraw the letter. When he refused, Mr. Bugay filed
a 11 regular grievance", and another
grievance" was also sub
filed (Tr. 10-14).
Mr. Bugay stated that he parked the jeep in
ques
where :1r. Ganchuk had parked it when he came
to relieve him for lunch. He also indicated that he parked it next to
the fuel tanks near the coal pile, but no
vehicles were
there and he does not park his personal vehicle there either. Mr. Bugay
described the coal loading process with the hi-lift and confirmed that
he was aware of company policy and the pos
of a notice on December 15, 1980,
vehicles.
Mr. Bugay testified that the vision to the rear of the hi-lift is
bad because of the different equipment obstacles and he assumed that
Mr. Ganchuk had observed him when he parked the jeep. He also indicated
that Mr. Ganchuk did not waive to him, and he confirmed.that he was aware
of the fact that prior accidents had ·Occurred and that from his experience
around heavy equipment, extra precautions were called for (Tr. 14-18).
He also confirmed that during the grievance complaint which he filed,
his position was that an oral reprimand, rather than a written letter,
would have been appropriate in his case and he wanted the letter retracted,
the last paragraph (Tr. 19). He also indicated that others
who have been involved in similar accidents never received any letters,
and while the company did give him an opportunity to make restitution
for the damage to the vehicles, he declined to pay because he did not
believe it was "the right way" (Tr. 21).
In response to bench questions, Mr. Bugay stated that the procedure
of parking the jeep and being relieved by Mr. Ganchuk for lunch had
been followed by both of them over a period of a year prior to the accident.
The fender of the company jeep was damaged, but he could not estimate the
cost of repairs, and he confirmed that a "hi-lift" is in fact a front-end
loader (Tr. 24). It had a back-up alarm, but he could not recall whether
it was operational and he confirmed that the loader backed into the jeep
while the jeep was parked, and that he was s
approximately 15 feet
away at the time of impact. He did not have to
out of the way of
the loader in trying to get Mr. Ganchuk's attention, and he assumed that
Mr. Ganchuk had seen him and that is why he parked the jeep where he did
(Tr. 24-25).

1249

Mr. Bugay stated that the letter jeopardized his job because it
places him in an "evaluation program", that "the next step could be
my job", and that this was true even if the last paragraph of the letter
were to be deleted. He believed that an oral reprimand would have been
more appropriate because it makes a person be more alert "by someone
telling you that they're not happy with it" (Tr. 26-27).
Fred Ganchuk testified that he was operating the front-end loader
which collided with the jeep in question on January 2, 1981. He confirmed
that he had relieved Mr. Bugay for lunch and that he did not see Mr. Bugay
when he parked the jeep because "he pulled into my blind spot". The jeep
was able to move after he hit it, and he reported the accident (Tr. 27-29).
On cross-examination, Mr. Ganchuk described the loader in question
as a "six or seven
bucket", and generally described its dimensions.
He conceded that the accident was serious and could have resulted in a
fatality. He also confirmed that he was aware of the posted company po
concerning vehicles, and he explained the accident as follows (Tr. 30-31):

Q.

And yet, Mr. Bugay went ahead and parked within
your working radius and within your blind spot
as you say?

A.

Well, this is where we always stop at, because,
we watch for each other coming in there. It just
happened to be he got in when I wasn 1 t looking
back. Got into the blind spot and I didn't see

him.

Q.

Now, before you pull in there don't you gain
the attention of the operator?

A.

We do now. At that time we didn't. I watched
to make sure that he was looking back and see me
and I pulled in there and stopped.

Q.

So before this you would always try to gain his
attention before you entered his work area?

A.

I always watched to make sure he was looking
back to see me. He would always give me some kind
of a signal that he had seen me in some sort or
other, he'd wave his hand or something.

Q.

Did you give any signal on this day that you had
seen Mr. Bugay come back from lunch?

A.

No, sir.

Q.

In fact, you say, he must have been within your
blind spot?

A.

Yes, sir.

1250

Mr. Ganchuk stated that had he seen Mr. Bugay the accident would have
been avoidable, and had he waited until he acknowledged his presence
the accident would not have happened. He confirmed that the company
gave him an opportunity to make restitution for the damaged vehicles
but that he declined to do so (Tr. 33).
In response to bench questions, Mr. Ganchuk confirmed that the reason
the jeep was brought in close proximity to the end loader he was operating
was for the convenience of he and Mr. Bugay, and that this "was a routine
thing" (Tr. 35). He also indicated that there is no written procedure
as to where the jeep is parked when he relieves Mr. Bugay, and it is
"a matter of habit" (Tr. 35). He believed the letter discriminated
against him because "the next time that anything happens I lose my job"
(Tr. 36), He believes the letter could be used against him as the first
step in any future disciplinary action against him, and he confirmed that
he also filed a grievance over the incident (Tr. 36).
On further cross, Mr. Ganchuk conceded that the accident merited
an oral reprimand from his supervisor, but since it was his first offense
of this kind, he believes that the letter was not appropriate (Tr. 40).
BelcuJ.fine respondent's safety engineer and safety director,
was called as an adverse witness and confirmed that he issued the letters
in question to Mr. Bugay and to Mr. Ganchuk. The letters were issued
to make them aware of company policy dealing with working around equipment and they are still in their personnel files and wi~l remain there
until the instant case is decided. He stated that the accident in question
was a serious one and could have resulted in serious injury or death.
He explained the last paragraph of the letter and indicated that any
future accidents would have to be considered on the merits (Tr. 41-44).
Mr. Belculfine identified a copy of a company Notice dated February 13, 1981,
dealing with the operation of heavy equipment and a system for operators
acknowledging each other. The notice was issued after the letters in
question were served on the complainants, and it was part of the settlement
of the Union safety grievance (Tr. 44, exhibit R-4).
Mr. Belculfine confirmed that other accidents had occurred at the
site of the accident involving Mr. Bugay and Mr. Ganchuk, as well as
other accidents involving equipment operators. However, he denied that
those involved in those accidents did not even receive a verbal warning
(Tr. 45). In response to questions concerning prior accidents involving
a Mr. Wolfe and a Mr. Chumpko, Mr. Belculfine acknowledged th3;t they
received no letters from the company concerning the incidents (Tr. 46).
Mr. Belculfine conceded that the Union had made complaints about the coal
pile in questior., but insisted that they dealth with "different matters"
(Tr. 46).
With regard to the incident involving Mr. Wolfe, Mr. Belculfine
stated that while Mr. Wolfe backed into a coal truck, the truck driver
was at fault and Mr. Wolfe was not required to make restitution because
it was his own truck (Tr. 46). As for Mr. Chumpko, he was verbally reprimanded,
and it was one of the determining factors leading to his discharge (Tr. 47).

1251

Mr. Belcu1.fine confirmed that he spoke with Mr. Bugay about the accident,
but could not recall whether he discussed it with Mr. Ganchuk, He denied
that he issued the letter to Mr. Bugay because he was on the safety
committee and the president of the local (Tr. 48). He also indicated
that in considering other accidents which had occurred prior to the
incident in question, each incident is taken on its own merits, and in
certain instances, reprimands were given (Tr. 48). In response to
questions concerning these past accidents, Mr. Belcu1.fine testified as
follows (Tr. 50-53):
THE WITNESS: Okay, On December 12th, there
was a hi-lift that backed over the supply truck and
demolished the supply truck. The person involved in
that accident didn't come back to work. There was a
letter drafted to be
to this person. This
person did not come back to work and this person
voluntarily quit.
The other accident that I think he is ref erring
to at that time, is the Wolfe accident where the hilift backed into the coal truck.
JUDGE KOUTRAS: Okay. And is that the case,
in which you stated that the truck, that the trucker
owned the truck?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Yes.
He was at fault?
Yes, the trucker was at fault.

JUDGE KOUTRAS: Who would have been a recipient
of a letter, in that case, the other individual?
I take it that since you made a determination
that the trucker was at fault, that he was the only
one that would have been reprimanded. And was he an
independent contractor, owned his own truck?
THE WITNESS:
JUDGE KOUTRAS·:
THE WITNESS:
JUDGE KOUTRAS:
send him a letter?
THE WITNESS:

Independent, yes.
Not a company employee?
No.
Does that explain why you didn't
Yes.

1252

JUDGE KOUTRAS:

All right, Mr. Zera.

BY MR. ZERA:

Q.

The hi-lift operator who backed into the supply
truck, was that your employee?

A.

Yes.

Q.

He didn't receive a letter, did he?

A.

No he didn't.

JUDGE KOUTRAS: But, Mr. Zera, I think he explained.
Is that the gentleman that --- just a minute,
Am I to understand that the hi-lift operator is the fellow
that never came back to work?
THE WITNESS: No. The supply truck driver, the union
employee who was driving the supply truck, behind the hi-lift.
JUDGE KOUTRAS:
THE WITNESS:

Didn 1 t return to work?
No.

JUDGE KOUTRAS: Why didn't the hi-lift operator get a
letter? That's what he's asking you.
THE WITNESS:
BY MR. ZERA:

Q.

Because, it was not his fault.

.

Well, who's fault was the accident between Mr. Bugay and
Mr. Ganchuk?
A.

Both.

Q.

What was the incident involving Mr. Chumpko?

A.
Foreman on the midnight turn approached Mr. Chumpko, it
was foggy and bad visibility and he approached the hi-lift and
the hi-lift operator didn't see him.

Q.

What happened?

A.

His wheel hit the pick up truck.

Q.

Who's wheel?

A.
The foreman's truck.
vehicle.

1253

The hi-lift wheel hit the foreman's

Q.

Who was driving the hi-lift?

A.

Danny Chumpko.

Q.

And he hit the foreman's truck?

A.

Yes.

The hi-lift operator.

Q.

And Danny Chumpko, the hi-lift operator, hit the
foreman's truck did not receive a disciplinary letter?

A.

No.

Q.

And that's very similar to the accident between Mr. Bugay
and Mr. Ganchuk, is it not?

A.

No.

That is different.

On cross-examination, Mr.Belculfine identified a copy of a letter that
he had personally drafted in December 1980, for the mine superintendent
proposing to suspend an employee for five
for violating company policy
and safety rules in connection with an accident involving a company supply
truck. The employee subsequently quit his job voluntarily, and Mr. Belculfine
identified a copy of company
records
this fact
(Tr. 53-59; exhibits R-6 and R-7), He also indicated that after he spoke
with Mr. Bugay about the accident on January 2, 1981, he discussed the
matter with Mark and David Aloe in the mine office and they instructed
him to write the two letters in quest·ion because of the seriousness
of the accident (Tr. 61).
In response to bench questions, Mr. Belculfine stated that he considered
Mr. Bugay to be a very good worker and commented that I wish I had two
more dozen men like him". He stated that the damage to the jeep was
approximately $650 and that the loader sustained no damage. He indicated
that there is no company policy concerning an employee making restitution
for damaging company property, but conceded that had Mr. Bugay and Mr. Ganchuk
made restitution the instant case would have been settled, (Tr. 63-64). In
further explanation, respondent's counsel stated that had restitution been
made, the letters would have been retracted and the matter resolved (Tr. 66-67).
Testimony and evidence adduced by the respondent
Mark Aloe, President, Aloe Coal Company, testified that he has known
Mr. Bugay for all of his life, and that Mr. Ganchuk has worked for the
company approximately seven years. He confirmed that he instructed Mr. Belculfine
to send the letters in question after he informed him about the accident
in question. He explained that he did so because of a rash of the same
kind of accidents, which were potentially serious in that someone could
have been injured or killed, and because of the potential loss of company
property. He considered both Mr. Bugay and Mr. Ganchuk to be good
and confirmed that this was the first such incident in which they were
involved (Tr. 93-95).

1254

On cross-examination, Mr. Aloe stated that he was not involved in
the question of restitution and that his brother David, a company vicepresident, made that decision. He confirmed that he employs approximately
63 miners, but that he normally does not attend grievance meetings, but
on occasion attends monthly union and management communications meetings.
He never attended any meetings in which the safety of the coal pile was
discussed (Tr. 95-97).
Responding to the complainants' assertions that none of the individuals
involved in the prior accidents received any reprimand letters, Mr. Aloe
stated that each accident is taken on its own basis, and that mine management
attempts to determine who was at fault. Conceding that a foreman was
fired some months after his involvement in an accident, Mr. Aloe stated
that the accident was approximately 85% of the reason why he was fired
(Tr. 98). With regard to the so-called "rash of accidentsn mentioned
in the letters sent to Mr. Ganchuk and Mr. Bugay, Mr. Aloe confirmed that
they refer to the prior accidents testified to in this proceeding
. 99)c
Complainants 1 arguments
In their post-hearing arguments, complainants assert that the
"disciplinary letter 11 they received violates the Act in that they were
discriminated against for engaging in protected
In support of
this conclusion, complainants maintain that the testimony at the hearing
reflects that the Union, by and through its president and spokesman
Lesko Bugay, made frequent complaints about the safety of the coal pile
area, and that the respondent was aware of the employees concern about
this area and that Mr. Bugay was the spokesman for these concerns. Since
Mr. Bugay is president of the local, ·as well as a safety committeeman,
complainants suggest that he was singled out for discipline so as "to
stem the constant complaints and concerns of the membership". No such
argument is advanced on behalf of Mr. Ganchuk.
Aside from Mr. Bugay's service as a union officer and member of the
safety committee, complainants argue that prior accidents had occurred
at the coal pile area in question, but that no one involved in those
accidents received letters of the type given to the complainants. Citing
an incident involving a Mr. Wolfe, complainants state that he was involved
in a serious incident where a hi-lift backed into a truck, but received
no disciplinary letter. Citing a second incident involving a Mr. Danny
Chumpko, where another hi-lift operator again hit a foreman 1 s truck,
complainants assert that again, the hi-lift operator never received a
disciplinary letter or warning. Although respondent maintained that the
foreman was discharged as a result of this incident, since the discharge
occurred four months after the incident, complainants argue that it is
incredible to believe that the discharge was motivated by the accident
in question.
With regard to the respondent's posting of the December 15, 1980,
"Notice", complainants maintain that this notice does not justify the
letters issued to the complainants, and that the notice does not cover

1255

the circumstances of the Bugay-Ganchuk accident. Since a new "Noticen
was reposted with·new instructions after the January 2, 1981, accident,
complainants conclude that the respondent recognized the fact that the
prior notice did not cover the incident in question, and that had the
complainants violated the December 15 notice, respondent would not
have found it necessary to post a new and different notice.
Complainants assert that the facts of this case lead to the
conclusion that Mr. Bugay and Mr. Ganchuk were treated disparately
or differently than other employees who happened to be in similar or
identical accidents, and that the only one factor that separates them
from all of the other individuals involved in accidents at the coal
pile is the fact that Mr. Bugay is an officer of the union and a safety
conunitteeman, and that the respondent sought to stem the complaints
concerning the inherent dangers in that area.
Complainants believe that it is obvious that if all other employees
involved in like or similar accidents at the coal pile received warning
letters, there would be nothing to distinguish Mr. Bugay and Mr. Ganchuk
from the normal practice of the respondent. However, on the facts of this
case, complainants maintain that this is not so and that the complainants
cases are a
t". This is all the more shocking, argue the complainants 9
when one considers Mr. Bugay 1 s previous unblemished record with nearly
40 years work experience and the employervs statement that he wished he
had "two dozen more" like him (Bugay), If that were true, maintains the
complainants, no warning letter would issue.
In conclusion, the complainants .assert that the letters they received
are "threats" wh:i.ch have placed their jobs in jeopardy, even though some
15 months have elapsed since the accident in this matter and there have
no intervening accidents involving the complainants here. Citing the
cases of Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d
772 (D.C. Cir. 1974), and B~ker v. Interior Board of Mine Operations Appeals,
595 F.2d 746 (D.C. Cir. 1978), complainants assert that they have the
right, and are protected in the exercise of that right, to express their
safety concerns to their immediate supervisor or to their employer.
Respondent's arguments
Citing
v. Consolidation Coal Company, 2 FMSHRC 2786; 2 BNA MSHC
1001, October
, 1980, respondent argues that to establish a prima facie
violation of section 105(c) of the Act, complainants must prove by a
preponderance of the evidence:
(1) That they engaged in a protected activity; and
(2) That the adverse action was motivated in any part
by the protected activity.

1256

Respondent maintains that a search of the pleadings and record in
this case fails to reveal or identify the nature of the protected activity
in which the complainants were engaging at the time the letters in question
were given to them. Conceding that complainant Bugay has been president
of the local Union for 12 years, and has served as a safety conunitteeman
for 15 to 18 years, respondent points out that complainant Ganchuk holds
no position at the mine other then as an employee. Further, respondent
asserts that the only testimony of protected activity as argued by the
complainants appears during the following colloquy with the presiding
Judge in the questioning of Patrick Belculfine, respondent's safety
director and the person who signed the letters in questions, and in the
cross-examination of Mr. Belculfine by complainantsv counsel:

Q.

You handled both regular and contractual
grievances and safety grievances?

A.

Yes.

Q.

As part of your duties did you also meet periodically
with the union concerning safety matters?

A.

Yes.

Q.

How often were these safety meetings held?

A.

At least once a month we would have a two hour
safety meeting. (Tr. 42).

*

*

Q.

Now you are aware that the union made constant
complaints about the danger of that area because,
of the height of the coal pile, were you not?

A.

Not the height of the coal pile, no.

Q.

You are aware that the union made complaints, in
safety meetings, about that area?

A.

Dealing with different matters. (Tr. 46).

*

*

Respondent maintains that the fact that there were conversations
between union leaders and mine management about safety at the mine is
not only customary in the coal industry, but is also mandated by the
collective bargaining agreement. Respondent sees nothing unusual about
conversations and meetings on safety, and believes that the mentioning
of these meetings at the hearing appears to be an afterthought and not
a basis of filing the complaint as they were never mentioned in the original
pleadings. Respondent concludes that the accident which occurred was
not protected activity, and to hold otherwise would mean any activity by
an employee would qualify as a protected activity.

1257

Assuming that the complainants were engaged in a protected activity,
respondent nonetheless argues that the action taker. by the respondent in
this case was not motivated in any part by the protected activity.
Respondent maintains that the action taken by the respondent was based
on its sincere desire to protect its employees and equipment, and since
accidents had happened previously, and since appropriate action had been
taken by the respondent, these incidents evidence a consistent and fair
policy by the respondent.
1

With regard to the posting of the December 15, 1980, safety notice,
respondent states that it was in fact a reposting of a safety notice issued
March 30, 1976, and that it was posted on December 15 because of an accident
which occurred on December 12, 1980. The notice required all employees
to "make sure the equipment operators see you when approaching them", and
respondent asserts that both complainants were aware of this safety
notice and knew of its contents. Respondent asserts thac the notice was
reposted because mine management wanted to protect its legitimate interest
in its employees and equipment, and concludes that the accident which
occurred would not have happened but for a violation of this rule~
Regarding the December 12, 1980, accident, respondent states that
the incident occurred at a different area of the mine where a supp
truck driven by one August Parilli, Jro, was struck by ci piece of heavy
equipmento Since Mro Parilli was at fault a letter of reprimand was
drafted to him but was never sent because he voluntarily terminated his
employment. With respect to a second incident where a hi-lift operator
backed into the side of the struck of an independent coal hauler (the
Wolfe incident), respondent states that the truck driveT was at fault because
his truck was in an inappropriate area and no reprimand was given to the
hi-lift operator. Since the truck driver was an independent contractor,
respondent states that he could not be reprimanded.
Regarding the third accident which occurred in mid-1980, where the
wheel of a piece of heavy equipment struck a foreman's vehicle (the Chumpko
incident), respondent states that it was determined that because of the
foggy conditions, the employee was not at fault. However, respondent also
states that the foreman was orally reprimanded for this incident and it
was but
leading to his subsequent termination in
November o
Respondent maintains that the record in this case demonstrates that
the next logical step by mine management when the rules were violated
was to send a letter to those who failed to comply with those rules,
and to deny the respondent to take this step would prevent it from any
protection of its interests in such situations. Respondent asserts
that the aforesaid incidents with the hi-lift and truck of the independent
coal operator and the incident concerning the foreman further demonstrates
the fair, consistent and unbiased approach in similar matters. Respondent
also notes that Patrick Belculfine, when called by the complainants as
per cross-examination, testified as to questions of counsel Zera on
Record, Page 48, as follows:

1258

Q.

It is also not true, had Mr. Bugay not been
on the safety committee and president of the
local, he would not have received this letter?

A.

I wouldn't reprimand a man because he's a union
official, no.

In conclusion, respondent maintains that any conclusion of a prohibited
motivation in this case is entirely unwarranted, and that from a reading of
the entire record, respondent suggests that the conclusion most warranted
is that the complainants are upset that their otherwise good working record
and history is now blemished by the letters which they received. Respondent
notes that both complainants acknowledge some form of reprimand would have
been appropriate. The mere fact that they do not feel the reprimand should
have been in writing is of no consequence, since it is a matter for mine
management to determine tbe nature and tenor it its reprimands. The
mere fact that the complainants do not agree with the nature and tenor
of the reprimand does not give grounds for the filing of a discrimination
case under the Act, and the degree of discipline or whether any discipline
should have been issued at all is not the determining factor. The test to
be applied is whether or not the complainants were engaged in protected
activity and whether the action of the mine operator was notivated in any
part by reason of the protected activity. Respondent concludes that both
items must be answered in the negative.
Discussion
The record in this case reflects that the union grievances filed by
Mr. Bugay and Mr. Ganchuk concerning.the letters they received have been
held in abeyance pending the outcome of the instant discrimination complaints.
The grievances have progressed through the first three stages, but any
final decision in this regard has been "allowed to lie dormant" (Tr, 37).
With regard to the union safety grievance, exhibit R-4, concerning
the area where the accident in question occurred, the information of record
reflects that it was resolved at the second stage by the Union and Mine
Management through the posting a notice and the distribution to all
employees of an established procedure for operating equipment in work areas
(Tr. 38- 39) .
It seems clear to me that under certain conditions a disciplinary
letter of reprimand may be discriminatory under the Act since it may
affect an employees pay, promotional opportunities, and even employment.
See: Local Union 1110, UMWA et al., v. Consolidation Coal Company, MORG 76Xl38,
Judge Michels, May 26, 1977. In that case, Judge Michels concluded that
certain disciplinary letters were not issued in retaliation for reporting
alleged safety violations, and therefore were not discriminatory.
In the case of Ronnie Ross v. Monterey Cpal Company, et al., 3 FMSHRC
1171; 2 BNA HSHC 1300 (May 11, 1981), i t was held that singling out one
safety committeeman to receive a letter of reprimand, while ignoring another
committeeman who engaged in similar conduct, was discrimination under the

1259

Act. However, in Ross, the reprimand was affirmed and the complaint was
dismissed because it was found that the conduct engaged in by Mr. Ross
which led to the letter of reprimand was improper, and there was no showing
that the letter was issued out of retaliation for safety complaints.
In Local Union 1110 and Carney v. Consolidation Coal Company, 1 FMSHRC
388 (1979), the Connnission affirmed a Judge's ruling that giving a safety
committeeman three letters of reprimand for insubordination because he
failed to ask mine management's permission to leave his work area for
the purpose of filing safety complaints was discriminatory under the
Act because the leaving of work for that purpose was protected activity.
Complainants do not dispute the fact that an accident occurred and
that they were at fault. In addition, they conceded that the circumstances
surrounding the accident which occurred in this case warranted a reprimand.
Their contention is that the reprimand should have been an oral one,
rather than one in writing. They believe that the written record of a
reprimand will, at some future time, possibly expose them to discharge
if they are again found to be in violation of company rules. Aside from
the fact that an oral reprimand is not in the form of a written document_,
I have some difficulty in accepting complainants' conclusions on this
question. A reprimand is a reprimand, and if it is justified in the
first place, I see little distinction in putting it in writing. It seems
to me that once an employee is reprimanded by management, or someone
authorized to mete out such punishment, management is free to document
this fact, whether it be by a notation placed in the employee's record,
or whether it be in some other form, such as the supervisor making a
note of the fact _that he orally admonished an employee so that he can
rely on this in taking any future action against him if warranted.
During the course of the hearing, the complainants' stated that their
real concern was over the last paragraph of the letter, which they view
as a perpetual threat to discharge or otherwise punish them at some future
time. While it is true that the language used in this paragraph clearly
serves as a warning, it is limited to similar accidents of the kind
which occurred on January 2, 1981, and since it states that any future discipline
taken "will be appropriate with the accident", I assume this means that
lack of fault by either individual will not result in any discipline.
This is particularly true in this case where the respondent opted not
to discipline two employees involved in two prior accidents because they
were not at fault.
Findings and Conclusions
While it may be true that complainant Bugay, acting in his capacity
as president of the local and as a safety committeeman, was the spokesman
for miner complaints concerning the coal pile where the accident in
question occurred, the evidence adduced in th.is case simply does not
support any conclusion that the letters given to the complainants were
in reprisal for such complaints. As a matter of fact, as correctly
pointed out by the respondent's counsel, the complaint filed in this case
did not suggest or aver that the letters were given to the complainants
because of any asserted safety complaints. This issue was raised for
the first time at trial by the complaintants' counsel, and it is rejected.

1260

Further, the record suggests that the safety complaints concerning the
coal pile were resolved during the grievance stage, and they were
separately and independently addressed and resolved.
With regard to the question of any disparate treatment of the
complainants by the respondent with respect to the letter concerning the
accident in question, I conclude and find that this is not the case.
Respondent has established by a preponderance of the credible evidence
and testimony adduced in these proceedings that it did in fact enforce
its rules and policies concerning employee involvement in accidents
on mine property. The testimony establishes at least three prior accident
incidents which gave rise to some action by company management against
certain employees who were involved in those accidents. Even though no
actual letters were ever delivered in these instances, I conclude and
find that the circumstances surrounding these incidents are satisfactorily
explained by the respondent, and they do not
rise to any inference,
real or imagined, that the respondent intended to treat the individuals
involved any differently from the complainants.
One of the prior incidents in question involved a culpable contractor
truck driver who was not employed by the respondent. Management decided
not to reprimand its employee who was involved in that accident because
he was not at fault. Under these circumstances, I cannot conclude that
management's discretionary decision not to
out any letters of
reprimand in that instant was unreasaonble.
With regard to the second incident involving a Mr~_ Parilli, respondent
has established through credible testimony and evidence, which is unrebutted,
that had Mr. Parilli not resigned his job voluntarily, he would have
received the letter which had been drafted for the mine superintendent's
signature by Mr. Belculfine. As for the third incident involving a foreman
(Chumpko), respondent has established that it did not reprimand the
employee involved because it was determined that he was not at fault.
Again, I cannot conclude that management was wrong in not reprimanding
him. Further, complainants' arguments that it is incredible to believe that
Mr. Chumpko's discharge was prompted by the accident in question must
be taken in context. Respondent does not argue that the foreman was
discharged solely because of the accident. Rather, respondent's testimony
is that this was but one factor in the decision to fire him.
After careful consideration of all of the facts and circumstances
presented in these proceedings, including the post-hearing arguments
presented by the parties in support of their respective positions, I
conclude that the respondent has the better of part of the argument and
has satisfactorily rebutted any claims of discrimination in these proceedings.
In short, I cannot conclude that the respondent discriminated against the
complainants when it issued them the letters in question. To the contrary,
given the circumstances of the accident, and ~he fact that prior incidents

1261

of the same nature resulted in damage to respondent's equipment and
property, as well as exposing its personnel to possible serious injuries,
I conclude that respondent acted
reasonably to protect its legitimate
interests when it issued the letters in question. Under the circumstances,
the complaints of discrimination filed in these proceedings ARE DISMISSED.

~/
A;L__,ir/~{~

~
a!e&'
. .--L'JVt.£/l:LY:1_

7~rgo/A. Kout as

Administrative Law Judge
Distribution:
Robert A. Kelly, Esq., Guley, Birsic & Conflenti, 1212 Manor Building,
564 Forbes Ave., Pittsburgh, PA 15219 (Certified Mail)
Ronald J. Zera, Esq., R.D. #1, Box 177
Mail)

1262

Belle Vernon

PA 15012 (Certified

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

ROGER A. ANDERSON,

JUL

Complaint of Discrimination

Complainant
Docket No. WEVA 80-73-D

v.
Itmann No. 3A Mine
ITMANN COAL COMPANY,
Respondent

Appearances:

F. Alfred Sines, Jr., Esq., for Complainant
Jerry F. Palmer, Esq., for Respondent

Before:

J·1dge William Fauver
FINAL ORDER

On May 28, 1982, a decision finding liability was issued in this
proceeding with the following provision pertaining to
and other
relief:
"Pending a final order counsel for the parties are directed
to confer in an effort to stipulate the amount of back pay, interest,
attorney's fee, and costs due Complainant under this decision, and
to stipulate the other terms of a proposed final order."
On June 24, 1982, the parties advised this Judge that they had reached
an equitable settlement for a proposed final order. Said joint stipulation
of settlement was reduced to writing and signed by the parties on June 29,

1982.
Based on an independent evaluation and de novo review of the circumstances,
I conclude the proposed settlement is in accord with the purposes and policy
of the Mine Safety Law and the decision of May 28, 1982.
ACCORDINGLY, IT LS ORDERED that:
1. The Joint Stipulation of Settlement filed on July 1, 1982 is ACCEPTED
and APPROVED, and incorporated in this order by reference.

2. Respondent is assessed a civil penalty of $100 for its violation of
section 105(c)(l) of the Act.

1263

3. Respondent shall pay to Petitioner the sum of Thirty-three
Thousand Dollars ($33,000) within seven days of the date of this Decision,
said sum to be apportioned between Complainant and his counsel in
accordance with counsel F. Alfred Sines, Jr. 1 s letter to me of
June 29, 1982, and pay to the Mine Safety and Health Administration a
civil penalty in the amount of One Hundred Dollars ($100) within
days of the date of this decision.

u.2--lL- :f-..,...,~
WILLIAM FAUVER, JUDGE

Distribution Certified Mail:

F. Alfred Sines, Jr.,
25801

., Anderson & Sines, Drawer 1459, Beckley, W.Va.

Jerry F. Palmer, Esq., Itmann Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241

1264

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

JUL 9\9&

Civil Penalty Proceeding

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),
Docket No. WEVA 81-355

Petitioner

A. C. No. 46-01364-03026V

Vo

AMHERST COAL COMPANY,
Amherst No. 4H Mine

Respondent
DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor, U. S.
Department of Labor, Philadelphia, Pennsylvania, for
Petitioner;
Edward lo Eiland, Esq.~ Eiland & Bennett, Logan,
West Virginia, for Respondent.

Before:

Judge Lasher

A hearing on the merits was held in Charleston, West Virginia, on
May 11, 1982, at which both parties were represented by c6unsel. After
consideration of the evidence submitted· by both parties and proposed findings and conclusions proffered by counsel during closing argument, a decision was entered on the record. This bench decision appears below as it
appears in the official transcript aside from minor corrections.
This proceeding was initiated by the filing of a
petition for assessment of civil penalty against the Respondent by the Secretary of Labor on May 12, 1981,
pursuant to Section llO(a) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C., Section 820(a).
The Secretary seeks a penalty of $1,000 for the violation alleged to have occurred in citation number 912359,
dated September 18, 1980, which was issued by the duly
authorized representative of the Secretary (hereinafter
"Inspector") and which charged Respondent as follows:
"The approved roof control plan in Road 218 was not
being complied with (sic). The TRS system was not being
maintained in proper working condition in ~hat in Number 4

1265

heading crosscut left working face, the TRS supports were
not placed firmly against the roof before the roof bolter
operators proceeded inby permanent supports."
In notes contained after the.description of the condition or practice on the face of the citation, the Inspector
added, "You could see over top of the TRS when it was extended at full length, 11 and also, "Area of equipment: the
roof bolter was removed from service."
The citation which was issued at 1800 hours was terminated at 1830 hours on the same date, in reference to which
the issuing Inspector, Earnest Eo Mooney, Jro~ noted~ "The
RCP was discussed with the section crew and roof jacks were
set as required, and the plan was being complied withou
The Secretary contends that the alleged violation is a
transgression of 30 CoFoRo 750200
The Respondent generally
contends that because of the specific language of the roof
control plan, no violation occurred. Their arguments will be
more specifically discussed subsequently herein. Based upon
my consideration of all the testimony, having observed the
demeanor of the witnesses and having considered the weight
which differing views of the evidence should be accorded, I
find that the reliable probative evidence submitted during the
formal hearing herein preponderates i.n the following manner.
(1) On September 18, 1980, Inspector Mooney, while conducting a triple A inspection of Respodent's 4-H Mine and while
being accompanied by Respondent's evening shift foreman, Robert
Mitchem, approached a crosscut where roof bolting was being
conducted in Road 218 by two roof bolter operators, Lee Brown
and Ernie Adkins. Brown and Adkins were installing roof bolts
with the use of a Lee-Norris TD-2 roof bolting machine as depicted on Exhibit 10 (Respondent's Exhibit 1), and which has on
each side safety arms which are extendable to at least 72 inches.
(2) The Respondent's roof control plan (portions of which
have been placed in the record as Petitioner's Exhibit G-2)
provides specific safety precautions for roof bolting machines
with approved automatic supports. Page 6 of this plan provides:
"The (ATS) and (TRS) system maintained in proper working
condition is acceptable support during roof-bolting operations,
provided that:
."(a) The controls necessary to position and set the automated supports are located in such a manner that they will be
operated from under permanent support.

1266

"(b) Such supports are placed firmly against the roof before
the roof bolt operator proceeds inby permanent supports.
"(c) The sequence of installing supports and bolts, as shown
on the drawing, is followed. The distance from automated supports
to the rib shall not exceed five feet unless additional support is
installed to reduce the distance.
n(d) The manner in which the automated support system is
otherwise employed is consistent with the approved roof control
plan.
Temporary supports in accordance with an approved plan shall
be installed prior to bolting when the automated support system
is inoperative or does not make firm contact with the roofo 11 }:./
(3) At approximately 1800 hours on September 18, 1980,
Inspector Mooney walked up to the roof bolting machine in question, sometimes referred to as a "Top Dog" machine and "double
headed roof bolter, 11 and observed that the roof bolters were
going around to the left of the crosscut in question. Inspector
Mooney observed that the first cut had recently been made and
that a normal phenomenon was ensuing, ioe., that the roof was
11
working" or "falling downo 11
(4) The Inspector observed that one of the rooJ bolters
was working under a canopy-which is attached to the safety arm
(or boom) which in turn is attached to the roof bolting machinewhich was not firmly set against the roof. Inspector Mooney
asked Foreman Mitchem if he observed the same condition and, if
so, what he was going to do about it. Mitchem told the operator
of the machine to shut it off, after which the machine was taken
out of service.
(S) The canopy (or ring) under which Roof Bolter Ernie
Adkins was working, at the time observed by the Inspector,
was not placed firmly against the roof under which Adkins was
working. Adkins was thus four feet beyond (inby) permanent
supports.
(6) After the continuous miner had made its first cut
into the crosscut in question, Brown and Adkins cut or drilled
and installed two rows of roof bolts (pins) and were in the
process of installing a third row of roof bolts when the
Inspector arrived on the scene. The first row, consisting of
of one bolt, and the second row, consisting of two bolts, were
both installed by Mr. Brown who was working on the left-hand
side of the roof bolting machine under the canopy attached to
the top of the safety arm on the left-hand side of the machine.
The roof bolts were, according to the plan, to be set four feet

1/ Petitioner primarily argues that Paragraph (b) is the section which was
violated by Respondent.

1267

apart and the rows were to be four feet apart, thus in effect
establishing a system of four foot centers for the placement of
roof bolts.
(7) After the completion of ~he second row, the roof
bolting machine was moved forward a distance of four feet. As
customary practice dictated, Mr. Brown on the left-hand side
of the roof bolting machine and Mr. Adkins on the right-hand
side of the roof bolting machine, elevated the safety arms with
the canopies attached simultaneously. This function was completed in a matter of seconds. Upon completion of this procedure
and before drilling on the third row commenced, both canopies
(roof supports) were placed firmly against the roof o Adkins and
Brown then commenced drilling holes in the roof for the placement
of roof boltso The hole is drilled at a point in the center of
the canopy (or ring) affixed to the boomo

(8) After drilling approximately 35 to 40 seconds the roof
bolting machine operator prevented their further drilling by
turning off the machine at the direction of Mr. Mitchem. At
some point in time during this 35 to 40 second period, the exact
juncture of which is not subject to more precise identification9
a defect in the bushings (sometimes referred to in the record
as "rollers") }j occurred which resulted in the canopy-roof
support dropping down from the roof a distan.ce of three or four
inches. When this happened, the condition was observed by
Inspector Mooney, who immediately took action to stop further
drilling since the roof bolter was under unsupported roof. As
previously noted, such action was his bringing the situation to
Mr. Mitchem's attention. 3/

.

(9) On September 15, 16, 17 and 18, 1980, Respondent's
Assistant Mine Foreman Grover Grimmett, in on-shift reports,
emphasized that he had reminded the pin crew (the roof bolting
crew) to use jacks where the canopies didn't touch the top.
(10) On September 18, 1980, Mine Superintendent Elster
Hurley was told by the day shift foreman, after the day shift
was completed, that the coal seam was getting higher and that
Shown as points "B 11 to "C 11 on Exhibit 10.
3/ A conflict in the testimony between the Inspector and Mr. Mitchem on
this point was posed at the hearing. The Inspector indicated that it
was he who told the operator to stop the machine. Mitchem testified that
it was he who told the operator to shut the machine off. I find this
conflict to be a relatively unimportant disagreement on facts which have
little, if any, bearing on the determination of the ultimate issues
involved. I have previously concluded that Mr. Mitchem's version will
be accepted on this point.
2/

1268

the TRS equipment might not reach the top so as to support the
same. At the time the evening shift started, approximately
3:30 p.m., Mr. Hurley talked with section foremen and the roof
bolters themselves to emphasize that jacks should be set before
they started pinning since the TRS equipment might not reach
the higher top.
(11) The top (roof) of the 4-H Mine was "the worst 11 that
Superintendent Hurley and Foreman Robert Mitchem has experi~
enced in their many years in coal mining.
(12) After the Inspector issued citation number 912359s
he explained the roof control plan to those of Respondent's
employees who were concerned with the sameo The citation was
then abated, and roof bolting continued with the use of jacks,
which are rectangular metal poles and which were capable of
assuming a greater length than the s~fety arm of the TRS
systemo Subsequentlys Respondents after it had moved the defective Lee-Norris TD-2 machine out of the area, replaced it
with a Lee-Norris TD-1 roof bolting machine. Subsequently,
five rows of roof bolts were installed (approximately) in a
continuation of the installation pattern which was interrupted
at the third row when the defect in the canopy occurred~ and
these rows were installed at a height which could have been
accomplished by the Lee-Norris TD-2 machines which was removed
from service after issuance of this citation.
(13) The failure of equipment which occurred and which
resulted in issuance of the citation, i.e., dropping of the
canopy by reason of defective bushings, is rare. The bushings
in question were defecti~e because of wear over a long period
of time and not because of any traumatic happening or unusual
circumstances which occurred on September 18, 1980.
(14) Because the bushings or rollers in question were not
maintained in proper working condition, they failed, resulting in the
roof above the canopy on the right side of the roof bolting machine in question not being supported and ultimately resulting in the occurrence of an unsafe condition which jeopardized the life and well-being of the roof bolter working under
the canopy, Ernie Adkins.
(15) The bushings were so located on the roof bolting
machine as to be externally visible.
Ultimate Findings, Conclusaions and Discussion
The background conditions affecting the circumstances
which are involved in this litigation are that the mine in
question has a very bad, presumably dangerous, top, and that
the Respondent's management has taken, and had taken prior to
the incident in question, unusual measures toward prevention

of roof falls. One of these courses of action was causing
those who worked under this roof to be intensely aware of
safety precautions which should be" taken because of the unusual
hazards posed. The record indicat~s that jacks were to be used
whenever the TRS equipment was unable to reach the roof and
support it because of the height of the coal seam being
extracted. However, equipment failure is another means by
which a safety hazard can come to fruition. The Government
has taken the position that a violation occurred because the
roof control plan was not complied with because when the roof
bolting machine was moved from the second row to the third row
of support in the crosscut in question, the seam of coal was
too high and the result was that the TRS equipment did not reach
the top so as to support ito I find that the Government's
theory throti.~ :-out this case was not supported by the evidence,
other than a rather tenuous belief of the Inspector which was
articulated in a relatively unclear mannero Thus, much of the
focus of the evidence in this case from the Government's standpoint was misfired. Nevertheless, I do believe that a violation
was established within the context of the matters alleged in the
citation and within the mandatory safety standard alleged by the
Inspector to have been violated, 30 CoF.Ro 75.200.
The Respondent contends that no violation occurred because,
under Paragraph (b) of the roof control
at page 6 thereof,
the roof bolt operators did not proceed inby permanent supports
before the TRS supports (in this case, the canopies) were
placed firmly against the roof. The key word in Respondent's
contention is the word "·before." Indeed, I have found that the
great preponderance of the evidence in this case is that the
right-hand side canopy was firmly placed against the roof when
Mr. Adkins proceeded to institute drilling at that point"
I have also found that the defective failure of the bushings
occurred some time in the 35 to 40 second period after Mr. Adkins
commenced drilling. However, Paragraph (b) is not operative without the coincidence of the prerequisites required in the opening
paragraph of the required "Safety Precautions For Roof Bolt Machines
With Approved Automated Supports," appearing on page 6. That paragraph requires that the TRS system to be acceptable support during
roof bolting operations be maintained in proper working condition.
The roof control plan is authorized by and is an extension
of the mandatory standards implemented by Congress and further
delineated in 30 C.F.R. 75.200. In pertinent part, that section
provides:

1270

"A roof control plan and revisions thereof suitable
to the roof conditions and mining system of each coal mine and
approved by the Secretary shall be adopted and set out in
printed form on or before May 29, 1970. The plan shall show
the type of support and spacing approved by the Secretary.
Such plan shall be reviewed periodically, at least every six
months, by the Secretary taking into consideration any falls
of roof or ribs or inadequacy of support of roof or ribs.
No person shall proceed beyond the last permanent support unless adequate temporary support is provided or unless such
temporary support is not required under the approved roof
control plan and the absence of support will not pose a hazard
to the minerso 11
The key word in the last sentence is "adequate o11 The requirement of the mandatory standard is that the temporary
support system be adequateo
Read in this light, the provision of the roof control
plan requires that the system must be maintained in proper working
condition, and then, in that underlying safe environment, the
TRS supports are to be placed firmly against the roof before
the roof bolt operator proceeds inby permanent supporto
I find that the (essence of the violation) is t~_at the
roof bolting machine was not maintained in proper working
condition, and that it was inadequate. It did, indeed, fail,
and this I find to be a violation of 30 C.F.R. 75.200. ~
find Respondent's argument to be hypertechnical in view of the
testimony as to the severe problem which the roof in this mine
presents.
One person, Mr. Adkins, was placed in jeopardy by the
hazards created by the violation. There is no showing of
specific negligence in the occurrence of this violation.
However, reference is made to the general tort principle that
the unexcused violation of a governmental safety regulation is
negligence per se. Gatenby v. Altoona Aviation Corp., 407 F.2d
443 (3rd Cir., 1968); Miles v. Ryan, 338 F. Supp. 1065 (1972),
affirmed 484 F.2d 1255~d Cir~973). I therefore find that
the Respondent was negligent in the commission of the violation.
The parties have stipulated that Respondent is a medium
sized coal mine operator and that the assessment of a reasonable
penalty in this case will have no effect on its ability to continue in business. The parties also stipuiated that the operator
proceeded in ordinary good faith to achieve rapid compliance with
the violated mandatory safety standard after notification
thereof. I further find, based on stipulations, that in the
24-month period preceding the commission of the violation in
question the Respondent committed 105 violations of the Act.

1271

I find this, based upon other evidence in the record, to be a
normal number of violations, and on that basis the penalty
imposed will neither be increased nor decreased.
Weighing all the factors which I have previously described in this case, and further considering the extreme
risks-which are well documented in mine safety law-flowing
from roof control violations, and considering the evidence
which Respondent has placed into evidence in mitigation (for
the most part evidence of extreme safety consciousness with
regard to roof control violations), I find that the penalty
initially proposed by MSHA in this case, $1,000~ is reasonable~
and it is so assessedc
ORDER
Respondent is ordered to pay the Secretary of Labor the sum of
$1,000.00 within 30 days from the date hereofo

'::~1i4/ 4//fl'~'/ ~{
Michael A. Lasher, Jr., Judge

Distribution:
David T. Bush, Esq., Office of the Solicitor, U. S. Department of
Labor, 3535 Market St., Rm. 14480, Philadelphia, PA 19104
(Certified Mail)
Edward I. Eiland, Esq., Eiland & Bennett, Suite 508 National Bank
Bldg., P. O. Box 899, Logan, WV 25601 (Certified Mail)

1272

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

WILLIAM A. WILLIAMSON,

Complaint of Discrimination
Complainant
Docket Noo VA 80-32-D

Vo

BISHOP COAL COMPANY~

Dry Fork Noo 37 Mine
Respondent
DECISION

Appearances:

James Haviland, Esq. 9 for Complainant
Jerry F. Palmer, Esqo 9 for Respondent

Before:

Judge William Fauver

This proceeding was brought by Complainant, William A. Williamson, under
section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 ~~.,for review of alleged acts of discrimination.
The case was
heard at Charleston, West Virginia.
Having considered the evidence and contentions of the parties, I find
that the preponderance of the reliable, probative, and substantial evidence
establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent operated a coal mine known as the
Dry Fork No. 37 Mine in Tazwell County, West Virginia, which produced coal
for sales in or substantially affecting interstate commerce.
2. The mine had three working sections. Complainant was a section
foreman in the First Left Section, afternoon shift (4 p.m. to midnight),
which used a continuous-mining method to mine coal. The dust control and
ventilation plan required that at least 3,200 cubic feet of air per minute
(cfm) be supplied to each working face and that water spray pressure on the
mining equipment be at least 75 pounds per square inch (psi). Dust at the
working face was normally controlled by ventilation and water-suppression
methods. The continuous-mining machine was equipped with water sprays to
control dust. Water sprays were also installed above the chain conveyor,
which transported coal from the face to shuttle'cars.

1273.

3. Section foremen were primarily responsible for implementing the
ventilation and dust-control plan by ensuring that the continuous miner was
supplied with adequate water for the water sprays, that the sprays were working properly, and that the working section was adequately ventilated. A
ventilation reading was usually taken once at the start of the shift and once
at the end of a shift. A section foreman could move the check curtains
closer to or farther from the face to control the flow of air to the face;
however, he was not authorized to increase or decrease the amount of air by
opening, closing, or modifying an air regulator, a small opening made in a
stopping or wall to control the flow of air. He was also not permitted to
change the water pressure for the water sprays. Only the mine foreman was
allowed to change the air regulator or the water pressure for the water
sprays. If a section foreman was aware that insufficient air was reaching
the section, he was instructed to adjust the check curtains, notify a supervisor, or withdraw his crew from the face.
4. The dust-control program also included monitoring dust levels by
issuing each miner a dust-sampling device every 6 months. This was a small
pump that drew air from the miner's atmosphere and recorded the quality of
air on a small cassette. Dust-sampling personnel were responsible for conducting the tests and sending the results to a lab for analysis. If the dust
sampling results showed compliance with the dust-control plan, which required
that levels of respirable dust not exceed 2 mg/m3? the miner would not be
required to wear the sampling device for another 6 months. However? if the
results showed excessive exposure to respirable dusts the miner would be
retested. Miners showing high exposure, such as a continuous-miner operator~
might have to wear the device for weeks at a time. Also, if a group of dust
samples showed an average above the 2.0 standard, Respondent would be subject
to a citation and civil penalty for a dust violation.
5. The dust-sampling pump was battery-operated and attached to the
miner's belt. The cassette was supposed to be worn within arm's length of
the mouth. A hose extended between the cassette and belt.
6. Only dust-control personnel were trained in the operation of the
dust-sampling device; however, the device was easily turned on and off.
Usually a miner was handed the device and required to put it on and wear it
for an entire 8-hour shift.
7. A miner operator or shuttle car operator might find that the dustsampling device interfered with operation of the equipment because the
cassette hose would become tangled with the levers on the equipment. In such
cases the operator was allowed to remove the cassette from his clothing and
attach it to the machine within arm's length of his mouth. If the cassette
was not kept within that distance, the operator was supposed to turn in the
device, void the cassette, and undergo another test.
8. Miners assigned to wear a sampling device did not always wear it as
required. At times, the devices were left in the bathhouse, in the dinner
hole, or hanging on a piece of equipment while still running. No miner had

1274

~

ever been disciplined for not wearing a dust-sampling device when assigned
to wear one and Respondent had never received a citation for its methods of
sampling dust. Cassettes that had not been used properly for test purposes
were supposed to be voided at the end of the shift, but there were times that
such cassettes were not voided.
9. Both mine management and mining personnel contributed to a lax or
inconsistent approach to the dust-sampling program. For example, the mine
superintendent, Joseph Aman, !:._/ occasionally observed improper sampling
practices, !:.•.a•, leaving an activated pump in the dinner hole or wearing a
deactivated pump, but took no action. Luther Young, a union safety committee
member, toured the mine periodically and on one occasion observed sampling
pumps hanging in the dinner hole in the Four Right Section. Aman was present;
however he did not inquire as to why the pumps were not being worn or take
any action to ensure that the cassettes were voided.
Often, Young did not wear a pump that was assigned to him. He understood that it was supposed to be worn the entire shift; however, he would
remove it if he found operation of the shuttle car difficult while wearing
the pump. Sometimes he would leave the pump running in the dinner hole. He
was never questioned for turning in a cassette that did not record an entire
shift or that was unrepresentative of the mine atmosphere.
Complainant, when assigned a dust-sampling device, rarely wore it the
entire shift. He understood that the pump was supposed to run the entire
shift or the sample was to be voided, but he would turn it off if it interfered with his work or if he had to go.behind a line curtain to take air
readings. When Complainant had been an equipment operator, he had often
disconnected his pump because he continued to get bad samples and would
otherwise have been required to wear the sampler until he received good
samples.
In March 1980, Complainant observed Superintendent Aman at his desk when
three dust pumps were sitting on top of the desk and running. On that day,
the whole crew was supposed to be wearing dust-sampling devices.
10. Respondent placed considerable pressure on section foremen to keep
the dust-samples under the 2.0 level. On occasion, company officials
threatened Luther Young about having bad dust-samples. In 1977 or 1978,
Bubba Bradley told Young that, if samples were returned showing a violation
of the law, the mine would be shut down. In 1980, Doc Davison· told Young
that if the samples were out of compliance, the mine would be shut down. In
1978, Young also heard a fire boss threatened by the day shift foreman when

*l In pertinent parts of 1979, Complainant was Section Foreman, Evening
Shift, of the First Left Section, Joe Aman was the Mine Superintendent, Bill
Steel was the Day Shift Foreman, Johnny Woods was the Day Shift Section
Foreman on the First Left Section, and Doug LaForce was the Day Shift Mine
Foreman.

1275

the fire boss was going to record a bad ventilation condition in the Six
Right Crosscut. The day shift foreman had stockpiled coal in the return and
the flow of air was thereby reduced.

11. The First Left Section presented a number of dust problems. It was
in old workings, there was only one intake and usually only one return, and
the belt haulage ventilated into the working face rather than away from it.
Samples taken during Complainant's shift on September 27 and October 6, 1978,
included dust levels of 2.5 and 7.0. A sample taken on Johnny Woods' shift
(day shift) on December 12, included a dust level of 7.7. On December 20,
1978, the First Left Section received a citation for a violation of the dustcontrol plan. The citation stated in part:
Based on the results of 10 dust samples collected by
the operator and reported on the attached teletype message,
dated 12/19/78, the cumulative concentration of respirable
dust in the working environment of the high-risk occupation
in Section 008, was 23o7 mg/m 3 of airo Management shall
cause such working environment to be sampled every production shift until compliance with the applicable limit of
20.0 milligrams per cubic meter of air for this section is
achieved.
·
After receiving these results, Aman met with the section foremen on the First
Left Section, and their shift foreman, and told them that dust levels were
too high and had to be decreased. He explained the dangers of high levels
of respirable dust and discussed measures required to reduce those levels.
Aman offered advice and help to the section foremen and solicited ideas from
them. Aman received no comments or suggestions from Complainant during that
meeting.
12. On March 8, 1979, the First Left Section received another citation
for a violation of the dust-control plan. The citation stated in part:
Based on the results of 10 dust samples collected by
the operator and reported on the attached teletype message,
dated 3/05/79, the cumulative concentration of respirable
dust in the working environment of the high-risk occupation
in section 008, was 21.0 milligrams. Management shall cause
such working environment to be sampled every production shift
until compliance with the applicable limit of 20.0 milligrams
per cubic meter of air for this section is achieved.
The results from the cited samples were as follows:
Date

Section

Levels

1-11-79
1-19-79
1-19-79

day
midnight
day

3.4
.5
2.8

1276

1-25-79
1-25-79
1-30-79
1-31-79
2-01-79
2-20-79
2-26-79

evening
day
midnight
evening
evening
evening
day

1.5
1.8
2.3
2o4
08
lo2
4o3

After receiving these results, and the citation, Aman again discussed the dust
problem with the foremen and explained the required methods of reducing dust
levels. Aman received no comments or suggestions from Complainanto
l3o After the first or second citation, Complainant spoke with Aman and
Bill Steel, the Day Shift Foreman and Complainant 1 s immediate supervisor,
about the dust conditions in the section. Complainant told them that he
could not reduce the dust levels because water pressure for the sprays was
too high and ventilation was inadequateo Complainant contended that when the
water pressure was too great, the dust would be forced into the mine atmosphere instead of falling to the mine flooro Complainant had no tool ~o mea~
sure the water pressure; however, he conducted a test with his miner operator
to show that, when the water hit the coal face with great force, the air and
dust were forced back into the operator's face and sometimes even as far back
as the shuttle car operator. The test ~as conducted with .. the miner operator
and miner helper, and in the presence of the shift foreman, Bill Steel. Complainant's supervisors told him that he was exaggerating and that he could
get good dust samples with the water pressure t~at was being used. Complainant also told Aman that the belt haulage was ventilating into the face
rather than away from it. Complainant recommended that air be vented into
the returns.
14. On May 21, 1979, the day shift crew, supervised by Johnny Woods,
mined the No. 1 Face in the First Left Section. The crew also spot-bolted
between the No. 1 and No. 2 Faces. The Mine Foreman, LaForce, and two federal
mine inspectors were present. There was adequate ventilation. At about
3 p.m., before Complainant's shift, Woods told Complainant that the heading
was behind and that it needed to be cut through to release the air. The
No. 1 Face was about four cuts beyond the No. 2 Face in the working sectiono
The No. 1 Face ventilated into the return, but the No. 2 Face ventilated into
the old workings where the amount of air was very low. Complainant was told
that a federal inspector was expected and to cut No. 2 through to get
ventilation.
Complainant entered the mine, measured the.air with an anemometer, and
determined that no air current was reaching the No. 2 Face. He removed most
of his crew from the section, to tighten and set timbers to seal off the check
curtains all the way to the No. 2 Face. After about 3 hours, Complainant

1277

recorded air movement of about 2,100 cfm and his crew resumed production,
although the ventilation plan required 3,200 cfm. The miner operator was
using a dust-sampling device that shift. In all, Complainant took four
anemometer readings on that shift and all were below the velocity required by
the company plan and the federal regulation.
At the end of the shift, Complainant told his immediate supervisor,
Steel, that the air was insufficient. Complainant drew a diagram to show
Steel how he thought sufficient quantities of air could be obtained. Steel
then met Ermil Stacy, the Midnight Shift Foreman, and suggested a different
method of ventilating the section to meet standardso Stacy made the changes
and the section had sufficient quantities of airo To do this~ Stacey moved
one check curtain from the right rib in the Noa 2 working section to the left
rib and built a fly curtain in the crosscut between the return and intake
entries.
lSo On May 22, 1979~ about 8 aomo~ Aman became aware of the ventilation
problem that had occurred on the afternoon shift on the previous dayo Aman
took air readings and found there was enough air reaching the working section;
however, there was still a dust problem. Dust from the No. 2 working section
would travel to the No. 1 working section and, to correct this problem, they
placed each working section on its own separate split of air and the volume
of air reaching the Noa 2 Face was increased by adjusting the regulator to
allow an additional 10,000 cfmo
Complainant met Aman leaving the mine at about 3 p.m. Aman wanted more
details of the problems Complainant had encount€red on May 21 and Complainant
told him that the No. 2 Face had not received enough ventilation to prevent
dust buildup. Later in their discussion, when Aman learned that the miner
operator had been equipped with a dust-sampling device, he told Complainant
that he would lose his job if the results were not in complianceo
After meeting with Aman and Steel, Complainant met the Mine Foreman in
the foreman's office and learned that the ventilation problem had been
corrected during the midnight shift.
16. Results of the May 21 sampling were included in an MSHA report
received on the afternoon of June 4, with a citation charging the following:
Based on the results of ten dust samples collected by
the operator and reported on the attached teletype message,
dated 5/31/79, the cumulative concentration of respirable

1278

dust in the working environment of the high-risk occupation
in Section 008 was 22.3 milligrams. Management shall cause
such working environment to be sampled every production shift
until compliance with the applicable limit of 20.0 milligrams
per cubic meter of air for this section is achieved.
One sample taken on Complainant's shift showed a reading of 3.0 and
another, for the miner operator, was 7.6. One reading on Woods' shift
showed 6.9.
Aman met with Complainant that afternoon before his shift began and told
him of the results; however, they did not discuss disciplinary measureso
Aman then met with supervisors Steel and LaForce to discuss the dust
problem and possible disciplinary action. They decided that, as a disciplinary measure, the two responsible section foremen would have to work weekends"
On June 6, 1979, at the end of the day shift, Steel told Complainant that the
miner operator's dust sample taken on MBy 21 was in excess of the permissible
level and, as disciplinary action, Complainant would have to work weekends
until he demonstrated the ability to meet the dust standards. On June 7 Aman
repeated instructions of the discipline and told Complainant that he had to
achieve proper levels of respirable dust by using proper ventilation and
water-suppression techniques and measures or he would be dischargedo By this
time, Complainant had learned of his grandmother 1 s illne1:fs; he told Aman
that he could not work weekends because of her illnesso Aman would not
guarantee Complainant days off and told him he would have to choose between
his family and work. On June 7, Complainant quit his employment rather than
accept the discipline of working on weekends.
Johnny Woods, the Section Foreman on the day shift, was also disciplined
for high-dust levels by having to work on weekends in June. During his
discipline, Aman examined Woods' section daily and observed that there were
proper line curtains, adequate amounts of water, adequate levels of air, and
a general improvement of section management. Dust samples were also taken
and they were below 2.0 milligrams. Water pressure was not reduced to
achieve this compliance. Aman determined that Woods had demonstrated the
ability and attitude to meet the dust standards, and terminated his disciplinary weekend duties after about two weekends.
17. About 2 weeks after leaving the mine, Complainant returned and
asked to be reemployed. He filled out an application form, inserting "quit"
in the space for reasons for leaving the last job. He has not been reemployed.
DISCUSSION WITH FURTHER FINDINGS
The basic issues in this case are (1) whether Complainant was engaged
in protected activity under section 105(c)(l) of the Act and if so,
(2) whether the Respondent discriminated against him because of such
activity.

1279

Section lOS(c)(l) of the Act provides in part:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or otherwise interfere with the exercise of the
statutory rights of any miner, representative of miners or
applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under
or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged danger or
safety or health violation in a coal or other mine * * * or
because such miner * * * has instituted or caused to be
instituted any proceeding under or related to this Act * * *
One of the purposes of the legislation is to ensure that a miner will
not be inhibited in exerc1s1ng his rights under the Act~ including making
safety complaints. The Report of the Senate Committee on Human Resources
stated:
If our national mine safety and health program is to be
truly effective~ miners will have to play an active part in
the enforcement of the Acto The Committee is cognizant that
if miners are to be encouraged to be active in matters of
safety and health, they must be protected against any possihle discrimination which they might suffer as a result of
their participation. S. Rpt. No. 95-181, 95th Cong.,
1st Sess. 31 (1977), reprinted in, Legislative History of
The Federal Mine Safety and Health Act of 1977 at 623 (1978)
(hereinafter "Senate Report").
The drafters of section lOS(c) intended that "[wJhenever protected activity
is in any manner a contributing factor to the retaliatory conduct, a finding
of discrimination should be made." Senate Report at 36, reprinted at 624.
The Report also stated:
It is the Committee's intention to protect miners
against not only the common forms of discrimination, such
as discharge, suspension, demotion, reduction in benefits,
vacation, bonuses and rates of pay, or changes in pay and
hours of work, but also against the more subtle forms of
interference, such as promises of benefits or threats of
reprisal. It should be emphasized that the prohibition
against discrimination applies not only to the operator
but to any other person directly or indirectly involved.
Senate Report at 36, reprinted at 624.
In Pasula v. Consolidation Coal Company, 2 FMSHRC 2786, 2790 [1980},
2 MSHC 1001, 1006 (BNA) (October 14, 1980), the Commission stated:

1280

We hold that the complainant has established a prima
facie case of a violation of section lOS(c)(l) 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. On these
issues, the complainant must bear the ultimate burden of
persuasion. The employer may affirmatively defend, however,
by proving by a preponderance of all the evidence that,
although part of his motive was unlawful, (1) he was also
motivated by the minerrs unprotected activities, and (2)
that he would have taken adverse action against the miner
in any event for the unprotected activities aloneo On
these issues 9 the employer must bear the ultimate burden
of persuasiono It is not sufficient for the employer to
show that the miner deserved to have been fired for engaging
in the unprotected activity; if the unprotected conduct did
not originally concern the e~ployer enough to have resulted
in the same adverse action~ we will not consider ito The
employer must show that he did in fact consider the employee
deserving of discipline for engaging in the unprotected
activity alone and that he would have disciplined him in
any evento
Complainant contends that Respondent~s dust-sampling program is one means
of communicat
to MSHA dust concentrations in the mine and that these
communications by a miner and his efforts to ensure integrity of the dustsampling procedures are protected acti~ities under section lOS(c) of the AcL
Complainant contends that his refusal to acquiesce in implied demands by the
operator to permit the taking of unrepresentative dust samples was protected
activity under section lOS(c). He contends that Respondent violated the Act
by ordering his discipline for his upholding , the integrity of the dustsampl ing procedures by taking a valid, representative dust sample on Hay 21~
1979.
Complainant argues that, although he received no express instructions to
obtain improper samples, the dust-sampling program was poorly administered
and notorious for unrepresentative dust samples. As examples of poor administration he points to: A lack of affirmative steps to ensure that the pumps
were worn properly for an entire 8-hour shift; failure to void unrepresentative sam~les; threats of closing down the mine unless "good samples" (i.e.~
2.0 mg/rn or less) were obtained; intentional withdrawal of miners from dusty
areas while they were equipped with sampling devices; and the withholding of
authority of section foremen to make necessary adjustments in the air regulators and water pressure to control dust levels.
Complainant argues that, because of the air problems on the working
section Complainant mined coal in violation of 'the law on Hay 21, 1979, but
that his supervisors did not object to this but threatened disciplinary
action only if the dust sample results exceeded the 2.0 standard. There was
no discussion concerning his running coal without adequate quantities of air.

1281

When the results were received and found to be in excess of 2.0,- Complainant
was subjected to discipline. Complainant argues that the timing of the
disciplinary action demonstrates that the reason for the discipline was not
related to mining coal in violation of the law, but that Complainant was
disciplined because the dust samples dtrhis shift exceeded 2.0 and this was
discrimination because of his participation in a government-enforcement
activity.
Respondent contends that Complainant had the options of solving the
ventilation dust problem on his own, seeking assistance from his superiors,
or withdrawing his crew from the section, and that he was disciplined for
operating his .section in violation of the dust-control plan and dust
standards of the Act. It argues that two foremen were found responsible
for dust violations and they were disciplined equally to achieve complianceo
Part 70.100 of the Mandatory Health Standards, 30 CFR, requires that the
average concentra, '.on of respirable dust in the mine atmosphere to which
each miner is exposed be at or below 2o0 milligrams of respirable dust per
cubic meter.
On December 20, 1978, the 1st Left Section of the Dry Fork Mine received
a citation because the respirable dust concentration on that section exceeded
the allowable limits of Part 70.100. (The average level was 2.4o) Each of
the section foremen on that section, i.e. 9 Johnny Woods, Carl Horton, and
William Williamson (Complainant), was-told of the citation and instructed as
to the importance of dust compliance. Each foreman was asked if he had any
questions or needed help in having his shift comply. Complainant sought no
help. The section came back into compliance on January 24, 1979, with an
average concentration of 2.0.
On March 8, 1979, the 1st Left Section received another citation for
excessive respirable dust (average level 2.1). Each section foremen was told
of the citation and was instructed as to the importance of dust compliance.
Questions were solicited and help was offered. None of the foremen offered
any excuse or reason as to why his section was out of compliance. Emphasis
was placed on keeping sufficient air in each place, line curtains up, and
water sprays in good order. They were told if the working place became
dusty, mining was to cease and the miner operator was to remove himself to
good air and not to resume operation until the dust had cleared. It was
mentioned that if the 1st Left Section again went out of compliance, disciplinary action would probably be taken. The section came back into compliance on April 9, 1979, with an average concentration of 1.4.
On June 4, 1979, the 1st Left Section again received a citation for
respirable dust (average level 2.2), and each of the foremen on 1st Left was
told of the citation and was instructed as to the importance of dust compliance. Questions as to how and why the section was again out of compliance
were asked in an attempt to pinpoint the problem and its causes. It was
determined that on May 21, 1979, on Complainant's shift, the miner operator,
Jimmy Bonds, had worn a dust pump and received a high sample result. The

1282

section foreman, Complainant, acknowledged to Bill Steel (afternoon shift
foreman) and Joe Aman (superintendent) that he had been lax in following the
ventilation and dust-control plan. Also, a high dust sample was obtained on
April 10, 1979, on the day shift, and no explanation was offered by the day
shift section foreman, Johnny Woods. No high samples were found on the
midnight shift.
Management decided that the performance of Complainant and Johnny Woods was
unacceptable and that disciplinary action was required. It was decided that
each foremen would work each weekend until he demonstrated that he could
perform his job in compliance with the dust standards. Termination of both
foremen was strongly considered but it was decided that the foremen would be
given one last chance. It was to be made clear to them that this was the
last chance and failure to achieve acceptable dust samples would result in
termination in the absence of a valid excuse. The logic behind the disciplinary action of working weekends was that it was stronger than just talking
to the foremen but less stringent than termination. If a foreman could not
demonstrate improvement, he would be terminated but if he did, he would not
be working many weekends. Suspension without pay was also considered, but
past experience (with other employees) had shown it to cause more harm than
good.
Johnny Woods was told of the disciplinary action to be taken and he
worked June 9 and 10 (he was given off June 7 and 8)0 On June 6, Bill Steel
told Complainant of the action to be takeno Joe Aman also discussed the
action with Complainant on June 7o Complainant stated that illness in his
family would prevent him from working weekends. The superintendent told him
that, if there were idle days during the week he would have those off but he
would be required to work on weekends until he proved himself. Complainant
said that he would rather quit, and he did on June 7.
When Woods was disciplined, Superintendent Aman visited the 1st Left
Section each day looking primarily at dust control and ventilation. Aman
later told Woods that he had demonstrated that he could perform his job
properly and that he would not have to work any more weekends except as
normally required of all foremen. The section was reported back in compliance on June 21 with an average concentration of .5 milligrams. The dust
samples taken after the meeting with the foremen in June averaged 0.2.
The discipline taken against Complainant and Woods, ordering them to
work weekends, was to further compliance with health and safety standards at
the Dry Fork Mine. They had been warned several times to follow the dustcontrol plan and to keep their sections in complaince. Complainant and Woods
failed to do so and management applied equal and non-discriminatory discipline to effect compliance if possible. In prior meetings and warnings, it
was made clear that they were expected to comply with the dust-control plan
to keep dust conditions in compliance and, if they could not, they were not
to work their crews in excessive dust but were to keep them out of dust and

1283

seek assistance from supervisors to correct the dust conditions. Management
working en weekends was
had considered firing Complainant and Woods but
considered to be a last chance. Complainant was told that this was his last
chance and if he went out of compliance again without a valid excuse he
would be discharged. Johnny Woods, day shift section foreman, received the
same warning and discipline as did Complainant.
Complainant has shown that there were problems with the dust program,
and that management exerted pressure to avoid obtaining dust samples above
2.0. However, he was also given instructions, and the authority, to remove
his men from excessive dust and to seek the assistance of supervisors if he
could not correct an excessive-dust condition himself. Complainant has not
proven by a preponderance of the evidence that his instructions from management meant that he was to cause misrepresentative dust samples and that he
was disciplined for refusing to obey such instructions. His participation
in the dust-sampling program was a protected activity under section 105(c)
of the Act, but
he has not proven that he was discriminated against
because of such activity¢ He was disciplined for failure to meet the dust
standards.
CONCLUSIONS OF LAW
1. The Commission has jurisdiction of the parties and subject matter
of this proceeding.
2. Complainant has failed to meet his burden of proving a violation
of section lOS(c)(l) of the Act.
Proposed findings and conclusions inconsistent with the above are rejected
ORDER

WHEREFORE, IT TS ORDERED that this proceeding is DISMISSED.

't<J~bv~

WILLIAM FAUVER, JUDGE
Distribution Certified Mail:

James Haviland, Esq., Mclntrye, Haviland & Jordan, 611 virginia Street,
East, Charleston~ WV 25301
Jerry F. Palmer, Esq., Bishop Coal CompanY., 1800 Washington Road,
Pittsburgh, PA 15241

1284

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

NATIONAL MINES CORPORATION,
Contestant

Contest of Order
Docket No. KENT 80-130-R

v.
Order No. 997527
December 10, 1979

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

Stinson Noo 5 Mine

DECISION ON REMAND
A decision was originally issued in this proceeding granting the notice
of contest and vacating Order No. 997527, 2 FMSHRC 2576 (1980)0 The original
decision was based on the Commissionis decisions in The Helen Mining Co. 0
1 FMSHRC 1796 (1979), and Kentland-Elkhorn Coal Corpo, 1 FMSHRC 1833 (1979) 0
in which the Commission had held that an operator does not have to pay a
miner who accompanies an inspector who is making a "spot" inspection.
The Commission issued an order on May 20, 1982, remanding the case to
me for further proceedings consistent with the decision of the United States
Court of Appeals for the District of Columbia Circuit in United Mine Workers
of America v. Federal Mine Safety and Health Review Commission, 671 F.2d 615
(1982), in which the court reversed the Commission's rulings in the Helen
Mining and Kentland-Elkhorn cases and held that operators are required to
pay miners for accompanying inspectors who are making "spot" inspections.
I issued a procedural order on May 27, 1982, requesting that counsel for
the parties advise me as to whether they wished to present any additional
evidence or file any additional briefs before a decision on remand was
issued.
Counsel for contestant orally advised me on June 14, 1982, that he
does not wish to present any additional evidence or make any additional
arguments. Counsel for the Secretary of Labor filed on July 9, 1982, a
letter advising me that he does not wish to introduce any additional evidence or make any additional arguments.
Order No. 997527 was issued on December 10, 1979, citing contestant
for a violation of section 103(f) of the Federal Mine Safety and Health
Act of 1977 because contestant had declined to pay a miners' representative
who had accompanied an inspector during a "spot" inspection made on
November 7, 1979. The order was terminated on the same day after contestant

1285

had paid the miners' representative for accompanying the inspector on
November 7, 1979. Inasmuch as the court's opinion in the UMWA case cited
above requires that miners' representatives be paid for accompanying
inspectors who are conducting "spot" inspections, I find that my original
decision issued in this proceeding erroneously held that Order No. 997527
was invalid. Therefore, Order No. 997527 should be reinstated and the
notice of contest should be denied.
WHEREFORE, it is ordered:
(A) The order accompanying the decision issued September 11, 1980,
2 FMSHRC 2576, is vacated as having been issued in erroro
(B) The notice of contest filed on January 7, 1980, in Docket Noo
KENT 80-130-R is denied and Order Noo 997527 dated December 10, 1979, is
reinstated and affirmedo

~e.ritcg~
Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

Distribution:
Robert L. Elliott, Esq., Attorney for National Mines Corporation,
Harbison, Kessinger, Lisle & Bush, 400 Bank of Lexington Building,
Lexington, KY 40507 (Certified Mail)
Leo J. McGinn, Esq., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Harrison B. Combs, Esq., United Mine Workers of America, 900 - 15th
Street, NW, Washington, DC 20005 (Certified Mail)

1286

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

ISLAND CREEK COAL COMPANY,
Petitioner

JIJL16J9lrl

Contest of Citation
Docket No. VA 79-74-R

v.
Citation No. 694946
June 4, 1979

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

Virginia Pocahontas No. 4 Hine

Re~pondent

UNITED MINE WORKERS OF AMERICA;
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. VA 80-9

A. C. No. 44-02134-03011
v.
Pocahontas No. 4 Mine
ISLAND CREEK COAL COMPANY,
Respondent
DECISION ON REMAND AND APPROVING SETTLEMENT
A decision was originally issued in this consolidated proceeding
granting the notice of contest, vacating Citation No. 694946, and dismiss~
ing the petition for assessment of civil penalty, 2 FMSHRC 2583 (1980).
The original decision was based on the Commission's decisions in The Helen
Mining Co., 1 FMSHRC 1796 (1979), and Kentland-Elkhorn Coal Corp.,
FMSHRC
1833 (1979), in which the Commission had held that an operator does not
have to pay a miner who accompanies an inspector who is making a "spot"
inspection.
The Commission issued an order on May 20, 1982, remanding the cases
to me for further proceedings consistent with the decision of the United
States Court of Appeals for the District of Columbia Circuit in
Mine
Workers of America v. Federal Mine Safety and Health Review CoI!lillission,
F. 2d 615 (1982), in which the court reversed the Commission's rulings in
the Helen Mining and Kentland-Elkhorn cases and held that operators are required to pay miners for accompanying inspectors who are making "spot"
inspections. I issued a procedural order on Hay 27, 1982, requesting that
counsel for the parties advise me as to whether they wished to present any
additional evidence or make additional arguments before a decision on
remand was issued.

1287

Counsel for the Secretary of Labor filed on July 9, 1982, a response
to the aforesaid procedµral order requesting that Citation No. 694946 and
the petition for assessment of civil penalty be reinstated, and moving that
a settlement agreement be approved under which the operator has agreed to
pay a reduced penalty of $15, instead of the penalty of $34 proposed by the
Assessment Office.
Citation No. 694946 was issued on June 4, 1979, alleging that the
operator had violated section 103(f) of the Federal Mine Safety and Health
Act of 1977 by failing to compensate a miners' representative who accompanied an inspector on May 14~ 1979, with respect to a 5-day "spot" inspection. Inasmuch as the court's decision in the UMWA case cited above holds
that a miners 1 representative is entitled to compensation when he accompanies
an inspector during both "spot" and
inspections, I find that my decision issued on September 11, 1980, in this proceeding erroneously vacated
Citation No. 694946 and improperly dismissed the
for assessment of
civil penalty filed in Docket No. VA 80-9.
Section llO(i) of the Act lists six criteria which are required to be
considered in determining civil penalties. As to the criterion of the size
of the operator's business, the proposed assessment sheet in the official
file shows that the operator produces over 8 million tons of coal on an
annual basis, thereby supporting a finding that Island Creek Coal Company
is a large-sized company and that civil
should be in an upper
range of magnitude insofar as they are based on the size of the operator's
business.
As to the criterion of whether payment of penalties would cause the
operator to discontinue in business, there are no facts in the official file
pertaining to the operator's financial condition. The former Board of Mine
Operations Appeals held in Buffalo Mining Co., 2 IBMA 226 (1973), and in
Associated Drilling, Inc., 3 IBMA 164 (1974), that if an operator fails to
present any evidence concerning its financial condition, a judge may presume
that payment of penalties will not cause a respondent to discontinue in
business. In the absence of any data in the file to support a contrary
conclusion, I find that payment of penalties will not cause the operator to
discontinue in business.
As to the criterion of whether the operator demonstrated a good-faith
effort to achieve rapid compliance after having been cited for a violation
of section 103(f), the abatement portion of the citation shows that the
operator paid the miner immediately after Citation No. 694946 was issued.
Under the assessment formula then applicable, the Assessment Office assigned
six negative penalty points, thereby giving the operator proper credit for
prompt abatement of the alleged violation.
The pleadings contain no data pertaining to the criterion of the operator's history of previous violations other than showing assignment of four
penalty points under that criterion on the proposed assessment sheet in the

1288

official file. In the absence of any other data, I find that a sufficient
amount was assigned by the Assessment Off ice under the criterion of the
operator's history of previous violations.
The remaining two criteria of negligence and gravity are discussed in
the motion for approval of settlement. The motion states that reduction from
the $34 proposed by the Assessment Office to the settlement amount of $15 is
warranted because the operator declined to pay the miners' representative so
that the operator could institute a legal challenge of the walk-around compensation provisions of section 103(f). The legal challenge did not expose
miners to unsafe conditions.
There is legal precedent for assessing low penalties in the circumstances which existed in this proceeding. In Bituminous Coal Operators 1
Association, Inc. v. Ray Marshall, 82 F.R.D. 350 (D.D.C. 1979), the court
noted that it would be necessary for an operator to violate section 103(f)
of the Act in order to obtain judicial review of the enforcement procedures
which MSHA intended to use with respect to a miner 1 s walk-around rights. The
court also recognized that the operator would be subject to a civil penalty
for violating the section just to test MSHAts enforcement procedures. The
court then stated (82 F.R.D. at 354) that "* * * it would seem improbable
that stiff supplemental civil penalties would be imposed where a genuine
interpretative question was raised as to section 103(f), a provision which
normally is not absolutely vital to human health and safety."
On the basis of the discussion above, I find that the parties' settlement agreement should be approved.
WREREFORE, it is ordered:
(A) Ordering paragraphs (A) and (B) accompanying the decision issued
September 11, 1980, in this proceeding are vacated as having been issued in
error.
(B) The notice of contest filed in Docket No. VA 79-74-R is denied and
Citation No. 694946 dated June 4, 1979, is reinstated and affirmed.
(C) The petition for assessment of civil penalty filed in Docket No.
VA 80-9 is reinstated.
(D) Pursuant to the parties' settlement agreement, Island Creek Coal
Company shall, within 30 days from the date of this decision, pay a civil
penalty of $15.00 for the violation of section 103(f) alleged in Citation
No. 694946 dated June 4, 1979.

~c.r;J~
Richard C. Steffey
Administrative Law Judge
(Phone: 703-756-6225)

1289

Distribution:

Marshall S. Peace, Esq., Attorney for Island Creek Coal Company, 2355
Harrodsburg Road, P. O. Box 11430, Lexington, KY 40575
Mail)
Leo J. McGinn,
., Office of the Solicitor, U. S. Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail)
Joyce A. Hanula, Attorney, United Mine Workers of America, 900 - 15th
Street, NW, Washington, DC 20005 (Certified Mail)

1290

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 16198'l
FREDERICK G. BRADLEY,
Complainant

Complaint of Discharge,
Discrimination, or Interference

v.

Docket No. WEVA 80-708-D

BELVA COAL COHPAHY,
Respondent

Belva Coal Mine

DECISION Ai\fD ORDER
On June 4, 1982, the Commission affirmed my decision finding that
Respondent had discriminatorily
Complainant in violation of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C, § 801 et
The case was remanded to recompute the back pay award.
On July 14, 1982, the parties submitted a stipulation showing the
gross wages due Complainant, the actual interim earnings, the amounts
to be withheld under State and Federal law, the interest on the back
pay, Complainant's transportation costs, and the legal fees and
expenses due Complainant's counsel.
The parties agreed to waive any rights of "appeal and Complainant
agrees to waive his right to reinstatement since he had previously
refused an offer of Respondent, and has taken other employment.
Having duly considered the matter, I conclude that the stipulation
is in Complainant's interest and in the public interest and should be
approveJ.
Therefore, IT IS ORDERED:
1. Respondent shall within 30 days of the date of this decision
pay to Complainant the sum of $21,048.53 his net back pay (which
includes interest at 12 percent per annum) plus $333 as transportation
costs or a total of $21,381.58.
2. Respondent shall within 30
of the date of this decision
pay to Complainant and his attorney the sum of $2,502 as attorneys fees
and legal expenses incurred in the prosecution of this proceeding.

1291

3. Complainant waives his right to reinstatement under my order
of February 11, 1981. Therefore, Respondent need not reinstate or
offer to reinstate Complainant.
4. Upon payment of the above amounts, Complainant shall have no
further rights under the Federal Mine Safety Act against Respondent
arising out of his discharge on June 11, 1980.

J

tivvt-L6

Distribution:

fe6,?Jtf~

James A. Broderick
Administrative Law Judge

certified mail

Daniel F. Hedges, Esq., Appalachian Research & Defense Fund, Inc.,
1116-B Kanawha Blvd., East, Charleston, HV 25302
Ricklin Brown, Esq., Bowles, McDavid, Graff & Love, 1200 Commerce
Square, P.O. Box 1386, Charleston, WV 25325
Linda Leasure, Esq., Office of the Solicitor, V.S. Department of Labor,
4015 Wilson Blvd., Arlington, VA 22203

1292

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

O~IAR

JUL 16 &

Contest of Citation

MINING COMPANY,
Contestant

Docket No. WEVA 81-284-R
Citation No. 667436; 2/3/81

v.

Chesterfield

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

Prep. Plant

DECISION
Appearances:

Donald A. Lambert, Esq., Charleston, West Virginia,
for the contestant; Leo J. McGinn, Attorney, U.S.
Department of Labor, Arlington, Virginia, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a contest filed by the Contestant challenging
the legality and propriety of a citation issued by MSHA charging the
contestant with a violation of mandatory safety standard 30 C.F.R. 77.216-2
(a)(l8). Respondent filed a timely answer in the proceeding asserting that
the citation was properly issued, and pursuant to notice duly served
on the parties, a hearing was conducted in Charleston, West Virginia,
on April 28, 1982, and the parties appeared and participated fully therein.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

seg.
2.

30 CFR 77.216 and 77.216-2.

3.

Commission Rules, 20 CFR 2700.1 et seq.
Issues

The critical issue presented is whether or not the contestant
violated cited mandatory safety standard 30 CFR 77.216-2(a)(l8), as
charged in the modified citation issued in this case. Additional issues
raised by the parties are discussed at the appropriate places in this
decision.

1293

Discussion
The original section 104(a) citation in this case No. 0667436,
was issued on February 3, 1981, and it charged the contestant with a
violation of mandatory safety standard 30 CFR 77.216-2(b). The
condition or practice described by the inspector as a violation states
as follows on the face of the citation (Exh. G-2):
Company has not submitted the additional information for impoundment 1211 WV 40430-02 which was
requested by the District Manager on October 30, 1980.
The citation was subsequently modified on March 10, 1981, for the
purpose of amending the original citation to reflect the correct citation
to the mandatory standard allegedly violated as 30 CFR 77.216-2(a)(l8).
The October 30, 1980, letter referred to in the citation, is from
MSHA District Manager Jim Krese (Exh. G-1), and it states as follows:
It has recently come to our attention that the emergency
spillway for the subject impoundment is not of adequate
size to meet design criteria. We have evaluated the
original design and our analysis indicates that the
emergency spillway discharge data used in the flood
routing was too high.
It is requested that your company evaluate the emergency
spillway design and submit a plan for corrective action.
If you have any questions concerning this matter, or
are not in agreement with our conclusion, please contact
this office at the earliest possible date.
Mandatory standard 30 CFR 77.216, requires a mine operator to submit
design, construction, and maintenance plans for structures which impound
water, sediment, or slurry if such an existing or proposed structure can:
(1) Impound water, sediment, or slurry to an elevation
of five feet or more above the upstream toe of the structure
and can have a storage volume of 20 acre-feet or more; or
(2) Impound water, sediment, or slurry to an elevation
of 20 feet or more above the upstream toe of the structure;
or
(3) As determined by the District Manager, present a
hazard to coal miners.

Mandatory standard section 77.216-2, contains the minimum information
required to be filed with MSHA by a mine operator once the initial plan

1294

required by section 77.216 is filed, and included among the kinds of
information which must be filed is a general "catch-all" stated in
subsection (a)(l8) of section 77.216-2, which states as follows:
(18) Such other information pertaining to the
stability of the impoundment and impounding structure
which may be required by the District Manager.
The citation issued after the inspector determined that the contestant
had not responded to the aforementioned letter from District Manager
Krese.
Testimony and evidence adduced by MSHA
MSHA Inspector Stuart H. Shelton, testified that he is a graduate
civil engineer, that he is familiar with Omar Mining Company 1 s Robinson
Creek Impoundment, and that as part of his MSHA inspection duties has
"been looking at this site off and on for close to 10 years 11 (TL 12).
Mr. Shelton identified exhibit G-1 as a copy of a letter dated October 30,
1980, signed by MSHA District Manager J. J. Krese, and which was sent
to the contestant. He identified exhibit G-2 as copies of the initial
citation which he issued on February 3, 1981, and which he subsequently
modified on March 10, 1981, citing a violation of 30 CFR 77.216-2(a)(l8),
He confirmed that he issued the citation because of the failure by the
contestant to provide the information requested by the district manager
in his letter as required by the cited mandatory standard (Tr. 13-14).
Mr. Shelton stated that he spoke with Mine Superintendent Ray Holbrook
and Mr. Karu Ison, the Chief Engineer, and they informed him that they
had no intention of responding to the letter. Mr. Shelton believed that
a reasonable time had gone by from the date of the letter and the time
the citation was issued. He also indicated that the letter was issued
after MSHA's engineering staff at the Mt. Hope office conducted a field
survey of the impoundment spillway to determine whether it was adequate
in terms of capacity. These studies indicated that the spillway capacity
was inadequate to meet the design criteria. The instant case is the
only one that he is aware of where additional information pursuant to
the cited standard was requested from a mine operator (Tr. 14-17).
Mr. Shelton testified that during the time period from October 30,
1980, until February 3, 1981, no response was received by MSHA with regard
to the district manager's letter. However, subsequently, on February 27,
1981, the contestant sent a letter to the district manager stating that
MSHA had no basis for requesting any additional information concerning
the spillway, and enclosing a legal paper explaining its position in
the matter (Tr. 18-19; Exh. G-3).
On cross-examination, Inspector Shelton stated that during the past
ten years he has inspected the impoundment in question approximately three
or four times a year, for a total of some 30 or 40 inspections. During

1295

this time he has issued citations concerning a fire on a slate dump
near the impoundment, all of which were corrected. He has never issued
any citations concerning the structural integrity of the impoundment
until the citation in issue in this case was issued (Tr. 21, 23).
He confirmed that he issued the citation because of the contestant's
failure to respond to the district manager's letter of October 30, 1980
(Tr. 23).
Mr. Shelton stated that he is familiar with MSHA's annual report
and certification requirements of 30 CFR 77.216-4, and the purpose of
this requirement is to report any changes in the structure which might
affect the stability of the impoundment. He identified copies of three
letters dated June 13, 1979, July 23, 1980, and July 30, 1981, from
MSHA 1 s district manager to the contestant, all advis
the contestant
that the information submitted meets the requirements of section 77. 216-l;
(Tr. 24-27; Exh. C-1 through C-3).
Mr. Shelton stated that the "certification" requirements of section
77.216-4,
the mine operator's
ered
to certify
that the impoundment was built according to a plan approved by MSHA's
district manager, and "it doesn't say anywhere in there that it is
(Tr. 28),
With regard to any "approved MSHA plan" for the impoundment structure
in question, Mr. Shelton testified in
part as follows (Tr. 28-31):
Q.

All right.

Can we not garner from the approval of the
plan that the District Manager must necessarily feel
it's a safe structure or he would not approve the plans?

A.

You are treading on a very gray area at the
moment. Omar Mining Company is one of the sites that
does not have a specific approved plan. They -- we
accepted it. We did not actually, specifically accept
it.
Now, for practical purposes, we did accept it.
But, if you are going to say "approved plan", technically,
they've never had an approved plan.

Q.
Is that because MSHA wasn't in existence or
didn't have jurisdiction of these structures when it
was started?
A.

You want a conclusion?

Q.

No.

1296

JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:
can clarify it.

Do the best you can with the question.
All right.
If you don't understand the question, he

THE WITNESS: Well, as I understand it, his question
is: why was no approved plan ever issued for this site?
When we first got started, we were as inexperienced in
all of this as anybody else was and a number of sites slipped
through under much the same condition as Omar. They, more or
less, submitted information and we approved the plan, or we
"accepted" the plan, or however you want to say it. There
was no formal procedure for approving or disapproving a plan.
That did not come until later.
BY MR. LAMBERT:

Q.
In essence, or to sum up this line of questioning,
Mr. Shelton, your letter of October 30th, 1980 came about,
or was delivered -- let's see: July 23rd -- August, September

*

*

*

A.

Right.

Q.
Ninety-three (93) days later, after we got a
certification or our structure, they felt it necessary to
ask for additional information.
JUDGE KOUTRAS:
MR. LAMBERT:

Mr. Krese did?
Mr. Krese did, right.

THE WITNESS: Well, this comes back to the question which
was never really decided as to what 77.216.4 addresses. As I
understand it, it basically addresses changes in the structure.
BY MR. LAMBERT:

Q.
And any other aspect of the impounding structure
affecting its stability -- I'm asking you: would the District
Manager give us a -- I'm calling it a "certification" of our
structure if he felt the structural integrity was in doubt?
A.
The District Manager approved the plan as it came
out at the time.

1297

Q.
And, even after you issued the citation notice,
June 30, 1981, you again approved our plan without giving
us any information as to any structural deficiency; is that
correct?
A.
As far as I see that I have anything to do with it,
the two are not related. The two are different questions.
They are different sections of the law.

Q.
You, in response to a question by Mr. McGinn -you said the basis of the letter, as far as you are concerned,
was based on hearsay testimony.
A.
I said that I don't know for a fact what happened.
Thatrs correct. I was not involved in it.

Q.
And you were simply instructed to issue a notice;
is that correct?
A.
Issued it because the paper had not been -- the
response had not been submitted by Omar Mining Company.
With
to the specific impoundment design criteria information
that the district manager sought to obtain from the contestant in this
case, Mr. Shelton responded as follows (Tr. 31-33):

Q. Did you ever inform Mr. Ison or Mr. Holbrook or
the company of what the standard criteria you wanted them
to respond to -- in other words, were they to respond to a
probable maximum floor or a hundred-year flood or to
standard engineering practices, or what were they to respond
to?
A. The company itself has admitted that the proper -that there are structures that are downstream of the impoundment. That is beyond any dispute. The offices are below the
impoundment. There are several communities below the impoundment and the currently accepted practice where loss of life
is possible is to use the probable maximum precipitation as
the criteria.

Q. Has the District Manager informed this company, or
any other company of that change of criteria from what is
contained in 77.216?
A. That is the criteria; so far as I'm aware, there is
no dam in the sub-district that I work that has a lesser criteria
than the PMP. This is the criteria that has always been
accepted ever since about 1974 when we finally got organized.

1298

Q.

Since when, Mr. Shelton?

A.
It was about 1974 or thereabouts when we started
using the probable maximum precipitation for any impoundment
which has the possibility of loss of life if it failed.

Q.

What is the PMP criteria?

A.
The Probable Maximum Precipitation is a criteria
that has evolved based on historical records and also assuming
the worst possible set of conditions. If you ask me exactly
how it is evolved, I would have to say: I do not know. It is
figured by the U.S. Weather Bureau. They put out a publication
called TP-4 which shows what it is for each area of the country.
For this area of the country, it is 27 inches in a six-hour
period. Excuse me, that's been corrected a year or so -- a
couple of years ago -- go 28 inches. The previous was 27 but,
about two years ago, they changed it to 28 inches in six hours.
Q.
What was the design criteria on the storm in 1974
except the criterion on the enegineers
hydrolics and so
forth?
A.
So far as I'm aware, it has always been the probable
maximum precipitation, among experienced hydrologists, where
loss of life is possible. We did not pick these figures out
of a hat. It's what the Corps of Engineers uses. It's what
the Bureau of Reclamation uses, and those are probably two
of the biggest dam-building groups in the United States.

Q.

They are the ones that built Teton?

A.

Yes.

Q.
Subsequent to the notice of the filing of the amendment and so forth, Mr. Shelton, have you had conversations
with the District Manager as to what he feels is reasonable
required of Omar in the way of design data?
A.

No,

I have not.

Contestant's testimony
Karu Ison, contestant's Chief engineer for the past eleven years,
testified that he is acquainted with the impoundment in question and
has been the Chief engineer beginning with its design and construction.
The company hired a consulting engineering firm to do the initial dam
design after a permit was obtained from the West Virginia Public Service
Commission. Construction of the impoundment was completed sometime in
1974, and it was initially inspected by the Bureau of Land Management.
Correspondence with MSHA after the plans were filed began either in 1973

1299

or 1974, and MSHA inspected the site. In addition, "as-built" dam
drawings and construction maps were submitted to MSHA, and they made
certain recommendatio~s concerning the emergency spillway. In his
opinion, the spillway was designed and built according to MSHA's recommendations (Tr. 51-55).
Mr. Ison confirmed that during the period 1974 until 1980, the
company has been required to submit to MSHA certifications from a
registered professional engineer as to the physical integrity of the
impoundment structure, and that MSHA has accepted these without making
any recommendations for changes. The 1980 certification was submitted,
and MSHA did not question the integrity of the structure or the emergency
spillway, nor has MSHA ever told him what information was required after
the district manager 1 s letter in question (Tr. 55-56). He also indicated
that he does not really know how to respond to the letter, but he understands that MSHA was asking the company to enlarge the spillway. However,
he has no competent engineering advice from his consultants indicating
that the spillway is inadequate. He confirmed that the response finally
made by the company taking exception to the district manager 1 s judgment
was the only answer he could make. The company believes that since it
hired competent engineers to design the impoundment, "it is way late
in the game to try to make changes now" (TL 5 7).
On cross-examination, Mr. Ison confirmed that if the regulations
concerning the approval of dams went into effect on September 9, 1972,
all correspondence between the company and MSHA would have taken place
prior to that date (Tr. 57). He also confirmed that he disagreed with
the contents of the district manager's letter of October 30, 1980, and
did not express his disagreement in response to that letter, but did so
later after the citation was issued (Tr. 58).
In response to further questions, Mr. Ison stated that the consulting
firm of L. Robert Kimble Associates was selected by the company from a
list of such firms recommended either by MSHA or another Federal agency.
After the initial plans were submitted, MSHA and the Bureau of Land
Management conducted a field inspection at the site and issued a report
and recommendations. After the spillway was enlarged and relocated according
to these recommendations, it was approved by MSHA as the "as-built
structure" (Tr. 60-61). This approval was sometime in 1974 after the dam
was built (Tr. 62).
Contestant's arguments
In its post-hearing "statement of facts", contestant states that
the impoundment in question (#1211Wv40430-02), was constructed during
1973 and 1974, was essentially completed in 1974, and is used as an
alternate slurry disposal area. Contestant asserts that at the time
of the design-construction phase of this structure, such dams were under
the jurisdiction of the West Virginia Public Service Commission. Subsequently the United States Bureau of Land Management and three other

1300

agencies became involved in the permitting of such structures. In
1973 MSHA became involved, requiring submission of data as set out in
§ 77.216,30 C.F.R.
At this stage, the structure was, for all practical
purposes, a completed structure, and that under§ 77.216 a plan for the
continued use of an exis
structure would be required before May 1, 1976.
Prior to this date, MSHA was supplied "as built" drawings and these were
evaluated by the "Denver Technical Support Group" of MSHA. After a review
of the "as built" drawings MSHA required an alteration to the spillway
design and after a review by the companyrs engineering consultants,
a revised plan was submitted for MSHA review.
Contestant maintains that after MSHA review, the spillway was
altered in that this portion of the structure was relocated and expanded
according to the ostensibly approved plans. This necessitated the
expenditure of a considerable amount of time and money but the result
was a wider, deeper and more stable structure. The structure is equipped
with a under-flow drain of 48" x 48" totaling 1700 feet in length. A
Decant system, to allow water to flow out of the impoundment into the
underflow system, is in
and apparently is functioning as designed.
The spillway, in place for approximately 7 years, has never received water
and remains "as built" after the required MSHA alterations referred to
above.
Contestant submits that all of the plans
section
77.216-2, have been submitted to MSHA and are on file at the District
Manager's Office in Mount
, West Virginia. In addition, contestant
states that the required annual certifications, as required by section
77.216-2(17), have been filed by the contestant. I take note of the
fact that the annual certifications for the past three years are a matter
of record in this proceeding (Exhs. C-1, C-2, and C-3). In addition,
by agreement of the parties, additional exchanges of correspondence
during the time period November 14, 1973, through April 24, 1979, concerning
the structure in question are a part of the record by way of "background",
and the parties have been furnished copies of these documents.
With regard to the October 30, 1980, letter in question, contestant's
Notice of Contest filed March 2, 1981, asserts that the letter was based
on receipt by MSHA of a
compiled by the State of West Virginia
Department of Natural Resources, Coal Refuse and Dam Control Section,
which report was prepared under a contract with the U.S. Corps of Engineers
under the National Dam Inspection Act. Contestant points out that the
letter lacks any reference to a specific "design criteria" relied on
by the district manager to support the "presumptive" conclusion that the
energency spillway "is not of adequate size", and that "corrective action"
is necessary. Contestant states that upon receipt of the letter, it
informed Inspector Sheltom that it took exception to the district managerrs
conclusion, and that contestant was of the opinion that the structure
was safe and that its design was in accordance with current prudent
engineering practices as required by section 77.216-2(17).

1301

Contestant views the critical issue in this case to be as follows:
Does the citation, including the District Manager's
letter of October 30, 1980, contain sufficient specificity
to adequately inform the Contestant of the nature of the
supposed violation?
- Phrased in another fashion Is it a violation of the law on the part of the company
to fail to answer or reply to a request for additional
information made by the District Manager when the request
for such information is made in presumptive, pre-judgment
terms applying an unknown standard or criteria?
Citing the case of Secretary of Labor v. Walker Stone Company,
1 MSHC 2262, decided by Judge Michels on December 10, 1979, contestant
argues that the instant citation should be vacated because it is vague
and ambiguous, and does not give sufficient notice as to the exact nature
of the violation. In Walker Stone, the inspector cited a violation of
30 CFR 56.12-35, which requires that all metal enclosing or encasing
electrical circuits be grounded or provided with adequate protection.
In vacating the citation, Judge Michels ruled that "If the citation is
based on an improper grounding, it should specify what standards set out
in the Code was violated so that the company will know exactly what it
is being charged with" (emphasis added).
Comparing the Walker Stone decision with the case at hand, contestant
asserts that the citation issued by Inspector Shelton would not stand
the test of specificity in that contestant was not informed by the district
manager, the inspector, nor through the citation issued as to the standard
or criteria that has been supposedly violated: Further, contestant states
that to require the contestant to speculate or guess as to the standard
or design criteria of impoundments used by the district manager to determine
that the impoundment spillway "is not of adequate size to meet design
criteria", is unthinkable in any due process sense, and that the attendant
expenditure of resources by the contestant and the likelihood of nonacceptance of the conclusions by the district manager creates an impossible
predicament for this Contestant.
Another point made by the contestant as to whether the inspector
was justified in issuing the citation is the fact that no time or deadline
was set out in the district manager's letter, nor does§ 77-216(2)(a)(l8),
place a time limit on a response date by contestant. Even assuming that
the citation is justified under any conceivable set of existing conditions,
contestant concludes that it was premature.
·
Concluding its arguments, contestant suggests that MSHA's district
manager should be required to inform the contestant as to the "design
criteria" he used to make the stated determination enunciated in his letter.

1302

At this point, the contestant could then evaluate its plan and design,
and either take exception to the district manager's findings, or challenge
the criteria used as being outside of or repugnant to "prudent engineering
practice". Contestant concludes further that it would appear that the
district manager, after reading or being informed of the contents of what,
for purposes of this case, amounts to a "phantom report" from an agency
not a party to these proceedings, adopted a design criteria that is outside
the laws, regulations and standards that he is charged to uphold and
administer. Should this be the case, contestant strongly suggests that
the district manager be required to state and publish that he has, in
fact, adopted such criteria, thus allowing the contestant an opportunity
to either accept such design criteria and to properly evaluate its impounding
structure in this light, or to take exception to the criteria and offer
evidence of what it considers the criteria to be, consistant with prudent
engineering practices.
Respondent MSHA's position
MSHA did not file any post-hearing arguments in this case. However,
during the course of the hearing, its position is that the citation in
this case was validly issued because of the contestant's noncompliance
with the reporting requirements of the cited standard. In short, MSHA 1 s
position is that by failing to respond to the district manager 1 s letter,
contestant violated the cited standard, and the citation was warranted
(Tr. 70). In addition, MSHA's counsel indicated that notwithstanding the
merits of its arguments concerning the design of the spillway in question,
the fact is that the contestant opted not to respond to the district manager's
letter, even to record its disagreement, and under these circumstances,
a violation of the cited standard has occurred (Tr. 73). MSHA's counsel
concedes that the citation has presented the district manager with an
available vehicle to initiate further enforcement action to correct
certain conditions concerning the impoundment in question (Tr. 75).
Since the citation remains unabated, I assume that what counsel has in
mind is that MSHA can issue a withdrawal order for contestant's failure
to abate the cited violation.
MSHA's counsel also indicated that pursuant to section 77.216, the
mine operator initially formulates a plan and design for the construction
and maintenance of an impoundment and submits it to MSHA for evaluation
(Tr. 65). However, prior to the promulgation of this section, another
mandatory standard required that all impoundment structures which can
impound water, sediment, or slurry shall be of "substantial construction".
The submission of "as-built" plans were required separately under this
general "substantial construction" standard, but subsequently, detailed
submissions for such impoundments were required to be filed with MSHA
pursuant to section 77. 216 (Tr. ·65-66).
Inspector Shelton indicated that pursuant to the presPnt impoundment
criteria considered by MSHA, the impoundmer.t in question mu.st adequately
control any designed storm. The mine operator has discretion whether

1303

to do this by a "de-cap pipe" which permits water to flow automatically,
or by means of a spillway to control the maximum water level. Another
alternative is to simply store the water and drain it out during a
"ten-day draw-down pei:iod" (Tr. 66-6 7).
Mr. Ison indicated that the impoundment in question has never used
the emergency spillway, and that it has a 48-inch pipe under the entire
structure to carry away the normal water stream, as we 11 as a "d ecant II
system to drain any water away. He also indicated that there has
never been a need to release any water through the emergency spillway,
and that the 1700 feet of 48-inch pipe was designed as part of the emergency
spillway (Tr. 68). Mr. Ison did not believe that anything has occurred
since October 30, 1980, that would cause the district manager to change
his position with regard to the spillway design (Tr. 69).
Findings and Conclusions
Fact of violation
In this case the contestant is charged with a violation of mandatory
standard section 77.216-2(a)(l8), because of an asserted failure to
respond to a letter of October 30, 1980, from MSHA's District Manager
Krese. In that letter, the district manager informed the contestant
that the emergency spillway for the impoundment in question was not of
adequate size to meet certain design criteria. The letter does not
inform the contestant where the information supporting the "inadequate
size" statement came from, but based on an "evaluation" and "analysis",
apparently conducted by the district manager's office, he concl~ded
that corrective action was necessary, and he requested the contestant
to evaluate the spillway design and to submit a plan for corrective action.
The general regulatory scheme found under section 77.216, requires a
mine operator to submit certain plans for the design, construction, and
maintenance of impoundments if such impoundments impound water, sediment,
or slurry under the conditions stated under section 77.216(a)(l) or (2), .£.!:.
the impoundment presents a hazard to miners as determined by the District
Manger. Section 77.216-2(a) provides guidelines for the minimum information
required to be filed by an operator when he submits the plan specified
in section 77.216, and the cited subsection, 77.216-2(a)(l8) requires an
operator to submit "/s/uch other information pertaining to the stability
of the impoundment and impounding structure which may be required by
the District Manager". The citation issued when the inspector discovered
that the contestant had not responded to the letter of October 30, 1980.
Contestant's defense is based on an argument that the District
Manager has already made a judgment that the impoundment spillway
in question is of inadequate design, that it poses a hazard to miners,
and that corrective action is necessary. Since the contestant obviously
disagrees with these conclusions, contestant maintains that before it
can be charged with a violation, it must first be informed of the specific

1304

design criteria which the District Manager has in mind, and must be given
an opportunity to refute the contention that the spillway is unsafe.
Citing the inspector's testimony that there are no published regulatory
standards for the design and construction of impoundments, contestant
concludes that it is placed in the untenable position of accepting the
District Manager's unchallenged judgment that the spillway needs to be
redesigned to correct certain uncommunicated defects which he (the manager)
believes makes the spillway unsafe.
The record in this case reflects that since the original construction
of the impoundment sometime in 1973 or 1974, several State and Federal
agencies were involved in policing the construction and maintenance of
the impoundment in question. Subsequent to this time, from 1973
to the present, MSH.A and the contestant have exchanged correspondence
concerning the impoundment, and contestant has filed its annual reports
and certifications as required, and until this controversy arose, the
impoundment apparently met all of MSHAvs requirements.
During the course of the hearing in this case, MSHAvs counsel asserted
that the contestant chose not to file any response to the letter of
October 30, 1980, even to record its disagreement with the District
Manager 1 s conclusions. I venture a guess that had contestant simply voiced
its objections, it would
still be cited because the letter specifically
requests the filing of
In any event, the
inspector testified that contestant advised him that it did not intend
to respond to the letter, and it seems clear to me that the letter, on
its face, concludes that the spillway is unsafe and that something must
be done to correct this condition. I find that the method used to achieve
compliance in this case to be somewhat arbitrary, and I agree with the
contestant's arguments in support of its position in this matter. As a
matter of fact, the inspector indicated that this is the first case
that he is aware of where the standard in question was used to elicit
information from an operator.
I conclude and find that the letter of October 30, 1980, fails
to advise the contestant of the specific inadequacies in its spillway
design, that it fails to adequately inform the contestant as to the basis
for the District Manager's unsupported conclusion that the spillway
presents a hazard, and that it fails to support any conclusion that
corrective action needs to be taken. Further, it seems to me that if
MSHA believes the spillway in question is unsafe and fails to meet des
criteria (whatever they may be), then MSHA should address this question
head-on rather than relying on some vague and rather obscure regulatory
requirement for the filing of "such other information * * which may be
required". This is particularly true in a case such as this where
the citation remains unabated. Only in this way will the contestant have
a fair and open opportunity to chellenge and rebut the conclusions that
its spillway design is anadequate and presents a hazard.

1305

In view of the foregoing findings and conclusions, the citation,
as modified, IS VACATED, and this case IS DISMISSED.

Judge
Distribution:
Leo J. McGinn, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Donald A. Lambert, Esq., P.O. Box 4006, Charleston, WV 25304 (Certified
Mail)

1306

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

UNITED MINE WORKERS OF AMERICA,
ON BEHALF OF BILLY DALE WISE,
Complainants

JUL 161982

Complaint of Discrimination
Docket No. WEVA 82-38-D

v.

Ireland Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Thomas Myers,
Esquire, United Mine Workers of America,
Shadyside, Ohio, for the complainants; Jerry F. Palmer,
Esquire, Pittsburgh, Pennsylvania, for the respondent.

Before:

Judge Koutras

This matter concerns a discrimination complaint filed by the complainants
against the respondent pursuant to section 105(c)(3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. 801
Complainant Wise claims
that he was unlawfully discriminated against
suspended from his job for
three days by the respondent for engaging in activity protected under
section 105(c)(l) of the Act. Respondent filed a timely answer denying
any discrimination and asserting that complainant Wise was suspended because
he violated State and Federal mine
laws. A hearing was convened
on March 16, 1982, in Pittsburgh, Pennsylvania, and the parties appeared
and participated therein.
Issue Presented
The principal issue presented in this case is whether Mr. Wise's
suspension was prompted by protected activity under the Act. Additional
issues raised are discussed in the course of this decision.
Applicable Statutory and Regulatory Provisions

1.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C.

et~·

1307

§

301

2. Sections lOS(c)(l), (2) and (3) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815(c)(l), (2) and (3).
3.

Commission Rules, 20 CFR 2700.1, et seq.

The discrimination complaint filed in this case states the following
circumstances on which the alleged act of discrimination is based:
1.

At all times relevant to this proceeding Complainant Billy
Dale Wise was a member of the Mine Health and Safety Committeeo
In connection with his duties as a member of the Mine Health
and Safety Committee, Mr. Wise regularly inspects areas of the
mine and reports unsafe or unhealthy conditions to the employer
and to the appropriate federal and state agencies.

2.

On or about June 30, 1981, Complainant Wise reported a condition
involving an improperly functioning belt feeder to the West
Virginia Department of Mines. After investigating the complaint,
the State Department of Mines assessed a personal fine against
Mine Superintendent Mr. Omear.

3.

On or about July 2, 1981, Complainant Wise filed a complaint
with the State Department of Mines, which alleged that miners
were permitted to enter an area of the mine prior to such area
being declared safe by the fireboss. After investigating Mr. Wise's
complaint, the West Virginia Department of Mines assessed a
personal fine against Mine Superintendent Mr. Omear.

4.

In the course of conducting an inspection of the mine on Friday,
July 10, 1981, Mr. Wise and another m~mber of the Safety Conunittee,
Mr. Leo O'Connor, observed that parts of the 1 North submain
track entry contained inadequate roof support, a condition which
they believed posed a serious danger to the miners at the Ireland
Mine.

5.

After observing the above-described dangerous condition, Mr. Wise
called Mr. Omear, the Superintendent of the Ireland Mine, and
informed him that the area should be dangered off. When Mr. Omear
disputed Mr. Wise's evaluation of the condition of the track entry,
Mr. Wise requested that MSHA Inspectors Moffitt and Tyston be
called to the affected area to evaluate the condition. Mr. Omear
thereupon indicated that such action would not be necessary and
that he would assign men to correct the situation.

6.

Approximately two hours later, the Safety Committee returned to
the affected area to check on the progress being made toward
correcting the condition. While he was inspecting the area in
question and questioning the workers regarding the adequacy of
the temporary supports, Mr. Wise was ordered by Mr. Omear to
leave the area. After assuring himself that the miners assigned
to correct the dangerous condition were proceeding to do so in a
safe manner, Mr. Wise left the dangered-off area.

1308

7.

Later that day, Mr. Omear informed Complainant Wise that
his action in remaining in the dangered-off area constituted
insubordination and that he would be disciplined for this
activity. The following Tuesday, July 14, 1981, Complainant
Wise was suspended for three days.

On July 15, 1981, Mr. Wise filed a complaint of discrimination with
MSHA, and on September 28, 1981, he received written notification of the
Secretary's determination that no violation had occurred. The instant
complaint followed, and complainants maintain that Mr. Wise's suspension
resulted directly from activity protected under the Act and that his
suspension was, therefore, a violation of section 105(c),
Respondent 1 s answer admits to the
1.

Billy Dale Wise is employed at Consolidation
Coal Companyvs Ireland Mine in Moundsville,
West Virginia, and is a miner as defined in
section 3(g) of the Act.

2.

At all relevant time herein mentioned,
Respondent Consolidation Coal Company did
business and operated the Ireland Mine in
the production of coal and therefore was
an "operator" as defined in section 3(d) of
the Act.

3.

The subject Ireland Mine, located in or near
Moundsville, West Virginia, is a "mine" as
defined in section 3(h)(l) of the Act, the
products of which enter or affect commerce.

4.

At all times relevant to this proceeding
Complainant Billy Dale Wise was a member of the
Mine Health and Safety Committee. In connection
with his duties as a member of the Mine Health
and Safety Committee, Mr. Wise regularly
areas of the mine and reports unsafe
or unhealthy conditions to the employer and to
the appropriate federal and state agencies.

Testimony and evidence adduced by the complainants
Billy Dale Wise testified that he has been employed at the mine
for over 15 years and has been a member of the safety committee for
some 13 years. He is familiar with the provisions of the 1981 Bituminous
wage agreement as well as his rights and responsibilities under the
applicable state and Federal mine safety laws. On July 10, 1981, sometime
after 10:00 a.m. he and two members of the safety committee conducted a
regular safety inspection of the mine and while in the One-North section
observed three overcasts which were in need of attention. After discussing

1309

the situation with shift foreman James Siburt, mine superintendent
Robert Omear was called to the scene. After inspecting the area further,
Mr. Omear agreed that. the overcasts needed attention, and Mr. Wise advised
him that work should proceed immediately to correct the conditions.
Mr. Wise observed that several roof bolts were not tied into the roof,
the overcasts were loaded with stone, and wire mesh was hanging down.
Although Mr. Wise told Mr. Omear that the conditions did not present
an imminent danger, he suggested to Mr. Omear that two Federal inspectors
who were in the mine could be brought to the area to inspect the overcasts,
Mr. Omear stated that this would not be necessary and assured Mr. Wise
that the conditions would be immediately corrected. Mr. Siburt and
Mr. Omear hung "Danger" tags over the overcast area, Mr. Wise left the
area to inspect another mine section, and Mr. Omear proceeded to make
preparations to correct the conditions.
Sometime between 1:30 and 2:00 p.m. on July 10, 1981, Mr. Wise
and safety committeeman Leo Connor returned to the overcast areas. A
man-door had been erected near the first overcast, and although Mr. Wise
could observe two men working outby the door and from his position outby
the danger tags, he could not observe the men who were working behind
the door and a wall. He and Mr. Connor proceeded beyond the danger tags
and Mr. Wise looked in the man door and asked one of the workmen, Kenneth
Simmons, about how the work was progressing and whether they '\.1ere making
the area safe." Mr. Simmons advised Mr. Wise that they were "making it
safe as we go".
Mr. Wise stated that after leaving the overcast area and g9ing outside
at approximately 2:30 p.m. Mr. Omear advised him that he was "wrong"
in going past the danger sign at the overcast area and that he was going
to discipline him but did not know exactly what course of action he would
take. The following Monday, July 13, Mr. Wise and Mr. Omear discussed
the matter further but no decision was made. On Tuesday, July 14, they
discussed it again, and later that evening Mr. Wise was summoned to
Mr. Omear's office and he was advised that he would be suspended for
three days for insubordination for going beyond the danger tag. Mr. Omear
tqen gave him a letter of suspension (exhibit C-1), confirming his suspension
in writing.
Mr. Wise testified that after receiving the letter of suspension
he took the next two days off, and since the mine was on strike on Friday
he consulted with his union as to whether he should count that day as a
suspension day. He was advised not to, and therefore stayed off work
the next Monday and reported to work on Tuesday. He subsequently filed
a grievance contesting his suspension, and the results of his arbitration
hearing held on October 22, 1981, were made a part of the record (exhibit C-2).
Mr. Wise stated that he was not aware of any company policy or procedure
concerning a miner crossing a posted danger tag. He indicated that he
has in the past crossed beyond such posted signs while conducting regular
inspections in his safety committeemen's capacity and that his July 14
suspension was his first for doing so.

1310

Regarding prior safety complaints, Mr. Wise confirmed that on
June 29, 1981, he observed pipe being carried on a personnel carrier
"jeep" and advised Mr. Omear that it was a safety violation. Mr. Omear
disagreed with him, ~nd Mr. Wise reported the incident to a state of
West Virginia mine inspector that same day and requested an investigation.
A second incident occurred on June 30, 1981, when Mr. Omear summoned him
to a belt feeder located in the 6-D, 2-South supply track section where
a mechanic was performing some work. Mr. Wise observed a protective
cover which had been removed from the belt, and he also observed that
the feeder had been "pumped out" while the belt was running. He advised
Mr. Omear that this was a violation and then reported it to the state
mine inspector and requested an investigation. A third incident occurred
on July 2, 1981, when Mr. Wise was informed that two men went into the
mine at 3 p.m. before it was firebossed, He learned that Mr. Omear had
sent them in and he discussed the matter the next morning with Mr. Omear
and advised him that sending men into the mine before it was fire-bossed
was a safety violation. Mr. Omear stated that he would send men into
the mine 11 anytime he fel , and Mr. Wise then filed a complaint with
state mine inspector Arthur Price (Tr. 8-59).
On cross-examination, Mr. Wise confirmed that he is aware of the fact
that the respondent has taken prior
inary action against employees.
He also confirmed that he was aware that employee Rex Whipkey had received
a five day suspension, but had no
concerning prior discip
actions taken against employees Roger King, Joe D. Marciano, and Alan Goody,
He also testified that he has in the past observed danger signs posted
in the mine and that did not cross beyond them. He also indicated that
by crossing beyond such danger signs he exposes himself to the hazards
which may be present in the danger areas.

0

Mr. Wise stated that when he first arrived at the overcast areas
which had been posted with danger
he could not observe the men
behind the man door from where he
outby the danger signs.
Although he did not disagree with
corrective action being taken by
Mr. Omear with regard to the roof conditions, he proceeded beyond the
danger signs in order to inspect the area and work being done beyond
the danger signs in order to inspect the area and work being done behind
the man-door and to ascertain from the men working there as to the progress
of the work. He indicated further that Mr. Siburt said nothing to him
about crossing beyond the danger sign, and although Mr. Connor had also
passed beyond it nothing was said to him. After crossing the sign Mr. Wise
leaned in through the man door and discussed the work going on with Mr. Simmons.
After determining that the area was "being made safe" he left the area.
He estimated that he was in the "danger" area for about five minutes
and he reiterated that he crossed the danger area because he believes
he has a right to do in his capacity as a safety committman in order
to check any area of the mine where men are working (Tr. 59-77).
Kenneth P. Simmons, employed by the respondent as a pumper, testified
that on July 10, 1981, he was instructed to take some cribbing material
to the overcast area in question, and when he arrived there Mr. Omear

1311

instructed him to proceed with the installation of roof cribbing in
the first overcast location. Mr. Simmons observed that construction
work was proceeding t? complete a man door in the side of the overcast
and he also observed a roof bolter in the area. The car carrying the
cribbing material was parked near the man door beyond the danger signs
which had been posted. Mr. Omear showed him where to install the cribs.
Mr. Simmons and another miner were installing jacks and cribs inby the
man door, and two other miners were outby passing the cribbing material
through the door to them.
Mr. Simmons stated that at approximately 2:30 or 3:00 p.mo, after
completing the installation of two cribs and while working on the third
one he heard some conversation outside the door. Mro Wise then looked
inside and asked him how the work was progressing. Mro Simmons showed
Mr. Wise where the jacks and cribs were installed and he heard Mr. Omear
yelling at Mr. Wise not to go beyond the posted danger signs. Mro Omear
was positioned oubty the danger signs approximately 20 feet from the door,
Mr. Simmons stated that he asked Mr. Omear
it was not safe for Mr, Wise
to be there, what about me," Mr. Omear told him to "shut up and keep
working". He continued working until 3:25 p.m. when he left the area
at the end of the shift (Tr. 99-108).
On cross-examination, Mr. Simmons confirmed that while Mr, Wise
did not pass through the man door where he was working, he did lean in
to observe the area and to inquire how the work was progressingo He also
confirmed that Mr. Omear also looked in behind the man door after he had
completed his work on the roof cribbing (Tr. 109-110).
Leo Conner testified that he has been employed by the respondent
for approximately 15 years and is the president of the local union
as well as a member of the safety committee. ,He confirmed that he was
with Mr. Wise on July 10, 1981, during a post-vacation mine inspection
when they observed an overcast area along the haulage track which needed
attention. They passed through a man door for a closer inspection of one
of the overcasts and observed that it needed roof support. The conditions
were called to the attention of shift foreman James Siburt and Mr. Omear
was then sununoned to the scene. Although all of them agreed that the
conditions did not present an imminent danger, Mr. Conner and Mr. Wise
informed Mr. Omear that the overcast conditions required immediate attention
and Mr. Omear agreed to take care of the situation. Mr. Conner and Mr. Wise
then left to visit another area of the mine.
Mr. Conner stated that at approximately 2 or 2:30 p.m. on July 10,
he and Mr. Wise returned to the overcast area. Mr. Conner had a hand
saw with him and Mr. Siburt had asked him to bring it with him. Upon
their return to the area Mr. Omear was there, and Mr. Simmons and several
others were working on the roof crib installation. Mr. Conner proceeded
beyond the danger sign, and as he was returning Mr. Wise walked inby
the danger sign and proceeded to the man door to inspect the work which

1312

was going on. Mr. Conner overheard Mr. 0mear comment "How easy i•t i s
to forget", but he said nothing to Mr. Conner about passing beyond the
danger sign. Mr. Conner later learned that Mr. Omear would take
disciplinary action against Mr. Wise for passing beyond the danger sign.
Mr. Conner testified that he had no knowledge of any company policy
regarding employees passing beyond a posted danger sign and never saw
such a policy posted. He confirmed that weekly safety meetings were
held between the safety committee and mine management, but was not aware
that any policy concerning danger signs was discussed. He confirmed
that he had previously crossed beyond danger signs while accompanied by
mine inspectors or company management (Tr. 125-139).
On cross-examination, Mr. Conner stated that he was not aware
that any employee at the Ireland Mine had ever been disciplined for
violating safety regulations. He also confirmed that when he passed
beyond posted danger signs in the past he was engaged in walkaround
inspections with state or Federal Mine inspectors or inspecting the
mine face areas. He also confirmed that when he passed beyond the signs
in the company of management personnel he was authorized by management
to do so. In the instant case, since he was carrying a hand saw to be
given to the crew installing roof cribs he believed he was authorized
to go beyond the posted danger s
and Mr. Omear said nothing to him.
Mr. Conner stated that he believed he and Mr. Wise had the authority
to go beyond the danger sign in their capacity as safety committmen in
order to check on the men working in the area, and he did not believe
he needed Mr. Omear's authorization to do.so. Mr. Conner confirmed
that he commented to Mr. Omear that "you can't get me", and he explained
his comment by indicating that since he had brought in a hand saw as
directed he believed he had permission from management to pass beyond
the posted danger sign (Tr. 140-171).
Arthur Price, State of West Virginia Mine Inspector, confirmed the
fact that he investigated the complaints concerning three alleged violations
of state mine laws which occurred at the mine on June 29 and 30, and
July 2, 1981. The complaints concerned the matter of hauling pipe on
a personnel carrier, a belt feeder safety switch being by-passed, and men
entering the mine before it was fire-bossed. He explained the procedures
he followed in conducting the investigations and confirmed that he interviewed
Mr. Omear during the course of his investigations. He also confirmed
that he recommended and proposed that individual personal assessment
fines be issued to Mr. Omear for at least two of the citations and identified
two reports which he prepared concerning the matter (exhibits C-3 and C-4;
Tr. 172-191).
On cross-examination, Mr. Price referred to sections of the West
Virginia mining laws which set out the prohibitions against persons going
beyond posted danger boards, specifically sections 22.114 and 22.2-21.

1313

Mr. Price also testified that mining companies should make available
to miners copies of the applicable laws and regulations and he confirmed
that he was once employed by the respondent at the Ireland Mine but quit
to go to work with the state as a mining inspector.
He confirmed that
Mr. Omear did contact him to inquire whether it was legal for a person
to cross beyond a posted danger sign and he advised Mr. Omear that it
would depend on the circumstances presented but gave him no definitive
answer (Tr. 191-192).
Testimony and Evidence Adduced by the Respondent
Robert E. Omear, testified that he is the general superintendent
at the Luveridge Mine, but that in July 1981, he was the underground superintendent at the Ireland Mine. He discussed the general company policy
concerning employee safety violations, and indicated that depending on
the circumstances or facts of a given case, employees may be reprimanded
orally or in writing, or they could be discharged. The policy was enforced
while he was superintendent at the Ireland Mine, and during that time he
and members of the mine safety committee had weekly meetings concerning
safety matters of mutual concern. He confirmed that during his tenure as
the underground mine superintendent, Mr. Wise was a member of the safety
committee, and he worked with him for a period of some eight years on
matters dealing with mine safety. During this time he has discussed the
matter of union safety committeemen going beyond "danger boards" and
has advised them of his belief that they had no right to go beyond such
signs (Tr. 213-216).
Mr. Omear testified that on July 10, 1981, he met with Mr. ·Wise,
Mr. Conner, and foreman Siburt underground for the purpose of inspecting several
overcasts which Mr. Wise and Mr. Conner believed were in need of some work.
He agreed that the work needed to be done, an~ men and materials were
called in to install some cribs and a man door. A danger sign was hung
on the first rail of the overcast and Mr. Wise and Mr. Conner left to
continue on their inspection rounds. Mr. Omear remained in the area to
instruct the men as to where the work was to be performed and after
calling over the radio for a saw to be brought in he left to have a cup
of coffee which was on the motor car used by one of the miners performing
the work (Tr. 217-222).
Mr. Omear testified that while he was having coffee Mr. Wise and
Mr. Conner arrived on a jeep and parked it some 45 feet from the area
where the danger board had been posted. Mr. Conner was carrying the saw
which he (Omear) asked to be brought in, and both Mr. Wise and Mr. Conner
proceeded to walk beyond the danger sign. Mr. Omear then yelled at them
and told them that they should not be beyond the danger sign. Mr. Conner
left the saw in the area and immediately came out, but Mr. Wise stayed
in for about six minutes and refused to come out. After he came out,
Mr. Omear advised Mr. Wise that he was violating company policy as
well as state and federal laws by walking beyond the danger sign and
that possible disciplinary action would be taken against him. Mr. Wise
advised Mr. Omear that as long as union people were working on the overcast
he would stay in until he got ready to come out (Tr. 223-224).

1314

Mr. Omear confirmed that Mr. Wise did not have his permission to
go beyond the danger board to check on the work which was in progress.
Had he asked, permission would have been granted and Mr. Omear would
have gone in with Mr. Wise to show him what was being done and to insure
that he was safe (Tr. 225). Upon leaving the mine, Mr. Omear telephoned
state mine inspector Price who agreed that state law may have been violated.
Mr. Omear then contacted higher mine management to determine the course
of further action to be taken against Mr. Wise, and it was decided that
Mr. Wise should be suspended for three days for going beyond the danger
sign. Prior to this incident, Mr. Omear had never observed a safety
committeeman go beyond a danger sign unless he accompanied them (Tr. 226-229).
On cross-examination, Mr. Omear stated that the prohibition against
walking beyond a danger sign has been a policy at the Ireland for as long
as he has been there, and while the policy is not in writing "it is a policy
that we 1 ve lived with" (Tr. 230).
Such policy is sometimes communicated
verbally at meetings and sometimes its posted (Tr. 231). At one time
all company policies dealing with safety matters were in a book published
by the company but he has not seen it for the past five or six years
(Tr. 233). With specific reference to crossing beyond a danger sign,
Mr. Omear stated that while it is not in writing every coal miner knows
that a danger board ''means exactly what it says, you do not go beyond a
danger board" (Tr. 234).
This policy is generally communicated to the
work force at weekly safety meetings and during annual retraining (Tr. 235).
Mr. Omear stated that the men performing the work in the overcast
area were under his supervision, and that after he determined that the
roof cribs were being installed in the right place for roof support and
that the men understood his instructions, he left to use the radio to
order a saw and to have a cup of coffee (Tr. 238). Mr. Omear confirmed
that he told Mr. Wise three times to come out of the area where the
work was being done, and he also confirmed that Mr. Conner came out
immediately after leaving the saw and that Mr. Conner commented "you can 1 t
get me I was delivering a saw" (Tr. 241).
He did not see Mr. Conner lean
through the man door to observe the work going on and he indicated that
Mr. Conner heeded the first warning that he gave to Mr. Wise and came out
immediately without arguing the point (Tr. 242).
Mr. Omear stated that he and other members of mine management discussed
the incident in question and determined that Mr. Wise had violated federal
or state mining laws by crossing beyond the danger board in question, but
he could not specify the specific section of the law he had in mind (Tr. 248).
Mr. Omear could not state when the policy in question was last discussed
with the safety committee, and he assumed everyone was aware of the policy.
He also confirmed a past incident involving safety committeeman Bob Carney
who reportedly passed under a danger board while in the company of a
federal inspector who was conducting a mine inspectioR Mr. Carney was
not disciplined and he did not repeat the offense again (Tr. 252).
In response to bench questions, Mr. Omear stated that company policy
dealing with employee sanctions for violations of safety rules is posted
on the mine bulletin board and it is in the form of general work rules

1315

(Tr. 255, 258). Mr. Omear confirmed that at the time he ordered Mr. Wise
not to pass beyond the danger board, and during the time disciplinary
action was being considered against Mr. Wise, he was aware of the fact
that Mr. Wise had reported mine violations and made safety complaints
to state mine inspectors. However, he denied that he was influenced by
this in taking the action which was taken against Mr. Wise in this case
(Tr. 264). He also confirmed that certain state mine violations which
may subject him to individual personal assessments still have not been
resolved (Tr. 270). In response to a question as to his assessment of
Mr. Wise as a member of the safety committee, Mr. Omear responded as
follows (Tr. 273):
JUDGE KOUTRAS:
THE WITNESS:
is, no.
JUDGE KOUTRAS:

Is he well intentioned?
I don't--honestly, I don't believe he
Why do you say that?

THE WITNESS: I don't believe he'd give you a fair
shake or gives you a fair chance to take care of things
inhouse without--I think his first thing out of the bag
is to get the company, and the heck with it, you know,
and that's just the way I feel about it. That's my opinion.
James Siburt testified that on July 10, 1981, he was employed as an
acting shift foreman at the mine in question, and on that day he was
escorting the mine safety committeemen Wise and Conner on their "end of
vacation" safety inspection tour of the mine. Upon inspection ~f the one
north section, Mr. Wise pointed out an overcast which was sagging and
in need of attention, and Mr. Omear was called to the area. Mr. Omear
agreed that work was required to correct the condition and he and Mr. Omear
hung some danger signs. Mr. Siburt then left the area with Mr. Wise
and Mr. Conner to examine another mine area and they were gone for about
three hours. Upon returning to the one north section, they got off the
jeep and Mr. Wise and Mr. Conner walked under and past the danger signs.
Mr. Conner had a saw which he delivered to the crew doing the work and
Mr. Wise looked in through the man door to observe the work which was
being performed to correct the overcast condition. Mr. Omear asked Mr. Wise
to come out from the area at least three times and Mr. Wise stated that
he was "checking on his people". Mr. Siburt then left the area, and he
stated he had no part in the decision to discipline Mr. Wise for going
under the danger signs (Tr. 275-281).
On cross-examination, Mr. Siburt stated that in the past the company
has had a policy concerning the violation of safety regulations by miners
and he indicated that the initial training of a new miner includes the
fact that no one is to go inby danger boards or roped-off roof supports.
He had no idea as to how long the company policy has been in effect, did
not know whether it was in writing, and had never seen it in writing.

1316

He stated that everyone working underground knows that there is a policy
against going beyond a danger board, and he knows of no company guidelines
dealing with any discipline taken against miners for safety policy violations.
He observed both Mr. Wise and Mr. Conner cross beyond the danger sign,
but did not know who went in first and he confirmed that he heard Mr. Omear
tell Mr. Wise to come out at least three times and Mr. Wise's response that
he "was checking on his people". He also confirmed that Mr. Omear asked
Mr. Wise if he had two-hundred and fifty-dollars to pay for walking under
the danger boards (Tr. 281-289).
Mr. Siburt confirmed that he has passed beyond danger boards to check
on mine conditions and to see that certain work is performed by the crew
and that he did so on July 10, 1981. On these occasions, he did not have
Mr. Omear's permission because he is certified by the State of West Virginia,
and as a member of mine management is authorized to determine whether work
to correct violations is being done properly. He also indicated that
Mr. Wise is not certified by the State of West Virginia, and he is not aware
of the fact that Mr. Wise has certification papers to conduct pre-shift,
on-shift, or fire-boss inspections (Tr. 296-299).
State Mine Inspector Arthur Price was recalled and testified that
when he spoke with Mr. Omear about Mr. Wise walking under a
sign
he referred him to Article 22-1-4 of the state mining code and advised
him that "he may or may not have a case" and that he should check further
with the Inspector-at-Large. Mr. Price also indicated that by walking
beyond the danger sign Mr. Wise was in violation of the state fire-bossing
articles which state that it is a violation for anyone to pass beyond a
danger board once the area has been fire bossed and dangered off as a result
of that fire boss inspection (Tr. 303-304). However, in his 39 years of
mining experience, the general practice is for miners to respect a danger
sign and not walk beyond it unless they are going in to correct the
conditions (Tr. 305). Mr. Price also cited state mining provision 22-2-54
which requires mine operators, as well as employees, to insure that state
mining laws are complied with. This law also requires the publication
and posting of applicable mine laws in a conspicuous place at the mine
and that they be made available to employees upon request (Tr. 307).
Mr. Price stated that he worked at the mine in question for 12 years
before quitting in 1969 and going to work for the State of West Virginia
Department of Mines in 1971. He also inspected the mine for four years
and had a good working relationship with the
committee as well as
the company (Tr. 308).
The UMWA's Arguments
Mr. Wise's alleged violations of State. and Federal mining laws
In its post-hearing brief, the UMWA argues that Consol's reliance
on the ventilation provisions of section 303(d)(l) of the Act in support
of its contention that Mr. Wise was not authorized to go inby the posted

1317

danger signs in question is erroneous, and that this cited provision of the
Act simply is inapplicable to the facts of this case because there is
absolutely no evidence in the record to indicate that Mr. Wise had crossed
the kind of "danger" ~ign contemplated in section 303(d)(l). The UMWA
asserts that the incident in question occurred early in the morn~ng,
well after the time frame set out in section 303(d)(l) for pre-shift
fire bossing, and that the respondent's reliance on this section is
clearly misplaced. The UMWA points out that paragraphs (e) and (f)
of section 303 contain a specific "carve out" for certain persons, which
entitled those persons to enter an area of the mine from which all persons
must be withdrawn, and that these paragraphs state in pertinent part:
If such condition creates an imminent danger,
the operator shall withdraw all persons from the
area affected by such condition to a safe area,
except those persons referred to in section 104(d)
of this Act, until such danger is abated.
(Emphasis
added).
The UMWA asserts that Section 104 of the Act is the provision which
governs mine inspections by Federal inspectors, and that pursuant to
the withdrawal order provisions of section 104(c), there are
governing those persons who must be withdrawn from a mine area closed
by a Federal inspector, namely:
(1) any person whose presence in such area is
necessary, in the judgment of the operator or an
authorized representative of the Secretary, to eliminate
the condition described in the order;
(2) any public official whose official duties
require him to enter such area;
(3) any representative of the miners in such
mine who is, in the judgment of the operator or an
authorized representative of the Secretary, qualified
to make such mine examinations or who is accompanied
by such a person and whose presence in such area is
necessary for the investigation of the conditions
described in the order; and
(4)

any consultant to any of the foregoing.

The UMWA maintains that Subparagraph (3) of section 104(c) is clearly
designed to allow representatives of the miners or other persons accompanied
by a representative of the miners to enter an area for which a withdrawal
order has been issued when their presence is necessary for the investigation
of the conditions described in the order. In support of this conclusion,
the UMWA asserts that the legislative history bears out the fact that a
miner and his
representatives must play a key role in enforcement of
the Act, and that section 104(c)(3) does just that, because it enables

1318

representatives of miners to participate in th~ inspection of conditions
cited in the various types of orders that can be issued under section 104.
Citing the D.C. Circuit Court of Appeals decision in Phillips v.
Interior Board of Min~ Operations Appeals, 500 F. 2d 772 (D.C. Cir. 1974),
the UMWA emphasizes the need for a liberal construction of the provision
concerning discrimination, and maintains that liberal construction of
section 105(c) (formerly section llO(b)) has been applied without question
in an effort to effectuate the purpose of the Act.
Given the liberal construction of the Act,. the UMWA states that
Consol is unjustified in asserting that Mr. Wise violated section 303(d),
especially when a more pertinent provision, section 104(c), is more
applicable to the facts of this case. Surely argues the lJ}fivA, had an
inspector dangered off the area in question, Mr. Wise would be statutorily
authorized to enter such area to insure that the union employees were
working under safe conditions.
The UMWA does not take issue with the arg,uments made
Consol s
counsel during the hearing (Tr. 156-157) that the representative of the
miners must, in the judgment of the operator be qualified to make such
mine examination. However, the UMWA maintains that by virtue of the
1981 Coal Wage Agreement, Mr. Wise is so qualified. In support of this
conclusion, the UMWA has incorporated verbatim Article II=, section
of the wage agreement dealing with the Mine Health and Safety Committee
as part of its Brief. The pertinent portions of this section a the
agreement are as follows:
(1) At each mine there shall :be ·a Mine Health
and Safety Committee made up of miners employed at
the mine who are qualified by mining experience or
training and selected by the local·union. The
local union shall inform the Employer of the names
of the Committee members. The Committee at all times
shall be deemed to be acting within the scope of their
employment in the mine within the meaning of the applicable
workers' compensation law.
(2)

*

*

*

*

(3) The Mine Health and Safety: Committee may
inspect any portion of a mine and surface installations 2
dams or waste impoundments and gob p~les connected
therewith. If the Committee believes conditions found
endanger the lives and bodies of the :.Employees, it shall
report its findings and recommendations to the Employer.

*

*

*

( 4)

i(

*

*
*

*

*

(5) *
*
A Cornrnitte·e member shall not be
suspended or dischaxged for his official actions as a
Committee member. (Emphasis added),

1319

The UMEA argues that the aforesaid contract provisions clearly
indicate that Mr. Wise is qualified to make such mine examinations in
..::;.':."'.___J_':~~~-=-=-_=:.:=-~~~-=-=.:=..:~ as required by section 104(c), and for
the respondent to argue that he is not so qualified in this particular
instance violates the wage Agreement as well as the direct language of
section 104(c)(3). In light of the specific language set out in 104(c)(3),
the UMWA concludes that it cannot be reasoned that Mr. Wise was in violation
of section 303(d) of the Act.
In response to Consol's contention that Mr. Wise was in violation
of Chapter 22, Article 22-2-21 of the West Virginia Code when he passed
inby the posted danger sign, the UMWA asserts that this argument is faulty
simply because that State code provision is
to the facts in
this case. Section 22-2-21 states in pertinent
It shall be the duty of the fire boss or
a certified person acting as such, to prepare
a danger signal (a separate signal for each shift)
with red color at the mine entrance at the
of his shift or prior to his entering the mine to make
his examination and, except for those persons already
on assigned duty, no person except the mine owner,
operator, or agent, and only then in case o necess
shall pass beyond this danger signal until the
mine has been examined by the fire boss or other certified
person and the mine or certain parts thereof reported
by him to be safe. When reported by him to be safe,
the danger sign or color thereof shall be changed to
indicate that the mine is safe in order that employees
going on shift may begin work. •
The UMWA asserts that the cited State code provision relied
on by Consol, like section 303(d) of the Federal Act,
to the
pre-shift fireboss examination required before miners may enter the mine
at the beginning of the shift, and that it does not
to the facts
presented in this case. Furthermore, the UMWA cites West Virginia State
Code Article 22-1-14, paragraph (c), which it asserts contains an exemption
similar to that found in section 104(c) of the Federal Act, for groups
of persons authorized to enter mine areas which have been closed for
the purpose of insuring that dangerous conditions do in fact get corrected
and that they are corrected in a proper manner. Paragraph (c) of the
State code states:
(c) The following persons shall not be
required to the withdrawn from or prohibited
from entering any area of the coal mine subject
to an issue under this section:

1320

(1) Any person whose presence in such
area is necessary, in the judgment of the
operator or an authorized representative of
the director, to eliminate the condition described
in the order;
(2) Any public official whose official duties
require him to enter such area;
(3) Any representative of the miner in such
mine who is, in the judgment of the operator or
an authorized representative of the director, qualified
to make coal mine examinations or who is accompanied
by such person and whose presence in cush area is
necessary for the investigation of the conditions
decribed in the order; and
(4)

Any consultant to any of the forego

With regard to Mr. Omear 1 s testimony during the hearing (Tr. 226),
that State Inspector Price agreed that Mr. Wise 1 s action in going beyond
the posted danger sign violated State law, the UMWA points out that when
called in rebuttal, Mr. Price testified that he made no such assessment
(Tr. 304), but simply stated that if one were to apply State Code .Article
22-2-21, there would be a violation, but that he knew of no other
condition which have made Mr. Wise's action a violation (Tr. 304-185).
In summary, the UMWA submits that Mr. Wise did not violate section
303(d) of the Federal Act or Article 22-2-21 of the West Virginia Code
by going inby the danger board to check on the men abating the roof
condition for which the area was dangered off, and that the reliance
of Consol on these provisions is misplaced, especially in view of the
existence of section 104(c) of the Federal Act and Article 22-1-14
of the Code of West Virginia, which more clearly and closely address
the fact circumstances presented in this case.
Mr. Wise's alleged violation of company policy
The UMWA characterizes Consol's Employee Conduct Rules (exhibit C-5),
as a "general outline of some rather common sense policies", but points
out that they are devoid of any company policy concerning the proper
conduct in regard to danger boards, and therefore should be given no
probative value in determining whether Mr. Wise violated the asse.rted
policy. The UMWA argues that neither Mr. Omear nor Mr. Siburt could
state with any degree of certainty that a company policy regarding
danger boards even existed at the Ireland Mine, (Transcript - Mr, Omear,
Pages 230-236; Mr. Siburt, Pages 281-284), and that at best, each of these
men hint to the fact that the company policy is synonymous with f E;deral
and state laws. To that extent, the UMWA submits that Mr. Wise viclated
no statutory provision of federal or state law.

1321

Assuming that Consol can establish a viable policy regarding
the crossing of posted danger boards, the UMWA .nonetheless argues that
any such policy must not be inconsistent with federal or state law and
it cites the provisio~s of Article III, section (g) of the Wage Agreement
and Chapter 22, Article 22-2-54 of the West Virginia Code in support of
this proposition. Further, even though the Federal Mine Act contains
no such provisions, the UMWA suggests that it is axiomatic that a company
policy cannot conflict with state or federal law. Further, the UMWA
asserts that had the danger board in question been posted by an MSHA
inspector, Mr. Wise would fall into the category of individuals exempt
from a total withdrawal, and that federal and state law are explicit
on this point. The UMWA concludes that Consol cannot assert that since
Mr. Omear posted the danger board, Mr. Wise can be refused entry into
the area where union employees are engaged in abating the condition, and
that this is especially true in light of the
lati'.Epolicy favoring
participation and cooperation by the miners in enforcing the act.
Finally, in analyzing whether Consol had a policy concerning danger
boards, the UMWA suggests that I should strongly rely on the arbitration
decision rendered in Mr. Wise's case. Since Consol has asserted that
Mr. Wise violated company policy, and that such conduct is not protected
under the Act, the UMWA maintains that, to that extent, the arbitrator's
decision should be relied on in determining if such a policy existed
or if Mr. Wise was insubordinate. Once such a determination is made~
consideration should then be given to whether Mr. Wise's activity was
protected under the Act, its legislative history, and the administrative
and judicial decisions interpreting the Act and its history.
Whether Mr. Wise was engaged in protected activity when he went inby
the danger board.
In support of its arguments that Mr. Wise was engaged in protected
activity when the ventured inby the danger board in question, the UMWA
cites the legislative history of the Act, and emphasizes that, in the
enactment of section 105(c)(l), Congress was well aware that the active
involvement of the miners in the enforcement of the law could only be
obtained by providing these miners with protection from retaliation for
their efforts. Citing Phillips v. Interior Board of Mine Operations Appeals,
500 F.2d 772 (D.C. Cir. 1974), a case interpreting the 1969 Coal Act, the
U}fl~A points out that in recognizing that the purpose of the statutory
provision was to encourage the reporting of suspected violations of health
and safety regulations, the Court refused to limit the scope of protection
to the bare words contained in the statute.
The UMWA maintains that the record in this case indicates that
Mr. Omear forbid Mr. Wise from entering an area of the mine for the purpose
of observing compliance or non-compliance with safety and health standards.
If such activitiy were to be ruled unprotected, the UMWA asserts that it
would impede the ability of miner's representatives to participate in
the enforcement of the Act, and would also provide Consol with an effective
means of inhibiting safety activity in that in future situations where

1322

a hazardous condition is pointed out to Consol, its management could put
up its company danger board and prohibit safety committeemen from entering
the area. Such a result, argues the UMWA, would be inconsistent with
the purposes of the Act.
In support of its arguments that the Act should be liberally construed
in favor of Mr. Wise, the UMWA cites Secretary of Labor, ex rel., Fasula
v. Consolidation Coal Company, 2 FMSHRC 2786, October 14, 1980. In Fasula,
while the Act was silent on the right of a miner to refuse to work in
hazardous conditions, the Commission relied on the legislative history in
affirming the right of the miner. Just as the Act is silent on the
right to refuse work, so too is it silent on the rights of Mr, Wise to
enter the dangered off area, But the UMWA asserts that in order to
effectuate the purposes of the Act, Mr. Wise's venturing inby the danger
board must be held to be protected activity,
The UMWA argues that the importance of removing unnecessary restrictions
on the ability of the miners' representative to engage in protected
activity was recognized by the Commission in Local Union 1110 and Carney
v. Consolidation Coal Company, 1 FMSHRC 388 (1979). In Carney, the
Commission upheld Judge Broderick 1 s decision striking down a company
policy requiring safety committeemen to obtain permission before leaving
their work area to perform their mine safety committeeman 1 s duties,
If, as the Commission has held in
an employer cannot prevent a
safety committeeman from leaving his work area to perform his official
functions, the UMWA suggests that it would appear to be just as inherently
discriminatory for an employer to interfere with the ability of the Safety
Committees to enter a given area, and it submits that the Carney case is
controlling and should be followed in Mr. Wise's case.
In distinguishing the Commission decisions in Maynard v. Standard
Sign and Signal Company, 2 MSHC 1186 (1981), and Ross v. Monterey Coal Company,
2 MSHC 1300 (1981), from the facts in Mr. Wise's case, the UMWA asserts
that in Maynard, the administrative law judge dismissed a complaint for
failure to state a claim because the Act did not protect an employee for
his failure to abate violations. A supervisor was fired because he had
run coal prior to correcting cited violations as a result of his misunderstanding his orders from the superintendant. Although the case was
dismissed, Maynard was allowed to amend his complaint so that it would
state a cause of action.
In Ross, the UMWA asserts that the administrative law judge dismissed
the complaint on the grounds that Ross had attempted to exercise his
authority as a safety committeeman outside the employment cGntent. He
had no direct employment contact with either party committing the alleged
discriminatory action. Since no question exists in regard to Mr. Wise's
employment relationship with Consol, the UMWA concludes that the Ross
holding is inapplicable.

1323

Whether the disciplinary action taken by Consol was discriminatory and a
violation of section 105(c) of the Act.
The UMWA concludes that if it is held that Mr. Wise engaged in
protected activity on July 10, 1981 by going inby the danger board
to check on the union employees abating the roof condition, the actions
by Mr. Omear in suspending Mr. Wise amount to discrimination prohibited
by the Act. Further, the UMWA asserts that the "dual motive" or "but for"
test set out in Pasula, does not come into play, for Consol has not
asserted that absent the protected activity, it would have suspended
Mr. Wise, has not cited any other activity which could be asserted as
an independent basis for Mr. Wise's suspension, but merely argues that
Mr. Wise's activity of going inby the danger board is unprotected activity
for which he can be disciplined. If the activity in question was protected,
the UMWA concludes that the disciplinary action was unwarranted and
discriminatory. If the activity was not protected, then the UMWA concedes
that the disciplinary action was not discriminatory under the Act.
Summarizing its position in this case, the UI:1WA asserts that Mr. Wiseis
actions were protected activity under the Act for which he could not
be disciplined, and to hold otherwise would effectively impede the ability
of safety representatives to actively participate in the enforcement of
the Act. Since the record clearly indicates that he was suspended only
for going inby the danger board posted by Mr. Omear, such discipline
constitutes discrimination under the Act for which Consol should be held
accountable. The UMWA requests that a finding of discrimination be made,
that a notice to that effect be posted at the Ireland Mine, that a fine
be imposed on Consol, and that reasonable expenses and attorneyis fees
be assessed against Consol.
Respondent Consol's Arguments
Respondent prefaces its post-hearing arguments with a quotation
from the Commission decision
Pasula v. Consolidation Coal Company,
2 MSHC 1001, 1010, October 14, 1980, concerning the elements of a prima
facie case under section 105(c) of the Act and the operator's defenses
thereto as follows:
We hold that the complainant has established a
prima facie case of a violation of section 105(c)(l)
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.
On these issues, the complainant must bear the ultimate
burden of persuasion. The employer may affirmatively
defend, however, by proving by a preponderance of all
the evidence that, although part of his motive was un·lawful, (1) he was also motivated by the miner's unprotected
activities, and (2) that he would have taken adverse action
against the miner in any event for the unprotected activities
alone. On these issues, the employer must bear the ultimate
burden of persuasion. (Emphasis in original).

1324

Whether Mr. Wise was engaged in protected activity on July 10, 1981,
when he went by the danger board.
Consol concedes·that Mr. Wise engaged in protected activity :J;n
filing complaints with the West Virginia Department of Mines, but submits
that this activity is sufficiently divorced from the three-day suspension
of which Mr. Wise complains so as not to form the basis of a prima facie
case. Consol asserts that in this case Mr. Wise did not introduce any
testimony that mine management had threatened or harrassed him on' rtc·count
of his safety activity prior to his suspension.
Consol submits that the crux of the case is whether it was proper
for Consol to discipline Mr. Wise for going past a danger board antl refusing
to heed the order of mine Superintendent Omear to leave the dangered-off
area once he had entered it. It is Consol's position that Mr. Wise violated
state and federal law in ignoring the danger board and was insubo'rdinate
when he refused to leave the dangered-off area. Thus, Consol believes
that the issue for decision is whether Mr. Wise was engaged in protected
activity on July 10, 1981, when he went by the danger board.
Ill' support of its contention that Mr. Wise violated the Fede:rl'al Mine
Act, Consol cites section 303(d)(l) of the Act, which specifically mentions
11
danger signs" in connection with the posting of such signs in mine areas
which are found to be hazardous by those certified persons designated
by the operator to conduct the preshift examination of the active' workings
of the mine. Once such an area is posted, the statute provides that:
No person, other than an authorized representative
of the Secretary or a State mine inspector or persons
authorized by the operator to enter such place for
the purpose of eliminating the hazardous condition
therein, shall enter such place while such sign is
so posted.
Consol also cites other provisions of the Act which establish similar
criteria as to who may enter a dangered-off mine area. As examples,
Consol asserts that once an MSHA inspector issues a closure order pursuant
to section 104 or 107 of the Act, section 104(c) provides that no one
is permitted to enter the subject to the order except:
(1)

any person whose presence in such area is
necessary, in the judgment of the operator or
an authorized representative of the Secretary,
to eliminate the condition described in the order;

(2)

any public official whose official duties require
him to enter such area;

(3)

any representative of the miners in such mine who
is, in the judgment of the operator or an authorized
representative of the Secretary, qualified to make

1325

such mine examinations or who is·accompanied by
such a person and whose presence in such area is
necess~ry for the investigation of the conditions
described in the order; and
(4)

any consultant to any of the foregoing.

Consol argues that the complianants' suggestion that section 303(d)(l)
of the Act is inapplicable in this case because Mr. Siburt and Mr. Omear
were not making a preshift examination at the time the danger sign was
posted is a very technical one, which if accepted, would contravene the
policy of the Act.
Consol submits that a distinction should not be drawn between danger
boards hung by federal inspectors in the course of a health and safety
inspection, by firebosses on preshift and onshift examinations, and by
certified persons such as Messrs. Siburt and Omear in the course of a
contractually mandated safety run. In all of these cases, the danger
board is serving the same purpose, i.e., to warn miners of a hazardous
condition beyond the danger board and to stop them from going inby.
Furthermore, Consol submits that if a miner is not present at the time
the danger board is installed, he may not be able to tell whether it was
posted by a federal inspector, a preshift or onshift examiner, or by
another certified person so the proposed distinction sought
the union
in this case would not be practical in the mine environment. Finally,
Safety Committeeman Conner 1 s testimony is revealing on this question.
He testified that a federal inspector would haye put a danger tag on
the area, so Mr. Conner apparently saw no diffe~ence in a danger sign
posted by a federal inspector as opposed to a certified examiner.
(Tr. 129-130).
Consol maintains that since the danger signs in the case at hand
were installed pursuant to an examination comparable to one made under
§ 303(d)(l) of the Act and since it contravenes the purpose of the Act
and is also impractical .to draw distinction based upon when and by whom the
sign was hung, the question becomes whether Complainant Wise fell within
one of those categories of persons who are permitted under the Act to
go inby a danger board. Consol concludes that·: Mr. Wise was not an
authorized representative of the Secretary or a State mine inspector,
and that he admitted at the hearing that he did not seek authorization
from Superintendent Omear to go inby the danger.board. (Tr. 69)
Consol points out that Mr. Wise also filed a grievance with regard
to his suspension pursuant to the National Bituminous Coal Wage Agreement
of 1981, and that Aribrator Miles Ruben affirmed the grievance and ordered
Consol to reimburse Mr. Wise for lost wages and"expunge the suspension
from his personnel records. Consol states tha~ on the basis of Article III,
Section (d)(3) of the Wage Agreement, Arbitrator Ruben found:

1326

It is of course true that no specific authorization
was given by Management to the Grievant and the Chairman
of the Mine Safety Committee, Mr. Conner, to enter the
dangered-off area. However, a general, pre-existing
authorization from Mine Management can be inferred from
the provisions of the collective bargaining contract which
gave members of the Safety Committee the right to inspect
any portion of the mine when acting in pursuit of their
official duties.
(Page 16 of the Arbitration Award, Exh.
C-2).

Consol maintains that the complainant's argument that the contractual
provision found in Article III granted safety committeemen the authority
to go inby posted danger boards should be rejected. Consol submits that
Mr. Wise's argument, as well as the arbitrator's interpretation on this
point, should not be accepted because the labor agreement provision in
question does not refer to the federal and state laws regarding
signs, and the arbitrator was required to draw an inference from the
contract that Mr. Wise had authorization to go inby a danger board.
However, Consol argues that I should not adopt the arbitrator's reasoning,
and its supporting arguments follow.
First of all, Consol points out that section 303(d)(l), was
not introduced into evidence at the arbitration hearing (footnote 3
on page 16 of the Arbitration Award). Since the arbitrator did not have
the relevant portion of Section 303(d)(l) of the Act before him when he
interpreted the labor agreement, his finding of preauthorization so far
as federal law is concerned is erroneous. The arbitrator could not make
an inference that Mr. Wise was authorized to go past a danger board when
he (the arbitrator) was not informed of the scope of the authority set
out in federal law. For this reason alone, Consol maintains that
the arbitrator's reasoning should not be followed.
Furthermore, Consol maintains that the arbitrator's finding of
preauthorization exceeds the authority established by section 303(d)(l).
The arbitrator found that a safety committeeman had the right to inspect
any portion of the mine, and because he had that right, he had the right
to go past a danger board. However, Consol points out that under section
303(d)(l), ming management is permitted to allow persons (other than a
federal or state inspector) to go inby a danger board to eliminate the
hazardous condition. The right to inspect the mine is not equivalent
to eliminating the hazardous condition. The right to inspect the mine
permitted Messrs. Wise and Conner to make the safety run and to identify
the hazardous condition that resulted in the posting of the danger signs
in this case. Once the danger signs were posted, then the contractual
right to inspect was qualified by the prohibition contained in federal
law, and the safety committeemen were required to observe the danger
board. At this point, the policy behind the contract and the Act had
been served, i.e., miner participation in identifying hazardous conditions,
and the management's right to direct the work force in correcting the
conditions took precedence.

1327

Consol cites the case of Ronnie R. Ross v. Monterey Coal Company,
al. VINC 78-38 (1979), where Administrative Law Judge Michels
recognized that a safety committeeman's authority to inspect a mine is
limited. In that cas~, Complainant Ross received a disciplinary letter
for inspecting areas of the mine site where his employer was not working.
Similarly, in this case, Consol maintains that it was proper for Consol
to discipline Mr. Wise for going into an area where he was not aurhotized
to travel.

~~~

Consol's disciplinary policy regarding danger boards.
Consol states that at the
, Complainant Wise, through his
counsel, argued that it was unfair to discipline Mr. Wise because Consol
did not have a written policy notifying its employees that they would
be disciplined for going inby
boards. Although Consol believes
that this argument does not have any bearing on the question of whether
Mr. Wise was engaged in protected
when he went past the
board, it presented the
which follow below.
Consol states that it does have a list of employee conduct rules
posted at the Ireland Mine. Rule No. 1 notifies the employees that
will be disciplined for
to observe safety regulations. At the
hearing Mr, Wise admitted that he was aware of Consol's policy of
disciplining employees for
state and federal safety laws.
(Tr. 59-60). Consol notes that Mr. Wise never introduced any
that the miners at Ireland Mine were unaware of the general prohibition
in state and federal law against passing by danger signs. It is Consol's
understanding that Mr. Wise contends that he was protected from
not because the miners as a whole were not aware that they could not go
past danger signs, but because he was empowered to do so as a
committeeman. Consol does not understand Mr. Wise and the union to argue
that any miner at Ireland Mine could have gone by the danger board at
One North Section on July 10, 1981, and not have been held accountable
for his action.
In concluding its arguments, Consol maintains that the issue in
this case is whether Mr. Wise's
inby a danger board on July 10, 1981,
was activity protected by the Act, and that it is Mr. Wise and the union
that bear the ultimate burden of persuasion by a preponderance of evidence
that a safety committeeman going inby a danger sign is protected
Consol anticipates that Mr. Wise and the Union may make two arguments:
(1)

The danger signs were not posted pursuant
to a § 303(d)(l) examination of the mine
and, therefore, the prohibition against passing
by a danger sign is inapplicable, and

(2)

Even if § 303(d)(l) applies, Mr. Wise, as a
safety committeeman, is not bound by the
prohibition found in§ 303(d)(l).

1328

In response to these arguments, Consol asserts that it has demonstrated
that the complainants first argument is a technical one that leads to
absurd results and does not advance the policy of the Act. Their second
argument ignores the specific authorization language of § 303(d)(l)
which restricts the persons allowed to go by a danger board to those
who are working on correcting the hazardous condition. Consol concludes that
Mr. Wise fulfilled his role as a safety committeeman at Ireland by
locating and identifying the hazardous condition, but after having done
so, he overstepped his authority and entered a dangered-off area for which
he could properly be disciplined.
Discussion
The crucial facts in this case are not in dispute. It seems clear
to me that Mr. Wise did in fact walk inby a posted danger sign on July 10,
1981. It is also clear that when he was ordered to come out of the area
at least three times by Mine Superintendent Omear, he chose to ignore
those directives and came out after he was satisfied that his mission
had been accomplished. Mr. Wise obviously believes that as a duly elected
safety committeeman, he has a right to enter any area of the mine,
including those areas that are dangered-off, for the purpose of insuring
compliance with mine safety and health laws, as well as to insure the
safety of miners while engaging in work connected with the correction
and abatement of hazardous conditions brought to the attention of mine
management. Conversely, while conceding that Mr. Wise has certain
prerogatives in his capacity as a safety committeeman, including access
to most areas of the mine for the purpose of conducting inspections to
insure compliance with the law, Consol takes the position that simply
serving as a conmitteem:m does not give Mr. Wise carte-blanche authority
to go wherever he pleases, and that his access to certain mine areas,
particularly those that are dangered-off, is limited and restricted by
state and federal law to those individuals specifically authorized to
be there pursuant to those laws.
The crux of Consol's defense is that when Mr. Wise walked inby the
posted danger sign he over-stepped his authority as a member of the mine
safety committee, acted outside the scope of any "special status" which
he may have enjoyed as a committeeman, and could therefore be held
accountable for his actions. Recognizing the fact that the Act insulates
Mr. Wise from
reprisals by mine management for his safety activities,
including acts of insubordination where it can be established that such
insubordinate conduct was in fact protected activity, Consol takes the
position that not only did Mr. Wise's action violate company.policy,
it also violated federal and state law and therefore could not be deemed
to be protected activity under the Act.
As correctly pointed out by Consol, Mr. Wise does not contend that
the disciplinary action taken against him was out of reprisal for his
filing safety complaints with the State of West Virginia mining aurhorities.

1329

Although there is some testimony that one or more of these complaints
may have resulted in a personal assessment or fine against Mr. Omear
under state law and regulations, the UMWA does not advance an argument
that Mr. Omear, or any other mine management official, suspended Mr. Wise
because of these complaints. Although the grievance record concerning
Mr. Wise's grievance contains a reference to the Union's attempts to
establish that Mr. Wise was suspended in retaliation for having filed
safety complaints against company personnel (pg. 6, Exh. C-2),
the arbitrator never reached that issue, and at page 20 of his decision
he states as follows:

* * * the Arbitrator finds that the Grievant
in knowingly entering into a dangered-off area
for the purpose of checking on the safety of the
crew assigned to effect repairs, although in contravention of the directions of Superintendent
Omear to quit the area, was nevertheless acting
in his official capacity and protected against the
suspension sanction.
In light of the foregoing, the Arbitrator
finds it unnecessary to consider the Unionis contentions that the sanction violated the Federal Mine
Safety and Health Act of 1977, as amended, and that it
was imposed because of the Grievant 1 s filing of
complaints ov violations of the mine safety code of
the State of West Virginia.
I am in agreement with Consol's view of the limited issue in this
case; namely, whether Mr. Wise's entry into an area of the mine which had
been "posted" or lldangered-off" was protected activity. The thrust o..f.
Mr. Wise's discrimination complaint throughout this proceedings is his
belief that he has a right to go anywhere in the mine in his capacity
as a committeeman, including areas that have been closed down by mine
management, and he has not claimed, nor has he produced any evidence,
to support any claim that the action taken against him by Consol was in
retaliation for his filing of safety complaints. Nor has he advanced
any arguments or evidence that mine management harrassed, threatened, or
otherwise intimidated him for his safety activities.
There is no question that representatives of miners are afforded
many rights and protections under the Act. They are free to request
mine inspections or file complaints if they believe that a violation has
occurred or dangerous conditions are present in the work environment. They
are free to accompany mine inspectors on their inspection tours, at no
loss of pay or other compensation. As miners, they are also free to refuse
to work under unsafe conditions, and may leave their work area if they
believe they are exposed to safety or health hazards. In addition, they
are insulated from reprisals, intimidation, or harrassment by mine
operators because of the exercise of these and other rights protected under
the Act, and bythe case law. In addition, pursuant to the existing Wage
Agreement between miners and the industry, miners are assurred of a safe and
healthful place to work, and the safety and health committees are afforded
many rights, as well as responsibilities.

1330

I recognize the validity and merits of the competing interests
which cut across this entire proceeding. On the one hand, we have a
safety committeeman who sees no limits to his authority as a safety
committeeman. On the.other hand, we have a mine operator who concedes
that a safety committeeman has certain prerogatives under the Act,
but nonetheless believes that management has the prerogative to manage
and control its mine and the employees who work there. The crucial
question presented after balancing these interests, is to decide which
one outweighs the other in the context of the applicable law. In this
regard, an examination of two relevant Commission decisions is in order.
The case of Local Union 1110 and Carney v. Consolidation Coal Company,
1 FMSHRC 338 (1979) (hereinafter "Carneyu), concerned a safety committeeman
who received three disciplinary letters of reprimand after several
confrontations with mine management over his leaving his work area for
the purpose of reporting safety violations and engaging in union business,
He was charged with insubordination for failing to obtain management 1 s
permission before leaving his work area to perform duties as a safety
committeeman. In affirming Judge Broderickvs decision finding discrimination,
the Commission, stated in pertinent part as follows at pg. 341 of its
decision:

* * *we concur in the judge's holding that the
enforcement of the Company's "permission policy 11
violates section llO(b). The purpose of section
llO(b) is to encourage communication between the
miners, their representatives and the Secretary
concerning possible dangers or. violations. The
Company's policy effectively impedes a miner's
ability to contact the Secretary when alleged
safety violations or dangers arise, a time when
free access to the Secretary is most important.
We therefore
ect the Company's objections to
the judge's order that the Company cease and desist
from enforcing its policy.

* * * we agree with Judge Broderick that issuance
of the three letters of reprimand to Carney violated
section llO(b) of the act. After voicing a safety
complaint to his foreman, Carney left the mine section
to contact MESA officials, through the chairman of
the mine's Health and Safety Committee, to bring the
safety dispute to MESA's attention and to obtain its
view on the legality of the Company's safety practice.

* * * Because Carney's activity was protected, and
because the Company could not lawfully require him
to obtain its permission before engaging in such
activity, the first letter of reprimand was an act
of discrimination. Further, the second and third

1331

letters were, as Judge Broderick found, "certainly
related to the first letter and [were] issued in
part at least because of the activity protected by
section llO(b) •. " (Footnotes omitted).
In
the Commission obviously recognized the fact that limiting
a safety committeeman's free access to mine inspector's for the purpose
of communicating real or alleged safety violations or dangerous conditions
violated the intent of the anti-discrimination provisions of the Act that
communication between the miners, their representatives and the
be encouraged. Further, in his decision, Judge Broderick weighed the
effect of mine
's "permission policy" and concluded that it
severely limited the ability of miners to complain of hazards and violations
during a working shift, by permitting only such complaints as mine management
deems acceptable. Recognizing the fact that a contrary rule restricts
managementvs ability to control production, Judge Broderick held that
the health and
of miners clearly outweighed production.
The UMWA argues that the importance of removing
restrictions on the ability of the miners' safety representatives to
engage in protected activity was clearly recognized by the Commission in
Carney. The UMWA maintains that if, as in Carney, an employer cannot
prevent the
committeeman from leaving his work area to
his official functions, it would appear to be just as inherently
discriminatory for an employer to interfere with the ability of the
Committees to enter a given area. The UMWA believes that the .=::.=.::.=.~
holding is controlling in the instant case and that I should
it.
Ronnie R. Ross
v. Monterey Coal Company et al., 3 FMSHRC
1171;
MSHC
11, 1981), concerned a safety committeeman
who was reprimanded for inspecting a mine area where his employer was not
conducting any work. With regard to Ross, it~should be noted that the
UMWA's factual statement of this decision is not totally accurate.
to the UMWA's assertion in its brief that Mr. Ross had no direct employment
contact with either party committing the alleged discrimination, and
that he attempted to exercise his authority as a safety committeeman
"outside the employment content" (UMWA brief, p. 24), the fact is that
Mr. Ross was an employee of one of three respondent's against whom he
filed his discrimination complaint. In Ross, Monterey Coal Company was
the owner and developer of a coal mine. The underground portion of the
mine development was completed and Monterey was mining coal. Construction
of the mine development was completed and Monterey was mining coal.
Construction of surface facilities and related activities were underway
by several contractors, including the McNally-Pittsburgh Corporation, and
Mr. Ross was employed by McNally as a carpenter. As a condition of
employment at the mine site, the employees of each contractor were required
to be members of the UMWA local union, and Mr. Ross was selected by
McNally employees to serve as a health and safety committeeman.
During the course of an inspection tour of the project, Mr, Ross
alleged that he had been abused and threatened by another contractor
working at the site (Looking Glass Construction Company). Judge Michels

1332

found that Monterey,like Looking Glass, was not the employer of Mr. Ross
He
concluded that Monterey and Looking Glass had not discriminated against
Mr. Ross, and at page 77 of his reported decision, 1 FMSHRC 77, April 1979,
Judge Michels stated "There was no direct employment connection with
respect to either party named in this charge." Therefore, it seems clear
to me that Judge Michels' conclusion of 11 no employment connection" was
clearly limited to the one charge of alleged harrassment lodged against
Looking Glass and Monterey.
and none of their ac.tions directly affected his employment or pay.

The second alleged act of discrimination in Ross concerned a letter
delivered to Mr. Ross on November 30, 1977, by his employer McNally.
The letter was the result of information which came to the attention of
McNally that Mr. Ross was inspecting areas other than where McNally
employees were working. These areas included Monterey's underground
mine, as well as the Looking Glass areas which prompted the aforementioned
charge of harrassment. The McNally letter advised Mr. Ross that unless
he limited his duties as committeeman to the McNally work site, he would
be suspended, subject to discharge. The entire text of the letter is
set out in Judge Michels' decision, and is as follows:
This is to advise you that your duties as
Project Union Health and Safety Committeeman are
limited exclusively to McNally Operations at the
Monterey Coal Mine #2.
In the event of your violating the above, you
will be suspended-Subject to discharge.
With regard to the letter incident, Judg~ Michels concluded that
since Mr. Ross was singled out to receive the letter, while other committeeman
in approximately similar circumstances were not, he was discriminated
against within the meaning of the Act. However, in addressing the question
of whether the discrimination was motivated by or in retaliation for
the reporting of alleged safety dangers or violations, Judge Michels
observed that the letter was directed to Mr. Ross's safety inspections
outside of McNally's area of operations, and that it did not limit inspections
otherwise. Considering the 1974 Contract which governed McNallyts
relationship with its employees, Judge Michels ruled that limiting
Mr. Ross' activities as a committeeman to inspections on the McNally
site was not unreasonable and that the motive for the letter was to
prevent Mr. Ross from inspecting off the McNally site, not to punish him
for reporting asserted dangers or violations. Recognizing the fact that
an employer may reasonably control the activities of its work force,
Judge Michels concluded that Mr. Ross was disciplined for unauthorized
activity, and that the letter presented to him was to prevent him from
engaging in activity reasonably perceived by management to be unauthorized
and was not in retaliation for reporting safety complaints. After finding
no violation of the Act on the part of McNally, Judge Michels dismissed the
case.

1333

Findings and Conclusions
The first issue to be addressed in this case is whether Mr. Wise's
refusal to leave the ~angered off area in question after being directed
to do so at least three times by Mr. Omear constituted insubordination
warranting the disciplinary action taken against him. Assuming that the
answer is in the affirmative, the next question is whether or not the
refusal by Mr. Wise to leave the area when ordered to do so was based
on some legitimate right bestowed on him by the Act to remain. In short,
the question is whether or not Mr. Wise was engaged in some protected
activity at the time he was asked to leave the area, If he was, then
the charge of insubordination as the basis for the disciplinary action
taken must fail, and Mr. Wise will prevail. If Mr. Wise was not engaged
in protected activity, then I believe his refusal to obey direct orders
from Mr. Omear constituted insubordinate conduct warranting the action
taken against him.
Consol 1 s arguments that Mr, Wise 1 s conduct violated State and
Federal mine safety laws is rejected. On the basis of the entire record
adduced in this case I cannot conclude that Consol has established any
such violations as a legitimate basis for supporting the disciplinary
action taken against Mr. Wise. In my view, Consol's reliance on section
303(d)(l) of the Act is not supported by the record. That section
specifically applies to the preshift "fireboss" examination required to
be made by certified mine examiners, Once that examiner posts a "danger"
sign, no one may pass except for those persons specifically designated
by the law. While it is clear that Mr. Wise does not fall into any
of the categories of "persons" enumerated in section 303(d)(l), .it is
also clear that there is no evidence that the posting of the area resulted
from any firebossing examination by a certified mine examiner. I reach
the same conclusion with respect to the cited Article 22-2-1 of the West
Virginia Code.
The parties rely on the withdrawal order exceptions found in section
104(c) and (d) of the Act in support of their respective positions
concerning Mr. Wise's asserted violation of this section of the Act.
Consol takes the position that Mr. Wise does not fall within any of the
exceptions noted in section 104(c), and concludes that he violated the Act
when he went inby the danger board. Unfortunately, the parties failed
to call any Federal inspectors as witnesses to testify on this question
and they rely on their legal conclusions based on their interpretation
of the language of the exceptions. However, I would venture a guess
that if an MSHA inspector concluded that Mr. Wise did not fall within
one of the categories of persons permitted to remain in an area subject
to a withdrawal order, he would probably cite Consol for the violation
for failure to withdraw Mr. Wise from the area in question.
The UMWA concedes that under subsection (3) of section 104(c),
the operator has a say as to who may be qualified to make mine exRminationR
under section 104(a). However, the UMWA concludes that pursuant to
certain provisions in the 1981 Coal Wage Agreement Mr. Wise is so qualified

1334

and that Consol is bound by these contract pr:ovisions. I have reviewed
the cited contract provisions, but I cannot conclude that the fact that
a committeeman selected by his union peers on the basis of his "mining
experience or training" necessarily transforms him into a qualified or
certified mine examiner for purposes of section 104 of the Act.
The term "qualified person" as defined by section 75.2(b) of Title 30,
CFR is an individual designated by the operator to make tests and examinations required by Part 75 of the regulations. Further, the terms "qualified"
and "certified" as they pertain to mine examinations by certain individuals
are defined in various sections of Parts 75 and 77, Title 30, Code of
Federal Regulations. Acceptance of the UMWA's theory could lead to the
conclusion that anyone selected by a local union to serve as a
committeeman is "qualified" or "certified" for the purposes of the Act
simply because of his selection as a committeeman. Under the circumstances,
I reject the UMWA's arguments that Mr. Wise comes within the
found in section 104(c)(3) of the Act, and that this section authorized
his presence in the dangered-off area in question.
I reject the UMWA 1 s suggestion that the record in this case supports
a conclusion that Consol tried to bar Mr. Wise's entry into an area which
had been dangered off for the purpose of preventing him from
compliance or noncompliance with safety standards, I do not view this
case as one where a mine operator is attempting to conceal certain conditions
or practices from a safety committeeman for the purposes of avoiding
compliance with mandatory safety standards. In my view, the incident
which sparked this controversy is a classic example of a labor-management
confrontation challenging each others "turf".
With regard to any asserted violation of company policy by Mr. Wise,
I do not believe it necessary to make any specific findings concerning
the question as to whether company policy specifically prohibits miners
from entering mine areas which have been dangered off because of hazardous
conditions. In my view, anyone who needs to have this admonition
in writing has no business working in an underground coal mine.
Regardless of any such written policy, the question here is whether Mr. Wise's
disregard of direct orders from mine management to leave the area constituted
insubordination warranting a three-day suspension.
During the course of the hearing in this case, both sides presented
testimony regarding the question of miners crossing inby a mine area which
had been dangered off. Mr. Wise testified that as a member of the
committee he often passed beyond such posted areas during regular mine
inspections. Mr. Omear stated that he never observed any committeeman
go beyond such an area unless he had permission or was accompanied by
a mine management representative. Safety committeeman Connor's testimony
supports Mr. Omear's position. Although Mr. Connor stated that he had
previously crossed beyond danger signs, he indicated that he was always
accompanied by mine inspectors or company management representatives, and
that in these instances he had management's permission to do so. Further,

1335

there is a strong inference that Mr. Connor did not believe he had an
absolute right to be in the area with Mr. Wise since he heeded Mr. Omear's
admonition to leave and did so immediately. Mr. Connor's purported
comment "you can't get me", was in obvious reference to the fact that
Mr. Connor was carrying a saw which had been requested by Mr. Omear
and supports a further inference that Mr. Connor believed he had a
legitimate excuse for being in the area. Once the saw was delivered,
he immediately withdrew.
In this case the conditions or practices which led to the posting
of the danger board by Mr. Omear were initially discovered by Mr. Wise
and the shift foreman during a routine safety run of the section. Once
those conditions were called to the attention of management, Mr. Omear
agreed, albeit after some debate, that the area should be closed and
corrective action taken. Mr. Omear posted the area and proceeded to
attend to the conditions by seeing to it that work began to correct the
conditions in question. Mr. Omear was at the scene supervising and
directing the work, and Mr. Wise conceded that the corrective action being
taken by Mr. Omear was correct and proper. As a matter of fact, once
the area was posted, Mr. Wise left the area to continue with his inspection
rounds and was gone for several hours before returning, and while he was
gone, work to abate the conditions progressed under the supervision
of Mr. Omear, apparently without incident. At this point in time, mine
management was directly responsible for the area and work being conducted
there and had a legitimate right to direct the workforce. As a matter
of fact, the primary obligation to correct any hazardous conditions in a
mine lies with the operator. It is the operator who is faced with a
mine closure or civil penalty assessments for noncompliance, not the union.
It seems to me that once the hazardous conditions are called to management's
attention, and since the compliance obligation lies with the operator,
he should be permitted to go about his abatement business in an orderly and
reasonable manner. Of course, should the operator refuse to correct the
conditions, then the union has ample recourse to insure compliance.
On the facts of this case, it seems clear to me that Mr. Wise performed
all of his duties as committeeman without interference from mine management.
Once he discovered the conditions which he believed needed attention,
management put the wheels in motion to insure that the conditions were
corrected. Since management had the responsibility for correcting the
conditions, I believe that management has the right to dictate the terms
under which those corrections will be made. Here, Mr. Wise concedes
that Mr. Omear was taking the appropriate corrective action. Had Mr. Wise
had any question about this, I. would assume that he would have attempted
to remain in the area to supervise the work, rather than leaving for several
hours to inspect other mine areas. Further, although Mr. Wise indicated
that he had crossed beyond danger signs in the past, on cross-examination
he conceded that he has also observed and respected such signs for fear
that he might expose himself to hazards which may have been present
in those areas. By the same token, I believe that he should also
respect the right of mine management to protect him from those hazards,
thereby reducing its liability in the event he were injured or killed while
venturing into such areas without prior knowledge or approval.

1336

After careful consideration of all of the arguments made by the
parties in this case, I conclude and find that Mr. Omear's direct orders
to Mr. Wise, made three times, to vacate and withdraw himself from the
area which had been dangered off, were reasonable and proper, and that
Mr. Wise's refusal to comply constituted insubordination. I further
conclude and find that Mr. Wise's conduct in refusing to depart an area
of the mine that had been dangered off for the purposes for correcting
conditions called to mine management's attention was not protected
activity under the Act. Once the conditions were called to mine management's
attention, mine management then had responsibility and aurhority to
correct the conditions and to direct the work force to insure that the
job was done. Included in this authority was the discretion to determine
who could assist them in this task. In the instant case, Mr. Wise simply
took it upon himself to walk beyond a danger board without seeking mine
management 1 s permission. Had he asked and been refused, he may have been
in a better position to litigate his case. Since he did not ask, I
cannot conclude that management was wrong in suspending him for ignoring
the mine superintendent 1 s direct orders to leave the area. In my view,
a contrary conclusion could lead to a situation where a
committeeman,
simply because he holds that position, could take it upon himself to walk
into any dangered-off areas in a mine, thereby exposing himself to a
multitude of hazards and dangers without the knowledge of mine management.
Since mine management has the primary obligation under the law to insure
compliance and to preclude any of its
being
ured or killed
by walking into these areas, I see nothing unreasonable in mine management 1 s
requiring that they be allowed to monitor and control these areas.
0

In view of the foregoing findings and conclusions, I conclude and
find that the three-day suspension given Mr. Wise for insubordinate
conduct was reasonable and proper in the circumstances, and that Consol
did not discriminate against Mr. Wise. Accordingly, this case IS DISMISSED.

~~!r~
Administrative Law Judge

Distribution:
Jerry Palmer, Esq., Consolidation Coal Company, Consol Plaza, Pittsburgh,
PA 15241 (Certified Mail)
Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC 20005
(Certified Mail)
Thomas Myers, Esq., UMWA District #6, 56000 Dilles Bottom, Shadyside, OH
43947 (Certified Mail)

1337

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

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 191982
UlUTED MINE WORKERS OF AMERICA,

Complaint of Discharge,
Discrimination, or Interference

On behalf of
DELMAR SHEPHERD,

Docket No. KENT 31-186-D
Complainant

v.

Camp Underground Hine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Hary Lu Jordan, Esq., Washington, D.C., for Complainant;
Thomas R. Gallagher, Esq., and Hichael O. ~icKown, Esq.,
St. Louis, Missouri, for Respondent.

Before:

Administrative Law Judge Broderick
STATE~IENT

OF THE CASE

Complainant charges that Respondent's refusal to recall him to
work at a job initially offered him constituted~discrimination under
the Act, because it was grounded on his need for additional training
under State and Federal laws. The case was submitted for decision on
a stipulated set of facts. Both parties have filed briefs.
FACTS
I accept the stipulations signed by counsel for both parties and
filed in this case on Harch 10, 1982, together with the documents
filed on July 13, 1982, pursuant to my request, as the facts on which
this decision will be based.
Complainant Delmar Shepherd was employed by Respondent Peabody
as a miner beginning in June 1981. He worked in an underground mine
from June 23, 1971 to November 20, 1978. Thereafter, he worked in
surface mines for Peabody.

1338

From October 8, 1980 until he was laid off on November 18, 1930,
he worked at Peabody's Alston Surface Mine. He was a member of the
United Mine Workers of America which had a collective bargaining
agreement with Peabody. The agreement provided that laid-off employees
had the right to be recalled to work on the basis of seniority when
jobs for which they were qualified became open at certain other Peabody
Mines. Seniority is recognized as length of service and the ability
to step into and perform the work of the job at the time the job is
awarded.
On December 1, 1980, Respondent contacted Complainant and told
him that on the basis of his seniority he was entitled to be recalled
at one of 13 job openings available at the Camp Underground Mine.
Complainant selected a job and was told that he would be notified when
to report to work. Later the same day, Respondent called Complainant
and informed him that none of the jobs would be made available to him
because he would need additional training required for working in an
underground mine by Federal and State law, He further stated that
Respondent would not provide the training, but that Complainant would
have to obtain it himself. Other miners with shorter lengths of service
were recalled. Complainant lost wages and claims reimbursement therefor
for the period from December 3, 1980 through January 20, 1981.
\

Respondent had an MSHA-approved training plan for training and
retraining of underground miners effective at the time of the alleged
discriminatory action. The plan provided a training program of from
6-1/2 to 11-3/4 hours for newly employed experienced miners. Part of
the training was to be done at a company training center and part of it
at the mine site. The Complainant, having wor~ed in an underground mine
from 1971 to November 20, 1973, was an experienced miner. 1
Complainant was returned to work in the subject underground mine
on June 11, 1981. Presumably he received the required training. The
record does not indicate whether it was provided by Respondent or
whether Complainant was paid while being trained.
1/ Although the stipulations are not specific in this regard, I am
assuming that it was Respondent's position that Complainant required
training as a newly employed experienced miner per 30 C.F.R. § 48.6 and
not as a new miner per 30 C.F.R. § 48.5. The regulations in Part 48
were published in the Federal Register October 13, 1978, 43 FR 47
In the absence of a specified effective date,
became effective
30 days thereafter or November 12, 1978. 5 U.S.C. § 553. According
to the stipulations, Complainant was employed as an underground miner
on that date and therefore was an "experienced miner." 30 C.F.R.
§ 48.2(b).

1339

STATUTORY PROVISIONS
Section 104(c)(l) of the Mine Safety Act provides as follows:
(c)(l) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal
or other mine subject to this Act because such miner,
·
representative of miners or applicant for employment has
filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the
operator 1 s agent, or the representative of the miners at
the coal or other mine of an alleged danger or safety or
health violation in a coal or other mine, or because such
miner, representative of miners or applicant for employment is the subject of medical evaluations and potential
transfer under a standard published pursuant to Section
101 or because such miner, representative of miners or
applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act
or has testified or is about to testify in any such
proceeding, or because of the exercise by such miner
representative of miners or applicant for ,employment on
behalf of himself or others of any statutory right
afforded by this Act.
Section 115(a) of the Act provides in part: uEach operator of a
• mine shall have a health and safety training program which shall
be approved by the Secretary. The Secretary shall promulgate regulations with respect to such health and safety training programs ;'< -J~ ;'<."
Section 115(b) of the Act provide in part: "Any health and safety
training provided under subsection (a) shall be provided during normal
working hours. Miners shall be paid at their normal rate of compensation while they take such training ~" ;'< -J~."

REGULATORY PROVISIONS
30 C.F.R. § 48.2(b) provides in part:
"Experienced miner" means a person who is employed
as an underground miner, ;'< ·k * on the effective date of
these rules [November 12, 1978]; '" ~'< '"·or a· person who
has had at least 12 months experience working in an
underground mine during the preceeding 3 years ;, ;'< *

1340

30 C.F.R. § 48.3(a) provides in part: "Each operator of an underground mine shall have an HSHA approved plan containing programs for
training new miners, training newly-employed experienced miners '/: '/: *·"
30 C.F.R. § 58.6(a) provides: "A newly employed experienced miner
shall receive and complete training in the program of instruction
prescribed in this section before such miner is assigned to work
duties."
ISSUE
Whether Respondent's refusal or failure to recall Complainant
because he required additional training under the regulations constituted
discrimination under the Act? Putting the issue differently, whether
Respondent was required under the Act to recall Complainant for a·job
opening and to provide
the
required for that job?
CONCLUSIONS OF LAW
It is the responsibility of the mine operator to provide the
training required under the Mine Act. The Act specifically states
(Section 2) that "the operators of such mines with the assistance of
the miners have the primary responsibility to prevent the existence of
[unsafe and unhealthful] conditions and practices in the mineso"
Section 115 requires that mine operators have an approved health and
safety training program, that the training shall be- provided during
normal working hours and that the miners shall be paid at their normal
rate of compensation while undergoing such training.
On the basis of these provisions, Judge Morris ruled in
Secretary/Bennett et al v. Emery Mining Corporation, 3 F11SHRC 26l;8
(1981), that a requirement that a job applicant obtain miner training
at his own expense as a precondition of employment constitutes discrimination under the Mine Act. In the Emery case the Complainants
underwent the required training at their own expense and on their own
tir.ie and were thereafter hired by Emery. Judge Morris ordered
reimbursement for the cost and expenses of the training and payment
of wages for the time spent in the training program. I agree with
Judge Horris' reasoning and his conclusions. However, the facts in
the case before me are different. If two miners apply for a position
in an underground mine, one of whom requires training and the·other of
whom does not, the operator does not violate the Act if he hires the
latter.

1341

If Complainant had obtained training on his own time and at his
own expense, and then was hired by Respondent, the facts would be
analogous to those in Emery, and I would hold that a violation of
lOS(c) was shown, because this would be an obvious attempt to shift
the responsibility and cost of training from the mine operator, on
whom the Act places it, to the miner. On the other hand, the Act does
not require that, on the basis of seniority or otherwise, miners who
require training must be hired or rehired rather than miners who do
not require training. I assume that the miners who filled the job
sought by Complainant in the subject mine, which miners "had a shorter
length of service than Hr. Shepherd," did not require training.
It is not the function of the Commission to interpret the collective bargaining contract between Respondent and the United Hine Workers
of America, and I venture no opinion as to whether Respondent's failure
to recall Complainant violated the contract. Nor have we been given the
responsibility of overseeing Respondent 1 s hiring practices except as
they may conflict with the Hine AcL I find no such conflict in the
facts submittted to me in this case.
ORDER
Therefore, IT IS ORDERED that the complaint is DISMISSED.

~l t 1'<..C S' AfJ~ V(~~ ~rc.ef:___

J
Distribution:

James A. Broderick
Administrative Law Judge

By certified mail

Ms. Mary Lu Jordan, Esq., United Mine Workers of America, 900 15th
Street, N.W., Washington, DC 20005
Thomas R. Gallagher, Esq., and Michael O. McKown, Esq., Peabody Coal
Company, P.O. Box 235, St. Louis, HO 63166

1342

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

JlJL 231982
Complaint of Discharge,
Discrimination, or Interference

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

Docket No: KENT 81-162-D
(PIKE CD 81-10)

On behalf of
ROY LOGAN~
Complainant

Noo 2 Hine

Vo

BRIGHT COAL COMPANY,
Respondent
DECISION
Appearances:

William F. Taylor, Esq., and Ralph Do York, Esqo, Office of
the Solicitor, U.S. Department of Labor, Nashville, Tennessee,
and Michael G. Finnie, Special Investigator, MSHA, Pikeville,
Kentucky, for· Complainant;
Ralph G. Polly, Esq., and Gene Smallwood, Jr. Esq., Whitesburg,
Kentucky, for Respondent.

Before:

Judge Moore

This is a discrimination case and the principle issue is one of
credibility. George Roy Logan says that on January 19, 1981, Superintendent
Jack Collins told him to go under bad roof to set safety posts. He says that
he told Jack Collins that he would go if Jack Collins or someone else would
accompany him to assist, but that he would not go alone. He then says that
Jack Collins told him "if you won't do that you might as well go on home and
I'm going to get rid of you." Jack Collins admits that he fired George Roy
Logan, but says he had not asked him to go under bad roof. He says that he
fired Logan for threatening the foreman, failing to do his job of keeping
the tailpiece clean, and mistreatment of the scoop when he was driving a
scoop.
No one overheard the conversation of January 19, 1981, and both Roy Logan
and Jack Collins gave their testimony in a straight-forward manner with no
indication that I could detect of any hesitancy or signs of deceitfulness.
From hearing the testimony of both, I have no way of knowing who was telling
the truth, but credibility is the essential issue and must be resolved on

1343

the basis of other instances and the surrounding circumstances. If either
were willing to perjure himself with respect to some other incident involved
in the case, I have to assume that he might be willing to perjure himself
when testifying about the most crucial incident. In judging the credibility
issue I must consider all of the aspects of this case.
At the outset is the discovery issue. At the request of Respondents, I
ordered the government to produce any exculpatory information that might be
contained in its files. The government did not deny that it had such material
but instead resisted disclosure invoking the informers privilege, the executive privilege, and the so-called privilege involving the work product of an
attorney. It did not properly invoke the executive privilege (even if it
had, it would not have been pertinent) and Respondents were not seeking the
work product of the government 1 s attorneyo They were seeking the information
discovered by the government's investigating inspector which would have
supported their contentions that there were ample reasons for firing Roy Logan
other than an unlawful discrimination under the Acto I ruled that the
informers privilege was also inapplicable because a witness who gave evidence
favorable to the Respondent was not an informer. I ordered production of the
exculpatory material, but the government refused to comply with the order.
Prior to trial I issued a subpoena duces tecum requring the production of the
information at the trial~ but the government refused to comply with that
subpoena.
I then offered the Respondents the opportunity to seek court
enforcement of the subpoenao
By letter of June 24, 1982 Respondent~s attorney advises that both he
and the U.S. Attorney decline to seek court enforc,ement on the ground that
I had no authority to delegate subpoena enforcement to a private party. While
I would not agree with that without seeing some authority I think the answer
given by the U.S. Attorney begs the question. The delegation was not merely
to a private party. It was to Mr. Polly "and to the United States Attorney •• 11
If I can not delegate the authority to file an enforcement action to someone,
then the authority is of little value because I can not appear in court as
a litigant against a party appearing before me. The enforcement proceeding
would be ancillary to the instant proceeding and in a sense I would be an
advocate in a case over which I was presiding. I would have to recuse myself
in order to enforce the subpoena.
0

Respondent's had asked to me to dismiss the case because of the government's refusal to produce the material, but I considered that too drastic
a remedy in view of the fact that Mr. Logan was not being representd by his
own counsel but by government counsel, and I did not wish to punish him for
'something government counsel did. At the trial, government counsel denied
that they were representing Mr. Logan, but I think they were mistaken in
this denial. They were representing Mr. Logan. I nevertheless refused to
dismiss.
The most reasonable sanction I can impose is to assume that there is
exculpatory material similar to the evidence produced,by Respondents on
defense in this case. I cannot assume any exculpatory evidence as to the key

1344

issue of whether, on January 19, 1981, Respondent Jack Collins ordered Roy
Logan to go under unsafe roof and discharged him when he refused to do so.
But I will make assumptions adverse to the government with the respect to other
phases of the evidence. I would like to emphasis that these assumptions could
have been avoided if the government had denied existence of exculpatory information. If the government had offered to let me look at the material in camera
I might have been able to see good reason why it should not be disclosed.
No such offer was made, however, and I made no request that I be allowed to
see the entire file.
Because of the credibility issue at the very heart of this proceeding,
I allowed evidence to be introduced which, while not directly relevant to the
events leading up to Mro Logan's discharge might nevertheless bear on the
credibility of the witnesses. One example of that type of evidence is the
section 103(g) inspection that was made subsequent to Mr. Logan 1 s firing.
During the course of the discrimination investigation, a miner alleged to an
inspector that unsafe conditions existed at the mine, and he requested an
immediate inspectiono The inspection was made and while a citation was issued,
it was unrelated to the nine specific charges made by the miner in question.
I find that there was nothing in the evidence concerning this inspection that
would bear on the credibility of any of the witnesses. };/
There were other post discharge events testified to which, as it turned
out, do not have a bearing on the credibility issue herein. One such incident
occured when Mr. Logan met Mr. Mike Joseph to exchange a company (Joseph
Brothers) lamp and battery charger for Mr. Logan 1 s final paychecko There was
a 22 rifle lying across either the trunk or the hood of Mr. Logan 1 s car. But
there was no evidence that would justify a finding that Mr. Logan was
attempting to threaten Mr. Joseph with the rifle. I accept Mr. Logan's
explanation that he and his brother had merely been "plinking" at tin cans
and bottles in the river.
While Mr. Logan alleges that he was fired because of his refusal to work
under bad top alone on January 19, 1981, Respondents allege that he was fired
for a number of reasons including the manner in which he operated his scoop,
including unsafe and reckless operation which damaged the scoop, insubordination, threats to a foreman, and failure to perform his job after he was taken
off of the scoop. There was also an allegation that he took food from the
other miners'lunch boxes, but whether this added to the other items as a part
of the reason for Mr. Logan's discharge is unclear.
1/ During a colloquy concerning of the 103(g) inspection, I called counsel
to the bench for an off-the-record discussion. I asked if Mr. Logan, in
his deposition, had not already revealed himself as one who complained to
MSHA about unsafe conditions and the lack of preshift examinations. Both
Counsel agreed that the matters referred to in Mr. Logan's deposition were
not the ones giving rise to the 103(g) inspection. Inasmuch as I do not know
who made the complaint I cannnot use the results of the inspection as affecting the credibility of any witness.

1345

On January 15, 1981, Mr. Paul Reid of Celtite Corporation conducted a
pull test in Respondent's mine. While the pull test was not described in
detail the idea is to pull out a roof bolt and see just how much force it
takes to pull it out. There is disagreement as to what time of day the pull
test was made, but all who testified as to the date agreed that it was
January 15, 1981. Mr. Logan's immediate supervisor, foreman Scott Johnson,
told Logan that he could watch the test if his tail piece area was clean.
It is at this point that the versions of what took place differ. Roy Logan
says that before the first part of the pull test was completed Scott Johnson
came up to him and embarrassed him in front of his fellow workers by telling
him to get back to work. Logan says he then threatened Johnson with words
such as "I'll whip you before I leave" and said that several others should
have heard his statement. This testimony by Logan was given in his deposition
which was, without objection, made part of the record. At the trial, however~
he said he sort of muttered the threat and did not intend anyone to hear
it. While no one else at the pull test including Johnson, Collins, and
several others, testified that they heard the threat, several heard either
Collins or Johnson or both tell Logan to get back to work. According to
Johnson and Collins the first part of the pull test was over. Johnson said
that when they went to test the second bolt, a part of the testing equipment
broke sp there was no point in allowing anybody to remain because the pull
test was then over, at least for that day. Scott Johnson testified that he
had to tell Logan three times to get back to work. Willard Blair heard
Johnson tell Logan to go back to work. He did not say how many times.
Eugene Lewis a state mine inspector heard Jack Collins tell Logan to go back to
work at least twice, but said that Logan just sat there. And Jack Collins
said he told Logan to go back to work two times when the first test was over
and that Scott Johnson told him to go back to work two times. The weight
of the evidence is that if Logan went back to the tail piece to work, he
did not do so when he was instructed by his two superiors to get back
to work.
State Inspector Eugene Lewis testified that on the day of the pull test
but prior thereto, he saw Roy Logan at the tail piece and Roy Logan told him
that he was going to whip Scott Johnson. Later in the day, Lewis related that
information to Jack Collins and Jack Collins at some unspecified time thereafter relayed the information to Scott Johnson. Both Scott Johnson and Jack
Collins corroborate Mr. Lewis' version of the way the threat was communicated
to Mr. Johnson. It is noted that Mr. Logan's statement at the trial, that
he did not mean for anyone to hear him and sort of muttered the threat, is
inconsistent with the statement in his deposition that four to six people
probably heard him tell Johnson that he would whip him before he left.
The above incidents involving the pull test all took place January 15,
1981, the discharge took place on January 19, 1981. The rest of the incidents
that will be considered took place at unspecified dates, either before
January 15, or subsequent to the dischage on January 19. Scott Johnson
testified that when Logan first came to work for Bright Coal Company, he was
a very good scoop operator. He then began to slow down and appeared to avoid
the foreman; that is, when the foreman was on the outside, Logan would be at

1346

the face and when the foreman was in the mine, Logan would be broken down
outside. Buford Stonic testified that Logan's scoop seemed to be broken down
an awful lot. Jack Collins testified that Logan "tore up" his scoop all
the time. Gears, universal joints and other items were constantly being overstressed because of Logan's reckless driving. Levon Williams, a foreman at
the other mine, said that Logan was sent to his mine at one time and managed to
get his scoop stuck in an area sideways. Mr. Williams was uunable to explain
clearly what happened but he thought it was deliberate and it took several
hours to correct the matter. He left instructions that Logan should not be
sent to his section again. Although both scoops in the mine were fairly new,
Logan had the newest one, and according to Mr. Collins, the other scoop driver
had no trouble with his scoop. It was just Logan's scoop that broke down all
the time.
Another incident that is alleged to have occurred at an unspecified time
(which Mr. Logan denies), is a near accident involving the other scoop driver.
The other scoop driver, Jim Cornett, said that he was driving the scoop underground when Roy Logan who had been engaged in some hazardous horse play jumped
out in front of Cornett 7 s scoop. He considered it very fortunate that he did
not run over Logan. He related this incident to Jack Collins when he saw him.
Jack Collins testified that Jim Cornett had almost run over Logan ~1ile Logan
was asleep and that after hearing about it, he went back down into the face
area and found Logan asleep. Mr. Cornett did not see Logan asleep nor has
he seen anyone asleep in the mines although he had heard, he thinks from Jack
Collins that Logan had been asleep. At his deposition Logan denied both
allegations although he did not present any rebuttal testimony at the trial.
There were other predischarge events testified to by Mr. Logan during the
course of his deposition, but they will be considered later.
Mr. Logan testified, both in his deposition and at the trial, that on
the day of the firing, January 19, 1981, after the shift was over, it was
decided by Mr. Jim Hogg that Logan could ride to and from work with
Mr. Jack Collins. Logan said he put his knee pads in Collins' Bronco
expecting to be picked up the next morning at a store between his house and
the mine. He says the next morning he was at the store which had been the
agreed meeting place and that Mr. Collins drove right on by. Mr. Collins
denies that there was an arrangement to pick up Mr. Logan. Mr. Jim Hogg
was on the stand at the trial but nobody bothered to ask him whether he had
been a party to any arrangement whereby Jack Collins would pick up Roy Logan
on the day after he had been fired.
Roy Logan says that on the evening of January 20 he learned indirectly
from his brother that he had been fired and that he phoned Scott Johnson
and Jack Collins to ask about it. He said Jack Collins denied any knowledge
and suggested that he call Jim Hogg. He said when he called Jim Hogg, Jim
suggested that he call Jack Collins and that when he again called Jack
Collins, Jack told him he had been fired. Scott Johnson, testified that
Mr. Logan had called him and that he, Scott Johnson, had said he knew nothing
about the firing. Mr. Collins testified that Logan called him to try to get
his job back and that when he refused, Logan threatened him with such words

1347

as "your time is coming" and added "I know where you live and I know where
your children go to school." Logan denies making the statement about the
children although he concedes saying something about "your time is coming".
Jack Collins said that he and his wife and daughter were shopping in a store
later when Logan came up and called him a "son-:-of-a-bitch" in front of his
family. He said he took Logan out of the store and knocked him down. Logan
denies all of this.
After Logan was fired from Bright Coal Company, he went to work for
Joseph Brothers as a scoop operator. After a short time, Charles Joseph
fired him because he was damaging the equipment with his reckless driving.
Mike Joseph corroborated the fact that Logan could not keep the scoop
running because he was too rough on the equipmento They even thought Logan
deliberately let the air out of the tires to avoid work. Logan denied that
he had been fired but during the course of his deposition he did say that it
was almost the same as being fired. He said that Joseph Brothers had laid
off the second shift but let the others continue working anyway. He nevertheless denied being directly fired. Hike Joseph said he fired him.
Near the end of the trial, counsel for Respondents offered preshift
examination reports to show that the required examinations had in fact been
made. Government counsel objected on the grounds that they were not relevant
because the government had at no time charged or contended that the proper
preshift examinations were not being made. When counsel for Respondents
asked if the government was abandoning its claim that proper preshift exami-inations were not made, government counsel stated that he was not abandoning
the contention, because he had not made it in the first place. The government was simply not contending that there was any flaw in Respondent's preshift examination procedures. At Mr. Logan's deposition, however, he made
quite a point of the fact that proper preshift examinations were not being
made. He said they were never made and that he had argued with Scott Johnson
about not making them. He alleged that neither Jack Collins nor Scott Johnson
ever went into the mine before Logan himself went in. Johnson would sometimes
come in after they started working and put his initials in places, but he
was faking the preshift examination according to Logan. He even complained to
Jack Collins about Logan not making the preshift but Collins said there wasn't
any point in making one. Logan stated that the only time Johnson would mark
anyplace on the roof with his initials was when he had to come up to the
face for some other reason and it was in no way a preshif t examination. He
also said that he complained to the MSHA inspector's about the failure of
the company to make preshift examinations. He also mentioned a time prior to
the discharge and pull test when Jack Collins asked him to go under what he
considered bad roof to rock dust. He refused to do so.
All of the above would tend to establish a very poor policy on Respondents' part regarding mine safety. All would have been in support of a discriminatory discharge. None of these items were brought forth during the
trial, however. None of the miners who testified alieged that they had been
asked to work in unsafe conditions, none mentioned the failure of Respondents'
to make preshift examinations, and Mr. Logan did not testify at the trial

1348

concerning these matters. In my opinion, the circumstances give rise to the
inference that the government does not believe the sworn statements of
Mr. Logan regarding these matters. If the government had information tending
to disprove the statements of Mr. Logan, it was obliged, under Brady v.
Maryland 273 U.S. 83 (1963), to disclose that information. Since it has
neither denied that it has such information, nor disclosed such information
to Respondents, I am making the assumption that it has such information.
I make the further inference that if Mr. Logan made misstatements under
oath as to the items referred to above, he may well have made similar misstatements under oath as to the principle issue herein, i.e., why he was fired.
I have no similar evidence that would indicate that-Mr. Collins may have made
misstatements under oath.
Considering the inferences that I have made, it is obvious that the
government has failed to satisfy its burden of proof that Mr. Logan was discharged because he refused to work under unsafe roofo I therefore render
judgment for the defendants Bright Coal Company and Jack Collins and the
case is DISMISSED.

{}lud~ (. ?/Jc'rff!<; a.

Charles C. Moore, Jro,
Administrative Law Judge
Distribution:

Certified Mail

W.F. Taylor, Esq.,
Labor,

Office of the Solicitor, U.S. Department of
280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203

Ronald G. Polly, Esq., Polly, Craft, Asher & Smallwood, P.O.
Box 786, Whitesburg, KY 41858
Mr. George Roy Logan,
KY 41858

P.O.B. 146-A, King Street, Whitesburg,

Bright Coal Company, Inc.,
Mr. Jack Collins,

Main Street, Whitesburg, KY

P.O.B. 242,

Ermine, KY

41858

41815

Thomas P. Piliero, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

1349

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

JUL23J9&?

)

WILLIAM A. HARO,

)
)

COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE

Complainant, )
)

v.

DOCKET NO. WEST 80-482-DM

)
)

MAGMA COPPER COMP ANY,

MD 80-26

)
)

Respondent o

MINE: San Manuel Division

)

)
~~~~~~~~~~~~~~~~~~-

DECISION AND ORDER
Appearances:
Thomas G. Martin, Esq.
1601 No Stone Avenue
Tucson~ Arizona
85705
For the Complainant
N. Douglas Grimwood, Esq.
Twitty, Sievwright & Mills
100 West Clarendon
Phoenix, Arizona 85013
For the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
Complainant, William A. Haro, filed a complaint against Respondent,
Magma Copper Company alleging that on August 24, 1979, he was suspended for
five days for alleged insubordination, and that on November 16, 1979, he
received a reprimand when he allegedly left his work area without
permission. Haro alleges that the five day suspension and reprimand were
administered against him by the respondent in retaliation for Haro having
exercised his rights which were protected pursuant to section 105(c)
(1) J:../ of the Federal Mine Safety and Health Act of 1977 (hereinafter
the "Act").

1/ Section 105(c)(l) reads in pertinent part "No person shall •.•
discriminate against ••. any miner ••• because such miner ••• has ••• made
a complaint under or related to this Act, including a complaint notifying
the operator ••• of an alleged danger or safety or health violation in a
••• mine ••• "

1350

FINDINGS OF FACT
The respondent, Magma Copper Company, operates an underground copper
mine, mill, smelter, refinery and rod plant at San Manuel, Arizona.
Several years prior to 1979, respondent had initiated a six point safety
program. The safety program refers to a six point check list which is to
be completed by each employee and his supervisor. After the safety slip is
filled out each day by the employee, it is given to his supervisor.
Approximately 1500 to 1600 employees fill out the safety slips daily. Six
questions must be checked on each slip, however, only the first three
questions are relevant in this proceeding. The first three questions are
as follows:
YES

NO

1. Check entrance to place of work?
2. Are equipment and working area in good order?
3. Is work assignment understood?
On May 19, 1979 when Haro filled out his safety slip, he checked
question No. 1 "No" because he had observed that there were splinters in
the shower room benches and that the benches should be sanded and
euo
Haro~s supervisors explained to him that the first question referred ::c
Haro 1 s actual work place, and that for unsafe conditions outside Haro:s
work area a notation should be made in the iiconnnent
section at the bottom
of the safety slip. Haro believed that the entrance to his place of work
included the shower room because that was his first entrance to the job
where Haro put on his work clothes. Haro informed the mechanical general
foreman that unless Haro was allowed "freedom of choice" on fi 11 ing out the
safety slips he would not fill them out any more. He stated that his
decision was not subject for negotiation. Haro also felt he was being
coerced as to what the meaning of immediate work area meant. Haro 1 s
supervisor informed him that he was expected to fill out the safety slips~
and no further action was taken in regard to this incident. On May 25,
1979, Haro was informed that the shower room benches had been sanded and
painted.
On August 16, 1979, Haro again marked "no 11 on question No. 1 on the
safety slip. Haro testified that in his opinion his entrance to his work
place was unsafe because respondent would not allow Haro to apply his craft
as a journeyman mechanic with respect to the welding of concrete pots used
in the underground mine department. Haro had observed the welding work
being done on the concrete pots by certified welders, and Haro believed
that it was unsafe. Haro had further concluded that respondent was
limiting Haro's abilities to perform his duties, and respondent was not
letting Haro comply with his "specified requirements." Haro 1 s supervisor,
Mr. Hamilton, later informed Haro that Haro was a mechanic, not a welder,
and if Haro did not like how things were being done, to get another job.

1351

On August 16, 1979, Haro also marked "no" to question No. 2 on the
safety slip in regard to whether the equipment in the area was in good
working order. Haro marked the slip "no" because the overhead crane in the
surface car shop could not be used and had not been repaired. The crane
had been taken out of service approximately one month before, on July 24,
1979, and the air lines to it had been disconnected and the control box
"tagged out". This action had been taken after an MSHA inspector had
inspected the crane on July 24, 1979, at the request of Haro. When
questioned by Mr. Hamilton about Haro's mark "no" on the safety slip, Haro
acknowledged that the overhead crane was out of service, but Haro stated
that he could climb to the roof of the shop, reconnect the air hoses, and
thus use the crane. Hamilton told Haro that if Haro did that, he would be
in violation of a direct order given to everyone in the shop in that the
crane was tagged out of service.
As to question No. 3 on the safety slip, whether the work assignment
was understood, Haro had marked it Bno 11 on August 16, 1979 9 because Haro
did not understand the work being done by the welders on the concrete pots,
Hamilton explained to Haro that Haro was a mechanic, not a welder, and that
there was no need for Haro to understand any weld repairs being done within
Haro's shop.
On August 22~ 1979, Haro was surrnnoned by Mr, Hamilton, the mechanical
general foreman~ to discuss the method Haro had used to fill out the safety
slip on August 16, 1979. Mr. Hamilton concluded the meeting by explaining
to Haro that respondent's expectations in regard to the. safety slips had
now been explained to Haro and that he could either comply with the program
or look for work elsewhere.
On the next day, August 23, 1979, Hamilton discovered that Haro had
turned in his safety slip with the first three questions left unanswered.
Hamilton sent Haro's irrnnediate supervisor to Haro in order to have him fill
it out. The supervisor returned and told Hamilton that Haro had refused to
fill it out, and that Haro had said if Hamilton wanted it filled out, then
Hamilton could do it himself. At 4:25 p.m., Hamilton ordered Haro brought
to his office and when Haro arrived, Hamilton asked Haro why some of the
questions on the safety slip had been left unanswered. Haro replied, that
it had slipped his mind, or he had forgotten. Haro than took a pencil from
his pocket, checked the three unanswered questions "yes", and tossed the
safety slip on a chair. Haro left work at 4:30 p.m.
Mr. Hamilton did not believe that Haro had forgotten to fill out the
safety slip, but that Haro had refused a direct order as to how to fill it
out. Hamilton contacted his supervisor, explained what had occurred, and
recommended that Haro be fired for insubordination. However, the final
decision was that Haro be given a five day disciplinary layoff commencing
August 24, 1979, for insubordination. The notice to Haro gave the
explanation that the layoff was for "failure to comply with a direct order
concerning six point safety slip." Mr. Hamilton's supervisor testified
that Haro was the only employee who had refused to fill out a safety slip
in compliance with instructions.

1352

Haro filed a grievance pursuant to the union contract on August 16,
1979, alleging that "Mr. Hamilton was forcing me against my will in filling
out safety slips and was doing it through coercion." On August 22, 1979,
Haro filed a grievance because Haro concluded that he was unable to leave
his work area during lunch hour and felt that he should, therefore, be paid
for his lunch hour.
On November 16, 1979, Haro received a written warning for being away
from his work area. During the lunch period Haro had left his work area to
file a second step proceeding in a grievance that Haro and another miner
had filed previously. Allegedly, Haro had not asked the permission of his
supervisor in order to leave his authorized work area during the lunch
period to make the filing at the Administration Building.
During the three years prior to Augusts 1979 3 Haro had filed approximately 20 grievances against respondent and had also filed two "discriminat ion11 complaints against respondent for alleged violations of
section lOS(c)(l) of the Act. These complaints were pending at the time
Haro was suspended for insubordination.
ISSUES
The issues in this proceeding as agreed to by counsel for Haro and
counsel for the respondent were whether or not the discipline which was
administered to Haro regarding the five day disciplinary layoff on August
24, 1979, for insubordination and the subsequent reprimand on November 16,
1979, for leaving the work place were done in accordance with legitimate
company policies, or whether these disciplines were pretextual and contrary
to section lOS(c)(l) of the Act.
DISCUSSION
Haro has the burden of showing that he engaged in protected activity
and that his suspension and reprimand were motivated in part by such protected activity. The Secretary of Labor, on behalf of David Pasula v.
Consolidation Coal Company, 2 FMSHRC 2786 (1980).
Was Haro suspended for five days connnencing August 24, 1979, because
he had made complaints in regard to alleged dangers or safety or health
violations, and did Haro receive the reprimand on November 16, 1979, for
the same reasons?
Counsel for Haro contends that because of Haro's complaints to MSHA in
July 1979, which resulted in the inspection of the overhead crane on July
24, 1979, and Haro's history of resorting to MSHA assistance, respondent
took revenge and discriminated against Haro by suspending him for five days
for alleged insubordination; and, that for the same reasons respondent
reprimanded Haro for leaving his work area on November 16, 1979, without
permission, in order to file a second step of a grievance. Thus, Haro

1353

claims that the protected activity in which he engaged consisted of having
made safety complaints to MSHA and that because of that activity protected
by the Act, respondent retaliated against Haro. The facts do not bear out
this contention.
According to the testimony of Haro he was in disagreement as to the
manner in which the respondent required him to fill out safety slips. On
May 19, 1979, Haro marked "no" to question No. 1 which stated "Check
entrance to place of work?" Because he disagreed with respondent's
interpretation as to the location of his "place of work. 11 Although Haro
may have believed that the splinters on the shower room benches were a
danger or health or safety violation, the point he raised was that he was
coerced into filling out the safety slips to show that the entrance to
11
place of work" was the innnediate work place of the miner, whereas Haro
believed it to be the entrance to the mine property where he was first
subject to orders by a supervisor. Thus, there was no protected activity
involved in this occurrence.
On August 16, 1979, when Haro again marked 11 non to question No. 1 on
the safety slip there was no showing by Haro that he was complaining of an
alleged danger or safety or health violation. Haro testified that his
entrance to his work place was unsafe because respondent would not allow
Haro to apply his craft as a journeyman mechanic with respect to the
welding of concrete pots"
At the request of Haro an MSHA inspector inspected the overhead crane
in the car shop on July 24, 1979. As a result of that inspection, the
crane was taken out of service due to certain deficiencies. A supervisor
"disabled" the crane so that it could not be operated. He had the crane
moved to the end of the building, parked, and unhooked it from its air
supply, and the controlling mechanism was "tagged". The crane was not put
back into operation until February 25, 1981, according to Harois
testimony. Although the evidence was unclear as to what the alleged danger
consisted of, Haro's action in calling MSHA was protected activity.
However, there is no inference from the evidence that the suspension of
Haro on August 24, 1979, or the reprimand on November 16, 1979, was
motivated in any part by that protected activity.
On August 16, 1979, Haro marked "no" to question No. 2 on the safety
slip. The question was "Are equipment and working area in good order?"
Haro testified that he had been marking "no" to that question because he
was unable to obtain an answer from management as to when the overhead
crane would be repaired. This complaint was not activity protected by the
Act. Since the crane had already been "tagged out" of service for approximately a month, its presence could hardly be called a possible danger
or safety or health violation.
On the same date, August 16, 1979, there was no protected activity in
regard to Haro's answering question No. 3 "no", that the work assignment

1354

was not understood. Haro testified that he did not agree with the way the
concrete pots were welded. He was not a welder, but was a mechanic who
worked on maintaining the undercarriage of the rail cars on which the
concrete pots were placed. There was no substantial evidence to show that
Haro was making notification of an alleged danger or safety or health
violation in regard to the method used to weld concrete pots.
There is no evidence that the reprimand given to Haro on November 16,
1979, when he left his work area without permission in order to file the
second step of a grievance was motivated in any part by any protected
activity. The filing of a second step in the grievance procedure was not
shown to be in any way related to notification of an alleged danger or
safety or health violation.
The Act protects the miner when he makes notification of an alleged
danger or safety or health violation. Protected activity does not consist
of allowing Haro to fill out the safety slips in any manner that he may
have felt was the proper way, The manner in which the safety slip was
required to be filled out was respondent 0 s prerogative. Although the
method may have limited Haro 1 s "freedom of choice", it was, nevertheless,
the legitimate exercise of a managerial right of the respondent,
Substantial evidence is convincing that Haro was suspended and
reprimanded because respondent decided that Haro was insubordinate and
failed to follow company policies in filling out safety slips, and also
that Haro left his work area without permission of a supervisor.
Respondent's decision was not an unreasonable one based.on the evidence.
CONCLUSION
I find that the complainant, William A. Haro, has failed to sustain
his burden of showing that his five day suspension and reprimand were
motivated in any part by protected activity.

ORDER
The complaint is dismissed.

1355

Distribution
Thomas G. Martin, Esq.
1601 North Stone
Tucson, Arizona 85705
N. Douglas Grimwood, Esq.
Twitty, Sievwright & Wright
1700 TowneHouse Tower
100 West Clarendon
Phoenix, Arizona 85013

1356

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

SECRETARY OF LABOR,
1!1.INE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

Jlll 23111

CIVIL PENALTY PROCEEDING
Docket No. WEST 82-68
A.C. No. 42-00081-03032 V

v.
Docket No. WEST 82-69
A.C. No. 42-00081-03033 V

CO-OP MINING COMPANY,
Respondent

Docket No. WEST 82-101
A.C. No. 42-00081-03034
Co-op Mine
DECISION
Appearances:

Katherine Vigil, Esq., Of
of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Pet ioner1
Carl E. Kingston,
., Salt Lake City,
Utah, for Respondent.

Before:

Judge Melick

These consolidated cases are before me upon petitions
for assessment of civil penalty under sqction llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801
11
et~., the "Act,
in which the Secretary has proposed
penalties against the Co-op Mining Company (Co-op) of
$1,094 for three violations of mandatory standards. The
general issues are whether the Co-op Mining Company (Co-op)
has violated the regulations as alleged in the petitions
and, if so, whether the violations were "significant and
substantial." Appropriate civil penalties must also be assessed for any violations found.
Hearings in these cases
were held on May 13, 1982.
Docket No. WEST 82-68 - Order No. 1023129
The validity of Order No. 1023129, issued under section
104(d) (1) of the Act
not in itself at issue in this civil
penalty proceeding, but only the violation charged therein.
Secretary v. Wolf Creek Collieries Company, PIKE 78-70-P
(March 26, 1979); Pontiki Coal Corporation v. Secretary, 1
FMSHRC 1476 (October 1979).

1357

The order alleges a violation of the mandatory standard
at 30 CFR section 75.305. That standard provides in relevant part as follows:
"In addition to the preshift and daily examinations
required by this subpart D, examinations for hazardous conditions, including tests for methane,
and for compliance with the mandatory health or
safety standards, shall be made at least once each
week by a certified person designated by the operator in the return of each split of air where it
enters the main return, on pillar falls, at seals,
in the main return, at least one entry of each
intake and return aircourse in its entirety, idle
workings, and, insofar as safety considerations
permit, abandoned areas. * * * A record of these
examinations, tests, and actions taken shall be
recorded in ink or indelible pencil in a book
approved by the Secretary kept for such purpose
in an area on the surface of the mine chosen by
the mine operator to minimize the danger of destruction by fire or other hazard, and the record
shall be open for inspection by interested persons."
The Order reads as

follows~

There was no evidence of the weekly examinations
of the return aircourse or intake and the book
provided on the surface for this purpose was
not filled out for the week of 8/18/81 and
8/26/81 and 9/2/81. Thus, the last examination of intake and return in its entirety
was preformed [sic] on 8/12/81.
The order appears to charge two separate violations of
the cited standard, i.e. (1) a failure to perform the weekly
examinations and (2) a failure to record such examinations.
The operator conceded at hearing that the entries required
by the cited standard had not been made in the examination
books. The violation of that part of the standard is therefore proven as charged. Whether I find that the required
inspections had nevertheless been made depends on my determination of the credibility of the witnesses. MSHA coal
mine inspector John Turner testified at hearing that the
examination book indeed did not have entries corresponding
to weekly examinations required for the three week period
August 15, 1981, through September 2, 1981. When Turner had
shown the examination book to section foreman Kevin Peterson, Peterson acknowledged that the entries had not been
made.
Peterson, in fact, never claimed that the inspections
had been made.

1358

3

Mine Superintendent Bill Stoddard testif
that
shortly before the .MSHA inspection here at issue, he had
assigned maintenance foreman Clyde White to perform the
required weekly inspections. White reportedly told Stoddard
that he had performed all of the required inspections, but
merely failed to enter them into the designated book and
failed to place his initials in the return aircourse as
required by the cited standard.
According to Stoddard,
White also said that he had reported the results of his
inspections to another foreman, Ken Defa, and that he
assumed Defa was making the necessary book entries and was
placing his (Defavs) initials in the return
recurse even
though Defa had not performed the inspectionso
Neither White nor Defa appeared at hearing to testify
concerning these matters and no reason was given for their
non-appearance. The statements attributed to them were,
therefore, not given under oath nor subjected to the scrutiny of cross examination.
Under all the circumstances, I
can accord but little weight to this self-serving hearsay.
On the other hand, it may reasonab
be inferred from the
absence of the required entries in the examination book and
from the absence of an inspector's initials in the return
aircourse that the required inspections had never been made.
The violations have accordingly been proven as charged.
Whether these violations were "signi cant and substantial", however, depends upon whether they could be a major
cause of a danger to safety or health and whether there
existed a reasonable likelihood that the, hazard contributed
to would result in an injury or illness of a reasonably
serious nature. Secretary v. Cement Division, National Gypsum Company, 3 FMSHRC 822 (1981). The test essentially
involves two considerations:
(1) the probability of resulting injury, and (2) the seriousness of the resulting injury.
If the weekly examinations had actually been performed
here and the only violation was the failure to record those
examinations, then that violation would undoubtedly not have
been "significant and substantial". That, however, is not
the case. According to Inspector Turner, other required
inspections made at the Co-op Mine on a daily basis_ would
cover all areas but the return entries. Only the weekly
exam required by the cited standard provides for inspection
of the return entry. Moreover, there is no dispute that the
weekly examination of the return entry could lead to discovery of roof falls that might hinder ventilation of the
working areas of the mine, defective air stoppings, and coal

1359

4

dust and methane. Although methane has never been detected
at the cited mine an~ inadequate ventilation through the·
return entry can be detected by other inspections and tests
such as inspection of the exhaust fan chart, and the ventilation and methane tests made during pre-shift examinations
and every 20 minutes during production, these factors do not
in my opinion detract from the significance of the weekly
inspection.
Clearly, if these other inspections were handled
in as negligent a manner as the weekly inspections, there is
a good chance that the extremely hazardous conditions described by the inspector could escape undetected.
If accumulations of float coal dust remain undetected, there is no
disagreement that the risk of an explosion and resultant
serious injury or death to the eight miners ordinarily
working underground is greatly increased. Accordingly, I
find that the violation was "significant and substantial"
and constituted a serious hazard.
I find also that the operator was negligent in failing
over a rather long period of time to see that the inspections required by the cited standard were being performed.
In determining the amount of penalty herein, I have also
taken into consideration that the operator had an annual
production of 141,000 tons of coal and had 20 employees.
It
also had a history of 104 violations over a recent 2-year
period. Under the circumstances, I find that a penalty of
$500 is appropriate.
·
Docket No. WEST 82-69
At hearing, the parties moved for approval of a settlement agreement requesting a reduction in proposed penalties from $300 to $150. The parties provided sufficient
information at hearing from which I determined that the
proposed settlement was appropriate under the criteria set
forth in section llO(i) of the Act. The motion for approval
of settlement was accordingly granted.
Docket No. WEST 82-101
At hearing, Co-op requested to withdraw its Answer and
agreed to pay the proposed penalty of $44. Under the circumstances, permission to withdraw was granted and a default
decision entered.
Order
The Co-op Mining Company is hereby ordered to pay the
following civil penalties within 30 days of the date of this
decision:

1360

5

Docket No. WEST 82-68

$500

Docket No. WEST 82-69

$150

Docket No. WEST

$ 44

Katherine Vigil, Esqo, Office of the Solicitor, DoSo Department of Labor 1585 Federal Building, 1961 Stout Street,
Denver, CO 80294

1361

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

JUL 261982

Civil Penalty Proceedings

SECRETARY OF LABOR,
Petitioner

Docket No. LAKE 80-363-M
AC No. 12~00109-050061
Docket No. LAKE 80-364-M
AC No. 12-00109-05007

v.
SELLERSBURG STONE COMPA1TY,
Respondent
DECISION
Appearances:

Stephen P. Kramer, Esq., Office of the Solicitor
U.S. Department of Labor, for Petitioner
Edwin S. Sedwick, Esq., for Respondent

Before:

Judge William Fauver

These consolidated proceedings were brought by the Secretary of
Labor under section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et~· for assessment of civil penalties for
alleged violations of mandatory safety standards. The case was heard at
Louisville·, Kentucky.
Having considered the contentions-of the parties and the record as
a whole, I find that the preponderance ·of the r~liable, probative, and
substantial evidence establishes the following:
FINDINGS OF FACT
1. At all pertinent times, Respondent operated an open-pit, multiplebench, crushed limestone operation in Clark County, Indiana; its products
were regularly produced for sales or use in or substantially affecting
interstate commerce.
2. After material was blasted from the side of the quarry ("primary
blasting"), a frontend loader was used to gather boulders that were too
large to go through the stone-crusher. These were moved to the floor of
the quarry where they were exploded by "secondary blasting."
3. "Secondary blasting" involved: a) drilling a hole into-a boulder
with a jackhammer drill; the hole was about 1 inch x 18 inches; b) loading
the hole with a 1-"inch x 4-inch stick of dynamite; adding a primer cord;
and packing the hole with fine stones; and c) detonating the dynamite, in
blasts of about 20 boulders at a time. The boulders were piled or grouped
in a rather close cluster for drilling and blasting.

1362

4. In secondary blasting, at times a dynamite charge would not
explode. After the blast, the standard safe practice in the industry was
to inspect all boulders remaining to see whether any contained undertonated
dynamite, and this inspection required turning the boulder over to drill
all sides for a drill hole. However, Respondent did not follow the practice
of turning boulders over, and relied upon visual inspection of the top
and sides of a boulder.
5. In secondary blasting, at various times some boulders would be
turned over by the blast so that if a boulder were unexploded the drill
hole might be on the bottom and not detectable unless the boulder was
turned over for visual inspection.
6. The boulders were about two to four feet in diameter, and
usually the drill hole did not exit, so that there would be only one
hole visible on a boulder.
7. On December 13, 1979, two men were assigned to do secondary
blasting. Carl Sparrow, the blaster, had about four or five months
experience in blasting and David Hooper, the driller, had about three
months experience. Neither was carefully or well trained in
the performance of his duties.
(a) That morning they inspected about 20 boulders; Hooper
drilled them and Sparrow loaded them with dynamite and primer cord. At
times Hooper helped pack or load a hole.
(b) They set off a blast of about 20 boulders, and went to
lunch. When they returned, Sparrow worked around his truck and Hooper
started inspecting and drilling boulders. The first boulder he inspected
had no visible drill hole, but he could not see the bottom. The boulder
was about four feet in diameter and too heavy to turn over without
equipment, such as a frontend loader. Respondent had such equipment,
but did not use it or make it available for turning over boulders for
inspection. He started drilling a hole.'
When he was about halfway
through the boulder it exploded. Hooper received permanent disabling
injuries, including loss of the sight of one eye and a crippled leg.
(c) Respondent did not preserve the accident site; after
Hooper was taken to the hospital, all evidence of the accident was
removed or disturbed and normal mining was resumed.
(d) Respondent did not report the accident to MSHA by telephone
or by other prompt means. Its first notice to MSHA was a Form
70001, mailed to MSHA's Vincennes, Indiana subdistric~ office on January
2, 1980.

1363

DISCUSSION WITH FURTHER FINDINGS
The Secretary has alleged three violations. The first citation
charges a violation of 30 CFR § 56.6106, which provides:
Faces and muck piles shall be examined by a competent
person for undetonated explosives or blasting agents
and any undetonated explosives or blasting agents
found shall be disposed of
Respondent did not properly examine the muck pile after secondary
blasting, because after such blasting it drilled boulders without turning
them over to examine each boulder for a dynamite drill hole on the
bottom of the boulder. This failure was contrary to standard safe
practice in the industry, and violated 30 CFR § 56.6106. Respondent's
practice constituted gross negligence and a grave risk of drilling into
a dynamite charge because the driller would not know whether a boulder
had a dynamite charge that had failed to fire. I reject Respondent's evidence to
the effect that the blast of a boulder could not move nearby boulders or
turn them over. I also
ect Sparrow's testimony that he had found a
drill hole in the boulder that exploded and injured Hooper, and that he
had ordered Hooper not to drill into that boulder. I credit Hooper's
account of the facts and accident, including the fact that he had inspected
the boulder before drilling and found no drill hole, that he .drilled
nearly halfway through the-boulder when it exploded, that often boulders
were piled on one another and a secondary blast moved boulders around
and over.
This was a most serious violation resulting from gross negligence.
The second citation alleges a violation of 30 CFR § 50.12, which provides:

Unless granted permission by an MSHA District
Manager or Subdistrict Manager, no operator may
alter an accident site or an accident related
area until completion of all investigations
pertaining to the accident except to the extent
necessary to rescue or recover an individual,
prevent or eliminate an imminent danger, or
prevent destruction of mining equipment.
part:

This regulation implements § 103(j) of the Act, which states in applicable

1364

In the event of any accident occurring in
any coal or .. other mine, the operator shall
notify the Secretary thereof and shall take
appropriate measures to prevent the
destruction of any evidence which would
assist in investigating the cause or causes thereof.
No effort was made to preserve the accident site. The jackhammer
and air compressor were removed and normal blasting operations were
resumed. Nothing was left to indicate that an accident had happened.
The investigators could not tell where the accident occurred, the actual
number of rocks involved, the location of the accidental blast in
relationship to the planned blast, the location of the jackhammer and
air compressor, etc. MSHA's permission was not obtained to alter the
accident site, nor was there a need to alter the site to recover Mr. Hooper
or to avoid destruction of mining equipment. No imminent danger existed
after the explosion. Respondent's conduct violated 30 CFR § 50.12, and
by the exercise of reasonable care this violation could have been avoided.
Respondent was therefore negligent.
This was a serious violation. Failure to preserve the accident site
hindered MSHA 1.s function of investigating the cause of the accident and of
identitying and recommending steps to prevent or avoid a similar accident.
The third citation charges a violation of 30 CFR § 50.10', which provides:
If an accident occurs, an operator shall
immediately contact the MSHA DistricS or
Subdistrict Office having jurisdiction
over its mine. If an operator cannot
contact the appropriate MSHA District '
or Subdistrict Office it shall immediately
contact the MSHA Headquarters Office in
Washington, D.C., by telephone, collect
at (202) 783-5582.
This provision reasonably implies that an operator is required immediately
to telephone or use other prompt means, e.g., a telegram, to notify the MSHA
District or Subdistrict Office.

1365

Notice by mail involves a substantial delay in contacting MSHA. MSHA
Form 7000-1 is a separate and independent reporting requiremen~
The
information on that form is used for different purposes than the notification
required under § 50.10. Respondent violated § 50.10 by failing to telephone
or at least telegraph the proper MSHA office on the day of the accident. A
violation of this kind has a serious effect on MSHA's ability to conduct an
effective investigation. The accounts of witnesses in this case involved a
number of contradictions, which the inspectors were impeded in resolving
primarily because they were unable to investigate the incident in a timely
fashion. This violation resulted from management's negligence.
CONCLUSIONS OF LAW

1. The Commission has jurisdiction over the parties and subject
matter of this proceeding.
2. On December 13, 1979, Respondent violated 30 CFR § 56.6-106 as
alleged in Citation No. 36811. Based upon the statutory criteria for
assessing a civil penalty, Respondent is assessed a penalty of $7,500 for
this violation.
3. On December 13, 1979, Respondent violated 30 CFR § 50.12 as alleged
in Citation No. 367185 as modified. Based upon the statutory criteria for
assessing a civil penalty, Respondent is assessed a penalty of $1,000 for
this violation.

4. On December 13, 1979, Respondent violated 30 CFR § 50.10 as alleged
in Citation No. 366810 as modified. Based upon the statutory criteria for
assessing a civil penalty, Respondent is assessed a penalty of $1,000 for
this violation.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the Secretary of
Labor the above-assessed civil penalties, in the total amount of $9,500.00,
within 30 days from the date of this decision.

Ul~~vM__
WILLIAM FAUVER, JUDGE
Distribution Certified Mail:
Stephen P. Kramer, Esq., and Thomas A. Mascolino, Esq., US Department of
Labor, Office of the Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203
Edwin S. Sedwick, Esq., 100 Heritage Bldg., Sellersburg, IN 47172

1366

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

WADE G. TEETS,
Complainant
v.

Complaint of Discharge,
Discrimination, or Interference
Docket No. WEVA 82-·153-D

EASTERN ASSOCIATED COAL CORPORATION,
Respondent

Federal No. 1 Mine

DEFAULT DECISION
The complaint in the above-entitled proceeding was filed on February 8,
1982, under section 105(c)(3) of the Federal Mine
and Health Act of
1977. Inasmuch as the complaint was filed without benefit of legal advice,
I wrote a letter to complainant on March 18, 1982, explaining to him the
procedures which would be used in holding a hearing and deciding the issues
raised by his complaint. The letter also requested that complainant notify
me by May 20, 1982, whether he expected to obtain an attorney to represent
him at the hearing. The letter emphasized that it was necessary for him to
decide before the case was set for hearing whether he intended to obtain an
attorney so that the hearing would not be delayed after a date for the hearing had been scheduled in a formal notice of hearing. The letter also explained to complainant that it would be necessary for him to answer the
questions or interrogatories served upon him by respondent's attorney and
explained the procedures he should follow in the event he wished to ask
questions of respondent's personnel. Finally, the letter advised complainant that if he failed to respond to my request as to whether he expected to
obtain an attorney, that he would receive a show-cause order requiring him
to explain in writing why he should not be found to be in default and why
his complaint should not be dismissed.
A return receipt shows that complainant received my letter on March 22,
1982, but complainant did not reply in any way to the letter of March 18,
1982. Therefore, on July 1, 1982, a show-cause order was issued requiring
complainant to explain in writing by July 20, 1982, why he should not be
found to be in default and why his complaint should not be dismissed for
failure to reply to my request of March 18, 1982. The return receipt shows
that complainant received the show-cause order on July 6, 1982, but complainant has submitted no response to the show-cause order.
Counsel for respondent filed on July 6, 1982, a motion for sanctions
pursuant to Federal Rule of Civil Procedure 37(d) and 29 C.F.R. § 2700.l.
Federal Rule 37(d) provides in pertinent part as follows:
(d) Failure of Party to Attend at Own Deposition or Serve
Answers to Interrogatories or Respond to Request for Inspection.
If a party or an officer, director, or managing agent of a party
or a person designated under Rule 30(b)(6) or 31(a) to testify

1367

on behalf of a party fails (1) to appear before the officer who
is to take his deposition, after being served with a proper
notice,*** the· court in which the action is pending on motion
may make such orders in regard to the failure as are just, and
among others it may take any action authorized under paragraphs
(A), (B), and (C) of subdivision (b)(2) of this rule. In lieu
of any order or in addition thereto, the court shall require the
party failing to act or the attorney advising him or both to pay
the reasonable expenses, including attorney's fees, cause.d by
the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust,
The failure to act described in this subdivision may not be
excused on the ground that the discovery sought is objectionable
unless the party failing to act has applied for a protective
order as provided by Rule 26(c),
The motion for sanctions correctly states that respondent duly filed
interrogatories on complainant and obtained an order for leave to initiate
discovery after expiration of the 20-day period provided for in section
2700.SS(a) because the complaint in this proceeding was not served on
respondent until March 3, 1982, although it had been filed with the
Commission on February 8, 1982, Respondent 1 s counsel then asked complainant
to provide a date for taking his deposition, When complainant failed to
respond to that request, respondent scheduled the deposition for April 29,
1982. That date was changed to May~. 1982, after complainant's ·wife
advised respondent's counsel that complainant was sick and unable to be
present on April 29. Complainant's wife thereafter advised respondent's
counsel that complainant would not be well enough to attend the deposition
rescheduled for May 6. The time for completion of discovery was consented
to by complainant and I issued an order on May 18, 1982, extending the
time for completion of discovery to June 30, 1982, A new date of June 8,
1982, was set for the deposition and complainant was served with a notice
of deposition.
The motion for sanctions further states that respondent's counsel
traveled by automobile from Pittsburgh, Pennsylvania, to Fairmont, West
Virginia, for taking complainant's deposition. A court reporter also
appeared at Fairmont on June 8, 1982, in order to record the deposition,
but complainant failed to appear. The motion therefore requests that
complainant be required to pay the expenses of the court reporter, the
mileage fees, and attorney's fees, or a total of $439.75, incurred by
respondent in its fruitless attempt to take complainant's ·deposition.
Complainant has filed no answer in reply to respondent's motion for
sanctions.
Rule 37(d) provides that a judge may require a party to pay the expenses associated with failure to appear at an appointed place for taking
of a deposition if the judge elects not to take the action provided for

1368

under Rule 37(b)(2), paragraphs (A), (B), or (C). Paragraph (C) provides
that a judge, for fai1ure of a party to appear at a deposition, may issue:
(C) An order
out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or dismissing the action or pro
or any part thereof, or rendering a judgment by default against the disobedient party;
Although complainant did finally appear on June 22, 1982, for the purpose of giving a deposition in connection with the issues raised in this
proceeding, respondent's counsel has filed copies of two different letters,
the last one having been filed on July 21, 1982, in a futile attempt to
persuade complainant to check the deposition for errors and return a signed
copy of it to respondent 1 s attorney,
Section 2700.63
that when a party fails to comply with an
order of a judge or these rules, an order to show cause shall be directed
to the party before the
of any order of default or dismissal. As indicated above, a show-cause order was duly directed to complainant on July 1,
1982, requesting that he
why he should not be found to be in default for failure to comply with my request of March 18, 1982, to the effect
that he advise me as to whether he intended to obtain an attorney to represent him in this proceeding. He has at no time replied to any of my requests for information and he has been uncooperative in providing the information properly requested by respondent's counsel under the Commission's
discovery procedures.
Section 2700.l of the Commission's rules provides that a judge may be
guided by the Federal Rules of Civil Procedure on procedural matters not
regulated by the Commission's rules. I believe that complainant's failure
to appear at the place scheduled for his deposition after respondent's
attorney had already rescheduled the time for the
on two previous dates should also be considered as a ground for finding complainant in
default. I find complainant to be in default pursuant to section 2700.63(a)
of the Commission's Rules and Rule 37(b)(2), paragraph (C), of the Federal
Rules of Civil Procedure.
WHEREFORE, for the reasons hereinbefore given, it is ordered:
(A) The motion for sanctions filed on July 6, 1982, is granted, but
the relief given is granted under Federal Rule 37(b)(2), paragraph (C),
instead of the alternative relief requested by respondent of ordering complainant to pay the cost of the deposition pursuant to Rule 37(d),
(B)

The complaint filed in Docket No. WEVA 82-153-D is dismissed,

~e9ie!13t;!hAdministrative Law Judge
(Phone:

1369

703-756-6225)

Distribution:
Mr. Wade G. Teets, Route 1, Box 148, Fairmont, WV
Mail)

26554 (Certified

R. Henry Moore, Esq., Attorney for Eastern Associated Coal Corp.,
Rose, Schmidt, Dixon & Hasley, 900 Oliver Building, Pittsburgh, PA
15222-5369 (Certified Mail)

1370

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

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

JUL 281982

CIVIL PENALTY PROCEEDINGS
Docket No. YORK 81-67-M
AoCo NOo 18-00481-05007

Vo

Docket No. YORK 82-5-M
AoCo NOo 18-00481-05008

A. Ho SMITH,
Respondent

Brandywine Pits and Plant
DECISION
Appearances:

Covette Rooney, Esqo~ Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania
for Petitioner;
Wheeler Green, Branchville, Maryland for Respondent

Before:

Judge Melick

These cases are before me upon petitions for assessment of civil
penalties under section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. section 801, et seq., the "Act," alleging violations of mandatory health and safety standards. The general 'issues are whether A.H. Smith
(Smith) has violated the regulations as alleged in the petitions filed herein,
and, if so, whether those violations are ''significant and substantial". An
appropriate civil penalty must also be assessed for any violation found.
Contested Citations
Citation No. 302475 charges a violation of the mandatory standard at 30
C.F.R. section 56.5-50, specifically alleging that the noise level around the
operator of the "clam" shovel was 189% of the permissible limit. According
to the charges, neither feasible engineering nor feasible administrative controls were being used to reduce the level of noise to eliminate the need for
personal hearing protection. The citation was issued on July 19, 1978, and
the operator was initially given until September 20, 1978, .to' abate the con~
dition. Further extensions were granted as follows: (1) on February 1, 1979,
an extension was granted to April 18~ 1979, on the grounds that sound absorption material had been ordered by the operator but had not yet arrived; (2)
on May 2, 1979, an extension was given to July 10, 1979, because the sound

1371

aborption material had still not arrived; (3) on August 1, 1979, an extension
was granted to August 21, 1979, after a noise survey performed on July 31,
1979, showed that the noise level around the operator of the cited shovel
was 196% of the permissible limit (at the time of that survey, a sound barrier curtain had been installed but apparently had not been installed tightly
against the ceiling and walls of the cab); (4) on February 6, 1980, an extension was granted to March 26, 1980, because the plant had been shut down and
the inspector was therefore unable to perform a noise survey; (5) on June 4,
1980, an extension was granted to July 3, 1980, because the shovel had broken
down and the noise survey could not be completed.
Precisely one year later, on June 4, 1981, a section 104(b) withdrawal
order J:j was issued (Order No. 312018). The order provided as follows:
"No apparent effort was made by the operator to reduce the
noise level of the Manitowac clam shovel in order to eliminate the need for hearing protection on five previous attempts to survey this machine. It either broke down early
in the survey or was not running at all during an inspect ion of this plant. The operator had insulated curtains
installed on the shovel but they were not being used. The
noise level on the shovel was 192% of the permissible limit
at 5 hours of the survey when this machine went out of service again. Ear plugs [sic] worn by operator of shovel.
Four days later, on June 8, 1981, the withdrawal order was modified after
the soundproof curtains were reinstalled by the operator and a muffler was
placed over the exhaust. A sound level meter indicated a reduction in noise
levels from "102 dBA's to 92 dBA's". Additional controls were accordingly
required to bring the noise level to within permissible limits. No subsequent action has apparently been taken on this equipment as the operator has
withdrawn it from service.
There is no dispute in this case that the cited Manitowac shovel emanated
noise levels above those permitted by the cited regulation, and indeed, that
the shovel emanated noise when first cited at 189% of the permissible level.
Smith's principal defense rests upon the language of the cited regulation
which provides in part as follows:
1/

Withdrawal orders may be issued pursuant to section 104(b) of the Act

~fter a violation has been cited under section 104(a) and .has not thereafter

been time abated. The validity of the section 104(b) withdrawal order is
not in itself at issue in this civil penalty proceeding. Insofar as the order
concerned a failure to abate the cited violation, however, it may be relevant
evidence under section llO(i) of the Act in determining the amount of any
penalty that may be imposed.

1372

When employees' exposure exceeds that listed * * *, feasible
administrative or engineering control shall be utilized. If such
controls fail to reduce exposure to within permissible levels,
personal protection equipment shall be provided and used to reduce
sound levels to within the levels of the table.
MSHA contends that feasible engineering and administrative controls
did exist and the operator failed to implement them. Smith maintains,
on the other hand, that the proposed administrative and engineering controls
were not, and are not now, feasible, emphasizing that such controls are not
economically viable under the circumstances.
As I observed in Secretary of Labor v. Callanan Industries
FMSHRC 168, pet. for rev. granted February

Inc.

3

The term "feasible" as used in a similar noise standard
promulgated in regulations under the Occupational Safety and
Health Act (29 CFR section 1910.95(b)(l)) has been judicially
construed to include economic feasibility. RMI Company Vo
Secretary of Labor, et al., 594 F.2d 566 (6th Cir. 1979);
Turner Company v. Secretary of Labor, 561 F.2d 82 (7th Cir.
1977). In determining such feasibility? the court in RMI
approved of the cost-benefit analysis employed by the
Occupational Safety and Health Review Commission (OSHRC) in
the case of Continental Can Company~ 1966 through 1967
CCH OSHD ~[21,009 4 BNA OSHC 1541 (1976). The OSHRC stated
therein that the standard should ,be interpreted to require
those engineering and administratlve controls which are
economically as well as technically feasiQle. Controls may
be economically feasible even though they are expensive and
increase production costs. But they will not be required
without regard to the costs which must be incurred and the
benefits they will achieve.
In determining whether controls are economically feasible, all the relevant
costs and benefit factors must be weighed. [Citations omitted.] In setting
forth a general test to be followed in determining economic feasiblity, the
court in RMI stated as follows:
The benefits to
oyees should weigh heavier on the
scale than the cost to employers. Controls will not necessarily be economically infeasible merely because they are
expensive. But neither will controls necessarily be ·
economically feasible merely because the employer can
easily (or otherwise) afford them. In order to justify the
expenditure, there must be a reasonable assurance that there
will be an appreciable and corresponding improvement in
working conditions. The determination of how the cost benefit balance tips in any given case must necessarily be made
on an ad
basis. We do not today prescribe any rigid

1373

formula for conducting such analysis. We only insist that
the Secretary and the OSHRC on review, weigh the costs of
compliance against the benefits expected to be achieved
thereby in order to determine whether the proposed remedy
is economically feasible. RMI,
at pages 572-573.
[See also Samson Paper Bag CO:-,
ENA OSHC 1515, 1980
CCH OSHD, 24,555 (No. 76-222, 1980)].
Just as in the Callanan case, I find in this case that the test applied
by the OSHRC to essentially the same regulatory standard is relevant and
reasonable and, in the the absence of precedent from the Mine Safety and
Health Review Commission, I apply that test to the facts of this case. As
I also observed in the Callanan case, the Federal Circuit Court in the Ri~I
decision, again citing OSHRC decisions on point, also concluded that
Secretary has the burden of proving both the technologic and economic
feasibility of the proposed controls and of showing that a violation of the
noise standard has occurred. RMI
at page 574, Anaconda Aluminum Coo,
9 ENA OSHC 1960, 1981 CCR OSHD
,
o
13102, 1981)0 See also
Administrative Procedure Act, section 7(d), 5 u.s.c. section 566(d) and
Diebold Inc. v. i1arshall, 585 F.2d 1327, 1333 (6th Circuit 1978). I find
in this case that MSHA has that burden here.
The precise question before me. then, is whether MSHA has met its burden
of proving the feasibility of the controls proposed in this case. I find that
it has. MSHA specialist John Radomski testified at hearing in this
that, based on his experience with many shovels similar to the Manitowac clam
shovel here cited, noise reduction in the cab area of such shovels can
easily and economically be attained by installing a sound barrier between the
motor and cab area and by installing
glass or plexiglass windows in
the cab. Radomski testified that he knew of several diesel shovels under
similar circumstances that had been brought into compliance with the noise
standard by the installation of a sound barrier alone. According to Radomski,
for $100 or less the operator could have constructed his own barrier made of
plywood and soundproof material or, for $400 to $500, the operator could have
purchased an installed prefabricated sound barrier curtain. Prefabricated
curtains were then available on the market and at the time the citation was
issued Radomski provided Mine Superintendent Dennis Critchley with the name
and address of a company producing such curtains. Radomski also concluded
that it would cost $100 to $200 to install safety glass in the windows of the
cited shovel. Finally, Radomski concluded that if the sound proof barrier
and
glass windows were not sufficient to bring the shovel into compliance, most certainly the addition of a muffler costing from $50 to $100
(installed cost) would bring the shovel into compliance. According to
Radomski's calculations based on 1978 cost estimates, the operator could have
brought the cited shovel into compliance with the cited standard for $600 or
less.

By way of defense the operator argues that the actual cost of the sound
proofing material alone was $948.70. While the operator does not challenge

1374

the cost estimates cited by Inspector Radomski for the purchase and installation of safety glass and a muffler, it nevertheless maintains that the proposed engineering controls were economically infeasible. I disagree. Even
assuming, as the operator contends, that the soundproofing material cost
$948.70, and that a muffler would cost $100, safety
, $200, and additional labor costs, $150, I do not find this economic burden unreasonable
to bring the cited shovel into compliance. In reaching this conclusion,
I find from the uncontradicted testimony of Inspector Radomski that other
similar shovels have been brought into compliance with similar or even less
modification. Accordingly, I find on the facts of this case ample assurance
that there would be full compliance with the standard resulting from a relatively modest outlay of financial resources.
I find, in addition, that the administrative controls proposed by MSHA
were also feasible. Based on his analysis of the noise level, Inspector
Radomsky concluded that the cited shovel could be operated in compliance with
the standard by utilizing two shovel operators, each on a four hour shift.
According to Radomski, the operator of the cited shovel was then being paid
less than $5 an hour, although the normal pay for that job was then between
$7 and $10 an hour. He observed that Smith also employed other skilled
workers such as truck drivers, front end loaders, and two other shovel operators. Industry pay scale for loader operators was then from $7 to $9 an
hour. Within this framework it appears that other multiskilled workers then
employed by Smith or newly hired could have been rotated to work the cited
shovel on four-hour shifts and to op.erate other equipment for the remainder
of their shift without any additionai cost (or with only minimal additional
cost) to the mine operator. Under al~ the circumstances, I find that the
Secretary has carried his burden of proving the violation of the standard at
30 CFR section 56.SO(b) as alleged. Anaconda Aluminum Co., supra.
Whether that violation was "significant and. substantial" depends on
whether that violation could be a major cause of a danger to safety or health
and whether there existed a reasonable likelihood that the hazard contributed
to would result in an injury or illness of a reasonably serious nature.
Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC 822 (1981). In
this regard, Inspector Radomski testified that the exposure of the shovel
operator to the level of noise cited would result in hearing loss over a
period of time. He admitted that he did not know how long such an exposure
would be required to result in hearing loss but speculated that it would be
more than five years continuously. No scientific or medical evidence was
produced to substantiate Radomski's testimony in an area that indeed requires
some specialized expertise. The inspector's testimony in this regard is
particularly inadequate in light of the evidence that the shovel operator was
apparently wearing personal hearing protection. In light of this, and the
• rather speculative testimony offered, I cannot properly assess the probabilities. I do not find therefore that the evidence as presented in this case
is sufficient to demonstrate that the cited violation was "significant and
substantial" under the National Gypsum test. For the same reasons, I do
not find sufficient evidence to establish a high level of gravity.

1375

I do find, however, that the operator was negligent in regard to this
violation in failing to conduct its own noise survey on equipment that, based
upon the undisputed noise levels found, must obviously have been emanating
excessively high noise levels. Also significant in this case is the lack
of good faith shown by the operator herein in failing to achieve compliance
after notification of the violation. The citation was issued on July 19,
1978, and the violation still had not been abated nearly three years later
when the section 104(b) withdrawal order was issued on June 4, 1981. While
Smith did apparently purchase over $900 in noise abatement material during
this time, it did not put forth a genuine effort to properly install that
material. In determining the amount of penalty, I have also considered the
operator's previous history of seventeen violations and that the operator is
small in size. No evidence has been submitted to indicate that the operator
would be unable to pay the penalties here assessed. Under all the circumstances,
I find that a penalty of $300 is appropriate for the violation.
Citation No. 311781 alleges a violation of the mandatory safety standard
at 30 C.F.R. section 56.9-3. The citation alleges as follows:
Both accuators [sic] on the rear wheels of the 980-B F.E.L.
were not working. When running the F.E.L. at normal rate of speed,
the loader traveled a distance of 8 feet to 10 feet before coming
to a stop. This test was conducted on a flat surface.
The cited standard provides only t.hat "powered mobile equipment shall be
provided with adequate brakes". As I stated in the case of Secretary v.
Concrete Materials, Inc. 2 FMSHRC 3105 (1980):
The language of the cited standard, i.e., that "powered
mobile equipment shall be provided with adequate brakes,"
indeed does not afford any concrete guidance as to what is to
be considered "adequate brakes." A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an operator unless read to
penalize only conduct or conditions unacceptable in light of
the common understanding and experience of those working in
the industry. Cape and Vineyard Division of the New Bedford
Gas and Edison Light Company v. OSHRC, 512 F.2d 1148 (1st Cir.
1975); National Dairy Corporation, supra, United States v.
Petrillo, 332 U.S. 1, 67th S.Ct. 1538, 91 L.Ed. 1877 (1947).
Unless the operator has actual knowledge that a condition or
practice is hazardous, the test is whether a reasonably
prudent man familiar with the circumstances of the industry
would have protected against the hazard. Cape and Vineyard,
supra. The reasonably prudent man has recently been defined
as a "conscientious safety expert seeking to prevent all
hazards which are reasonably foreseeable. 11 General Dynamics
Corporation, Quincy Shipbuilding Division v. OSHRC, 599 F.2d
453 (1st Cir. 1979).

1376

The initial question before me, then, is whether Smith knew that the
operation of the front end loader with brakes in the cited condition would
be hazardous or whether a conscientious safety expert would have protected
against the brake conditions existing here because they presented a reasonably foreseeable hazard. The undisputed testimony of MSHA inspector Walter
McGinn was that the brake actuators for the rear wheels of the cited front
end loader were simply not working. He observed that the operator of the
front end loader was not even bothering to apply his brakes but was using
the reverse gear to stop. The machine operator admitted to McGinn that the
brakes were not working. In a test the front end loader was driven at a
"normal rate of speed" which was not more than five miles per houro
Inspector McGinn observed that the vehicle continued to travel some 8 to
10 feet after application of its brakes. According to McGinn, the loader
should have stopped within one foot under the conditions of the test. When
McGinn returned to abate the violation two weeks later, he observed that new
brake actuators had been installed on the rear wheels, that the brakes functioned properly, and that the vehicle stopped "right away" upon application
of the brakes. Within this framework of evidence, it is clear Smith had
sufficient knowledge that the brakes on the cited front end loader were not
"adequate" in the context of the cited standard. I also conclude that Smith,
and any conscientious safety expert, would have recognized the hazardous
nature of the brakes in the cited condition.
The essentially undisputed testimony of Inspector McGinn, noted above,
also provides ample proof of the violation. I further find that Smith was
negligent in allowing this equipment to continue operating with defective
brakes, a condition admittedly known to the machine operator. I find, moreover, that the hazard presented by the defective brakes was serious. It is
undisputed that at the time McGinn issued the-citation, there were three
vehicles in the area of the front end loader and that the three drivers were
walking about in the same general vicinity. Under the circumstances, I find
that injuries of a serious nature were likely to occur. The violation was
accordingly also "significant and substantial." Secretary v. Cement Division
National Gypsum Company, Supra., 3 FMSHRC 822. Under the circumstances and
considering the criteria under Secion llO(i) of the Act, I find that a penalty
of ~150 is appropriate for the violation.
Settlement Motion
Prior to hearings in these cases, the Secretary filed·a motion for
approval of a settlement agreement with respect to eight of the nine citations set forth in Docket No. YORK 81-67-M. The Secretary had initially
proposed penalties of $738 for those eight violations. A reduction in penalties to $506 was proposed. I have considered the representations and documentation submitted in connection with the motion and I conclude that the
prof erred settlement is appropriate under the criteria set forth in section
llO(i) of the Act. Accordingly, the motion for approval of settlement is
granted.

1377

ORDER

Docket No. YORK 81-67-M
It is ORDERED that Respondent, A. H. Smith, pay a penalty of $906 within
30 days of the date of this decision.
Docket No. YORK 82-5-M
It is ORDERED that Respondent, A. H. Smith, p y a penalty of $150 within
30 days of this decision.

Distribution (by certified mail):
Covette Rooney, Esq., Office of the Solicitor, UoSo Department of Labor,
Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104
Wheeler Greene, A. H. Smith, Branchville, HU

1378

20740

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG P1KE
FALLS CHURCH, VIRGINIA 22041

JUL29191!

Complaint of Discrimination

SECRETARY OF LABOR ON BEHALF OF
DANNY H. BRYANT,
Complainant

Docket No. VA 80-162-D
v.

Kennedy

CLINCHFIELD COAL COMPANY,
Respondent

STATE:t:IENT OF THE CASE .•.••.•.•.•••••.•.•• , .•........... , . . . . . . .

l

ISSUES PRESENTED ••• '°' • • • • • • • • • • • • • • • • o o • • • • • • • o • o o o °' o o o ,,, o o o •

,,

3

o

L~.

Management Animus .•...•.... ., •..•..•.......•...•.•.• ,.,.....

4

The Incident With The Julie Car............................

8

The Jack and J ackbar .... ,,,, .•••.•..••.••. , .••.•....•.•• ~·

11

The Fire Extinguisher. . . • • .. • • • • . . . . . . • . . . . . • • . • • . . • . • •

13

The Safety Glasses •••.•.•••....•••••: ••• o o • • o • • • o ., • • • o o

14

The June 1, 1979 Meeting...............................

16

Bryant's Refusal to Set Jacks. . . • • • . • • • . . • . . . . • . • • • . . . . . • . .

18

Fear of the Job •.•.•••••.•..•••.•...... o•••·•••o••o•oo

30

Impaired Physical Condition...........................

32

The Post Hoc Medical Evidence.........................

38

The Wildcat Strike. • . • • • • • • • • • . . • • • • • • • . . . . . . • . • • • • • • . • . . • .

43

Legality of the Wildcat Strike •.•••••.•.•••.••••.......•.•• ·

58

FINDINGS OF FACT .. o ... o "' • o o " o.,

Q

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CONCLUSIONS OF LAW..............................................

63

OPINION. • • • • • • • • • • • • • .. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • .

64

ORDER. • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

70

1379

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF DANNY H. BRYANT,
Complainant

Complaint of Discrimination
Docket No. VA 80-162-D

Vo

CLINCHFIELD COAL COMPANY,
Respondent
DECISION
Appearances:

James Ho Swain~ Esqo~ Office of the Solicitor 0
U.S. Department of Labor, Philadelphia, Pennsylvania
for Complainant;
W. Challen Walling, Esq., Penn, Stuart, Eskridge and
Jones, Bristol, Virginia, and Paul R. Thomson, Jr., Esq.,
The Pittston Coal Co. Group, Lebanon, Virginia, for
Respondent.

Before:

Judge Kennedy
STATEMENT OF THE CASE

The captioned complaint against reprisal presents the novel question
of whether a miner's declared lack of competence and fitness to perform
a temporary work assignment is a protected activity under section lOS(c)(l)
of the Mine Safety Law.

The operator considered the miner's conduct a

transparent attempt to shirk an onerous and distasteful work assignment,
charged him with insubordination and suspended him with notice of intent
to discharge.

1380

Thereafter, the miner allegedly instigated a wildcat strike and the
matter went to grievance and arbitration under the National Bituminous
Coal Wage Agreement of 1978.

The arbitrator found the miner's explanation

for why he was too sick to work unconvincing.

He further found the cir-

cumstantial evidence was persuasive of the fact that the miner encouraged
and instigated a wildcat strike in support of his grievance.

These combined

instances of misconduct, he concluded, were just cause for the miner's
discharge.
While the matter was in arbitration, the miner filed a complaint for
reprisal (discrimination) with the Department of Labor.

After a field

investigation, the Office of the Solicitor concurred in MSHA's finding
that the miner's refusal to accept the temporary work assignment was a
protected activity.

Subsequently, a complaint ?lledging unlawful discharge

and seeking reinstatement and back pay was filed by the Secretary with the
Commission.

The complaint charged the miner was suspended with intent to

discharge for both an antecedent and an immediate refusal to work.

The

operator denied the charges and raised as a plea in bar the miner's violation of his no-strike pledge and failure to mitigate damages.
Ford Motor Co. v. EEOC,

U.S.

See,

, decided June 28, 1982;

Constructors, Inc., 4 FMSHRC 791, 804-805 (1982).

The Secretary's reponse

was a denial that the miner instigated a wildcat strike.
After extensive pretrial and discovery, the matter came on for an
evidentiary hearing in Abingdon, Virginia on December 7, 8, and 9, 1981.
The record was closed and the case submitted on April 1, 1982.

1381

ISSUES PRESENTED
1.

Whether a miner's discharge for refusal to accept a
temporary work assignment was a pretext for firing him
for antecedent protected activity.

2.

Whether a miner's refusal to accept a temporary assignment
on the ground that performance of the task might impair
his health is a protected activity under section lOS(c)(l)
of the Mine Acti in the absence of a showing of a causal
relation between a mine health or safety hazard and the
refusal to work.

3.

Whether upon a showing that a miner had mixed motives in
refusing work assignments,~the Secretary had the burden··of
persuasively showing that the true motives for claimed
protected refusals to work were untainted by impermissible
motives.

4.

Whether a miner's post-refusal conduct created an independent
ground and constituted just cause for his discharge, because
it amounted to an illegal instigation of a wildcat strike.

5.

Whether the Secretary carried his burden of persuasion
on the issues of (1) protected activity and (2) the
discriminatory motive for the miner's discharge.

1382

FINDINGS OF FACT
Management Animus
Complainant, Danny Bryant, was first employed by the Pittston Company
at its Kentland-Elkhorn Mine in Mouthcard, Kentucky in March 1975.

Starting

as a general inside, Mr. Bryant advanced to motor switchman and later to
repairman.

Although his formal education stopped at the sixth

learned quickly and was considered a good and diligent workero

e, Danny
So good;

in facts that during the latter half of 1978 he persuaded Lloyd White
Manager of the Birchfield Division of the Clinchfield Coal Company, another
subsidiary of Pittston, to obtain a waiver of the company
intercompany transfers without a break in service.

cy against

As a result, around

the middle of February 1979~ Bryant was able to transfer to Pittston~s
Pilgrim Mine J:./ which was located just six miles from his new home in Wise,
Virginia with a minimal break in service and loss of income.
The function of a repairman is to perform electrical, mechanical and
hydraulic repairs on all types of mining equipment.

Much of the work was

performed above ground in the repair shop which was warm and dry but
frequently involved working underground to repair equipment in the low
coal (32 to 36 inches) of the Pilgrim Mine.

In the winter of 1980, this

required a miner to work in a cold, damp, dusty, physically demanding
and restricted underground environment.

1/ The Pilgrim was a UMWA mine. In August 1981 Pittston closed the mine
and turned it over to a contract operator.

1383

As a Mine Safety Committeeman, and as a safety conscious worker, Bryant
on several occasions during 1979 found himself at odds with management over
conditions and practices which he questioned as unsafe or unwise. 2/

With

respect to these incidents, only one of which played any part in Bryant's
challenged discharge, the Solicitor has sought in retrospect to magnify
the importance of expected and normal tensions and disagreements over safety
between a mine safety committeeman and managemento

The claim that these

incidents considered either singly or in the aggregate resulted in a "grudge"
or management "animusn against Bryant and a determination to "get him" I
view as overblowno

This trial judge takes notice of the fact that safety

committeemen, like other enforcement officials who do their job, are seldom
candidates for popularity awards by managemento

Mro Bryant understood this,

and, prior to his discharge, thought little of ito

For example, Mro Bryant

testified that even when he was warned that his activities were incurring
the displeasure of the evening shift foreman, Cecil Blevins, he did not give
it "much consideration" and at the first opportunity transferred from the
third (hootowl) shift to Mr. Blevins's evening (4 to 12) shift.
A searching review of the record reveals no convincing evidence that
Lloyd White, who was responsible both for hiring and discharging Mr. Bryant
harbored any secret or overt animus against Danny for reporting safety
infractions.

He did consider serious and unjustified the hazing of

Mr. Tate, a maintenance foreman and Danny's immediate supervisor which

2/ Bryant was also Chairman of the Mine Committee which meant that he
had to represent miners in the presentation of grievances against
management.

1384

resulted in a disruption of the work effort by Mr. Bryant on June 1,
1979.

The effort to establish this as part of a bona fide protected

activity and the "real motive" for Mr. Bryant's challenged discharge
for insubordination and instigation of a wildcat strike in March 1980,
I find unpersuasive.
Though by the time he left 9 Danny 1 s feisty combativeness had earned
him a reputation as a "troublemaker 9 7i there is no basis on this record for
imputing to management generally or to Mro White in particular a pervasive
resentment against Danny that resulted in an attempt to set him up or to
discharge him under the cover of a legal pretext.

The Secretary's attempt

to supply by assertion the deficiency in his proof is unconvincingo 3/
3/ Because of his involvement with the circumstances that led to Mro Bryant's
discharge and his departure from the~Pilgrim Mine under a cloud sportly
after Mr. Bryant, Henry Canady's testimony must be heavily discounted.
Mr. Canady was the maintenance foreman.on the evening shift and Mr. Bryant's
close friend and supervisor at the time of the challenged discharge on
March 7, 1980. Mr. Canady's uncorroborated, anecdotal testimony concerning
the single occasion when he was allegedly privy to an incident in which
he claimed management was displeased with Bryant 1 s report of an unsafe
condition hardly establishes a predisposition on the part of Lloyd White
or any other member of management to "get" Bryant for carrying out his
duties as a safety committeeman. Mr. Canady's testimony reveals that he,
not Bryant, was primarily responsible for the ten minute delay required
to correct a fault in the braking system of a locomotive. His testimony
further reveals that he was not asked to single out Bryant for an adverse
personnel report on this incident but had merely been instructed to make a
report on any miner whom he believed occasioned an unnecessary disruption
in operations or conducted himself in a manner inimical to good order and
discipline. As Mr. Canady admitted, an adverse report was never made on
the incident because he considered himself responsible for. the brief work
stoppage. A second incident, attributable to a misunderstanding of some
directions Mr. Canady gave for the utilization of company property, did
not involve a safety complaint and resulted in a complete exoneration of
Mr. Bryant of any charge of wrongdoing or troublemaking. Mr. Canady's
credibility was further seriously impugned by his admission that he failed
to intercede with management on Danny's behalf on March 7, 1980 at a time
when such intercession might have persuaded Mr. White that Danny was not
a malingerer.

1385

The Solicitor's has urged sweeping conclusions on the basis of
recitations of atypical. and inapt examples.

This is no substitute for

substantial evidence, the standard by which I must be guided.

Section

7(c) of the APA, requires that I measure both the qualitative and quantitative sufficiency of the evidence in determining whether the Secretary has
met his burden of persuasion by a preponderance of the reliable, probative
and substantial evidence"
Vo

Steadman Ve SEC, 450 UoSc 91 (1980); Charlton

FTC, 543 Fc2d 903, 907 (D.Cc Ciro 1976)0
It is not enough that viewed in isolation the Secretary may have

adduced "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion" because at the trial level where the
evidence is pro and con, the judge sitting as trier of fact must evaluate
the credibility and weight of the evidence and must decide in accordance
with the preponderance of the reliable, probative and substantial evidence
in the record considered as a whole.
supra, 907.

Steadman, supra, 78; Charlton,

Thus, only where reliable and probative evidence preponderates

in favor of the existence of a challenged fact, such as the state of mind
of management or its individual members, will the Secretary meet his burden
of persuasion.

This does not mean proof to a certainty.

Proof by a pre-

ponderance means only that proof which leads the trier of fact to find
the existence of a contested fact is more probable than its nonexistence.
McCormick, Evidence, 794 (2d ed. 1972).

This burden is not met, however,

by evidence which creates no more than a suspicion of the existence of a

predisposition to fire Mr. Bryant for reporting safety infractions.

1386

The Incident With the Julie Car
The Julie car is a three wheeled, rubber tired personnel carrier that
was used at the Pilgrim Mine to transport repairmen and mechanics from the
surface to areas of the underground mine where machinery maintenance work
was required.
On June 1, 1979, some nine months before the date of Mro Bryant 1 s
discharge, Mr. Bryant instigated a work stoppage that involved himself
and two other members of his maintenance crew that lasted approximately
on hour.

The grounds for the stoppage were (1) that the Julie car did

not have a fire extinguisher and when this was found and provided that
(2) the Julie car did not have a jack and jackbar and when this was provided
that (3) Mr. Bryant and the other two miners did not have their safety
glasses with them.

When Delmar Tate, the maintenance foreman, finally

borrowed some glasses from the desks or lockers of other foreman, Mr. Bryant
and the other two miners proceeded to their work stations and Mr. Tate
filed a complaint of their conduct with Lloyd White, the division manager.
This all occurred ori the third or hootowl shift.

At 7:00 a.m. the

following morning Mr. White held a meeting with Mr. Tate, Mr. Bryant and
the two other miners involved.
representative.

The miners were provided with a union

A transcript of most of what transpired was provided for

the record as RX-16.

This was supplemented by testimony from Mr. White,

Mr. Bryant and one of the miners involved, Mr. Robert Stair.
The Secretary claims this incident created in the mind of Lloyd
White and other members of the mine management team an abiding animus

toward Bryant for the exercise of rights guaranteed and protected under
the Act and that but for this animus Mr. White would not have discharged
Mr. Bryant for refusing to accept a work assignment on March 7, 1980.
The operator claims the work stoppage was inspired by a personal dislike
or resentment on the part of Mr. Bryant toward the maintenance foreman,
Delmar Tate.

The operator contends the claim that the Julie car incident

was justified by the exercise of rights guaranteed under the Act was a
pretext for a concerted effort to undermine Mro Tate 1 s supervisory authority
and to embarrass and humiliate him in the eyes of the other miners and
members of management.
I find it more probable than not that Mr. Bryant 1 s motive for the
work stoppage was, in fact, mixed, and stemmed from (1) his resentment
over his recent transfer by Mr. Tate from the Mains to the 1 Right' Section,
(2) his ambition to be a safety committeeman, and (3) his desire to
embarrass Mr. Tate.

I conclude that while Mr. Bryant's reporting the

absence of a fire extinguisher was protected, i t was not grounds for
prolonging a work stoppage while Mr. Tate was made to chase down a jack,
jackbar and safety glasses.
What are the operative facts and reasonable inferences that support
these findings?
The Pilgrim Mine was a two section low coal mine.

Delmar Tate, whom

we must view through the prism of others perceptions, was maintenance
foreman on the third shift, the shift to which Bryant was assigned on
June 1, 1979.

As maintenance foreman on the third shift, Tate had

1388

responsibility for maintenance work on both the 1 Right Section and the
Mains Section where Bryant worked.

Tate, while not unpopular, did not

easily command obedience from the contract miners.

He had trouble

maintaining discipline among the members of his maintenance crews,
especially the crew on the 1 Right Section.

Tate's recent promotion from

general inside to maintenance foreman was resented by Bryant who felt that
Joey Stapleton, a close friend of Bryant's should have had the promotiono
Bryant himself had a hidden agenda in that he was preparing to run for
the office of mine safety committeeman and wished to impress his peers
with his ability to stand up to management on safety issueso
Approximately a week before the incident with the Julie car~ Tate
announced that the maintenance crew on the Mains

Section~

including Bryant,

Robert Stair and Scott Parrott, would be transferred to the 1 Rig9t Sectiono
The miners resented this because they felt they had been doing a good job
on the Mains Section.

Tate did not deny this but because of his difficulty

with the crew on the 1 Right Section he and hts supervisors, including
Lloyd White, felt the better crew should be assigned to the 1 Right Section
in an effort to get maintenance and repair work done and production up • .!:_/
Bryant, Stair and Parrott rebelled at the idea of having to correct
the work of the crew on the 1 Right Section.

They blamed the problem on

Tate's inability to get work out of the other crew.

They did not think

they should be called upon to' cover up for his lack of leadership and
that if he could not hack it he ought to get off the hill.

4/ The mine was a marginal producer and its continued operation was in a
probationary status.

1389

Thus, when Delmar Tate ordered Bryant and the others to take a Julie
car underground to repair a bearing on a tail piece on June 1, 1979, Bryant
thought he saw an opportunity to engage in some protected activity at
Tate's expense.

Bryant claimed he initially led the refusal to obey

Tate's order because the personnel carrier was not equipped with a jack
and jackbar as required by 30 C.F.R. 75.1403-6(b)(l); that when this was
provided by Tate the refusal was repeated because the carrier had no fire
extinguisher as required by 30 C.F.R. 75oll00-2(d); and that when Tate
searched for and found an extinguisher Bryant still refused to budge
because he and the other two miners did not have safety glasses to wear
while operating the carrier as required by 30 C.F.R. 1403-7(e). 2_/
The Jack and Jackbar
Under close questioning, Bryant for the first time admitted the
personnel carrier involved in the June 1 incident was a Julie car, a
three wheeled rubber tired vehicle and not a "railrunner" or track ·mounted
vehicle. 6/

Bryant further admitted that under the law and the mandatory

5/ At the prehearing conference, it was stipulated this was the principal,
if not the sole, incident of antecedent protected activity claimed to
support a showing of animus toward Bryant because of safety complaints.
As previously indicated, there is no substantial evidence to support the
view that other complaints played any significant or adverse role in
management's attitude toward Bryant.
6/ Up to this point there had been some "confusion" of this incident
with another incident involving the absence of a jack and jackbar that
occurred in August 1979. This was shortly before Mr. Bryant transferred,
at his request, to the evening shift. This incident resulted from
Mr. Bryant's activity as a safety committeernan--a position to which he
was elected after the June 1 incident. It did not involve a refusal to
work. Mr. Bryant merely reported the absence of a jack and jackbar on a
track mounted (railrunner) personnel carrier to Mr. Tate. When an operative jack could not be found, management delayed the third shift mantrip

1390

standard a jack and jackbar are required only on track mounted personnel
carriers.

He claimed this was immaterial to his conduct because it was

company policy to require jacks and jackbars on "all" personnel carriers,
not just on the railrunners.

Assuming that was true, the fact remains

that the absence of such equipment on a rubber tired vehicle does not
affect its operational safety nor is its presence mandated by the Mine
Safety Law. 7/

Mr. Bryant, as an experienced miner, knew that the principal

function of a jack and jackbar is to assist in remounting a track mounted
carrier that has derailed.

That it might be useful for other purposes

such as lifting track or changing a tire may have been relevant to the
company policy but is not probative of the reasonableness of Mr. Bryant's
refusal to operate the Julie car.

I find Mr. Bryant 1 s knowledge that a

jack and jackbar are not required is probative of the lack of sincerity
and honesty of his belief that the absence of this equipment created a

fn. 6 (continued)
for two hours. During this time Cecil Blevins, mine foreman on the
second or evening shift, stayed over and went -underground to find a
workable jack. Because there were two railrunners the requirement of the
safety standard was not met, but Bryant agreed they could proceed inside
by keeping the two carriers close together. On their way in, Delmar told
Danny he might want to reconsider transferring to Mr. Blevins's shift
because the incident angered Mr. Blevins and Delmar thought Cecil might
hold it against Danny and might even try to discharge him. Bryant said
he didn't give Tate's advise much consideration and went ahead with his
transfer.
7/ Section 314(b) of the Act, 30 C.F.R. 75.1403, authorizes issuance of
safeguard notices against hazards connected with the trans?ortation of
men and materials. Until such a notice is issued, the regulatory 'criteria
set forth at 30 C.F.R. 1403-2 through 75.1403-11 are not applicable or
enforceable. The Secretary failed to prove that safeguard notices relating
to the transportation of men ever issued to this mine. Since the law did
not authorize such a notice for the Julie car and since the Secretary's
effort to impeach Mr. Bryant on this point was unpersuasive, I am constrained
to find that a jack and jackbar were not required on the Julie car.

1391

hazard of sufficient gravity to justify the initiation or prolongation
of his June 1 work stoppage.

For these reasons, I conclude Mr. Bryant's

refusal to operate the Julie car in the absence of a jack and jackbar
(1) did not justify his work stoppage on June 1, (2) was not a protected
activity because the absence of this equipment resulted in no preceptible
hazard, and (3) merited criticism by managemento
The Fire Extinguisher
There is no dispute about the fact that portable fire extinguishers
are required on all personnel carriers, 30 C¢FoRo 75.1100-2(d), and that
the Julie car in question did not have one on the third shift on June 1,
19790

Nevertheless, to justify a work stoppage in the face of a hazard

that presented no clear and present danger, there must be a persuasive
showing that the miner had a good faith i.e., honest belief that a
recognizable hazard existed 8/ and that belief must be validated by a
showing that the miner's perception of the hazard, including the affirmative, self-help taken to abate it, was "reasonable under the circumstanceso"
Thomas Robinette v. United Castle Coal Company, 3 FMSHRC 802, 810-812
(1981).

Where a protected activity is inextricably intertwined with

an unprotected refusal to work an inference of management hostility
toward miners who exercise rights guaranteed under the Act is not
shown by evidence that the miners involved were merely admonished to

§_/

Neither the Commission nor the courts have yet decided the level of
severity, seriousness or imminence that a mine hazard must present to
justify a miner's refusal to work. Consolidation Coal Company v. Marshall
(Pasula), 633 F.2d 1221, 1226 (C.A. 3, 1981) (dissenting opinion).

1392

mend their ways. 2/

An unlawful motive for an employer's conduct may

not be inf erred if it would be just as reasonable to inf er a lawful
motive.

CCR Labor Law Reports Par. 4095.

There is no more elemental

cause for "dressing down" an employee than conduct so flagrant it
threatens an employer's ability to maintain order and respect in the
conduct of his business.

American Tel. & Tel. Co., v. NLRB, 521 F.2d

1159 (2d Cir. 1975); NLRB v. IBEW Local 1229, 346 U.S. 464 (1953).
When considered in the light most favorable to the Secretary
I find the evidence as to the fire extinguisher insufficient to
establish a discriminatory motive for the challenged discharge of
March 7, 1980.
Even if I asslillle, as I do, that a brief work stoppage was justified
by the absence of the portable fire extinguisher I find that the miners
overracted and that their real intent or motive was not as much a concern
for their safety as to haze Mr. Tate.
The Safety Glasses
Generally speaking where a notice to provide safeguard has issued,
safety glasses are to be worn by all persons being transported in opentype personnel carriers, including Julie cars.

30 C.F.R. 1403-7(e). l.Q/

9/ The Commission and the Supreme Court have recognized that the unreasonable, irrational or irresponsible exercise of rights conferred by the Act
are not deserving of statutory protection. Gateway Coal Co. v. Mine Workers,
414 U.S. 368, 385-386 (1973); Robinette, supra at 811-812.
10/ There was no showing that such a notice had ever issued. The operator
made no point of this, however, and seemed to assume the requirement applied.

1393

The record shows that two pairs of such glasses were furnished to each
miner when he was hired~ 11/
this.

Messrs. Stair and Parrott did not deny

Mr. Stair said he repeatedly lost his glasses and sometimes asked

for a replacement but admitted he and the other miners regularly rode the
mantrips without wearing their safety glasses even when they had them.
In any event, there is no dispute about the fact that Messrso Bryant,
Stair and Parrott reported for work on the third shift on June 1, 1979
without their protective glasses.

There is also no dispute about the

fact that after Mro Tate provided a portable fire extinguisher and a jack
and jackbar the three miners led by Mr. Bryant seized on the absence of
their glasses as yet another excuse for prolonging their refusal to work
and to harrass Mro Tateo
On balance, I find Mr. Bryant's -refusal to ·ride the Julie car· without
safety glasses stemmed from his own misconduct and was not based on a good
faith belief that he would be exposed to a safety hazard of a severity
sufficient to justify prolongation of his work stoppageo

Mro Bryant's

claim that on June 1 he suddenly perceived a hazard he had ignored for the
four months he had ridden the Julie car without glasses is at war with
the Secretary's claim that Mr. Bryant had a good faith reasonable belief

11/ Mr. Bryant, who worked in another Pittston mine before coming to the
Pilgrim Mine, claimed he was not furnished new glasses when he transferred
but did not claim he was never furnished safety glasses or that he ever
requested his original issue glasses be replaced from the time of his
reemployment at the Pilgrim Mine in February 1979 to the time of the
June 1 Julie car incident. He admitted he was furnished with prescription
safety glasses later in June 1979.

1394

that a realistic hazard existed.

In Robinette, supra, the Commission held

that "protected activity loses its otherwise protected character if pursued
in an opprobrious manner."

Id. at 817.

As noted, immediately after he satisfied the demands made by Messrs.
Bryant, Stair and Parrott for a jack, jackbar, portable fire extinguisher
and safety glasses, and they proceeded to their work assignment, Mr. Tate
reported the incident to Mr. White the division manager and complained
that he felt the miners harbored an ill-will toward him and were trying
to harrass him because of their dissatisfaction with the change in their
shift assignments (Tr. 437-455).

Mr. White instructed Tate to have the

three miners report to him at 7:00 a.m. in the morning.
The June 1 Meeting
At the 7:00 a.rn. meeting Mr. White warned the miners they were skating
on thin ice in acting as they did toward Mr. Tate and assured them he was
not going to "let contract people run a boss off."
was neither hostile nor threatening.

The tone of the meeting

It was a firm and temperate statement

of top management's determination to back Delmar Tate and to put Mr. Bryant
on notice that his conduct was considered insubordinate, irresponsible and
unjustified by the circumstances.
I am persuaded that as a result of the June 1 incident, 'Mr. White was
not prepared to tolerate any refusal to work by Mr. Bryant that was not a
responsible reaction to a clearly perceived hazard.

I find the admonition

or warning was not an unlawful discrimination or retaliation but an appropriate management response to Mr. Bryant's irresponsible hazing of Mr. Tate.

1395

I am also satisfied it was this resistance to accepting management's decisions
on work assignments that tied this incident in Mr. White's mind to.Mr. Bryant's
refusal to accept the order to set jacks in March 1980.
When viewed objectively and dispassionately, I find in Mr. White's
admonishment of the miners over the Julie car incident nothing more sinister
than a healthy, adversarial exchange of views on the appropriate roles
of management and labor in the management of the mine and in achieving
compliance with the mandatory safety standards.

Certainly, Messrs. Bryant,

Stair and Parrott made their point, which was that management~s level of
safety consciousness left much to be desired and was in need of improvement.
Mr. White indicated he understood, if he did not fully appreciate, this
point but made clear that unnecessary disruption in the work effort and
harrassment of supervisors in the name of marginal or irresponsible safety
complaints would not and could not be. tolerated.
Insofar as Mr. Bryant was concerned, the incident did nothing to deter
his commendable zeal for safety.

He went on to win election as a safety

committeeman and in August did not hesitate to challenge management's failure
to provide jacks and jackbars on the railrunners, a complaint that resulted
in shutting down operations for two hours.

This complaint which management

treated as responsible resulted in no discernible retaliation or animus
by Mr. White or any other member of management. 12

12/ The propriety and certainly the legality of Mr. White's conduct
I judge by whether it had the effect of chilling the exercise of
rights guaranteed Mr. Bryant under the Act. Mr. Bryant said it did not

1396

In conclusion, I find that because of (1) the ulterior motives involved
in Mr. Bryant's conduct with respect to the Julie car incident; (2) the fact
that much, if not all, of the allegedly protected activity was clearly
unprotected; and (3) management's reasonable and temperate reaction, the
Secretary has failed to carry his burden of persuasion on the issue of
antecedent management animus toward Mr. Bryant for making safety complaints
or the harboring of a secret intent to discharge him at the earliest opportunity for making such complaints.
Were it not for the fact that on March 7 9 1980 9 Lloyd White cited the
June 1979 incident as another instance of Bryant's insubordinate attitude,
the Julie car matter would have to be dismissed as too remote to be considered
of any probative value.

Compare Santistevan v. C.F. & I. Corporation, 2 FMSHRC

1710, 1717, 1 BNA MSHC 2524 (1980), petition for discretionary review dismissed
September 23, 1980.
Bryant's Refusal To Set Jacks
The events leading up to Danny Bryant's refusal to set jacks on March 7,
1980, began around February 25.

After a three week absence due to an

fn. 12 (continued)
and his actions confirmed this. In fact, he said he knew of no action
before his discharge of March 7, 1980 that he considered discriminatory.
Obviously, the admonition and. warning of June 1 did nothing to deter
Mr. Bryant from asserting a right to refuse work on March 7, 1980. In
the face of this hard evidence, I cannot accept the Secretary's claim
that Mr. White's action on June 1 was an unlawful attempt to coerce or
intimidate the miners in the exercise of rights guaranteed under the Act.

1397

injury, 13/

Danny had run out of paid sick leave and vacation days and

badly needed to return to work.

The difficulty was that he did not feel

he was well enough to work or to perform his normal work assignment as
a classified repairman.

This problem was overcome when he persuaded Henry

Canady, his immediate supervisor and the maintenance foreman on the second
shift to allow him to return to work on a "light duty" basiso 14/

According

to Danny and Mro Canady, this meant Mro Canady would cover for Danny and
protect Danny from assignment to any strenuous tasks by doing them himself

13/ Around the end of January 1980, Bryant cut three fingers of his left
hand. He was on sick leave as a result of this injury from Feburary 1
through February l5o He was treated for his injury and a cold by Dro Bausch
at the Wise Clinic, Wise,
On February 15, Dro Bausch found
sufficiently recovered to return to work and gave him an unrestricted work
slip that allowed him to return to work on Monday, February 18, 1980.
Instead of going to work, Bryant laid out on paid leave and on Wednesday,
February 20, went to the emergency rdom at the Norton Community Hospital
complaining of a cold, sore throat and coughing. As a result of a blood
test and diagnosis made by Dr. Fonesca;- the doctor on duty, it was determined that Mr. Bryant had a virus infection of his pharynx but that he
was not too sick to work. On Friday, February 22, the doctor prescribed an
antibiotic for the condition that was to be taken four times a day for two
weeks. Mr. Bryant began taking his prescription on Saturday, February 23,
1980 and returned to work on an unrestricted basis the following Monday,
February 25. Dr. Fonesca's final diagnosis was that Mr. Bryant had
mycoplasma pharyngitis or a viral infection of the pharynx. According to
Dr. Fonesca, Mr. Bryant's X-Ray showed his lungs were clear and his heart
normal. He was not running a temperature and did not have bronchitis
or pneumonia. Mr. Bryant did not seek further medical attention until
the evening of March 7, 1980, the day he was suspended with intent to
discharge for shirking work as a jack setter. Mr. Bryant did not ask
that any of his absence during the week of February 18 be excused for
illness and returned to work under the unrestricted permit issued by
Dr. Bausch on February 15, 1980.
14/ Even though Dr. Fonesca found no evidence of pneumonia or of an
intestinal tract problem, Danny convinced Mr. Canady he had walking
pneumonia and was suffering from a stomach ulcer. Mr. Canady admitted
the only physical evidence of illness he noticed, however, was that Danny
had a cough and seemed to break out in a sweat any time he was asked to
exert himself.

1398

or assigning the work to others. Danny would only be expected to "piddle
around" at light tasks in the warm, dry, fresh air of the well-illuminated
repair shop and would not be asked to go underground to work in the cold,
cramped, wet and dusty environment of a 32 to 36 inch low coal seam.
Bryant's return to work on February 25, 1980 was unremarked by top
management, which was unaware of the arrangement for "light duty" worked
out between Canady and Bryant.

Canady, Joey Stapleton and the other miners

friendly to Bryant managed to cover for him on the underground tasks so
that he was able to work at the lighter tasks in the relative comfort of
the repair shop.

Bryant testified that it was during this or the following

week that his stomach began to act up so that he was, or so he claimed~
seldom able to eat his onshift dinnero
There was nothing in the records. of Dr. Fonesca's examinations and
testing to corroborate Bryant's statement that he had complained of stomach
trouble as early as February 20 to 22.

Prior to March 12, 1980 Dr. Fonesca

did not treat Bryant for any disorder of his gastrointestinal tract.
As a result of Bryant's complaints he was treated prior to March 7, 1980
only for a sore throat or what the doctor called mycoplasma pharyngitis,
a viral infection of the pharynx.

Despite this, Bryant convinced himself

and Henry Canady that he had a stomach and lower respiratory condition
during the period of February 25 t.o March 7 that precluded. assigning him
to perform tasks in the underground low coal environment.

15/ Dr. Fonesca testified that prior to March 7 he treated Bryant only for
an infection of his upper respiratory tract.

1399

All proceeded smoothly and quietly except that Bryant took a paid
vacation day on Friday, February 29.
over the weekend, or so he said.
tion for pharyngitis.

He rested and attempted to recuperate

I assume he continued to take his prescrip-

He did not seek medical attention for either of his

claimed stomach or lower respiratory disorders.

On Monday March 3, 1980,

he again returned to work on a "light duty" basis as per his arrangement
with Henry Canadyo

Bryant pointed out that this was a "personal" arrange-

ment between him and Henryo

He did not consider it a favor extended by

the company" In fact, he knew or should have known the arrangement was not
sanctioned by company policyo

Bryant~

however, had no qualms of conscienceo

He believed that as long as Henry Canady was satisfied the company had
no just complaint of the "light work" arrangemento
The work week that began March 3 went without incident until- Friday
March 7, 1980.

That was the day before Danny finished taking the pre-

scription for pharyngitis given him two weeks before by Dr. Fonesca.

On

arising, Danny did not feel any the worse for·the wear and maybe a little
better than he had for the last two weeks.

He certainly did not consider

himself in need of medical attention and did not seek such attention.
His wife packed his dinner and he went to work expecting, as he said,
to pull the usual light shift.
When he arrived at the mine, sometime between 3:30 and 4:00 o'clock
he changed into his work clothes, including his hard hat and cap lamp
and went to the repair shop.

There he met Henry Canady who told him

they were going to have to go underground to transport and install a
5 ton power center on the Union (Unit) #1 section.

1400

He told Bryant he

would also have to help remove and reinstall a considerable amount of
brattice curtain.

According to Henry, Danny was not expected to do any-

thing strenuous because Henry was under the impression Danny was still
recovering from a bout with pneumonia and an intestinal disorder.
of course, was not true.
know the truth.

This,

But Henry, if he is to be believed, did not

In any event, he planned to assign Danny to operate the

locomotive to pull the transformer into place and to help him make the
final electrical connections.
The 11 light work 11 arrangement was rudely interrupted when Cecil Blevins?
the evening shift mine foreman, suddenly appeared in the repair shop and
told Danny Bryant he was needed to set jacks on the Wilcox miner on the
Union 1 section because two faceman had failed to report for work G
evening shift. 16/

the

Joey Stapleton, a belt examiner, was also assigned to

work out of classification. 17/

Stapleton was assigned to run the bridge

conveyor, which also involved jack setting.

He made no complaint about

his assignment.
Bryant, who said he was shocked at this turn of events voiced no
protest to Blevins who thought he had accepted the assignment.

Instead

when Blevins left Bryant immediately turned to Canady who, if he is to
be believed, was also shocked but also voiced no complaint.

Canady

16/ These instructions came from Tom White, the day shift mine foreman,
not Lloyd White, the division manager.
17/ Temporary assignment out of classification is authorized under the
miners' collective bargaining agreement.

1401

testified he was convinced Bryant was in such bad physical condition
that performance of the. assignment might kill him.

He speculated that

this might result from exposure of Bryant's lungs to the dust and water
encountered in face work or from the sheer physical exertion involved in
setting jacks in low coal, or both.

Bryant reminded Canady of his weakened

physical condition attributable, he claimed, to a bout with pnetnnonia that
had left him with fluid and congestion in his lungsc 18

I find it of

more than passing significance that Canady, who was responsible for
Bryantvs claimed predicament~ 19/ shrank from the opportunity to present
on behalf of Bryant his claimed belief that Bryant was too sick to do
anything but light work in the repair shop.

Instead, Henry's advice to

Danny was to protest Blevins 1 s and Tom White 1 s instructions to their
superiors, Lewis Blevins, the mine superintendent and Lloyd White the
division manager.

Bryant did not

fol~ow

Henry's advice.

He took his

protest to Henry's superior, Bud Kilbourne, the chief electrician.

18/ There was no support in Bryant's medical history for the claim that
he was recovering from pneumonia or any other lung condition. Dr. Fonesca's
X-Rays showed Mr. Bryant's lungs were clear on February 22, 1980, just two
weeks before. In the interim there had been no diagnosis or treatment
for pnetnnonia or any other lower respiratory condition. Dr. Fonesca's
examination of Bryant on March 7, 1980 disclosed he had "recovered" from
his pharyngitis and had no respiratory infection.
19/ In allowing Bryant to work "light" and covering for him, Canady
violated company policy. While the company may have permitted men in the
final stages of recuperation from injuries to return to work early at
assignments they were fully capab1e of performing, it did riot allow supervisors to encourage men who merely claimed they were ill to malinger on
the job at company expense.

1402

Bryant heatedly told Kilbourne that he did not think he should have
to set jacks because he was a maintenance employee.

He further stated

he had "busted his ass" for Clinchfield and this was "the thanks he got-it was like putting a man in a mudhole."
big "chip on his shoulder."

Kilbourne thought Bryant had a

Bryant seemed to feel that the company was

"trying to run over the top of him."

Kilbourne tried to explain to

Bryant that they were short-handed and that because the mine was on
probation they needed to run coal or take the risk of

shut downo

He told Bryant several times that the only work for him that afternoon
was setting jacks and that in effect he could take it or leave ito
Kilbourne did not attempt to physically restrain Bryant or force him to
set jacks.

On the other handi Kilbourne did not tell Bryant he was

released and "free to go homeo 11

Whert Bryant complained he was too. sick

to set jacks, Kilbourne did not believe him because the very vigor of
his attack seemed to belie his claim of physical weakness.
While the altercation was going on between Bryant and Kilbourne, Tom
White told Lloyd White, who was concerned over the low productivity of
the mine, that Bryant's refusal to work on the production section meant
it would have to be idled.

As he approached Kilbourne's office, Lloyd

White overheard Bryant's remarks about this was "the thanks he got for
busting his ass and being put in a mudhole."

He also heard Bryant say

he had been sick for two weeks and didn't feel like setting jacks.

As

Bryant turned to leave the room, both White and Lewis Blevins arrived on
the scene and Blevins asked what was going on.
position.

Bryant restated his

He, Blevins and White argued, rather excitedly, over Bryant's

1403

claim that he deserved better than to be sent to set jacks in the mudhole that was the Union 1 section.

Blevins and White backed up Kilbourne

and Tom White and made clear to Bryant that if he persisted in his refusal
to work on the section he could expect disciplinary action.

Bryant, who

by this time felt they were ganging up on him, said he was going to the
bathhouse to change and go see a doctor.
proof that he was too sick to work.

He said he would return with

He also offered to take White with

him, an off er that White declined because he did not believe Danny was
sick.

According to Bryant~ this exchange with management was the first

time he felt he was being harrassed for making a complaint about working
conditions.
Bryant took a shower and changed into his street clotheso
some of the day shift miners,

includl~g

He told

Harlan Hall, who also had had a

disciplinary discharge, about his run-in with White.

In the meantime,

Lloyd White, Tom White and Lewis and Cecil Blevins tried to realign the
work crews so that at least one of the production sections could run coalo
Before a final decision was made on how to operate, Lloyd White told Cecil
Blevins to go to the bathhouse and once again order Bryant to set jacks.
If Bryant still refused, Blevins was to tell him to report to White before
he went home.

Cecil Blevins did as instructed and when Bryant again

refused an order to set jacks Blevins told him to report to Lloyd White,
which Bryant did.

Bryant said that at this point he felt he was being

unnecessarily harrassed and that they should have taken his word for the
fact that he felt too weak to set jacks.

He felt management was just out

1404

to punish and demean 'l:.!21 him but he did not feel he was being punished
for pulling "light duty." 21/
When Bryant reported to Lloyd White, White gave him a direct order
to proceed to the Union Ill section to set jacks on the Wilcox miner.
When Bryant again, and for the third time, refused the order, 22/ White
said he wanted to go on the record and directed the mine clerk, Sharon
Blevins, to turn on the recordero

A transcript of what transpired

thereafter shows that Bryant immediately demanded that James Nichols, a
mine committeeman, be called out to represent himo

White complied with

this request and Nichols was called out from his underground assignment
as a miner operator on the Union #1 section.

20/ Jack setting on a Wilcox miner ip low coal is considered an unskilled,
common labor job. To have accepted s~~h work without protest would have
humiliated Bryant in the eyes of his pe~rs. He felt he could not afford
to let management "run over" his self esteem and still retain the respect
of the contract miners.
21/ Top management was apparently unaware of the.extent of Mr. Bryant's
"'iffight work" assignment on March 7, 1980. In fact, during the course of
the discussion Bryant told Lloyd White he was willing and able to perform
his duties as a repairman. Since White did not understand this was confined
to "light, outside work" this admission, he felt, only served to confirm
his belief that Bryant wa's not too sick to work at the temporary assignment.
There was no charge that a discriminatory intent was to be inferred from
the fact that Bryant instead of some other miner was assigned a difficult,
dangerous and dirty job. The evidence shows no other miner was readily
available. Even if one were available, I can find nothing in the statute
that mandates giving preferential treatment to safety activists. Section
105(c) was not intended to diminish traditional management prerogatives.
22/ The record shows that Bryant was twice ordered to set jacks by Cecil
Blevins, once in the repair shop and once in the bathhouse. The third
order came from Lloyd White. In addition, the Chief Electrician twice
told Bryant that the only work for him was setting jacks which Kilbourne
and White considered tantamount to an order to set jacks.

1405

White explained for the record that Bryant had been directed to work
as a jack setter because they were short handed--only eleven men including
Delmar Tate the section foreman were available and they needed twelve,
six on each section, to run coal.

He also pointed out that the mine

was on probation because of its low productivity and that they had to
run coal or risk being shut down.

He then summarized the earlier dis-

cussions between management and Bryanto

Bryant then stated his positiono

A review of this contemporaneous recital and the testimony at the hearing
shows that Bryant declined the jack setting assignment because: (1) he
felt it was demeaning, scut work--the kind of work that a highly paid,
skilled repairman should not have to do, especially one who had given a
100% effort and who had been willing to risk his health by coming to work
sick; (2) because he claimed to be seriously ill--Bryant claimed to have
an infection of the bronchial tubes,~severe stomach pains and nausea, and
an inability to digest his food.

In his recorded conversation with White

he claimed his stomach "was tore all to pieces 110 and "was killing me."
said he thought he had "pneumonia or the flu or something."

He

As previously

noted, Henry Canady thought Bryant was just getting over pneumonia and was
willing to believe Bryant was too sick to do anything but "light work." 23/
Lloyd White told Bryant he did not believe he was sick because he did not
look or act like he was in pain or nauseated.

!:]_/

To most of those who saw

According to Henry this did not exclude working underground. 'Bryant,
on the other hand, said that if Canady had asked him to do maintenance
work underground "I would probably have went to the doctor." Bryant at
first denied but when confronted with his earlier testimony admitted that
Canady expected him to help install a 5 ton power center underground the
same day Bryant refused to set jacks.

1406

him he looked perfectly normal.

Even those who professed to believe he was

too sick to set jacks refrained from offering to take his place at the job.
Lloyd White, Lewis and Cecil Blevins, Tom White and Bud Kilbourne, all of
whom carefully observed Bryant, thought he was not too sick to set jacks
that day.

Bryant said he would prove he was sick because he was going to the

doctor immediately, even offered to take them with him, and would return with
a doctor 1 s slip excusing him from worko Although Bryant returned to the mine
on the following Monday, he did not produce a slip from the doctor attesting
to his conditiono

Lloyd White testified that if Bryant had brought in a

medical excuse on Monday March 10, justifying his refusal of Friday~ March 7
he would not have discharged Bryant.

It was the consensus of

that Bryant was "faking" his illness to avoid an onerous work a
In a statement which I find revep.ling as to his true motivation~
Bryant repeatedly said he did not want .,_to set jacks because he was "a
classified repairman and I just didn't feel like setting those jacks."
This refrain when considered together with Bryant's statement that the only
time he tried to set jacks he suffered a "fright" over the personal danger
involved disclosed a phobia about the job that was possibly disqualifying
but which Bryant obviously did not wish to demonstrate to his employer or
his peers. 24/

'!:.!:.../

To cloak his mental reservations, Bryant took the position

Bryant's fear of setting jacks was revealed in the folJowing colloquies:
Judge Kennedy: Well, why wouldn't you be able to set jacks in the
condition you were in?
Bryant: Well, on account of the breathing problem I had, and my stomach
was bothering me, and also Mr. Morgan, like I said, removed me from
jack setting one time and told me personally it was dangerous and, you
know, he inflicted a fright upon me on this, you know.

1407

that the hazard was to his physical health which he claimed would worsen
if he attempted to perform the jack setting assignment.

He admitted that

had he demonstrated at the face an inability to do the job the operator
would have relieved him of the task.
Another reason Bryant gave for being excused from the jack setting
assignment was the fact that he had never been given new task training or
shown how to accomplish the job. This objection was without merit.

Jack

setting is a low skill job that simply involves the repetition of the motions
involved in setting 40-pound jacks from 30 to 60 times a shift. 25

Aside

from his mental reservations, Bryant was fully capable of mastering the

fn. 24 (continued)
Judge Kennedy~ You were afraid of setting jacks~ weren~t you?
Bryant: Up to an extent, withou~ any training; yes sir.

Tr. 131
Judge Kennedy: So is it your testimony that you would be happy
to go underground tomorrow and work as a jack-setter for the
next 10 years.
Bryant: If I went back to work for Clinchfield I wouldn't care
to set their jacks, but I would take a repairman's job again.
Judge Kennedy: You wouldn't care to set jacks?
Bryant: No, sir.
Judge Kennedy: Why not?
Bryant: Well, I'm not sick; I'm not physically sick. I feel I'm
able to do it, but I wouldn't care to. I would have went tha~
night if I hadn't been sick; yes, sir I would have been more than
glad to went.
Tr. 115
25/ While jack setting is a low skill job, it is also very dangerous
because so much of the work, which is done in low coal (32 to 36 inches),
is often done under unprotected roof in a noisy, dusty, extremely damp

1408

simple, if arduous and dangerous, physical tasks involved. 26/

The law

permits and Lloyd White offered to give Bryant the necessary supervised
task training required to qualify him as a jack setter.

30 C.F.R. 48.7(c);

National Industrial Sand Assn. v. Marshall, l MSHC 2033, 2051-52; 601 F.2d
689 (3d Cir. 1979).

Since new task training cannot be given when the

miner refuses the task, the operator could not have discriminated by
failing to give training that was refusedo
In summary~ I find that Bryant's refusal was based on his mental
attitude toward, i.e., distaste for and fear of, the task as much 9 if not
more, than his physical condition.
condition as bad as he claimed.

Nor, as we shall see, was his physical

What I find most significant 9 however,

is that Bryant never claimed that, aside from his own physical condition,
there was any danger or hazard in the mine or on the Union 1 section
which justified his refusal to work.

·Bryant emphasized that the only

hazardous condition he was concerned about was his "health" or present
physical condition, which he felt would be worsened by the conditions
normally encountered on the production section.
Fear Of The Job
Before reaching the question of whether a miner's refusal to work
because of a claimed physical condition is, standing alone, a protected
fn. 25 (continued)
environment. Communication depends almost entirely on signals with the
miner's head lamps. If a jack is not properly set, it can pull loose
and become a lethal missile.
26/

As Bryant repeatedly said, he knew in his own mind that if he tried
He attributed this to his physical
condition and not to his mind set. Bryant was most reluctant to perform
any task that involved working at the face.

to set jacks that day he would fail.

1409

activity, I must also consider whether a miner's refusal to perform
an assigned task solely on the ground that his mental condition is
such that he is fearful of performing it safely is a protected activity.
The undisputed facts here show that there was no condition or circumstance on the Union #1 section itself which constituted a hazardous '!:]_/
condition. Such hazard as existed was in the person of Bryant himselfo
Because the reasonableness of a fear can only be validated by a
consideration of the gravity of the specific hazard addressed, a generalized
fear of the job, unrelated to any condition or hazard actually confronting
the miner, is too subjective to evaluate.
Consequently fear on the part of an otherwise healthy miner of performance of a risky or dangerous task regularly performed by other miners
is not, standing alone, a protected j~stification for refusing to attempt

27/ By this I mean a condition affecting health or safety that exceeds the
hazards normally incident to and generally accepted in the mining of coal.
Underground mining is not inherently dangerous but is singularly unforgiving
of carelessness, negligence or relaxation of the federal enforcement effort.
Recent Congressional hearings on the mine disasters that occurred last
December and January attest to the fact that an enfeeblement of the Federal
enforcement effort is inevitably attended by a sharp increase in deaths
and disabling injuries. Overall coal mine fatalities jumped a dramatic 51%
in the first three months of 1982~43 fatalities during that time period
compared to 22 fatalities during the first three months of 1981. Fatalities
attributable to roof falls doubled during the first six months of 1982--from
9 in 1981 to 29 in 1982. The evidence strongly suggests the soaring accident
rate to which Stapleton testified was the result of shortcutting a~d failure
to follow safe work practices. Because the Mine Safety Committee failed
to document its complaints, the evidence is too sparse to establish what
management's overall attitude was on safety, or what part that attitude,
if any, played in Bryant's fear of the jack setting job.

1410

to perform the task.

Pilot Coal Company, 2 FMSHRC 504, 1 BNA, MSHC 2363

(1980); Kaiser Cement Company, 4 FMSHRC 82 (1982).
To justify a refusal to make an attempt to perform a classified assignment, a miner must be able to point to a condition or practice in the mine
that can be said to have induced a good faith, reasonable fear that performance
of the rejected task will require the assumption of a recognizable risk not
normally encountered.]!}__/

Duncan v. T. Ko Jessup, Inc. 9 3 FMSHRC 1800

(1981); Boone Vo Rebel Coal Co., 3 FMSHRC 1707 (1981); Adkins v. Deskins
Branch Coal Co., 2 FMSHRC 2803, 2 BNA, MSHC 1023 (1980); Victor McCoy Vo
Crescent Coal Company, 3 FMSHRC 2211 (1981).
Impaired Physical Condition
What are the facts with respect to Bryantvs claim that his physical
condition, standing alone, justified his refusal to set jacks.

As

we have

seen, when Bryant set out for work on March 7 he has just finished taking
the antibiotic prescribed for his sore throat and laryngitis.
to his doctor, he was fully "recovered."
but not too weak to work.

According

He said he was feeling run down

He was not running a temperature and had no

plans to seek medical attention.
When he arrived at the mine .he changed into his work clothes and
reported to Henry Canady who told him they were going und~rgroun~ to
install a power center on the Union #1 section.

28/

See Note 27, supra.

1411

Henry expected Danny

to operate the locomotive and tractor required to move the transformer
onto the section.

He also expected Danny to help him connect 1,000 feet

of high voltage cable to the power center and to remove and reinstall
brattice curtain that would have to be taken down to make the installation.

Bryant voiced no objection to performing this work which would take

him underground into the 32 to 36 inch coal and would require considerable
physical activity in the same bent over position that would be required
to set jacks. !!!_/

Jack setters and timbermen usually work on their hands

and knees in low coal or squat and crab around on their hauncheso
As we have seen, after Bryant refused Lloyd Whitevs order to set
jacks, White directed that Bryant be suspended with intent to discharge
for repeated insubordination in accordance with the applicable provisions
of the collective bargaining agreement.

Whitevs position was: ·11 1 ani not

going to get into a situation here or a_nywhere else to where if I give
a man a job to do that he doesn't want to do and he can just simply say
I am sick and that is it."

RX-5, p. 6.

Thereafter, Bryant, accompanied by his wife, was seen by Dr. Fonesca
in the emergency room of the Norton Community Hospital at 6:39 p.m., the
evening of March 7, 1980.

According to the emergency room record he came

in ambulatory complaining of a sore throat and nausea.
did not record that he was suffering abdominal pain.

The admitting nurse
He was not running

29/ Bryant's willingness to perform work for Canady conflicts with his
statement to White that "if we was working outside I could make it, but
if I had to go inside, even on maintenance, I would probably have went
to the doctor." (RX-5, p. 10).

1412

a temperature.

Bryant complained to the doctor of discomfort in his stomach

which led the doctor to believe he was suffering from gastritis or an
inflammation of the stomach tissues due to hyperacidity.

Since this condi-

tion was consistent with the symptoms associated with peptic ulcer disease,
Dr. Fonesca ordered a G.I. Series for Monday morning, March 10, 1980.
Because Bryant's condition was as consistent with a benign or temporary
stomach upset as with peptic ulcer disease including reflux esophagitis 9
the doctor wanted to run the tests necessary to allow him to "rule out~"
i.e., prove or disprove the existence of the suspected conditiono

He did

not deem it necessary to prescribe any medication as Bryant did not appear
to be suffering from any severe or disabling pain.

In fact, he did not

even suggest that Bryant take a dose of Pepto Bismol or any other antacid
to relieve his claimed stomach disordero

The doctor released Bryant and

told him to return Monday, March 10 for a barium treatment and'X-Ray of
his upper gastrointestinal tract. 30/

On Monday morning Bryant returned for his G.I. Series.

Dr. Straughan,

the doctor who performed the series, noted on his clinical report that
Dr. Fonesca wanted him to "Check for reflux" and to "rule out peptic
ulcer disease."

RX-13.

The G.I. Series disclosed Mr. Bryant had an

inflammation of the lower stomach or antrum which is the area of the
gastrointestinal tract where the lower stomach enters the duodenum or small
bowel.

There was no indication of an inflammation of the upper digestive

tract, or reflux esophagitis, which is caused by a back flow of hydrochloric

30/ Bryant did not ask the doctor for a statement he could take to Lloyd
White showing he was too sick to work that day.

1413

acid from the stomach into the esophagus, or of peptic ulcer disease. Thus,
Dr. Fonesca's suspicion as to reflux esophagitis and/or peptic ulcer disease
was not borne out by the G.I. Series. 31/
Except for a sore throat, Bryant did not complain to the doctor of
any problem with his respiratory tract although he had just told the mine
managers one reason he could not work in the dust and dampness of the
face area was because he had fluid in his lungs and a bronchial infectiono
Dr. Fonesca said his examination of Bryant disclosed that the infection
of his pharenyx had 11 improved" to the point he could be considered
"recovered." 32/
The final diagnosis of Mro Bryant's condition was that on March 7~
10 and 12~ 1980 9 he was suffering from a disorder in his antrum and
duodenum, i.e.,

11

Antral gastritis and ,,_duodenitis."

The abnormal condi-

tion was described as "hyperactivity" i"Q the antrum and duodenum with
swelling of the "bulb and postbulbar region," which is the area where the
two tracts are joined.

Bryant's problem was in the lower digestive tract~

not the upper digestive tract as the doctor originally suspected.

31/ It is to be remembered that on March 7, 1980, Bryant was seeking not
only medical attention but also support of his claim that setting jacks
in low coal would worsen his physical condition. Dr. Fonesca said he
suspected a reflux or inflammation of the upper digestive tract because
Bryant told him he felt nauseated and that bending over was painful.
Bryant, of course, had just come from his argument with White over whether
the claimed pain in his stomach would worsen if he was required to set
jacks in low coal.
32/ Dr. Fonesca thought Bryant's scratchy throat condition was a residual
effect of the pharyngitis but required no further medication.

1414

When, as directed, Bryant returned to see Dr. Fonesca on Wednesday,
March 12, 1980, the do·ctor, on the basis of the clinical evidence and his
physical diagnosis, ruled out peptic ulcer disease or reflux esophagitis
as the cause of Bryant's stomach disorder.

He accepted the clinical evidence

as establishing the disorder was antral gastritis and duodenitis (colonitis)
and prescribed (1) Librex, a tranquilizer to relieve Mr. Bryant's stress
and reduce the hyperactivity of the duodenum~ 33

(2) Tagamet~ a drug which

blocks the passage of acid-stimulating impulses down the main nerve
vagus nerve) to the parietal cells which produce hydrochloric acid and
pepsin, and (3) Mylanta, an antacid, to neutralize the hydrochloric acid
in Mr. Bryant's stomach.
Dro Fonesca then discharged Bryant with a return to work slip that
put no restrictions on the type of work he could performo 34/
Bryant to return for a checkup with him in a month.

He told

Bryant never did

this.
If Bryant had severe abdominal pain or disabling cramps on March 7 9
it was not apparent from his physical appearance or actions.

Even Henry

33/ Joey Stapleton said that recent layoffs had required that fewer men
had to do more work, often out of their primary classification, and this
had created unrest, stress and tension in the workforce. In addition,
in January 1980, Clinchfield had announced it might have to close the mine
because of low productivity, so people were worried about keeping their
jobs.
34/ Dr. Fonesca testified he thought he told Bryant he was not to work
underground and was to do only "light work." On cross-examination, however,
the doctor admitted this was only a "guess" on his part. He was never
confronted with his signed statement of March 12, 1980, which shows he put
no limitations on the work Bryant could perform. Ex. 3, RX-26.

1415

Canady, one of his most sympathetic supporters, said that for the two weeks
he worked light he observed only a cough and a tendency to break out in
a sweat when Bryant exerted himself. 35/

Even to the practiced eye of

Dr. Fonesca, Danny did not look sick when he saw him on March 7.

There

were certainly no "objective manifestations 11 of pain that a layman could
detect from observing Mr$ Bryant.
highly subjective, the doctor said.

Pain, unless severe or disabling, is
The doctor said it was obvious that

Mr. Bryant was not suffering disabling pain and that he, himself, could not
say whether Mr. Bryant's pain was moderate or severe.

No record was made

of the severity of the pain complained of on March 7.

On March 12,

the

clinical record shows only that Bryant complained of generalized abdominal
pain.

Since Dr. Fonesca prescribed no analgesic~ not even an antacid~ to

relieve the claimed discomfort on March 7, and since Dr. Straughanus clinical
report of March 10 did not characterize the severity of the inflammation
noted, I find the inflammation noted was not causing Mr. Bryant severe
pain. 36/
Although Danny Bryant told Lloyd White on March 7 he was going to
the doctor to obtain proof that he was too sick to work as a jack setter,
he never obtained such a statement.

The statement of findings and

unrestricted return to work slip Dr. Fonesca gave him on March 12 were
35/ Joey Stapleton, the other repairman assigned to set jacks, testified
Bryant told him he had been ill. Because of this and the fact that Danny
was working light he assumed Danny was ill. He was not asked whether
Danny looked or acted sick on March 7.
36/ Five days elapsed between the time Dr. Fonesca saw Mr. Bryant on
March 7 and the time he prescribed medicine for his condition on March 12.
I cannot believe a doctor would permit a patient to suffer severe abdominal
pain for five days when a mild antacid could have done much to ease it.

1416

first produced by his union representative at the arbitration hearing
held on April S, 1980.
I find (1) that on March 7 Mr. Bryant was suffering from the same condition diagnosed on March 12, namely a mildly painful inflammation of the lower
stomach and duodenum and (2) that despite the existence of this condition the
doctor proffered and Danny accepted without protest an unrestricted return to
work slipo

Based on the clinical evidence and the doctor 1 s contemporaneous

actions, I conclude Mro Bryant failed to prove by a preponderance of the
evidence that he was unfit to attempt to set jacks on March 7, 19800 37/
The Post Hoc Medical Evidence
After March 12 9 Dro Fonesca did not see Mro Bryant again until
July 31, 1980.

Dr. Fonesca 1 s clinical notes show Mro Bryant was

complaining of a sharp, burning pain 'in the upper abdominal area about
a half hour after eating.

Dr. Fonesca found some tenderness in the

upper abdomen but was also concerned that Bryant seemed anxious, tense
and depressed.

Bryant told him that about a week before, when he was

hospitalized for an acute muscular strain, 38/ a Dr. Miranda performed
a gastroscopy on him and told him to take Maalox, a nonprescription
37/ The most probative evidence of Dr. Fonesca's state of mind and
diagnosis of Bryant's physical condition is to be found in his contemporaneous clinical notes and in his statement of findings. These
documents convincingly refute the Secretary's claim that "·Based on his
examination of Bryant on March 7, 1980, Dr. Fonesca diagnosed a mfcroplasmic (sic) infection of the pharynx and possible reflux esophagitis,
a stomach condition which is aggravated by bending." Secretary's Br.
p. 17.
38/

In June 1980, Bryant went to work for the Paramount Coal Company.

1417

antacid, for his stomach condition.

Dr. Fonesca told his secretary to

obtain a copy of Dr. Miranda's gastroscopy report, and in the meantime
prescribed the same tranquilizer, Librex, and cimetidine, Tagamet.

He

told Bryant to return on,Monday, August 4.
By the time Bryant returned, Dr. Fonesca had reviewed Dr. Miranda's
gastroscopy report which disclosed Bryant had "moderate to severe
gastritis" and a "small hiatal hernia with minimal esophagitis. 11 39
(JX-2, p. 3).

Although Dr. Mirandavs report did not say Mr. Bryant had

iireflux, 11 Dr. Fonesca interpreted the finding of "minimal esophagitis" as
clinical support for a suspicion he said he had as early as March 7~ that
Mr. Bryant had reflux esophagitis. 40

He continued Mr. Bryant on Tagamet

for his acid indigestion, and prescribed antacids for Mr. Bryant s heart~
burn and sour stomach.

He found Mr. Bryant recovered after four weeks

of treatment.
In response to the question whether an individual in Bryant's claimed
physical condition on March 7, 1980 could set jacks, Dr. Fonesca said he
did not think so because Bryant "was having pain, and he was having
respiratory symptoms.u

This was a reference to Mr. Bryant's pharyngitis

which the doctor later admitted was "improved" to the point in March
that no further treatment was indicated and which in his statement of

39/ It was agreed that, standing alone, a hiatal hernia would not have
justified Bryant's refusal to set jacks on March 7, 1980 (Tr. 397-398).

!!!}_/

Dr. Fonesca chose to ignore the fact that his findings and those of
Dr. Straughan "ruled out" reflux in March 1980 as the condition causing
Mr. Bryant's claimed discomfort.

1418

findings, which he gave to Bryant on March 12, he described Mr. Bryant
as "recovered." 41/
There is nothing in the clinical evidence--that is in the evidence
based upon the actual observations and tests conducted by Doctors Fonesca
and Straughan on March 7, 10, or 12--to support the view that either doctor
was concerned during that period with a "respiratory conditiono" If
Dr. Fonesca was truly concerned during that period with a respiratory
condition that might worsen if Mro Bryant worked underground~ why did he
certify Mr. Bryant was "recovered" from the condition and give him an
unrestricted return to work slip on March 12. !:!.:!:_/

I conclude that in his

zeal to assist Mro Bryant and the Secretaryvs case 9 Dro Fonesca expressed
a professional concern at the hearing that did not 9 in fact 9 exist on
March 7 or 12, 1980.
Dr. Fonesca also suggested that on March 7, Mr. Bryant was unfit
because of a pain that "was manifested by a burning sensation and nagging

41/ This statement was, I find, the most definitive and objective evidence
of Mr. Bryant's condition on March 7. It stated:
TO WHOM IT MAY CONCERN:
Danny Bryant was seen first by me at Norton Community Hospital Emergency
Room on 2/20/80 with complaints of a rattle in his chest and sore throat.
Evaluation and studies revealed he had mycoplasma pharyngitis for which
he was treated and recovered. The next time I saw him was.on'3/7/80 with
symptoms consistent with peptic ulcer disease. Contrast studies of his
upper GI tract revealed antral gastritis and duodenitis and he was
started on treatment. RX-15; Tr. 365.
42/ Concern over a respiratory condition was also inconsistent with
Mr. Bryant's willingness to work underground with Mr. Canady to install
the power center.

1419

pain over his abdomen" which indicated reflux.

These were symptom_s which

the clinical evidence shows were not manifest until Dr. Fonesca examined
Bryant on July 31, 1980.

Because of this the doctor was asked whether

there was any "objective manifestation" of pain or discomfort on March 7.
The doctor's reply was a dissertation on the subjectivity of pain that
concluded with an admission that the answer to my question was "none, 11
and certainly none discernable to a layman, because on March 7 Danny did
not appear to be "suffering," at least "not very mucho 11

Tro 364-3650

Dr. Fonesca said that the only way he could have determined the condition
of Bryant's gastrointestinal tract with any degree of certainty in March
1980 was to perform a gastroscopy which he did not do. 43

Furthermorei

the clinical evidence shows that when Dro Miranda did a gastroscopy on
July 24i 1930 some five months later he did not find 11 reflux esophagitis 11
merely "minimal esophagitis" a much less severe condition.

The record

shows Dr. Fonesca never had any clinic~l evidence of reflux.
Dr. Fonesca' s medical opinion on Bryant 1 s_ fi.tness to set jacks as
expressed at the hearing can be accorded little weight.

Not only is it

contrary to the weight of the clinical evidence it is also contrary to
his release of Bryant to return to work without limitation on March 12.
Dr. Fonesca's medical opinion was based on the assumption that Bryant was
suffering from two conditions that did not exist on March 7, namely a
lower respiratory tract infection and reflux esophagitis.

Dr. Fonesca

43/ Dr. Fonesca said that while the tests performed by Dr. Straughan in
March would not necessarily rule out reflux, only a gastroscopy could do
that, he did not insist that a gastroscopy be performed in March.

1420

was willing to assume that what Dr. Miranda found in July "minimal
esophagitis" existed in March and that it supported his findings, without
further clinical observation, on August 4 that the condition was reflux,
which he suspected in March but had ruled out.

To assume Bryant had reflux

in March because Dr. Fonesca diagnosed it in August is to engage in the
most egregious post hoc propter hoc reasoning and flies directly in the
face of the clinical evidence which supports at best a finding that Bryant
had "minimal esophagitis" in Julyo 44/

As Dr. Fonesca admitted, the

symptoms for gastritis are different from those for reflux and in March
the clinical evidence supported only a finding of gastritis or acid
indigestion and not reflux.

This was why Bryant was not treated for reflux

in March.
On balance, I am impelled to the conclusion that Dr. Fonesca did not
believe Bryant's acid indigestion made him unfit to set jacks on March 7.
If he did he would certainly have said so, and would not have been driven
to include symptoms which he had ruled out in March and for which he had
only tenuous support in July and August.
Further, if Bryant actually had the serious, chronic, respiratory and
gastrointestinal track infections he alleged, it is my opinion that his refusal
to work would not be protected.

Any claim of protected activity that is not

grounded on an alleged violation of a health or safety standard or which does
not result from some hazardous condition or practice existing in the mine
environment for which the operator is responsible falls without the penumbra
of the statute.

Kaestner v. Colorado Westmoreland, Inc., 3 FMSHRC 1994 (1981).

44/

Post hoc reason is the logical fallacy of thinking that a symptom
or condition found to exist in August was the cause of Bryant's discomfort in March.

1421

I do not believe a miner can, consistent with the good faith, reasonable
belief requirement, present himself as ready, willing and able to work
in accordance with the terms of the collective bargaining agreement and
at the same time claim a protected right to refuse that work because of
his impaired physical condition, even if his position is thereafter supported
by sound medical opinion. 45/

I do not believe that in enacting the Mine

Safety Law Congress intended to turn management's responsibility for
disciplining the workforce over to the medical or legal professionso
The Wildcat Strike
Having found that Bryant's discharge for refusing to set jacks was not
a protected activity or a pretext for retaliating against an antecedent
protected activity~ it becomes necessary~ in the event the Commission disagrees, to consider the operator's failsafe defense, namely that Bryant in
reprisal for his discharge instigatea a wildcat strike that justified his
disciplinary discharge.

I say it becomes necessary because neither the

Commission nor the courts have definitively indicated the extent to which
the Commission may substitute its judgement of the facts and credibility
45/ I think we might all agree that a miner whose physical condition is
impaired by the use of drugs, including alcohol, might refuse to work
because of his impaired physical condition and that a doctor might well
agree that for him to work would be unsafe or detrimental to his health.
But I also think we would all agree that such a refusal to work was not
protected and that the operator would have just cause to discipline the
miner. The analogy to the present case is that if Danny Bryant is to
be believed he knew he was too sick to perform to the contract for at
least two weeks before he refused the assignment to set jacks but did
not seek to remedy his condition until after his suspension. Under' the
circumstances, Danny's degree of culpability in presenting himself for
work on March 7 was not that much different from the miner caught drinking
or using drugs or just sleeping it off on the job. On the other hand,
fatigue, illness or injuries suffered on the job that affect a miner's
ability to continue to perform his normal work tasks safely may well
justify a refusal to work. Whether such a refusal is a protected
activity is not presented by this record.

1422

of the witnesses for that of the trial judge.

Because the determinations

of protected activity.and discriminatory motive are pure questions of fact
the Commission may not have authority to substitute its evaluation of the
evidence for that of the trial judge.

!!j_/ Pullman-Standard v. Swint,

u.s. ----; 50 L. W. 4425, 4429 (1982). In view of the uncertainty in this
area of the law, however, I deem it judicious to set forth my findings on
this issue also. 47/
46/ Under the substantial evidence standard, which I understand governs
the Commission's review of the trial judge's factual findings, the reviewing
body may not "displace the ftrier of fact's] choice between two
conflicting views, even though the [reviewing body] would have justifiably
made a different choice had the matter been before it de novo. 11 Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950). Findings
may
be overturned if a reviewing authority "cannot conscientiously find that
the evidence supporting the decision is substantial, when viewed in the
light that the record in its entirety furnishes." Id. As the Court has
recently noted, under the substantial evidence test, the
authority
may not "weigh the evidence" but may only determine whether on the record
considered as a whole the evidence is sufficient to support the trial
tribunal's findings and conclusions.~ Steadman v. SEC, 450 u.s; 91, 99,
and n. 20 (1981). Where Congress has.prescribed a standard of administrative or judicial review, the Commission and the courts must, of course,
abide by it. Id. 94-95.
47/ Under Section 7(c) of the APA, the trial judge resolves contested
i"Ssues of fact by the preponderance of the evidence rule. Under section
113(d) of the Mine Safety Law, the Commission reviews the trial judge's
findings under the substantial evidence rule. Secretary v. Kenny
Richardson 3 FMSHRC 8, 12, n. 7 (1981). Consequently, it would appear
a trial judge's findings, especially those on credibility, are to
be accorded greater weight under the Mine Safety Law than under the APA.
Under the latter, the agency is not required to accept the trial judge's
findings because the agency on appeal determines the matter de novo. The
language and legislative history of the Mine Safety Law make clear that
Congress intended the trial tribunal be accorded greater freedom to find
facts including those based on impressions of credibility gleaned from
demeanor, to the end that findings reflect either belief or disbelief of
any particular testimony. I understand that to mean that in reviewing,
as it does, a dead record, the Commission must accord considerable deference
to the "lost demeanor" evidence that was available only to the trial judge.
Labor Board v. Walton Mfg. Co., 369 U.S. 404 (1962); Alford v. Am. Bridge
Division, 642 F.2d 807, 809 (5th Cir. 1981); Dir. Wk.rs' Comp., Etc. v.
Bethelem Steel Corp., 620 F.2d 60, 63-64 (5th Cir. 1980); Atlantic & Gulf
Stevedores v. Director, Etc., 542 F.2d 602 (3rd Cir. 1976 •

1423

Word of Bryant's suspension with intent to discharge spread quickly
among the miners on the second shift on Friday evening, March 7.

The

men's mood turned sour and by the time the shift ended Joey Stapleton
was satisfied there would be a sympathy strike for Danny on Monday.
Stapleton was so sure of his reading of the collective intent that he
determined to take a vacation day on Monday so he would be paid despite
the anticipated strike (Tr. 262-267).

Stapleton, whom I credit with

considerable insight, testified the suspension of Bryant was the "catalyst"
that triggered festering discontent among the rank-and-file miners over
the way they were being treated by management.
In the Spring of 1980 the Pilgrim Mine was a paradigm of all that
troubles labor relations in the mining industry. Working short-handed
when combined with the push for prod¥ction created considerable stress
and tension (Tr. 267).
Morale was very low due, among other things, to recent and prospective
layoffs, Lloyd White's efforts to curb absenteeism and increase production?
a soaring accident rate, 48/ working men out of their classification without
new task training, complaints of unsafe mining practices, 49/ and, of course,
work slow-downs and stoppages.
48/ On March 5, 1980, Lewis Reed was seriously injured when the chain came
off the drive clutch of the bridge conveyor. The injury occurred because
he was required to operate the machine with the guard off the driV'e clutch
chain. Stapleton said after they took Reed· to the hospital Cecil Blevins,
the mine foreman, ordered him to operate the bridge conveyor for the rest
of the shift without a guard even though he had received no new task training
for the job.
49/ George Johnson, President of the UMWA Local, said he was receiving
and transmitting safety complaints regularly to the company safety
inspector, Mutt Townes. Some of these involved running the Wilcox miner

1424

In addition to the causes for discontent over alleged mistreatment,
traditional cultural ties and class loyalty dictated the miners show
solidarity and support for a popular brother and leader like Bryant
against what the miners viewed as the oppressive and burdensome policies
of the company and Lloyd White. Don Kennedy, the company's labor relations
manager, indicated Bryant would not have to solicit or persuade his brothers
to come to his supporto

It was common knowledge that they would even

if it hurt him and them more than the ubosseso"

The U.MoW.B.C.OoAo

Arbitration Review Board has taken "judicial notice 11 of the fact that
11

one man, known to be a member of the Union and about whom information

is gained that he has a grievance, can and does furnish ample signal to
cause a work stoppage."

Under the collective

agreement 1 s

arbitration procedure such circumstances create a rebuttal inference or
presumption of unlawful picketing or~strike instigation that shifts the
burden of persuasion to the miner in the event of a sympathy strike. 50/
fn. 49 (continued)
without water to suppress the dust. Others involved setting jacks and
pinning under unsupported roof. According to Johnson, whose classification was jack setter, he was not supposed to set jacks under unsupported
roof, "but there is no way you can run a Wilcox without it." Bryant
complained about being required to perform welding without a methane
spotter and Lewis Blevins, the mine superintendent, said they were so
short-handed on March 7 that "to work both sections we couldn't do any
bolting of the roof during the shift." In May 1980, two months after
Bryant's discharge, Lewis Blevins quit his job because he found it
impossible to "get the mine straightened out" and "to producing good
coal" due to absenteeism and strikes. Henry Canady quit the mine in
April over a dispute concerning the use of alcoholic beverages on mine
property and later in the year Lloyd and Tom White, among others, were
indicted for alleged criminal violations of the Mine Safety Lawo In
December 1980, Clinchfield pleaded guilty to four counts of violating
the Mine Safety Law and paid a fine of $100,000.
50/ Thus, under the "law of the shop" a miner is presumed guilty until
he proves his innocence.

1425

ARB, Decision 108, issued October 10, 1977, at 16-17.

The Arbitration

Review Board further held that in view of the "Miners' traditional willingness to shut down mines in supposed aid of fellow Miners" even informational picketing as distinguished from work stoppage picketing "cannot
realistically be viewed as the exercise of constitutionally protected
freedom of speech and must be viewed, instead, as a contractually improper
act of work-stoppage inducement."

Ido at 21.

The significance of the conventional wisdom for this case is that
both Danny Bryants the complainant 9 and Don Kennedy, the company labor
relations manager, agreed that whether or not Bryant did anything other
than provoke his suspension on

, March 7~

1980~

he would surely be

discharged for instigating a wildcat strike if the miners walked out on
Monday (Tr. 165-166, 168, 173-175; RX-18, p. 40; 183, 658-159). ·
While Bryant had ample opportunity to advise and consult with his
brothers on Friday and over the weekend, his testimony, if it is to be
believed, was that he talked to no one except, I assume, his wife about
his suspension. 'il_/

Dr. Fonesca indicated much of the stress, hyper-

activity and agitation observed in Bryant that day may have been attributable to his suspension and prospective unemployment.

51/ Henry Canady contradicted Bryant stating that after Bryant was suspended
on Friday afternoon he came back to the repair shop and announced that "he
was fired. It was over" (Tr. 251). Henry told Joey Stapleton what had
happened when Joey came out to make his belt examiner's report. The word
spread quickly and according to Stapleton before the shift was over all
the miners knew of the disciplinary action taken against Danny (Tr. 264).
Scott Parrott, a maintenance man, told George Johnson, President of the
Local, "about Danny getting fired" when Scott came up on the working section
Friday night (Tr. 313).

142,S

After Bryant was suspended and before he talked to Canady, he and
Nichols conferred briefly in the bathhouse about their next step.

It

was agreed that Danny would carry his grievance to the second stage and
that Nichols would contact the District 28 representative about when to
schedule the second stage meeting.

Over the weekend or on Monday, James

Nichols contacted the District 28 representative, Ken Holbrook, and the
latter talked to Don Kennedys the company representative.

They arranged

to hold the second stage meeting on Tuesdays March 11, 1980 at 2:30 p.m.~
at the mine site.

Bryant never denied that he knew about this arrangemento

Management was encouraged to think the miners might not support Bryant
when the third or hoot-owl shift reported for work without incident on
Sunday nighto

The situation was tense, however» and the tension rose

further when the day shift also repor'-ted for work at 7:30 a.m. ,. Monday
morning, March 10, 1980.
This was the morning Bryant had his G.I. Series with Dr. Straughan
at the Norton Community Hospital.

By this time, Danny was convinced, as

he said he was from the beginning, that management was out to 0 punish"
him and that he would not prevail in his appeal of the suspension under
the arbitration procedure. 52/

When he returned home from the hospital,

52/ Indicative of Bryant's mood was the fact that he filed his discrimination complaint with MSHA on Friday, March 14, 1980, three days before
the second stage meeting. The thrust of Bryant's initial complaint was
that the assignment to set jacks was in retaliation for his refusal to
operate the Julie car without a jack, jackbar and fire extinguisher in
June 1979. He was convinced in his own mind that management picked him
to do a dirty job when it could just as well have assigned it to someone
else, such as the roof bolter Charlie Webb, because White wanted to
"harrass" and npunish" him. White may well have wanted to make an example

1427

around noon, Danny called the mine office and talked to Sharon Blevins,
the mine clerk.

He told her to tell Lewis Blevins he wanted to come by

and turn in his tools and pick up his clothes. E._/

Sharon told him he

would have to call back around 2:00 p.m. because Lewis was underground.
Danny waited until 2 or 2:15 p.m. to call back.

In the meantime, Lewis

Blevins called Lloyd White who was at another mine and asked for instructions
on Danny's requesto

White told Blevins to tell Danny not to come to the

mine until after the evening shift went underground which would be sometime
between 4~00 and 4~30 p.m.
White said if he came earlier and the men struck it would be bad for
Bryant 1 s case because then he would also be charged with instigating a work
stoppage. When Danny called, Lewis Blevins conveyed White 1 s instructions. 54/
fn. 52 (continued)
of Bryant but it was not because of any protected activity. White felt
he had to assert his authority or risk losing control over his workforce.
Bryant, on the other hand, felt he was being unnecessarily demeaned and
seized upon his claimed illness and lack of new task training as an excuse
for his resentment over being "singled out" for the dirty work. Since new
task training cannot take place if a miner refuses to accept the assignment
where the training is to be given, Bryant's anticipatory refusal was
obviously not a protected "affirmative action."
53/ This action was the first overt indication or "signal" of Danny's
concern over the outcome of the pending arbitration case. This may have
stemmed from his failure to obtain a timely excuse due to illness from
Dr. Fonesca.
~/

At the hearing much was made over whether Blevins told Bryant not
to come until after 4:00 p.m. or 4:30 p.m. It is undisputed that ~ryant
appeared at the bathhouse at five minutes to 4 on the excuse that he was
looking for Nichols to sign his grievance. Bryant knew, of course, that
if the men struck he would be held accountable regardless of what he did
or did not do to foment a work stoppage. Bryant, Don Kennedy, Lewis
Blevins and others confirmed that this is the tradition in the coalfields.
Thus, everyone agreed that it was "common knowledge" that if a union member,

1428

Bryant then asked for James Nichols' phone number and Lewis put Sharon
on the line.

He told Sharon and Lewis that he needed to meet with James

Nichols, his mine committeeman, that afternoon so that he could sign his
grievance and thereby preserve his right to arbitration of his dispute
with Lloyd White.
I find it impossible to credit Bryant's version of why he needed to
meet James Nichols before he went underground on the afternoon of Monday~
March 10, 19800

The record shows that on Friday, March 7, at the con-

clusion of the suspension hearing it was agreed by all present, including
Bryant that the 48 hour limitation on holding a second stage meeting was
waived because of the intervening weekend (RX-5, po ll)o

It also shows

that by Monday, March 10, Nichols had spoken with Ken Holbrook 0 the
Union's District 28 representative and that the latter had agreed with
Don Kennedy, the operator's labor relations manager, to extend the time
for the second stage meeting to 2:30 p.m., Tuesday, March 11, 1980 (RX-18,

P• 3).
Under the collective bargaining agreement, there was no need for
Bryant to sign a request for formal arbitration until the time of the
fn. 54 (continued)
and especially a union leader, is suspended with intent to discharge, there
will almost "automatically" be a work stoppage and management will retaliate
by charging the miner with instigating a wildcat strike. The miner will
then have to assume the all but impossible burden of proviqg he did not
provoke the strike and when he fails, as he almost invariably does, the
arbitrator will uphold the imposition of a disciplinary discharge, the
industrial equivalent of capital punishment. The Arbitration Review Board
feels these draconian measures are needed to force the miners to honor the
obligation to arbitrate these disputes and enforce the no-strike provision
of the collective bargaining agreement.

1429

second stage meeting (RX-29, Art. XXIV(d)).

Bryant had not elected to go

to immediate arbitration and knew the second stage meeting which he had
requested was set for Tuesday, March 11. 55/

Furthermore, whether or not

a second stage meeting was held, the collective bargaining agreement
guaranteed Bryant five days from the date the suspension notice issued to
file a formal request for arbitration (RX-29, Arto XXIV(d))•

Bryant

testified that on Monday afternoon he was only on the third day of the
five days allowed to file his request for arbitrationo :2£/
Bryant made no effort, according to

him, to reach Nichols over the

weekend or at any time Monday prior to the time Lewis Blevins warned him
against doing anything that might be construed as a signal for a sympathy
strikeo

It was only at that point that Bryant determined he had to seek

Nichols that afternoon and, if neces~ary, on the mine site.
I find that Bryant who was Chairman of the Mine Committee and who
was advised and represented throughout the grievance and arbitration proceedings by a knowledgeable District 28 representative knew or should have
known there was no urgent need for him to meet with James Nichols to sign
a request for arbitration before Nichols went underground with the second
shift at 4:00 p.m., Monday March 10, 1980.

I further find that his claimed

55/ Because of the work stoppage that occurred on Monday afternoon, this
meeting was postponed until Monday, March 17.
56/ Since the suspension notice issued at 4:00 p.m., Friday, March 7,
1980 Bryant had until 4:00 p.m., Wednesday, March 12, 1980 to file his
formal grievance and request for arbitration by an umpire. Bryant knew,
of course, that if there was a strike management would refuse to go forward
with the second stage meeting until the men returned to work. He also knew
that this would automatically toll the running of the five day period.

1430

need to see Nichols was an ingenious, if nevertheless manufactured, excuse
or pretext for violating the instructions against being at the mine site
Monday afternoon before the evening shift went underground.
After Bryant spoke to Lewis and Sharon Blevins he called James Nichols
at his mother-in-law's house in Jenkins, Kentucky.
Monday, March 10, 1980.

This was around 2:30 p.mo 9

At that time he was told James had already left for

work. 57/
According to Bryant~ he left home imediately to try to intercept Nichols
before he arrived at the mine.

The undisputed evidence shows that James

Nichols and Henry Canady were the only two miners on the evening shift who
used the Bold Camp Road~ State Route #633~ to approach the mine access road
from the north (RX-31).

All the others, including Danny Bryant~ came in

from roads that fed into Bold Camp Rci~d from the south and then right off
that into the mine access road.
When Danny started from his home in Wise,_ V~rginia to catch Nichols
he took Route #23 north to Pound, Virginia and thereby bypassed the mine
access road off Route #633.

At Pound, he turned on to the Bold Camp Road

57/ James Nichols said he left home around 2:30 p.m., Monday afternoon to
meet with Holbrook at the District 28 office in St. Paul, Virginia. After
he finished talking to Holbrook about Danny's grievance, he left St. Paul
on his motorcycle and arrived at the mine access road from the south-coming up the hill around 3:30 p.m. He denied seeing Danny who by, this
time was waiting for him halfway up the hill at the wide spot above the
mine access road. The first time he remembered seeing Danny was in the
bathhouse about a half hour to forty-five minutes after the men struck.
Bryant denied seeing Nichols at all that day. I find it significant that
Bryant seemed to lose all interest in finding Nichols after the strike
occurred.

1431

at Singleton's Department Store and headed south.

He believed he was

ahead of Nichols who would, he thought, be coming down through Pound from
Jenkins which is north of Pound on Route #23.
seven or eight miles south of Pound.
his young son with him.

The mine access road is

Bryant was in his jeep and had

Although he was confident he was ahead of Nichols,

he did not stop along the road away from the mine but, while he watched
for Nichols in his rear view mirror, he continued to drive south until
he reached a wide spot in the road about 100 feet off mine property and
approximately 500 to 1,000 feet above the mine access roado
his vehicle it was about 3:15 p.m.

When he st

He and his son got out and stood beside

the road looking, he said, for Nichols.

The wide spot where Bryant stopped

was on the downslope of the hill above the mine access roado

The Bold

Camp Road ran on down the hill to the point where it intersected the mine
access road.

Vehicles approaching fr'om the soutb could see the spot where

Danny was standing and he could see them.
Danny claimed that he could not be seen by miners in the parking lot
or mine office but never denied that he could be seen by miners approaching
from the south on the Bold Camp Road.

Harlan Hall a union miner who

worked the day shift was called as a witness by Danny's Union representative, Ken Holbrook, at the second stage meeting on Monday, March 17, 1980.
Mr. Hall said he was familiar with the wide spot in the road where Danny
parked because "I was parked up there when I was off the other tim~ I
was discharged" (RX-18, p. 48).

At the arbitration hearing, Lewis Blevins

testified that Hall's discharge also resulted in a wildcat strike (RX-26,
p. 139).

Larry Boggs, a union miner and a member of Bryant's Mine Committee,

1432

further testified that from the wide spot in the road, "Yes, you can see
cars coming up the hill" (RX-18, p. 51).

The MSHA investigator confirmed

that anyone with prior knowledge of the existence of the spot where Danny
stopped and who looked would have been able to see Bryant.
At the time Bryant and his son dismounted from the jeep and stood
beside the road, the other miners on the evening shift were approaching
the mine access road from down the hilla

James Nichols came up the hill

and turned into the access road sometime between 3:30 and 3:45 p.mo

Henry

Canady also passed the spot where Bryant was standing with his son sometime between 3:15 and 3:30.
seeing Henryo

Henry denied seeing Danny and Danny denied

Bryant did admit he saw Lloyd White pass on his way to the

mine office around 3:30 porno
Upon arriving at the mine office, White told Lewis Blevins he saw
Bryant beside the road about a 100 feet off mine property.

White told

Blevins that if there was a work stoppage he wanted to add a charge of
instigating a strike to Bryant's notice of suspension.
Most of the miners on the evening or second shift, Danny's shift,
arrived for work around 3:30 p.m.

Apparently the miners had decided

on their course of action before they arrived.

In any event, around

3:45 p.m. the evening shift miners led by George Johnson, the President
of the Local, approached Lloyd White and Lewis Blevins in the mine
office and told White a "majority of the men voted to stay off from work
until (White] brought Danny back to work."

1433

Lloyd White declined the demand

stating the matter was now the subject of a grievance and until that was
settled the best thing ·they could do for Danny was to let the arbitration
take its course.

If Danny was reinstated, he would get back pay, but

if they called a strike they and he would both be the losers.

The miners

then walked off the hill and did not return until Friday, March 14, 1980.
I find a preponderance of the evidence establishes that the sympathy
strike of March 10 to 13, 1980 at the Pilgrim Mine was to protest the
suspension of Danny Bryant and to put economic pressure on the operator
to reinstate Bryanta 58/
In the meantime, Danny accompanied by his son decided to drive to
the mine officeo

They arrived at the bathhouse~ which was in the same

building, about five minutes to fouro

While I find it incredible. Bryant

said that by that time the entire evening shift had left.

The only person

~

he saw, he said, was Harlan Hall of the day shift who told him the evening
shift had struck and left.

Later he admitted he also saw Larry Boggs

the day shift mine committeeman who accompanied him when White called him
in to tell him that a charge of instigation was being added to the charges
against him.

He said he did not see James Nichols and did not inquire as

to his whereabouts. 59/

58/ As a result of the four day stoppage, the operator claims it lost
2;150 tons of coal production.
59/ Nichols contradicted this at the second stage meeting. He said he saw
Bryant in the bathhouse about 30 to 45 minutes after the mine was struck.
Nichols was subpoened by counsel for the Secretary but the subpoena was
never served and, despite repeated assurances by counsel, Nichols was
never produced. The trial tribunal was thus deprived of an opportunity
to test Bryant's version of why he needed to see Nichols on March 10

1434

At the arbitration hearing, Lewis Blevins testified, without contradiction, that on the afternoon of Tuesday, March 11, 1980, the entire
Mine Committee consisting of Bryant, Nichols and Boggs accompanied by George
Johnson the president of the Local came to his office and again told him
a majority of the miners had voted to strike until management put Danny
back to work (RX-26, p. 136; RX-4, p. 4).

Bryant gave no indication that

he was not present when the vote was taken or that he did not concur in
his brothers' action.
I find that with the possible exception of Joey Stapleton~ Bryant
and the other miner witnesses who testified seriously undermined their
credibility by their understandable !l!J../ but nevertheless transparent
attempts to stonewall and disinform the trial tribunal over Danny's and
the Local Union's involvement in the sympathy strikeo

!:.!/

fn. 59 (continued)
against Nichols's version. The record shows that on Tuesday, March 11,
1980, Bryant went with Nichols and others to see Lewis Blevins about the
second stage meeting and to file Bryant's grievance. At that time, Bryant
apparently signed a request for arbitration dated March 11. When Blevins
told them management would not meet with them until the strike ended,
they took the document back. It was redated on March 17, when the second
stage meeting actually occurred.
60/ Until the Supreme Court's decision in Complete Auto Transit, Inc. v.
Reis, 451 U.S. 401 (1981), it was not clear to what extent union members
who participated in a wildcat strike might be held personally liable in
damages to their employer. And while most local unions are judgment proof,
they are not immune from damage suits occasioned by wildcat strikes.

g/

For example, George Johnson, the president of the Local, could- not
remember why the miners decided to walk off the hill that day, even
though he admitted to the MSHA investigator that he demanded management
put Danny Bryant back to work as the price of settling the strike.

1435

My conclusion, which is congruent with that of the arbitrator, is
that Bryant's excuse for stationing himself beside the public road at a
point where he could see and be seen by miners entering the mine access
road was a mere pretext or cover for picketing the mine and a mute plea
for support from his brothers.

It was also a silent pledge of solidarity

from Danny to his brothers who were doing only what he knew they had to

I find it unrewarding to attempt to draw any metaphysical distinction
over whether Danny actively fomented the strike or was merely an interested
bystander.

Under the circumstances, his presence on the road was not a

protected activityo

His participation in the vote and the carrying of the

message to Blevins on Tuesday is convincing evidence of his conscious strike
activityo

Nor do I find Danny's responsibility was in any way lessened

because of the tradition among the miners which made the strike inevitable.
Whether the miners struck only because of their loyalty to Danny or also
because they had little or no faith in the fairness or equity of the
arbitration system or for other reasons lost in the mists of tradition
and memory I need not determine.
My conclusions are, therefore, that Danny did picket and otherwise
help instigate the strike of March 10, 1980; that management was justified
in charging him with instigating the strike; and that the arbitrator was
correct in finding

him guilty of that charge. 62/

62/ A full immersion in this record is persuasive of the fact that a
majority of the miners at the Pilgrim Mine felt, as miners have for eons,
that the only way to redress their sense of outrage over what they
perceived as a rank injustice to Bryant was to take direct action and

1436

I further conclude that but for Danny's overt picketing before the
sympathy strike he woul9 not have been discharged. 63/
Legality of the Wildcat Strike
Implicit in the arbitrator's finding that instigation of the
wildcat strike of March 10 was njust cause" for Bryant's discharge is
a finding that the wildcat strike was illegalo

Indeed, the Secretary

has not contended that instigation of a strike is a protected activityo
His focus was on sustaining Dannyvs exculpatory excuse for standing beside
the public road.

My finding, as well as that of the arbitrator~ is that

the reasons given for Bryant being there were not convincingo 64/
fno 62 (continued)
shut down the mineo I reject the idea that the strike was the result of
some arcane signal that Bryant sent to his brothers. Their support, he
firmly believed, could not help him. , Yet he wanted and needed it.. Their
action and his sprang from a deep well of resentment over the way the
workforce was being treated. This was ,the same resentment toward what was
perceived as management's callous disregard for human dignity that caused
Bryant to rebel against the assignment to set jaeks in the first place.
For whatever reason, Lloyd White was driving his workforce to the breaking
point. Maybe it was the insatiable push for production. Maybe it was the
sloth and intransigence of the workforce. The reaction on both sides was
a conditioned overreaction. The roles seemed preordained, Pavlovian and
almost trance like. It has been difficult to separate the legal rights
from the legal wrongs in this minor tragedy in human and labor relations.
Everyone seems to have been as much a victim as a villain.
63/ The arbitrator found that standing alone, the refusal to work on
March 7, 1980 did not merit a disciplinary discharge. He concluded that
it was the "misconduct of March 7 • • • combined with his [Bryant's]
inducing a wildcat strike on March 10" that was "just cause for the
discharge" (RX-7, p. 8).
64/ Generally, the law recognizes that intention or purpose can be
ascertained either from verbal or nonverbal conduct of a party. The
simplest proof is where the actor admits he consciously intended his
conduct to produce the result it did.
The more usual situation is where intention must be inferred from
a person's conduct. Under the circumstances of this case, the trial

1437

My research leads me to conclude Bryant's conduct was a clear

violation of the implied no-strike and compulsory arbitration clauses
of the National Bituminous Coal Wage Agreement of 1978, the agreement
in effect on March 10, 1980 and to which as a member of the union he
was a party. 65/
In Gateway Coal Company Vo Mine Workers, 414 U.So 368 (1974), the
Supreme Court held the broad, compulsory arbitration provision of the
1968 National Bituminous Coal Wage Agreement required the arbitration of
safety disputes and based on the well known presumption of arbitrability
enunciated in the Steelworkers Trilogy implied a no-strike obligation on
the part of the Union and its members "coterminus" with the arbitration
provision.

The Mine Workers Union had called a work stoppage in the

Gateway mine, alleging that

hazardou~

working conditions were created

by the presence of two foremen, responsible for keeping ventilation
records.

These miners had recently been convicted of falsely preparing

records so as to indicate no inadequacy in the ventilation.

Although

the 1968 Wage Agreement provided for the arbitration of "any local
trouble of any kind arising at the mine," it contained no explicit

fn. 64 (continued)
judge has evaluated the degree of probability that Bryant's presence
beside a road at a point visible to miners approaching the mine access
road contributed to the occurrence of the strike. Because.of the high
degree of probability that such presence or picketing would result' in a
strike, the trial judge has inferred that in<lucing such a strike was
Bryant's intent or purpose in being there.
~/

The National Bituminous Coal Wage Agreement of 1978 runs between each
signatory employer and the International Union "on behalf of each member
thereof" (RX-29, Art. I).

1438

no-strike clause.

The Court, after holding that the safety dispute was

subject to arbitration, concluded it was proper to imply a no-strike
obligation.
Shortly after the Gateway decision, Article III(p) was added to the
National Bituminous Coal Wage Agreement.

This section specifically provides

for the arhitration of "Health or Safety Disputes" (RX-29, p. 25)o

There

seems to be no question but that Danny Bryant was under a commitment not
to strike or to picket to induce a sympathy strike over a health or safety
dispute.

U.S. Steel Corp. v. United Mine Wk.rs. of America, 593 F.2d 201

(3d Cir. 1970); Cedar Coal Company v. United Mine Workers, 560 F.2d 1153
(4th Cir. 1977).

As these decisions make clear, a sympathy strike over

an arhitrable dispute is not sheltered by the Supreme Court 1 s decision
in Buffalo Forge Co. v. United Steelworkers, 428.U.S. 397 (1976) •. ·

It is true, of course, that section 105(c) ·of the Mine Safety Law
confers on miners such as Danny Bryant specific substantive rights that
are not subject to the contractual dispute-resolution procedures of the
Wage Agreement.

Pasula v. Consolidation Coal Co., 2 MSHC 1001, 1007

(1980) (Arbitral findings even those perfectly congruent with issues before
the Commission are not binding on the Commission), affirmed on this ground,
reversed on other grounds Consolidation Coal Company v. Marshall, 663 F.2d
1211, 1218-1219 (3d Cir. 1981).

Barrentine v. Arkansas-Best Freight System,

450 U.S. 728 (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 (1974).
But the fact that rights guaranteed individual miners under the antireprisal provisions of the Mine Safety Law are "nonwaivable" and therefore

1439

not subject to compulsory arbitration does not mean that in the exercise
of such rights a miner or his local union may violate with impunity their
no-strike pledge.

Emporium Capwell Co. v. Western Addition Community Org.

420 50, 70-73 (1975).
In Emporium Capwell, the Court held that concerted activity in support
of an arbitrable grievance is unprotected and renders the participants
susceptible to <lischargeo

Such activity which includes picketing is

considered a prohibited resort to self-help and economic coercion because
it contravenes the orderly disputes settlement process contemplated by the

NLRA and the arbitration provisions of the collective bargaining agreemento
Id. note 12 and accompanying texto

Nor does the strong congressional policy

of protecting miners from operatorsq reprisals in the exercise of rights
guaranteed under the Mine Safety Law sanction violations of the no-strike
pledge.

The Court in Emporium Capwell rejected the claim that in order
•,,

to give full sway to the anti-retaliation provi~ions of Title VII of the
Civil Rights Act picketing and other concerted activity to protest racially
discriminatory employment practices must be recognized as a protected
activity under sections 7 and 8 of the National Labor Relations Act.
The Court noted:
Even assuming that ~704(a) protects employees' picketing
and instituting a consumer boycott of their employer,
the same conduct is not necessarily entitled to affirmative protection from the NLRA. Under the scheme of that
Act, conduct which is not protected concerted activity may
lawfully form the basis for the participants discharge.
That does not mean that the discharge is iminune froni attack
on other statutory grounds in an appropriate case. If the
discharges in these cases are violative of ~704(a) of
Title VII, the remedial provisions of that title provide
the means by which [complainants] may recover their jobs
with back pay. Id. 71-72.

1440

Picketing to induce a wildcat sympathy strike where the underlying
dispute is over a preex~sting health or safety problem even where it involves
a protected refusal to work is not, therefore, a protected activity under
either the National Labor Relations Act or the Mine Safety Law. 66/
Because Danny Bryant violated the no-strike provision of his collective bargaining agreement with Clinchfield Coal Company, the operator had

667--oil" the other hand, a concerted refusal to work because of a good
faith, reasonable belief that a hazard exists is protected activity under
section 105(c) of the Mine Safety Lawo Dunmire and Estle Vo Northern Coal
Co., 4 FMSHRC 126, 134 (1982); Isaac Ao Burton, et alo Vo South East Coal
COnlpany, 4 FMSHRC 457, 462 (1982); Hark Segedi, et aL v. Rethleham Mines
Corporation, 3 FMSHRC 765 (1981). The right to s-t-rike over-;afety-arl"dhealth issues is also protected by section 7 of the National Labor Relations
Act and section 502 of the Labor Management Relations Act. Whirlpool Corp.
Vo Marshall, 445 U.S. 1, 17, n. 29 (1980); NLRB Vo Washington Aluminum Coo 0
370 UoS. 9 (1962): NLRB v. Knight~Morley Cor:p::- 251 F.2d 753 (6_t_h--Ci-r:---1957).
The effect of these provisions a,s well as t,hose found in the Occupational
Safety an(l Health Act is to create an'.exception to a no-strike obligation
in a collective bargaining agreement. ~d.; Gateway Coal Co. v. Mine Workers,
414 U.S. 368, 385 (1974). While different standards of proof may be required
to trigger the immunity, all provide protection ,to \vorkers who walk off
their jobs because of hazardous conditions. In addition, the :niners'
collective bargaining agreement authorizes individual miners to withdraw
their labor in the face of "abnormally and immediately dangerous" conditions
(RX-29, p. 18). The Mine Safety and Health Commlttee can close down a
mine or any portion thereof that it has reason to helie\Te presents an
imminent danger to the lives or bodies of the miners (RX-29, p. 12).
But a miner may not hypass the arhi.tral process and resort to selfhelp by inducing a wildcat sympathy strike in an effort to coerce an
operator into resolving an existing health or safety dispute ln his fo11or.
Emporium Capwell, supra. In this case, the Secretary never claimed thr::
strike was a protected activity or that it involved a refusal to work
because of any hazardous or extrahazardous condttion that existed in the
mine. On the contrary a preponderance of tht"- eV'idence established that
the underlying dispute that triggered the strike was Bryant.' s suspension.
The strike was not, therefore~ in furtherance of any rights guaranteed
under the Mine Safety Law to Danny Bryant or the other miners who
participated. The absence of any right to engage in economic coercion
is negated by the availability of the remedy of reinstatement pending
resolution of a protected health or safety dispute.

1441

the right under that agreement and the law to discharge him without
right of reinstatement.

Complete Auto Transit Inc. v. Reis, 451 U.S.

401, 415, n. 16, 416, n. 18, 420 (1981); Atkinson v. Sinclair Refining
Company, 370 U.S. 238, 246 (1962); NLRB v. Sands Mfg. Co., 306 U.S. 332
(1939). 67/
CONCLUSIONS OF LAW
Based on the foregoing findings I conclude that as a matter of law:
1.

Bryant's refusal to accept a strenuous work task assignment based

on his asserted belief that performance of the task in conditions normally
encountered in the environment of a low coal mine would aggravate or
worsen his claimed respiratory and gastrointestinal ailments was not an
activity protected under section 105(c)(l) of the Mine Safety Law.
~

~

To

enjoy protection under the anti-repris~l provisions of the Mine Safety Law,
a refusal to work must (1) be based on some conqition or practice in the
mine or working environment for which the operator is responsible and
(2) create a hazard or danger to the miner's health or safety that is
recognizable and in excess of that inherent in the operation and normally
encountered.

Where, as here, the claim of protected activity concerns

not some identifiable presently existing threat to the miner's health or
safety, but rather a generalized doubt on his part as to his competence
67/ Compare, Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d 1981),
where the court held that while a miner has a right to refuse to work in
the face of a hazard to his safety or health he does not have the right to
prevent others from working by shutting down the means of production. See
also Blankenship v. W-P Coal Company, 3 FMSHRC 969 (1981); Gooslin v.
Kentucky Carbon Corporation, 3 FMSHRC 640 (1981).

1442

and physical fitness to perform the task, Congress did not intend that

the public policy favoring the arbitration of grievances be circumvented
and supervening jurisdiction over the dispute conferred on the Commission
merely because a refusal to work was involved.
2.

Danny Bryant's instigation of a work stoppage on June 1, 1979

in connection with the Julie car was not a protected activity under
section 105(c)(l) of the Mine Safety Lawo
3.

The Secretary failed to prove by a preponderance of the reliable~

probative and substantial evidence that Danny Bryant 1 s refusal to accept
Mr. White's order to perform the job of a jack setter on March 7 9

1980~

was a protected activity under section lOS(c)(l) of the Mine Safety Lawo
4.

.

The operator proved by a pfeponderance. of the reliable~ probative

and substantial evidence that Danny Br<ant was one of the instigators of
the wildcat strike that commenced on Monday, March 10, 1980.

This activity

was unlawful and in breach of Bryant's no-strikepledge under his calleetive bargaining agreement with the operator.

This activity furnished just

cause for Bryant's discharge.

OPINION
This was not a dual motive case.

Reams have been written.over the

pleading and proof requirements in anti-reprisal (discrimination) ,cases
involving dual or mixed motives.

See, e.g. Lasky and Leathers, Applying

the Wright Line Test: Mixed Results In the Circuits, NLJ, 3/22/82, p. 32.
Applying the tests for evaluating a prima facie case of protected activity

.1443

as developed by the Commission in Pasula/Robinette I conclude the Secretary
failed to prove by a pr~ponderance of all the evidence that Bryant was at
any time engaged in a protected activity.

This eliminates, therefore, the

necessity of making any extended "pretextual" or "but for" analysis. 68/
Compare, NLRB v. Chas. H. Batchelder Co., 646 F.2d 33, 42-44 (2d. Cir. 1981).
I realize that because of Congressional concern over protecting the unhibited
exercise of the right to refuse to work all the Act requires is proof that
the miner honestly and reasonably believed that he confronted a threat to
his safety or health. Consolidation Coal Co. v. Marshall 9 663 F.2d 1211;
1219 (3d Cir. 1981).

I also understand that such a refusal is protected

from retaliation by the operator even if the evidence ultimately shows that

68/ The Secretary argues that Bryant was fired for engaging in two instances
of protected activity: (1) the Julie car incident, and (2) the refusal to set
jacks. The Secretary says both incid~nts stemmed from a managemen_t animus
against safety activists and were inspired by a single discriminatory motive.
My evaluation of the evidence shows: (1) the Julie car incident did not
involve any protected activity because the absence of a fire extinguisher
presented no immediate or recognizable hazard that justified a work stoppage
and, even if it did, it was under the circumstances so clouded by pretextual
reasons for harrassing the section foreman that it lost all independent
significance as a cause of management's displeasure with Bryant's conduct;
(2) the refusal to set jacks was unprotected because there was no immediate
or long-term health or safety hazard that justified Bryant's claimed right
to be selective in his work assignments. Since both activities relied upon
were unprotected, a presumption of discriminatory motive was never established. Both the prima facie and rebuttal cases show the sole reason for
Bryant's suspension was his refusal to work at setting jacks. This was a
serious breach of his employment obligation that justified disciplinary
action. Whether it was of a magnitude sufficient to justify discharge, I
need not, and probably should not,. be concerned. See, Chacon v. Phelps
Dodge CorporatioE_, 3 FMSHRC 2508, 2516, 2 BNA MSHC 1505 (19~1); Bradley
v. Belva Coal Co.,
FMSHRC
, Dkt. WEVA 80-708-D, decided
June 4, 1982. In any event, the undisputed evidence shows Bryant was
actually fired because he instigated a wildcat strike, a breach of his
employment obligation that undoubtedly justified his discharge. The fact
that few, if any, tears were shed over his departure may be regrettable
but it was not unlawful.

1444

the conditions were not as serious or as hazardous as the miner honestly

believed them to be.

Id.

Under the circumstances presented in this case, however, I am not
persuaded that the miner either had a good faith, reasonable belief that
his illness was as serious as he claimed it was or, regardless .of the
bona fides of his belief, that it was the kind of threat to his safety
or health covered by the Acto

I do not believe Congress intended to afford

miners the right knowingly to present themselves for work in a physical
condition that precludes the safe or healthful execution of their tasks
and then to decline or refuse to perform such tasks with total immunity
from discipline by their employerso
For these reasons~ I have determined that even if Mro Bryant had a
good faith, reasonable belief that hi$ claimed weakened physical condition
would not permit him to perform the ta~ks of a jack setter safely and
without detriment to his health, this subjectiv~ belief was not, under
the circumstances, a justification for his refusal to work because it
stemmed from his own misconduct and violation of company policy in presenting himself for work in that condition.
Finally, I find the operator made a persuasive affirmative showing
that subsequent to his disciplinary suspension Mr. Bryant was one of the
instigators of a wildcat strike and that but for that activjty Mr. Bryant
would not have been discharged.

The operator thus successfully carried

a heavier burden than some of the courts of appeals would require and
at least as heavy a burden as the Commission fashioned in Pasula and

1445

Robinette. 69/

Not only did Bryant fail to validate the purity of his

motives and the reasonableness of his beliefs with respect to the claimed
antecedent protected activity but the operator successfully established
through contemporaneous clinical evidence that Bryant's actually physical
condition on the critical date did not render him unfit to perform the
work assignment he refused.
The decision in this case has turned on a careful weighing of all the
evidence in the record considered as a whole.

Because the Secretary failed

to prove Bryant engaged in protected activity~ it has not focused on any
narrow issues concerning burdens of proof as to motive.

As a practical matter~

those considerations fell away once the trial was concluded.
it productive 9

therefore~

I do not believe

to attempt to unravel the labyrinthine holdings

and literature spawned by the Commission 1 s Fasula and the NLRB 1 s Wright Line
decisions. The reconciliation of these<.writings and their implications for the
correctness of the Commission's allocation of the burdens of proof in dual
motive cases under section 105(c) of the Mine-Safety Law I must leave to
another day or to the law reviews 70/ and the Commission. Suffice it to say
that my distillation of the holdings and literature leads me to conclude that
under Pasula and its progeny once a showing has been made that a disciplinary
decision was tainted or motivated "at least in part" by a miner's protected
activity, the burden of persuasion shifts to the operator to show that the
69/ Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800, 2 BNA
MSHC 1001 (1980); Robinette v. United Castle Coal Co., 3 FMSHRC 803,
817-818, 2 BNA MSHC 1213 (1981).
70/ See, generally, Broderick and Minahan, Employment Discrimination
Ullder the Federal Mine Safety and Health Act, 84 W.Va. L. Rev.
(1982).

1446

decision was motivated "at least in part" by unprotected activity and that
"but for" the unprotected activity, and for that activity "alone," the
miner would not have been disciplined or discharged. 71/
Whether shifting the ultimate burden of persuasion to the operator
to show a plausible motive for a disciplinary action contravenes section
7(c) of the APA or whether the Commission's burden shifting rule
is more in accord with the Congressional purpose that underlies the
anti-reprisal provisions of the Mine Safety Law~ I need not decideo 72/

JJ:_/

Robinette, supra: Chacon Vo Phelps Dodge Corporation, 3 FMSHRC 2508 0
2 BNA MSHC 1505 (1981); Bradley v. Belva Coal Co.,
FMSHRC
--Dkt. WEVA 80-708-D, decided June 4, 1982. The courts
appeal are
over the authority of the NLRB to shift to an employer the burden of
persuasion in rebutting a charge of discrimination under the National
Labor Relations Act. Compare Behring International, Inco 0 Vo NLRB
No. 81-1937 (3d Cir. April 7, 1982); NLRB v. Wright Line, 662 F.
899
(1st Cir. 1981); TRW v. NLRB, 654 F.2d 307 (5th Cir. 1981) with NLRB v.
Fixtures Manufactw::fng corp:-, 669 F. 2d 547 (8th Cir. 1982); NLRB~
Lloyd A. Fry Roofing Co., (7th Cir. 1981); and NLRB v. Nevis--rrldustries
Inc., 647 F.2d 905 (9th Cir. 1981).

72/ The Commission relied on Mount Health City Board of Education v. Doyle,
429 U.S. 274 (1977) for guidance in arriving at its position. On the other
hand, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) indicates the ultimate burden of persuasion as to the motive for a disciplinary
action lies on the Secretary and not the operator. In Chacon, supra, however,
the Commission greatly diluted the operator's Pasula burden by holding that
it is carried merely by a showing that the operator's motive for a disciplinary
suspension was "not plainly incredible or implausible."
If the Commission is ultimately required to follow Burdine, the operator to rebut a prima facie case or presumption of discrimination, need only
articulate a legitimate, nondiscriminatory reason for the allegedly unlawful
action. Contrary to Pasula, the operator would not need to persuade the
trial tribunal it actually was motivated by the proffered re~son and that
"but for" the permissible reason and that reason "alone" the miner would
not have been disciplined. The. burden of proceeding would then shift back
to the Secretary and then, as the Court stated, "This burden now merges
with the ultimate burden of persuading the court that [the complainant]
has been the victim of intentional discrimination. [The complainant] may
succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing
that the employer's proffered explanation is unworthy of credence." Id.

1447

Burdens of production and persuasion in an administrative proceeding
are usually significant only where the evidence is in "equipose," that
is, where after all the evidence has been submitted, it cannot fairly be
said to preponderate in favor of either party.

NLRB v. Transportation

Management, Corp., (1st Cir., April 1, 1982) (concurring opinion).
The burden of persuasion is crucial, however, in retaliation cases
which turn on the elusive concept of motiveo

Under Fasula and Wright

Line the party bearing the burden of persuasion will lose when the evidence shows the employervs true motive was just as likely a business
reason as retaliatory.

In other words where the evidence is in equipoise

the operator~ not the complainant, will loseo

By relieving the Secretary

of the burden of persuasion on the issue of true motive~ the Commission
has cast the balance in favor of findtng a discriminatory motive ip most
cases where a protected activity was

11

iJ;l any way" involved.

The Senate

Committee Report, of course, supports this allocation of the burden of
proof.

S. Rep. 95-181, 95th Cong. 1st Sess., 36 (1977).

See also,

Larry D. Long v. Island Creek Coal Company, et al., 2 FMSHRC 1529, 2 BNA
MSHC 1437 (1980); affirmed 2 BNA MSHC 1436 (4th Cir. 1981).
In this case, the operator not only rebutted the Secretary's showing of
protected activity but positively negated the existence of such activity.

By

doing so, the operator successfully neutralized the claim ot culpable motive
for Bryant's discharge.

In the absence of a showing of protected activity,

there can be no "mixed" or "bad" versus "good" motive for a discharge.
Bryant was suspended for an act of unprotected insubordination on March 7,

1448

1980 amd discharged for that activity and for subsequent unlawful misconduct
in instigating the wildcat strike of March 10, 1980.

No matter how allocated,

the operator carried his burdens of rebuttal and persuasion with respect
to all of these issues by a clear preponderance of the reliable and probative
evidence.

It follows that Bryant's discharge was for just cause and for

legitimate, nondiscriminatory business reasons. It was 9 therefore 9 in all
respects proper.
ORDER

The premises considered,

D that this matter be, and

hereby is 9 terminated and the

Judge
Distribution:
James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor,
3535 Market St., Philadelphia, PA 19104 .(Certified Mail)

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, Dominion Nat'l
Bank Building, Box 1135, Bristol, VA

24201

(Certified Mail)

Paul R. Thomson, Jr., Esq., The Pittston Coal Co. Group, Lebanon, VA
24266 (Certified Mail)

1449

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

JUL 30\982

Civil Penalty Proceedings

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

Docket No: WEST 82-48
A.O. No: 42-00121-03103
Docket No: WEST 82-80
A.O. No~ 42-00121-03106 H

EMERY MINING CORPORATION,
Respondent

Deer Creek Mine

and
Contest of Order

EMERY MINING CORPORATION
Applicant

Docket No: WEST 81-400-R
Order No: 1022357; 9/9/81

v.
SECRETARY OF LABOR 9
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent

Deer Creek Mine

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado, for Petitioner
Evert W. Winder, Manager, Health and Safety, Emery
Mining Corporation, Huntington, Utah and
Todd D. Peterson, Esquire, Attorney for Respondent

Before:

Judge Moore

The above three docket numbers were consolidated for hearing and
were tried together on May 18, 1982 in Price, Utah.
At the outset counsel for the government announced a settlement of
the two violations involved in Docket No: WEST 82-80. The government
announced that it had insufficient evidence to support one of the two
alleged violations and that with respect to the other alleged violation
it would amend its imminent danger order to a normal citation and settle
the matter for $1,000 rather than the $2,500 that had originally been
assessed. I approved the settlement.
With respect to the other violations, most of the facts were stipulated.
My decision herein will rest on an interpretation of 30 C.F.R. 48.B(a) which
states:

1450

"each miner shall receive a minimum of 8 hours of
annual refresher training as prescribed in this section".
It is the Company's position that "8 hours of annual refresher training
means 8 hours of refresher training in each calendar year." It is the
government's position that the annual refresher training is required every
twelve months without regard to the calender year. The miners in question
in this case, all received 8 hours of refresher training in each calendar
year, but the refresher training in 1981 was given more than twelve months
after the refresher training that was given in 1980. 30 C.F.R. 48.3{a)
requires each operator to have an MSHA approved plan "containing programs
for training new miners, training newly employed experienced miners, training
miners for new tasks, annual refresher training, and hazard training for
miners as follows: "The training plan submitted by respondent to MSHA
provides that annual refresher training will be given by December 31 in
each calender year. The plan was approved by MSHAo
Respondent 1 s
exhibit No. 1),
The citations in the instant cases were issued in reliance on government
exhibit 1, which is a policy memorandum issued by MSHA on June 1, 1981. The
policy memorandum is couched in terms that would lead one to believe that
it was a relaxation of a former more strict interpretation of the refresher
training standard. It says "in order to provide practical flexibility and to
reduce record keeping for Part 48, this office has determined that miners
may complete their annual refresher' training any time during the last
calendar month of their annual training cycle. For example, a miner
beginning work on June 5, 1981, may domplete his annual refresher training
any time before June 1982." In the next paragraph the memorandum states
that this policy permits records and training schedules to be maintained
on a monthly basis instead of tracking individual calendar days." The
implication is that prior to this memorandum a miner who began work on
June 5 of one year, would have to have his refresher training completed by
June 5 of the following year. No memoranda to that effect has been
produced or referred to by the parties.
If the standard is interpreted
in accordance with government exhibit 1, almost 13 months could elapse
between refresher training periods. Under the mine operator's plan,
however, almost two years could elapse between training periods. If,
for example, a miner was hired and trained early in one year, and not given
his refresher training until December of the following year, the interval
could be close to two years. Section 115{a)(3) of the Act says "all
miners shall receive no less than 8 hours of refresher training no less
frequently than once each twelve months ••. " This could mean training in
one 12 month period and training in the next 12 months period or it
could mean that no longer than 12 months shall separate training sessions.
I think that the Congress may well have intended that refresher training
be given at least once every twelve months. I think it clear, however,
that in preparing the regulation in question here, the Secretary did
not intend that refresher training be given every twelve months. The

1451

regulations demonstrate that when the Secretary intends to say twelve
months, he does so explicitly. See for example 30 C.F.R. 48.2(b),
30 C.F.R. 48.7(a), 30 C.F;R. 48.ll(b) and similar provisions regarding
surface mines and surface areas of underground mines. 30 C.F.R.
48.ll(b) refers to hazard training and states "miners shall receive the
instruction required by this section at least once every twelve months."
If 30 C.F.R. 48.8(a) means the same thing, why were not the same words
used? I think MSHA meant to require training in every calendar year,
and it seems cl~ar that the format it supplied for the preparation of a
training plan contemplated training in each calendar year. Item 6 on
the training plan is "predicted time when regularly scheduled refresher
training be given" and the Respondent mine has in its plan "by December 31
annually." If every miner had to be trained within twelve months of
being hired or of his last refresher training there would be no way to
respond to the question without giving a date for each miner. Also in
Respondent's favor is the normal use of the word "annual". Annual
banquets and annual meetings are not necessarily within twelve months
of each other.
The fact that Congress may have intended that refresher training be
conducted within twelve months of the previous training is not controlling
as to the meaning of the regulation promulgated by the Secretary. In
Service vs. Dulles 354 U.S~ 353 (1957) Congress had given the Secretary
of State absolute discretion to discharge anyone who he suspected of
being disloyal to the United States~ A regulation had been published
providing for a hearing for anybody ~uspected of being disloyal. In
this case a hearing was held. It turned out that the results of the
hearing were deemed improper, but it was argued by the government that
since Congress gave the Secretary absolute discretion the results of the
hearing were not important. The Supreme Court held that even though
Congress gave the Secretary absolute discretion, if regulations were
promulgated providing for a procedure to be followed, then the Secretary
no longer had absolute discretion but must follow the procedure. Similar
results were reached in Accardi vs. Shaughnessey, 347 U.S. 260 (1954) and
Vitarelli vs. Seaton, 359 U.S. 535 (1959). See also Pacific Molasses
Company vs. Federal Trade Commission, 356 (Fed 2d. 386, 389, (5th
Cir. 1966). Taken together, I consider these cases stand for the proposition that regardless of the intent of Congress, if any agency publishes
a regulation that is not so harsh as the one authorized by Congress, the
public is bound only by the agency regulation. Therefore, I hold that even
though Congress may have intended that refresher training be conducted
every twelve months, the regulation published by MSHA is controlling, and
only requires refresher training during every calendar year.
The Citations are vacated and the case is DISMISSED.

Charles C. Moore, Jr.,
Administrative Law Judge

1452

Distribution:

By Certified Mail

James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 F.O.B. 1961 Stout Street, Denver, CO 80294
Evert W. Winder, Manager, Health & Safety, Emery Mining Corporation,
P.O.B. 310, Huntington, UT 84528
Todd D. Peterson, Esq., Attorney for Emery Mining Corporation,
Crowell and Moring, 1100 Connecticut Avenue, NW.,
Washington, D.C. 20036

<'u.s. GOVERNMENT PRINTING OFFICE:

1453

19s2-o-J61-6JR/4J7J