NOVEMBER 1990
Commission Decisions
11-27-90
11-28-90

Ideal Cement Company
Secretary of Labor on behalf of Price and
Vacha, ·and UMWA v. Jim Walter Resources, Inc.
(Petition for Reconsideration)

WEST 88-202-M
SE
87-128-D

Pg. 2409
Pg. 2418

CENT 90-118-DM
KENT 90-161-M
SE
90-66
CENT 90-109-M
WEVA 90~136
KENT 90-95-R
KENT 90-193
WEST 90-118-D

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SE

Pg. 2461

ADMINISTRATIVE LAW JUDGE DECISIONS
11-06-90
11-08-90
11-08-90
11-09-90
ll-'-09-90
11-13-90
11-16-90
11-16-90
11-16-90
11-16-90
11-20-90
11-20-90
11-23-90
11-26-90
11-26-90
11-26-90
11-26-90
11-28-90
11-28-90
11-30-90

Lawrence A. Broussard v. Akzo Salt Inc.
Saturn Materials, Inc.
Consolidation Coal Company
W.J. Menefee Construction Co.
Southern Ohio Coal Company
Green River Coal Company
Dan-Del Coals, Inc.
UMWA on behalf of Filbert Royal v.
Wyoming Fuel Company
Sec. Labor on behalf of Alonzo Walker v.
Dravo Basic Materials Co., Inc.
Curtis R. Pickel v. B & LS Contracting, Inc.
The Industrial Company of Wyoming (TIC)
Beech Fork Processing, Inc.
Arch of Kentucky, Inc.
Richard R. Maynes v. Phelps Dodge Corporation
Southern Ohio Coal Company
Dennis Wagner v. Pittston Coal Group, etc.
Larry E. Swift v. Consolidation Coal Co.
Sec. Labor on behalf of Bob Wayne Hubenak v.
Aluminum Company of America
Hickory Coal Company
Sec. Labor on behalf of William A. Marshall v.
Quality Ready Mix, Inc.

90-86-DM

2423
2424
2425
2427
2428
2433
2441
2443

LAKE 90-114-D
WEST 90-108
KENT 90-87
KENT 90-395-R
CENT 89-132-DM
WEVA 90-141
VA
88-21-D
PENN 90-233-D
CENT 90-34-DM

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2486
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PENN 90-52
LAKE 90-78-DM

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KENT 86-49-D
WEST 90-289-M

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Pg. 2530

ADMINISTRATIVE LAW JUDGE ORDERS
11-08-90
11-15-90

John Gilbert v. Sandy Fork Mining Co.
Cyprus Bagdad Copper Corporation

NOVEMBER 1990
Review was granted in the following cases during the month of November:
Wyoming Fuel Company v. Secretary of Labor, MSHA, Docket No. WEST 90-112-R,
etc. (Judge Morris, October 22, 1990)
Secretary of Labor, MSHA v. Shamrock Coal Company, Inc., Docket No.
KENT 90-60. (Judge Weisberger, October 17, 1990)
Review was denied in the following case during the month of November:
Secretary of Labor, MSHA v. Puerto Rican Cement Co., Inc., Docket No.
SE 90-26-M. (Judge Melick, October 11, 1990)

COMMISSION DECISIONS

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

20006

27, 1990

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

v.

Docket No. WEST 88-202-M

IDEAL CEMENT COMPANY

BEFORE:

Backley, Acting Chairman; Doyle and Nelson,
Commissioners
DECISION

BY:

Backley, Acting Chairman; Doyle and Nelson, Commissioners

This civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq.
(1988)("Mine Act" or "Act"), involves an issuance of a citation
to Ideal Cement Company ("Ideal") pursuant to section 104(a.) of
the Mine Act, 30 u.s.c. § 814(a), by an inspector of the
Department of Labor's Mine Safety and Health Administration
("MSHA"), as a result of an investigation conducted after an
accident in which a miner was fatally injured. The citation
alleges a violation of 30 C.F.R. § 56.9002 (1987), a former
mandatory safety standard applicable to surf ace metal and
nonmetal mines, which provided: "Equipment defects affectfng
safety shall be corrected before the equipment is used."
Following an evidentiary hearing, Commission Administration Law
Judge John J. Morris-vacated the citation. 11 FMSHRC 1776
(September 1989)(ALJ). For the reasons that follow, we reverse
in part and remand this matter to the judge for further
consideration.

I.
Ideal operates the Trident Plant and Quarry, a cement
30 C.F.R. § 56.9002 (1987) was revised as of July 1,
1988, and transferred along with 30 C.F.R. §§ 57.9002, 56/57.9001,
and 56/57.9073 to 30 C.F.R. §§ 56.14100 and 57.14100. 53 Fed. Reg.
32497, 32504 (August 1988). Sections 56.14100 and 57.14100 became
effective on October 24, 1988. 53 Fed. Reg. 32496 (August 1988).
Therefore, at the time of the inspection on October 20-21, 1987,
former section 56.9002 was still in effect.

2409

manufacturing facility located in Trident, Montana. In its
cement manufacturing process, Ideal uses a tubular kiln that is
approximately 300 feet long, 12 feet wide, and lined with 4 by 8
inch brick. Ideal.produces "clinker" in ;t:he .kiln by heating raw
materials to approximately 3000 degrees.
When the brick
lining of the kiln wears out, the kiln is shut down .in order to
remove the worn brick.
For a time, Ideal removed the brick by hand and then began
using a modified 1835 Case Uni-loader. A uni-loader (sometimes
referred to in the transcript as a "bobcat") is a piece of
equipment that is typically used to scoop up, transport, and dump
loose materials. Ideal modified the uni-loader by removing the
bucket attachment and substituting in its place a jackhammer
attachment, removing the side screens of the operator's
compartment, replacing the uni-loader's standard wheels-with
high-pressure, narrow tires, lowering the Rollover Protective
Structure ("ROPS"), and placing a screen and a plywood shield in
the front of the operator's compartment. Ideal left it within
the operator's discretion to remove or install the uni-loader's
side screens, as the operator deemed appropriate. Tr. 88, 103.
The modified uni-loader was operated by raising the
jackhammer, which was attached to the sidearms, and using it to
chip off the worn brick lining of the kiln ceiling. The
jackhammer attachment was then replaced by a bucket attachment,
which was used to scoop up the broken brick. Because the kiln
was too narrow for an employee to turn the uni-loader around, the
uni-loader was then backed out of the kiln and the kiln was
rotated so that the section of the kiln that had been the ceiling
became the floor. Finally, the uni-loader was driven into the
kiln in order to repeat the chipping and cleaning process.
On October 20, 1987, at approximately 2:30 a.m., Tom
Bertagnolli, an Ideal employee, was involved in a fatal accident
while operating the uni-loader, without side screens, inside the
ki.ln. Although there were no eyewitnesses to the accident, two
Ideal employees, Steve Livingood and Stanley Veltkamp, prepared
written statements, shortly after the accident, setting forth
their recollection of events that had occurred. In his
statement, Mr. Veltkamp stated:
When I first saw Tom he was leaning out the right
side of the bobcat. He was over ... the arms and
the cylinder. He then moved back into the seat,
2

Clinker is the product that results when clay and
limestone are fused together as the first stage in the manufacture
of cement.
Webster's Third New International Dictionary
(Unabridged) 361 (1986).

2410

shut off the air to the jackhammer. Then he
crawled out of the left side of the bobcat. The
machine was idling. The arms were down. Tom
started walking down the kiln. He staggered and
fell to his right. When I saw him fall I ran to
him and asked him if something was wrong. He said
yes he had been crushed ....
3

Exh. P-21 (emphasis added).
Bertagnolli was subsequently
transferred to a stretcher and transported to the hospital, where.
he was later pronounced dead.
On October 20, 1987, Arlene Sherman, then acting as Ideal's
Safety and Personnel Supervisor, completed an MSHA accident
report form and a workers' compensation form regarding· the
accident. She had spoken with employees who had been present at
the time of the accident and had viewed the accident site. At
the time that she completed the forms, however, her investigation
had not yet been completed. On each form, Ms. Sherman stated
that Bertagnolli was removing brick from the kiln when he leaned
out of the right side of the uni-loader cab with the hydraulic
arms raised. She stated that the right uni-loader arm had
dropped and crushed him against the frame. Exhs. P-23, P-28.
MSHA Inspector Darrel Woodbeck and a state of Montana
inspector, Robert Stinson, investigated the accident. The
inspectors concluded that Bertagnolli must have been standing up
or leaning over the side arms, that he had been crushed between
the lifting arms of the bucket and the ROPS, that the uni-loader
must have been running for the arms to raise, and that
Bertagno}li must not have been wearing his seat belt. Tr. 357,
375-76.
Stinson and Woodbeck also stated that, if the side
3

Veltkamp's written statement differed from his testimony
at trial and from the content of an affidavit that he gave on
August 25, 1988, some ten months after the accident.
In the
written affidavit, Veltkamp stated that he did not see Mr.
Bertagnolli lean out of the uni-loader.
Exh. R...;1.
At trial,
Veltkamp testified that he could not remember if Bertagnolli leaned
out of the uni-loader. Tr. 182-86. The judge credited the content
of the written statement that Veltkamp prepared soon after the
accident. 11 FMSHRC at 1779, n.4.
4

The inspectors' investigation resulted in, among other
things, the following findings and opinions: ( 1) the written
specifications for a Case 1835-B Uni-Loader, published in 1984,
depicted attachment of the side screens on the uni-loader (Tr. 324326; Exh. P-25); (2) the formal method of ingress-egress to and
from the uni-loader had been blocked by the plywood and screen
barrier placed in the front of the uni-loader, although the
inspectors did not test the degree of effort required to remove the

2411

screens had ·been in place, it would not have been possible for
Bertagnolli to have placed himself in a position to be so
injured. Tr. 257, 357.
On October 22, 1987, Inspector Woodbeck issued Ideal a
citation, alleging a violation of section 56.9002:
On October 20, 1987 at approximately 0230 the
Case Uni-Loader model 1835, manufactured in 1982
was involved in an accident that resulted in a
fatality. The side shields (guards) that prevent
the operator from leaning out over the bucket were
removed. This allowed the operator to lean out
over the top of the bucket lifting arms aQd get
crushed between the top of the (ROPS) and the
bucket lifting arms. This was also being used as
the primary access to the operator's compartm~nt
because the front access had been blocked off by a
piece of plywood and a section of wire mesh
screen.
The inspector further found that the violation was of a
significant and substantial nature, because he believed that the
absence of the side screens substantially contributed to the
likelihood of an accident and the severity of any such accident.
Woodbeck also concluded that Ideal was negligent in allowing the
condition to exist. Woodbeck told Bill Springman, the plant
manager, to replace the side screens before the uni-loader was
put back into operation. On October 22, when Woodbeck served the
citation on Ideal, he observed that the side screens had been
replaced and he abated the citation.
In his decision, Judge Morris vacated the citation issued to
Ideal because, in essence, he found that section 56.9002 did not
give Ideal adequate notice that the absence of side screens would
constitute an "equipment defect affecting safety." 11 FMSHRC at
1788. citing Diamond Roofing v. Occupational Safety and Health
Review Commission, 528 F.2d 645, 649-50 (5th Cir. 1976), the
judge stated:
The law is clear that a safety regulation that
imposes civil penalties for its violation must
give an employer fair warning of the conduct it
prohibits or requires and must further provide a
reasonably clear standard of culpability to
circumscribe the discretion of the enforcing
authority and its agents.

barrier (Tr. 250, 371, 464-65); and (3) when the sidearms of the
uni-loader were raised with the jackhammer in place, the backing
plate to which the jackhammer was attached prevented the operator
from seeing the drilling point of the jackhammer. (Tr. 254-55.)

2412

11 FMSHRC at 1783. The judge concluded that Ideal could not have
anticipated in advance that MSHA required side screens on the
equipment. He rejected the Secretary's reliance on such evidence
as that "relating to the lowered ROPS, the make-shift plywood
screen, the probability that Bertagnolli leaned out and was
crushed by the arms, the improvised jackhammer, and, in general,
the restricted work area" as putting Ideal on notice of such a
requirement.
11 FMSHRC at 1786-87. The judge also dismissed as
hindsight the inspectors' views that the absence of the side
screens caused Bertagnolli's death. 11 FMSHRC at 1787.
Citing Allied Chemical Corp., 6 FMSHRC 1854 (August 1984),
the judge also determined that the missing side screens did not
fall within the coverage of section 56.9002. Although
acknowledging that equipment defects within the scope of the
standard are not limited solely to those in components affixed to
the equipment and may take the form of missing components, the
judge maintained that Allied Chemical, supra, stood for the
proposition that a defect affecting safety must adversely affect
actual functioning or operation of the equipment. 11 FMSHRC at
1785. The judge distinguished the present case from Allied
Chemical on the grounds that there was no evidence in this case
that the side screens themselves were defective or that "the lack
of side screens adversely affected the operation of the uniloader, rendered it defective, inadequate, or presented
functional problems in its operation as a loader." Id.
II.
On review, the Secretary contends that the judge erred in
vacating the citation because, according to her interpretation of
the standard, the absence of the side screens from the uni-loader
constituted a defect affecting safety. The Secretary maintains
that the judge misconstrued the standard when he held that it is
violated only when a 11 saf ety component present on the machine
[is] in a defective state," or when "a safety component related
to the successful operation of the machine in its assigned
purpose" is missing.
S. Br. at 5. The Secretary contends that
the standard is aimed "not only at safety defects which may also
affect the operational ability of the equipment in question" but
at "any defect which 'affects safety,' whether or not that defect
also affects operational ability." Id. The Secretary asserts
that her interpretation of the standard is consistent with the
broad purpose of the standard and is reasonable and, therefore,
is entitled to deference. s. Br. at 5-6.
The Secretary further maintains that her interpretation of
section 56.9002 and its application to the uni-loader do not
deprive Ideal of adequate notice. s. Br. at 7. The Secretary
urges application of the test of "what a reasonably prudent
person, familiar with the mining industry and the protective
purpose of the standard, would have provided in order to meet the

2413

protection of the standard," and argues that, in this case, it is
clear that a reasonable person would have recognized that the
removal of the side screens would adversely affect safety. s.
Br. at 7.
The Secretary relies upon evidence that the screens
were provided by the manufacturer as a safety component, that
Ideal's personnel understood that the side screens were designed
to keep the uni-loader operator's body within the uni-loader, and
that Ideal's safety manual provides that guards shall not be
removed from equipment except when making repairs. S. Br. at 8.
We first examine the question of whether the absence of the
side· screens constituted an equipment defect. We agree with the
Secretary that the judge erred in construing the standard to
support a finding of a violation only when a component related to
the operation of the equipment is defective or missing. In
Allied Chemical, construing identical regulatory language in a
parallel standard, the Commission stated that "in both ordinary
and mining industry usage, a 'defect' is a fault, a deficiency,
or a condition impairing the usefulness of an object or a part."
Allied Chemical, 6 FMSHRC at 1857, citing, Webster's Third New
International Dictionary (Unabridged) 591 (1971); Bureau of
Mines, u.S.Department of Interior, A Dictionary of Mining,
Mineral, and Related Terms 307 (1968). Allied Chemical held, in
part, that missing bolts in longwall roof support units were
"equipment defects" (6 FMSHRC at 1857), and made clear that, in
appropriate contexts, a missing component, as well as a defective
one, could constitute an "equipment defect" within the meaning of
section 56.9002. Although Allied Chemical focused on a
relatively common type of equipment defect -- one affecting the
functioning of the equipment -- we have no difficulty in
concluding that the term "equipment defect" can also extend to a
defective or missing component that does not affect the operation
of the equipment.
Section 56.9002 must be construed in light of its underlying
purpose -- the protection of miners operating the equipment or
exposed to the equipment's use. That purpose was plainly set
forth in the Secretary's statement of purpose and scope of the
Part 56 standards, which provided: "The purpose of these
standards is the protection of life, the promotion of health and
safety, and the prevention of accidents." 30 u.s.c. § 56.1
(1987).
(Section 56.1 has been carried forward unchanged in the
Secretary's present Part 56 regulations.) Any overly narrow or
restrictive reading of the scope of section 56.9002 cannot be
reconciled with that statement of purpose or with the fundamental
protective ends of the Mine Act itself, as set forth in section 2
of the Mine Act. See 30 u.s.c. § 801(a), (d), & (e).
Thus, section 56.9002, which relates to the performance of
equipment used in mines, must be interpreted and applied in a
manner fostering the basic aim of protecting the health and
safety of miners. The integrity of a machine is not defined

2414

solely by its proper functional performance but must also be
related to the protection of miners' health and safety. If
section 56.9002 were interpreted solely to emphasize the
functional performance of equipment, it would, in effect,
derogate from the importance of protecting the safety of miners
and thereby disregard the fundamental mandate of the Mine Act.
Such a construction would run counter to the underlying purposes
of the Part 56 standards.
In short, the proper focus of section
56.9002 encompasses the safety of miners, not merely the proper
performance of equipment.
We find reasonable the Secretary's interpretation that "the
gravamen of the provision [is] safety of persons," and that a
missing equipment component may be as much a "defect" as a
malfunctioning operational component because, in either case, the
miners are deprived of the enhanced safety that the component is
designed to provide. S. Br. at 5-6. In this regard, we--note
that the United States Court of Appeals for the District of
Columbia has accorded special weight to the Secretary's
reasonable interpretations of her own regulations. ~,
Secretary on behalf of Bushnell v. Cannelton Indus., Inc., 867
F.2d 1432, 1435 (D.C. Cir. 1989). We therefore hold that, under
section 56.9002, missing as well as defective components may
constitute "equipment defects" and thereby satisfy the first
element of the two-pronged analysis of whether a condition
constitutes an "equipment defect" that "affect[s] safety." In
the present case, it is undisputed that the side screens were
absent from the uni-loader at the time of the accident and,
hence, were missing equipment components. We thus conclude that
the absence of the side screens amounted to an equipment defect
within the meaning of section 56.9002 and we reverse the judge's
conclusion to the contrary.
We next address whether the absence of the side screens
affected safety. We note preliminarily that the language
"affecting safety" has a wide reach and that "the safety effect
of an uncorrected equipment defect need not be major or immediate
to come within that .reach." Allied Chemical, 6 FMSHRC at 1858.
In addition, given the broad wording of this standard intended to
be applied to myriad factual contexts, we agree with the
Secretary that it is appropriate to evaluate the evidence in
light of what a "reasonably prudent person, familiar with the
mining industry and the protective purpose of the standard, would
have provided in order to meet the protection intended by the
standard." See, e.g., Canon Coal Co., 9 FMSHRC 667, 668 (April
1987); Quinland Coal, Inc., 9 FMSHRC 1614, 1617-18 (September
1987). Although the judge properly recognized that adequate
notice of the conduct prohibited by section 56.9002 must be
afforded an operator, he did not apply the "reasonable person
test" set forth above, which is the analytical approach that the
Commission has approved in order to evaluate the fairness of
application of broad standards to particular factual settings.

2415

Apparently, the judge found that Ideal did not have adequate
notice of the conduct prohibited by section 56.9002 because Ideal
had not received explicit prior notice that the standard required
attachment of the side screens to the uni-loader. Although the
judge noted evidence bearing on the safety effects of the missing
side screens, he summarily disposed of it, apparently because he
believed that it fell short of demonstrating explicit notice to
Ideal that side screens were required by MSHA for conformance
with the standard. We fully appreciate that in order to afford
adequate notice and pass constitutional muster, a mandatory
safety standard cannot be "so incomplete, vague, indefinite or
uncertain that [persons] of common intelligence must necessarily
guess at its meaning and differ as to its application." Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (December 1982)(citations
omitted). However, in interpreting and applying broadl_y worded
standards, the appropriate test is not whether the operator had
explicit prior notice of a specific prohibition or requirement,
but whether a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would have
recognized the specific prohibition or requirement of the
standard.
Because the judge did not make the requisite findings of
fact with regard to the issue of whether the absence of the side
screens affected safety, we therefore remand this matter to the
judge. He shall consider whether a reasonably prudent person,
familiar with the mining industry and the protective purpose of
section 56.9002, would have recognized that the missing side
screens on the uni-loader "affect[ed] safety" within the meaning
of the regulation and, accordingly, would have remedied that
defect prior to any further use of the equipment.
The judge should examine the evidence in the context of the
modified condition in which the uni-loader was being used at the
time of the accident. The judge should examine and set forth
findings and conclusions based on the evidence of record
~ncluding, but not limited to:
(1) the testimony of the Ideal
employees and the inspectors regarding whether operating the uniloader in the kiln without side screens affected safety, taking
into account the proximity of the side arms to the operator's
cab; (2) any evidence regarding whether the presence of the side
screens impeded the equipment operator's vision with respect to
the work area; (3) any evidence regarding whether Ideal's safety
policies prohibited removal of the screens; and (4) any evidence
of industry or manufacturer's policy regarding the removal of the
side screens and the circumstances, if any, under which the side
screens could be removed without impairing safety. We express no
views as to the findings to be made or the conclusions to be
drawn by the judge.

2416

III.
Accordingly, we vacate that portion of the judge's decision
dealing with the issues of whether the missing side screens were
an equipment defect that affected safety and remand this matter
to the ~udge for further consideration of the issues raised
above.

~Richard

V. Backley, Acting ehairman

ic~if'co~
L. Clair Nelson, Commissioner

5

Pursuant to section 113(c) of the Mine Act, 30 u.s.c. §
823(c), we have designated ourselves a panel of three Commissioners
to exercise the powers of the Commission in this matter.
Commissioner Holen assumed off ice after this case had
been considered at a Commission decisional meeting and took no part
in the decision of the case. Under the circumstances, she elected
not to participate in the disposition of this case.
A new
Commissioner possesses legal authority to participate in pending
cases, but such participation is discretionary and is not required
for the Commission to take official action.

2417

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

November 28, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of MICHAEL L. PRICE
and JOE JOHN VACHA
and
UNITED MINE WORKERS OF AMERICA
Docket No. SE 87-128-D

v.

JIM WALTER RESOURCES, INC.

,

BEFORE:

Backley, Acting Chairman; Doyle, Holen, and Nelson, Commissioners

ORDER
BY THE COMMISSION:
This discrimination proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ("Mine Act" or "Act"). Jim
Walter Resources, Inc. ("JWR") has filed a Motion for Reconsideration of the
Commission's prior decision in this matter (12 FMSHRC 1521 (August 1990)),
which, in relevant part, vacated the administrative law judge's conclusion
that JWR had established a successful affirmative defense to the
complainants' prima facie case of discriminatory discharge and remanded the
issue to the judge for further proceedings. JWR asserts that it was
effectively denied an opportunity to brief the affirmative defense issue
during the prior review and requests the Commission to permit such an
opportunity before reaching a final determination as to that issue. The
Secretary of Labor and United Mine Workers of America ("UMWA") have filed
responses opposing JWR's motion. Upon consideration of JWR's motion and the
responses, and for the reasons explained below, we deny the motion.
The relevant procedural history may be summarized briefly. After the
complainants prevailed before Commission Administrative Law Judge James A.
Broderick, the Commission granted JWR's Petition for Discretionary Review,
which challenged Judge Broderick's conclusion (10 FMSHRC 896 (July
1988)(ALJ)) that JWR's Substance Abuse Rehabilitation and Control Program
("Drug Program") was, on its face, unlawfully discriminatory under the Mine
Act. In Part III of its brief on review, the UMWA, which had not petitioned
for review, also attacked the judge's other conclusion to the effect that the
Drug Program had not been discriminatorily applied to the complainants. UMWA
Br. 21-27. In that portion of its brief, the UMWA addressed the judge's
determination that JWR had established a successful affirmative defense to

2418

the prima facie case of discriminatory discharge under the "as applied"
theory. UMWA Br. 22, 23-27.
JWR filed a motion to strike Part III of the UMWA's brief on the
grounds that the "as applied" issue was not within the scope of the
Commission's Direction for Review. In this motion, JWR did not request that,
in the event the Commission were to deny the motion to strike, it be allowed
to brief the merits of the issue raised by the UMWA. The UMWA and the
Secretary filed oppositions to the motion to strike.
The Commission reserved ruling on the motion to strike and scheduled
oral argument in this case. Shortly before the argument took place, the
Commission voted to deny JWR's motion to strike. Chairman Ford announced
that determination at the outset of oral argument. 1 During the ensuing oral
argument, counsel for JWR and for the UMWA argued a number of "as applied"
issues relevant to the affirmative defense (~ Tr. Oral Arg. 21-27--(JWR
argument); 53-56 (UMWA argument) and Commissioners asked questions pertaining
to the affirmative defense. JWR's counsel did not, at that time, request
leave to fil_e written argument on the merits of the "as applied" issues.
Further, at no time during the period between notification on December 6,
1989, that the motion to strike had been denied and the issuance of the
Commission's decision on August 20, 1990, did JWR seek leave from the
Commission to file a reply brief in response to the issues raised in Part III
of the UMWA's brief.
In its decision, the Commission concluded that JWR's Drug Program was
not facially discriminatory in violation of section 105(c)(l) of the Mine
Act, and reversed Judge Broderick's conclusion to the contrary. 12 FMSHRC at
1531-33. As indicated at oral argument, the Commission also held that it
could properly entertain the "as applied" affirmative defense issue raised by
1

The Chairman stated:
Before we begin the arguments, I would advise the
parties at the outset that the Commission has carefully
considered both JWR's motion to strike a portion of the
UMWA's brief and the other parties' oppositions to that
motion. The Commission has decided to deny JWR' s motion
to strike.
I'm informing you of this now so that in the
limited time available for argument the parties may
focus their attention on the other issues in this case,
including the merits of Judge Broderick's conclusion
that the JWR's drug program was not discriminatorily
applied to complainants Price and Vacha.
You may address that,
Spotswood [JWR's counsel].

Tr. Oral Arg. 4-5 (emphasis added).

2419

if

you

wish,

Counsel

the UMWA, and denied JWR's motion to strike. 12 FMSHRC at 1528-29. As to
the merits of the "as applied" issues, the Commission affirmed on substantial
evidence grounds the judge's conclusion that the complainants had established
a prima facie case of discriminatory discharge. 12 FMSHRC at 1533-34.
However, the Commission vacated the judge's conclusion that JWR had
affirmatively defended against the prima facie case and remanded that issue
to the judge for further findings and analysis. 12 FMSHRC at 1534-36. The
Commission stated: "On remand, the judge shall provide all parties with the
opportunity to brief the merits of the issues being remanded." 12 FMSHRC at
1536.
The thrust of JWR's present motion is that the Commission should
reconsider its prior action vacating the judge's determination on the "as
applied" theory and remanding the affirmative defense issue to the judge.
JWR argues further that the Commission should "allow JWR to brief the issue
of discriminatory application ... before [the Commission] makes a 'Iinal
determination to remand the affirmative defense issue to the ALJ." Motion
at 3.
As argued by the Secretary and the UMWA in their oppositions to JWR's
Motion for Reconsideration, JWR had ample opportunity -- both at the time
that it submitted its motion to strike and following denial of that motion -to submit a request for leave to file a reply brief in response to Part III
of the UMWA brief. JWR chose not to do so.
As noted above, at oral argument, the Commission specifically denied
JWR's motion to strike and permitted argument of "as applied" issues. This
made clear the Commission's intention to consider those issues in its
disposition of this case. Under these circumstances, JWR's failure, either
at oral argument or at any time prior to issuance of the Commission's
decision, to submit a briefing request was tantamount to waiver of any right
to file a reply brief. JWR's present request for reply briefing after the
Commission decision remanding this matter to the judge for further
proceedings is untimely and inconsistent with orderly judicial process. We
emphasize that the Commission's prior decision expressly affords JWR the
right to brief the affirmative defense issue on remand. Nor is this a hollow
opportunity because it affords JWR the right to focus on the issues raised in
Part III of the UMWA brief and to respond in light of the Commission's broad
observations concerning the evidence. See 12 FMSHRC at 1534-36. We further
note that in its prior decision the Commission did not reach or resolve the
ultimate merits of the affirmative defense issue.
Indeed, the Commission based its remand of the affirmative defense
issue, in large part, on a determination that the judge had not completely
examined and evaluated all evidence relevant to the merits of JWR's
affirmative defense. See 12 FMSHRC at 1534-36. The Commission's remand
therefore contemplates reanalysis of the evidence and factual resolutions by
the judge. To grant JWR's motion at this point would enmesh the Commission
in the necessity of fact finding and evidentiary analysis, which is best
performed by the judge.
Finally, the Commission's decision in this case, given its remand to

2420

the judge, is not final Commission action. JWR and the other parties will
have the right, following the judge's decision on remand, to petition the
Commission again for discretionary review of any and all issues in this case,
whether by way of a request for reconsideration of any of the Commission's
prior holdings or by way of appealing the judge's determinations on remand.
In view of this consideration, and the others discussed above, we are
satisfied that JWR has not been deprived of any due process and has had, and
will continue to have, adequate opportunity to plead its case to the
Commission.
Accordingly, for the foregoing reasons, JWR's motion for
reconsideration is denied. 2

Richard V. Backley,

Acting~airman

Ar~en~ioner
L. Clair Nelson, Commissioner

2

Commissioner Holen assumed office after this case had been considered at
a Commission decisional meeting. A new Commissioner possesses legal authority
to participate in pending cases, and such participation is discretionary.
Commissioner Holen elects to participate in the disposition of this matter.

2421

Distribution
Robert K. Spotswood, Esq.
John W. Hargrove, Esq.
Bradley, Arant, Rose & White
1400 Park Place Tower
Birmingham, Alabama 35203
Don Stichter, Esq.
Stichter & Reidel, P.A.
100 Madison Street
Tampa, Florida 33602
Edward LoBello, Esq.
Levin, Weintraub & Crames
225 Broadway
New York, New York 10007
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Hary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Administrative Law Judge James A. Broderick
Federal Hine Safety & Health Review Connnission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

2422

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

NOV 6 1990
LAWRENCE A. BROUSSARD,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. CENT 90-118-DM

AKZO SALT INCORPORATED,
Respondent

SC MD 90-13
Avery Island Mine

ORDER OF DISMISSAL
On September 6. 1990, Respondent filed a Motion to Dismiss.
On October 2, 1990, a Show Cause Order was issued which contained
the following language:
"[I]t is ORDERED that Complainant shall, by October 15,
1990, file a Response to the Motion to Dismiss. Failure to file
such a response, shall result in the entry of a Default Judgment
in favor of Respondent, and the Dismissal of this case."
To date, Complainant has neither filed a response to the
Motion to Dismiss nor filed a response to the Show Cause Order.
Accordingly, it is found that Complainant is in default.
It is ORDERED that a Default Judgment shall be entered in
favor of Respondent, and it is further ORDERED that this case be
DISMISSED.

Avram Weisberger
Administrative Law Judge
Distribution:
Mr. Lawrence A. Broussard, Route 8, Box 89, New Iberia, LA 70560
(Certified Mail)
James M. Day, Esq., Cotten, Day & Selfon, Suite 1200, 1899 L
Street, NW, Washington, DC 20036 (Certified Mail)
dcp

2423

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

22041.

NOV 8 1990
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-161-M
A.C. No. 15-16075-05510

v.
Saturn Materials, Inc.
SATURN MATERIALS, INC.,
Respondent
DECISION
Appearances:

Before:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor (Secretary) ;
Talbert Ball, President, Saturn Materials, Inc.,
Belfry, Kentucky, for Respondent {Saturn).

Judge Broderick

This proceeding involves seven alleged violations of 30
C.F.R. § 56.14107 charged in section 104(a) citations issued
February 21, 1990, because of inadequate guarding on moving
machinery parts. Saturn filed an answer by its agent Ike Khosla.
Pursuant to notice, the case was called for hearing in
Prestonsburg, Kentucky, on October 31, 1990. Before testimony
was taken, Saturn's President, Talbert Ball stated that he did
not contest the violations and agreed to pay the amount
originally assessed,_ $1393. The Secretary described the
violations, and moved that the proposed settlement be accepted.
I have considered the motion in the light of the criteria in
section llO(i) of the Act and conclude that it should be
approved.
Accordingly, the settlement is APPROVED and Respondent is
ORDERED TO PAY the sum of $1393 within 30 days of the date of
this order.

;/i

A '

f, ,;·, ;-._
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1

'
Distribution:

2424

.

/I

.

·7

• .,,,·

t

'

.·

' /I

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. ._,-- I '-' '- ....... l.-''-'",,· - l.- I\,__

James A. Broderick
Administrative Law Judge

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

22041

NOV 8 1990
CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-66
A.C. No. 40-00520-03720

v.
Matthews Mine
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor (Secretary);
Walter J. Scheller, III, Esq., Pittsburgh,
Pennsylvania, for Respondent, Consolidation
Coal Company.

Judge Broderick

This proceeding involves a single alleged violation of 30
C.F.R. § 75.604(b) charged in a section 104(a) citation issued in
January 31, 1990.
Pursuant to notice the case was called for hearing in
Knoxville, Tennessee, on October 30, 1990. Federal coal mine
inspector John J. Sipos was called as a witness by the Secretary.
Following inspector Sipos' testimony, and a discussion off the
record between counsel, the Secretary moved to approve a
settlement agreement.
Counsel stated that the violation was not
significant and substantial; that it was unlikely to result in
injury and was the result of low negligence.
Consol agreed to
pay and the Secretary agreed to accept a penalty of $20 for the
violation which was originally assessed at $206.
On the basis of the inspector's testimony and considering
the criteria in section llO(i) of the Act, I stated on the record
that I would approve the settlement.

2425

Accordingly, the settlement agreement is APPROVED: the
citation is MODIFIED to delete the significant and substantial
classification and Respondent is ORDERED to pay the sum of $20
within 30 days of the date of this order.
A

J

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I

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·

uvvu..-4 .ltlvtu(_ /~'t·t?£
#

1· .~

.

James A. Broderick
Administrative Law Judge

Distribution:
Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37225 (Certified Mail)
Walter J. Scheller, III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 -1421
(Certified Mail)
slk

2426

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

22041

NOV 9 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

Docket No. CENT 90-109-M
A.C. No. 23-00762-05507
Dresden Farm Quarry

W.J. MENEFEE CONSTRUCTION CO.,
Respondent
DECISION APPROVING SETTLEMENT
Appearance:

Evert H. Van Wijk, Esq., U.S. Department of Labor,
Office of the Solicitor, Kansas City, Missouri, for
the Petitioner.

Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). At the hearing, petitioner filed a
motion to approve a settlement agreement and to dismiss the case.
A reduction in penalty from $315 to $187 is proposed. I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section llO(i) of
the Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that respondent pay a penalty of $187 within
30 days of this order, if it has not already done so.

urer
ative Law Judge
Distribution:
Evert H. Van Wijk, Esq., U.S. Department of Labor, Office of the
Solicitor, 911 Walnut Street, Room 2106, Kansas City, MO 64106
(Certified Mail)
Jack L. Arnold, Safety Officer, W.J. Menefee Construction Co.,
P.O. Box 998, Sedalia, MO 65301 (Certified Mail)
/ml

2427

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

NOV 9 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-136
A.C. No. 46-03805-03956

v.
SOUTHERN OHIO COAL COMPANY,
Respondent

.

Martinka No. 1 Mine

DECISION

Appearances:

Before:

Glenn M. Loos, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor (Secretary) ;
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb
and Critchfield, Morgantown, West Virginia,
for Southern Ohio Coal Co. (SOCCO).

Judge Broderick

STATEMENT OF THE CASE

The Secretary seeks in this proceeding a civil penalty for
an alleged violation of the mandatory safety standard in 30
C.F.R. § 75.902. The violation was charged in a section
104(d) (2) order of withdrawal issued November 1, 1989, because an
approved fail-safe ground check monitoring system was not
provided for the grounding circuit for two cooling motors in the
No. 3 Main belt conveyor drive unit. Both parties engaged in
pretrial discovery. Pursuant to notice, the case was called for
hearing on September 19, 1990, in Morgantown, West Virginia.
Virgil Brown, Dennis Cain, and Stanley Shelosky testified on
behalf of the Secretary; John Randolph Cooper, Kenneth G. Moore,
and Paul McKinney testified on behalf of socco. Both parties
filed post hearing briefs. I have considered the entire record
and the contentions of the parties and make the following
decision.
FINDINGS OF FACT
I

At all times pertinent to this proceeding, socco was the
owner and operator of an underground coal mine in Marion County,
West Virginia, known as the Martinka No. 1 Mine. SOCCO is a

2428

large operator. Between November 1, 1987 and October 31, 1989,
1,010 violations were assessed and paid during 965 inspection
days at the subject mine. One was a violation of 30 C.F.R.
§ 75.902.
This history is not such that a penalty otherwise
appropriate should be increased because of it.
II

on October 31, 1989, Federal coal mine inspector, electrical
specialist, Virgil Brown, while conducting a regular electrical
insp.ection at the subject mine, received a written complaint from
a miner under section 103(g) of the Act. The complaint (dated
October 22, 1989) stated that the ground monitor packages on the
No. 3 54 inch belt drive cooling pumps were not working on both
pumps.
III

on November 1, 1989, Inspector Brown, accompanied by a mine
foreman and a union representative, proceeded to the No. 3 belt.
The belt drive was energized and had been in operation. The
controller box was opened, disclosing two pump motors, one a
10 horsepower motor, the other 15 horsepower. The ground
monitors had a jumper wire between the No. 3 and No. 4 tabs on
the unit. The wire had been put on in lieu of a ground monitor
circuit package which apparently had been installed but was not
operative. Because the ground monitor circuit package was
inoperative, the jumper wire was needed in order that the pumps
continue running.

IV
The belt drive is powered by two 300 horsepower motors on a
common frame with the cooling pumps. The cooling pumps must be
operative for the belt drive to run. There are grounds on the
belt drive, and while the belt drive is running, the entire
system including the cooling motors is adequately grounded.

v
Inspector Brown issued an order of withdrawal under section
104(d) (2) of the Act because of the absence of a ground monitor
on the grounding circuit for the two cooling motors. Although
the violation was originally designated as significant and
substantial, it was later modified to delete this designation,
and the inspector concluded that an injury was unlikely to result
from the violation. He concluded that it resulted from
Respondent's unwarrantable failure because the equipment had been
allowed to operate for approximately three weeks without ground
monitors for the cooling motors. The pump motors can be made to
operate with the "jog button," even though the ground for the

2429

large 575 volt frames is disconnected. such a situation would
occur if the cooling motors were replaced or tested.
The evidence establishes that the jumper wire was inserted
at the direction of John Randolph Cooper, general maintenance
superintendent of the subject mine. Cooper believed that the
many parallel grounding pads on the belt drive, and the fact that
there was a common frame between the cooling controls and the
acceleration control satisfied the standard.
Inspector Brown
agreed that as long as the belt drive was operating, the entire
system was ground monitored. However, when work is being done on
the pumps or pump motors,, the belt system is required to be
deenergized, and the ground monitor system would be inoperative.
If the pump motors are started with the jog button, they would
not be ground monitored, unless they had a separate operative
ground monitoring package. I accept the inspector's testimony on
this issue.

IV
The violation was abated by extending the monitor from the
belt starter box up to the pump motors by attaching a length of
wire. This took from 30 minutes to one hour. This method of
abatement was permitted by the inspector to avoid a long shut
down of the belt, and the order was terminated. Subsequently,
operative ground monitor packages were installed on the pump
motors.
REGULATION

30 C.F.R.

§

75.902 provides in part:

On or before September 30, 1970, low- and
medium-voltage resistance grounded systems
shall include a fail-safe ground check
circuit to monitor continuously the grounding
circuit to assure continuity which ground
check circuit shall cause the circuit breaker
to open when either the ground or pilot check
wire is broken • • •
ISSUES

1. Whether the evidence establishes a violation of 30
C.F.R. § 75.902?
2.
If so, whether the violation resulted from Respondent's
unwarrantable failure to comply with the standard?
3. If a violation is established, what is the appropriate
penalty therefor?

2430

CONCLUSIONS OF LAW
I

Respondent was at all times pertinent to this case subject
to the provisions of the Mine Act in the operation of the subject
mine, and I have jurisdiction over the parties and subject matter
of this proceeding.
II

On November 1, 1989, and for some weeks prior thereto the
No. 3 Main belt cooling motors in the subject mine were not
provided with a ground monitor check circuit. This was a
violation of 30 C.F.R. § 75.902.
III

The violation was not serious in that it was unlikely to
result in injury to a miner. This was so because the system was
adequately grounded while the belt was in operation. The weekly
electrical examination of the circuit breakers and the electrical
equipment is conducted by visual examination without stopping the
belt. The ground monitors are examined only on a monthly basis.

IV
Unwarrantable failure means aggravated conduct, constituting
more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997
(1987); Southern Ohio Coal Company, 12 FMSHRC 1498 (1990).
"While negligence is conduct that is 'inadvertent,'
'thoughtless', or 'inattentive', conduct constituting an
unwarrantable failure is conduct that is •not justifiable' or is
'inexcusable'." socco, 12 FMSHRC at 1502.
Respondent here attempted to install the ground monitor
packages in the cooling motors, but was unable to make them
operational. It then intentionally by-passed the ground monitors
in order to continue running the belt. Respondent believed in
good faith that the many grounds and ground monitor systems on
the belt drive itself provided a fail-safe ground monitor for the
cooling motors.
I do not accept this conclusion, but cannot
conclude that it therefore constitutes inexcusable or aggravated
conduct. The violation did not result from Respondent's
unwarrantable failure to comply with the standard.

v
Respondent is a large operator with an average history of
prior violations. The violation here was not serious. It
resulted from Respondent's negligence. It was promptly abated in

2431

good faith.
Based on the criteria in section llO(i) of the Act,
I conclude that an appropriate penalty for the violation is $250.
ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED:
1. Order ~o. 3111547 is AMENDED to a section 104(a)
citation. The finding of unwarrantable failure is DELETED.
2.

As amended, the citation is AFFIRMED.

3. Respondent shall, within 30 days of the date of this
decision, pay the sum of $250 as a civil penalty for th~
violation found herein.

J

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:,

James A. Broderick
Administrative Law Judge

Distribution:
Glenn M. Loos, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield, Suite
4, 5000 Hampton Center, Morgantown, WV 26505 (Certified Mail)
slk

2432

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

22041 ·

NOV 131990
CONTEST PROCEEDING

GREEN RIVER COAL COMPANY,
Contestant

Docket No. KENT 90-95-R
Order No. 3420071; 1/25/90

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

.

No. 9 Mine
Mine ID 15-13469
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-133
A.C. No. 15-13469-03741

v.
No. 9 Mine
GREEN RIVER COAL COMPANY,
Respondent

Mine ID #15-13469
DECISION

Appearances:

B. R. Paxton, Esq., Paxton & Kusch, P.S.C.,
Central City, Kentucky, for the Contestant/
Respondent;
William F. Taylor, Esq., U.S. Department of
Labor, Office of the Solicitor, Nashville,
Tennessee, for the Respondent/Petitioner.

Before:

Judge Maurer
STATEMENT OF THE CASE

Contestant, Green River Coal Company, Inc., (Green
River), has filed an application for review challenging the
issuance of Imminent Danger Withdrawal Order No. 3420071 at
its No. 9 Mine. The Secretary of Labor (Secretary) has also
filed a petition seeking civil penalties in the total amount
of $2400 for the violations charged in Citation Nos. 3420072
and 3420073, which were issued in conjunction with the
aforementioned imminent danger order.
The general issue in a contest case concerning an
imminent danger order is whether the cited condition could
reasonably be expected to cause death or serious physical
harm. The limited issue herein is whether such a condition
existed at the time the subject order was written.

2433

An issue more specific to this case raised by Green
River is to what extent the existence of a functioning CO
monitoring system that will give an immediate fire warning
will ameliorate what would otherwise undoubtedly be an
imminent danger condition.
The general issues in the civil penalty proceeding are
whether the citations were properly issued, i.e., whether
there was a violation of the cited standard, and, if so,
whether that violation was "significant and substantial", as
well as the appropriate civil penalty to be assessed for the
violation, should any be found.
Pursuant to notice, these cases were heard in Owensboro,
Kentucky on June 14, 1990. The parties each declined to file
post-hearing proposed findings of fact and conclusions of law
but rather orally argued on the trial record.
I have
considered the entire record herein and make the following
decision.
I.

Docket No. KENT 90-95-R; Order No. 3420071

Order No. 3420071, issued pursuant to section 107(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (the Act), charges as follows:
The following condition of which collectively
constitutes an imminent danger was observed in the
lB-Belt entry.
30 CFR 75.0400. Accumulation of
loose coal and Float Coal dust, 30 C~R 75.1725 - 23
bad or damaged belt rollers. The belt was running
on the ground in 2 different locations loose coal
underneath, for a total distance of 210 feet.
Section 107(a) of the Act provides in part as follows:
If, upon any inspection or investigation of a coal
or other mine which is subject to this Act, an
authorized representative of the Secretary finds
that an imminent danger exists, such representative shall determine the extent of the area of
such mine throughout which the danger exists, and
issue an order requiring the operator of such mine
to cause all persons except those ref erred to in
section 104(c), to be withdrawn from, and to be
prohibited from entering, such area until an
authorized representative of the Secretary
determines that such imminent danger and the
conditions or practices which caused the imminent
danger no longer exist.
Section 3Cj) of the Act defines "imminent danger" as the
existence of any condition or practice in a coal or other

2434

mine which could reasonably be expected to cause death or
serious physical harm before such condition or practice can
be abated.
In analyzing this definition, the U.S. Courts of Appeals
have eschewed a narrow construction and have refused to limit
the concept of imminent danger to hazards that pose an
immediate danger.
See ~, Freeman Coal Mining Co. v.
Interior Bd. of Mine Op. App., 504 F.2d 741 (7th Cir. 1974).
Also, the Fourth Circuit has rejected the notion that a
.danger is imminent only if there is a reasonable likelihood
that it will result in an injury before it can be abated.
Eastern Associated Coal Corp. v. Interior Bd. of Mine Op.
~., 491 F.2d 277, 278 (4th Cir. 1974).
The court adopted
the position of the Secretary that "an imminent danger exists
when the condition or practice observed could reasonably be
expected to cause death or serious physical harm to a miner
if normal mining operations were permitted to proceed in the
area before the dangerous condition is eliminated." 491 F.2d
at 278 (emphasis in original>. The Seventh Circuit adopted
this reasoning in Old Ben Coal Corp. v. Interior Bd. of Mine
Op. App., 523 F.2d 25, 33 (7th Cir. 1975).
Mr. Michael McGregor, Safety Director for Green River
was called and testified, initially at the behest of the
Secretary. He furnished Belt Examiner's Reports for the days
and weeks just prior to the issuance of the imminent danger
order at bar. Suffice it to say that there were a multitude
of reports concerning bad rollers and the belt running on the
ground, as well as coal accumulations note,d.
Federal Coal Mine Inspector Ronald Oglesby then
testified that he arrived at the mine at about 10:00 a.m. on
January 25, 1990, and proceeded underground, accompanied by
Mr. McGregor. When they started to walk the lB .... Belt Entry,
he found accumulations of loose coal and coal dust. There
were also bad rollers and places where the belt was running
in coal on the bottom. The bottom belt was running on top of
the ground. The rollers had been damaged and destroyed to
the point that they were no longer operable. The inspector
found the belt running on the ground in two different
locations and a situation where some of the belt rollers were
warm and in some instances, even the coal surrounding them
was already warm.
More particularly, the inspector found 23 bad rollers.
However, subsequently 28 were replaced to abate the condition.
They were in varied condition.
In some of these rollers, the
bearings were completely gone, creating a fire hazard from
the heat of friction.
In others, not only were the bearings
gone on the rollers, but the rollers themselves had spun
until they had broken the rod running through the roller.

2435

This condition likewise presents a source of friction and
heat and therefore is a fire hazard.
The inspector also testified that there was combustible
material present in the same areas where the heat was being
generated from the bad rollers. The entire beltline had
accumulations of coal dust, float coal dust and other loose
coal. These accumulations were from two to six inches deep
generally.
The belt itself was on the ground, running in
loose coal, two to six inches deep, for a length of 150 feet
at two points along the lB-Belt line. Additionally, there
were two major areas of float coal dust extant, one near the
head, and the other near the tail.
The credible evidence in this record establishes t:trat
accumulations of black coal dust was deposited on top of
previously rock dusted surfaces along the belt conveyor
system at the locations described by the inspector.
Furthermore, float coal dust was deposited on the ribs, the
floor and the belt structure itself. These accumulations
were located in belt conveyor areas which included potential
sources of ignition, i.e., the overheating damaged belt
rollers.
The inspector believed the mine hazard presented by the
accumulation of coal dust was a fire.
Since sixteen miners
worked on the No. 1 unit and were inby the belt, he was
justifiably concerned that they would be exposed to fire and
smoke hazards, and possible entrapment. Moreover, I conclude
and find that the inspector's credible testimony establishes
that the float coal dust accumulations in question which I
believe one may assume were cumbustible and were located in
areas where potential ignition sources were present,
presented a fire and smoke hazard as well and also possibly
an explosion hazard.
The existence of accumulations of coal dust and float
coal dust along a rather extended area of the belt line along
with the number of damaged and overheating rollers that were
present to provide a ready source of friction heat could also
propagate any fire that got started.
In defending this case,
the respondent put a lot of emphasis on the existence of a
carbon monoxide monitoring system on the belt line that picks
up any kind of smoke that contains carbon monoxide. There
are sensors located along the belt line at each header and
tail piece and at each 2000 foot interval.
The system alarms
outside and the outside person can then determine where the
problem is located. He thereupon calls on the mine phone to
the foreman underground and he will go to the suspected
location and find out what the problem is. Within five
minutes, someone is in the alarmed area to investigate.
Therefore, respondent's theory is that as long as this
monitoring system is working there can be no imminent danger

2436

because to have a fire large enough to cause serious injury
would take longer than five minutes to build up. By that
time, it would be discovered and corrective action begun.
However, the decision the inspector had to make on the
scene was whether the condition he found could reasonably be
expected to cause death or serious physical harm to the
miners working in that area. The focus is on the "potential
of .the risk to cause serious physical harm at any time." The
legislative history of the Act states the intention of
Congress to give inspectors "the necessary authority for the
taking of action to remove miners from risk," and that an
imminent danger is not to be defined "in terms of a
percentage of probability that an accident will happen."
s. Rep. No. 181, 95th Cong., 1st Sess. 38 (1977), reprinted
in Senate Subcommittee on Labor of the Committee on Human
Resources, 95th Cong., 2nd Sess, Legislative History of the
Federal Mine Safety and Health Act of 1977 at 626 (1978).
The focus is clearly and properly on the potential of
the risk involved and I find that there was plenty of
potential for a mine fire here given the conditions the
inspector found. All the ingredients were present:
accumulations of combustible materials and nearby ignition
sources.
Respondent's argument fails to recognize the role played
by MSHA inspectors in eliminating imminently dangerous
conditions. Since he must act immediately, an inspector must
have considerable discretion in determining whether an
imminent danger exists. The Seventh Circuit recognized the
importance of the inspector's judgment:
Clearly, the inspector is in a precarious position.
He is entrusted with the safety of miners' lives,
and he must ensure that the statute is enforced for
the protection of these lives. His total concern
is the safety of life and limb ••• We must support
the findings and the decisions of the inspector
unless there is evidence that he has abused his
discretion or authority.
Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523
F.2d 25, 31 (7th Cir. 1975).
For all the reasons enumerated earlier in this decision,
I find that the inspector did not abuse his discretion in
this instance; an imminent danger did exist at the time he
wrote the order. Furthermore, in my opinion, the presence of
the monitoring system does nothing to change the basic
situation the inspector found.
There was still a danger of a
mine fire starting that could produce a significant amount
of smoke and/or fire before that condition could be abated.

2437

Accordingly, I find that there was an imminent danger and
affirm Order No. 3420071.
II.

Section 104(a) Citation Nos. 3420072 and 3420073

These two section 104(a) citations were issued in
conjunction with the imminent danger order discussed earlier
in this decision.
Citation No. 3420072 alleges a "significant and
substantial" violation of the standard at 30 C.F.R. § 75.1725
and charges as follows:
A violation was observed in the lB-Belt entry in
that there were 23 bad or damaged rollers.
The
rollers were damaged to the extent some were cut
into, some half missing from center rods, some
completely missing from stands.
(This citation was
contributed to the
Order No. 3420071,
abatement time was

one of the factors that
issuance of imminent danger
dated 1/25/90 therefore, no
set.)

Citation No. 3420073 alleges a "significant and
substantial" violation of the standard at 30 C.F.R. § 75.0400
and charges as follows:
A violation was observed in the lB-Belt entry in
that [an] accumulation of loose coal and float
coal dust was present on previously rock dusted
surfaces.
The loose coal was present between
No. 19 and No. 20 crosscut, from No. 7 to No. 9
crosscut, and from No. 3 to No. 2 crosscut.
The
loose coal was from 2 to 6 inches in depth.
4 ft
wide under the -belt. The belt was running in
loose coal in two of the places. The loose coal
was deposited on both sides of the belt. The
total distance of loose coal was 280 ft.
Float
coal dust was present on previously rock dusted,
starting at the first overcast inby the lB-header
and extending for 4 crosscuts in the lB-Belt
entry, the second place float coal dust was
present was starting at the lC-Belt header and
entending 5 crosscuts outby. The float coal dust
was deposited on the floor, ribs, timbers, and
belt structure. Total distance both locations was
630 feet.
(This citation was one of the factors that
contributed to the issuance of imminent danger
Order No. 3420071 dated 1/25/90 therefore, no
abatement time was set.

2438

Respondent admits the violation of the mandatory
standard in both citations, but disputes the "significant and
substantial" findings contained therein.
A "significant and substantial" violation is described in
section 104(d)(l) of the Mine Act as a violation "of such
nature as could significantly and substantially contribute to
the cause and effect of a coal or other mine safety or health
hazard." 30 C.F~R. § 814(d)(l). A violation is properly
designated significant and substantial "if based upon the
particular facts surrounding the violation there exists a
reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature."
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term
"significant and substantial" as follows:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum the Secretary of
Labor must prove:
Cl) the underlying violation of a
mandatory safety standard: (2) a discrete safety
hazard--that is, a measure of danger to
safety-contributed to by the violation: (3) a
reasonable likelihood that the hazard contributed to
will result in an injury: and (4) a reasonable
likelihood that the injury in question will be of a
reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC
1125, 1129, the Commission stated further as follows:
We have explained further that the third element of
the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which
there is an injury." U.S. Steel Mining Co., 6
FMSHRC 1834, 1836 (August 1984). We have emphasized
that, in accordance with the language of section
104(d)(l), it is the contribution of a violation to
the cause and effect of a hazard that must be
significant and substantial. U.S. Steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984):
U.S. Steel Mining Company, Inc., 6 FMSHRC 1573,
1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular
facts surrounding the violation, including the nature of the

2439

mine involved.
Secretary of Labor v. Texasgulf, Inc.,
10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Company,
9 FMSHRC 2007 (December 1987).
I have previously recited the pertinent facts earlier in
this decision.
The same conditions that caused the violations
of the two mandatory standards at bar were also the basis for
the imminent danger withdrawal order that the inspector issued
at the same time. Since I have previously found an imminent
danger existed, that is, a condition "which could reasonably
be expected to cause death or serious physical harm" it
follows that these are "significant and substantial"
violations as well under the test announced by the Commission
in Mathies, supra.
If a fire were to occur, it would be reasonably likely
that the miners would be exposed to smoke and fire hazards and
suffer disabling injuries of a reasonably serious nature, even
given the presence of the operable CO monitoring system. By
the tirne the fire could be finally extinguished, it is
reasonably likely that serious injuries would have already
occurred.
Considering the criteria in section llO(i) of the Act,
I conclude that an appropriate civil penalty for each of the
above violations is $1000.
ORDER
1.

Section 107(a) Order No. 3420071 IS AFFIRMED.

2. Section 104(a) Citation Nos. 3420072 and 3420073
ARE AFFIRMED.
3. Green River Coal Company, Inc., is ordered to pay
the sum of $2000 within 30 days of the date of this decision
as a civil penalty foi the violations found herein.

aurer
s rative Law Judge
Distribution:
B. R. Paxton, Esq:, Paxton & Kusch, P.S.C., 213 East Broad
Street, Central City, KY 42330-06550
(Certified Mail)
W. F. Taylor, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville,
TN 37215
(Certified Mail)
ml
2440

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

22041

NOV 161990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

Docket No. KENT 90-193
A.C. No. 15-15251-03541
Wallins No. 3 Mine

DAN-DEL COALS, INC.,
Respondent
DECISION AND ORDER OF DEFAULT
Appearances:

Mary Sue Taylor, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for the Petitioner;
No appearance on behalf of Respondent.

Before:

Judge Maurer

Pursuant to notice, a hearing was held in the captioned
matter on October 16, 1990, in London, Kentucky. The Secretary
appeared and presented the testimony of two witnesses; Howard
Scott and Robert Blanton, both MSHA employees. No one appeared
on behalf of the respondent, nor was any contact made by
respondent with my office to cancel or continue this hearing.
At the conclusion of the petitioner's testimony, she moved
for a default decision.
I took the motion under advisement on
the record and when I returned to my off ice issued an Order to
Show Cause to the respondent to show cause why it should not be
defaulted for failing to appear at the scheduled hearing.
Respondent filed a timely response, indicating that they did
try to call the courthouse in London and Mrs. Taylor's office to
say they could not make the hearing. The letter does not say
when these calls were made, but presumably the morning of the
hearing itself. The letter went on to state that the company is
no longer in operation and has not been since July 27, 1990. All
their employees have been laid off and have scattered.
I do not find good cause in the respondent's explanation for
their non-appearance. It is very expensive for the government to
conduct these hearings. Four government employees and a court
reporter traveled to this hearing site and conducted an
evidentiary hearing in the absence of the party who originally
requested it. Respondent could at the very least have requested
cancellation of the hearing a week or even a few days beforehand.
Had this been done, it could have been re-scheduled for another
time when the company was better able to defend its position.

2441

Accordingly, petitioner's motion is granted and the
respondent is found to be in default. The penalty of $1162
proposed by the Secretary in this case must therefore be paid
within 30 days of the date of this decision.

Law Judge
Distribution:
Mary Sue Taylor, Esq., U.S. Department of Labor, Office- of the
Solicitor, 2002 Richard Jones Rd., Suite B-201, Nashville, TN
37215
(Certified Mail)
Darlene Roberts, Sec./ Treas., Dan-Del Coals, Inc., P.O. Box 62,
Coldiron, KY 40819
(Certified Mail)
/ml

2442

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

NOV i 61990
UNITED MINE WORKERS OF AMERICA,
ON BEHALF OF
FILBERT ROYBAL,
complainant

..

v.

.
.

WYOMING FUEL COMPANY,
Respondent

DISCRIMINATION PROCEEDING
Docket No. WEST 90-118-D
DENV CD 90-01
Golden Eagle Mine
Mine I.D. 05-02821

DECISION
Appearances:

Susan J. Tyburski, Esq., Denver, Colorado
for Complainant;
Timothy M. Biddle, Esq., Washington, D.C.
for Respondent.

Before:

Judge Morris

This case involves a discrimination complaint filed against
Wyoming Fuel Company C"WFC"), pursuant to the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801, et~
The applicable portion of the Mine Act, Section 105(c)(l),
in its pertinent portion provides as follows:
Discrimination or interference prohibited;
complaint; investigation; determination; hearing
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 or 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 ••••
30 u.s.c. § 815(c)(l).

2443

After notice to the parties, a hearing on the merits commenced in Denver, Colorado, on July 25, 1990.
Both parties filed post-trial briefs.
APPLICABLE CASE LAW
The general principles of discrimination cases under the
Mine Act are well settled.
In order to establish a prima facie
case of discrimination under Section 105(c) of the Act, a complaining miner bears the burden of production and proof in establishing that (1) he engaged in a protected activity, and (2) the
adverse action complained of was motivated in any part-by·that
particular activity. Secretary on behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on
other grounds ~ nom. Consolidation Coal Co. v. Marshall, 663
F.2d 1211 C3d Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 802, 817-818 (April 1981). The
operator may rebut the prima f acie case by showing no protected
activity occurred or the adverse action was in no part motivated
by protected activity.
If an operator cannot rebut the prima
facie case in this manner, it nevertheless may defend affirmatively by proving that it also was motivated by the miner's unprotected activity and would have taken the adverse action in any
event for the unprotected activity alone. Fasula, supra; Robinette, supra. See also Eastern Assoc. Coal Corp. v. FMSHRC, 813
F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford construction
Co., 732 F.2d 954, 958-959 (D.C. Cir. 1984); Boich v. FMSHRC, 719
F.2d 194, 195-196 (6th Cir. 1983) (specifically approving the
Commission's Fasula-Robinette test). Cf. NLRB v. Transportation
Management corp., 462 U.S. 393, 397-413 (1983) (approving nearly
identical test under National Labor Relations Act).
ISSUE
Was WFC's suspension of Complainant, with intent to discharge, motivated in any part by the exercise of rights protected
under Section 105 of the Act.
STIPULATION
At the commencement of the hearing, the parties filed a
written stipulation providing as follows:
1. The Federal Mine Safety and Health Review Commission has
jurisdiction over the parties and subject matter of this case
under §§ 105(c) and 113 of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. §§ 815Cc) and 823 ("Act").

2444

2. At all times relevant to this case, Complainant Filbert
Roybal worked at Respondent Wyoming Fuel Company's ("WFC's")
Golden Eagle Mine as a miner, as defined in § 4Cg) of the Act, 30
u.s.c. § 802(g).
3. On November 1, 1989, Mr. Roybal was suspended with
intent to discharge by WFC.
4. On November 13, 1989, Mr. Roybal filed a complaint with
the Mine Safety and Health Administration, alleging that WFC discriminated against him in violation of § 105(c) of the Act, 30
u.s.c. § 802(g).
5. In a letter dated January 12, 1990, the Mine Safety and
Health Administration informed Mr. Roybal that its investigation
of his November 13, 1989, complaint did not reveal any violation
of § 105(c) of the Act.
6. By a January 16, 1990, Order of an Arbitrator in a
grievance proceeding under the collective bargaining agreement,
Mr. Roybal was reinstated as an employee of WFC, retroactive to
December 1, 1989, and continues in the employment of WFC at the
same wage rate as he earned before his suspension.
7. On February 16, 1990, Mr. Roybal filed a complaint
against WFC under § 105(c)(3) of the Act, 30 u.s.c. § 815(c)(3).
SUMMARY OF THE EVIDENCE
Complainant Filbert Roybal has worked for WFC since 1984.
He has performed numerous jobs (Tr. 69).
ROYBAL'S EXPERIENCE AND DUTIES
Roybal was first employed in the mining industry in 1971 and
held a variety of jobs, including as a continuous miner operator
for CF&I, WFC's predecessor as the operator of the Golden Eagle
Mine. He had also worked as a helper to a continuous miner operator.
(Tr. 68-69, 81). His employment application showed that
his last job with CF&I was in such a classification.
CTr. 123).
When Roybal applied for a job as a continuous miner operator with
WFC, there were no such positions available, so Roybal was hired
in 1984 as a shuttle car operator.
(Tr. 103). However, since
Roybal was an experienced miner operator, he was assigned periodically to fill in for regular continuous miner operators who
were absent from work.
(Tr. 70, 103).

2445

In October 1989, a continuous miner operator position became
available and Roybal bid for it.
(Tr. 70, 103-104). He was
awarded the job and became a full-time continuous miner operator
beginning on October 9, 1989.
(Tr. 71, 104-105).
On that date, Roybal reported for work on the afternoon
shift.
CTr. 71, 181). His foreman was Jerry Romero, a miner
with 14.5 years underground coal mining experience.
(Tr. 71,
181). Romero and his crew - which included Roybal - were
assigned to continue development of the longwall panel headgate
entries of the Northwest Tailgate section.
CTr. 181). Roybal
was the continuous miner operator on the shift; his he.J.per was
Donald Valdez.
(Tr. 181-182). When the crew arrived on the
section, Romero "task trained" both Roybal and Valdez because
Roybal was starting a new job and federal regulations require
task training under those circumstances; further, Valdez was
filling in as a helper from his normal job as a mechanic.
CTr.
73, 105).
PRE-ACCIDENT ACTIVITIES
Romero took Roybal and Valdez to the continuous mining
machine. He asked Roybal whether he wanted to read the company's
task-training guidelines (Ex. C-10) or whether he wanted Romero
to read them to him.
(Tr. 73, 183). Roybal asked Romero to read
them to him while he (Roybal) looked over the mining machine.
(Tr. 73, 105, 183). Romero read the task-training guidelines to
Roybal and pointed out the various controls with which Roybal was
already familiar, since he had operated similar machines many
times in the past.
(Tr. 105, 183, 205-206). After he read the
task-training guidelines to Roybal, Romero told Roybal to start
the machine and operate it while Romero watched.
(Tr. 73, 183).
The pump for the rotating cutter head on the mining machine had
lost its prime, and-Roybal could not restore it, so Romero did it
for him.
(Tr. 73-74, 185). l; Once the cutter head was fully
operational, Roybal operated-the continuous miner without difficulty. Romero stayed to watch Roybal run it for 45 minutes.
(Tr. 106, 184). 2/ Romero testified that, based on his observa-

1/
The need to prime a pump on a mining machine does not
indicate there might be a throttle problem.
(Tr. 355).
2/
Romero did not witness any problems with the controls of the
mining machine prior to the accident, nor did Roybal report any
problems with the controls to Romero.
(Tr. 185).

2446

tions of Roybal's handling of the mining machine, he had no concern about Roybal's ability to operate it safely.
( Tr. 184).
In addition, Romero did not see any problems with the way Valdez
worked with Roybal.
(Tr. 185).
THE ACCIDENT
Filbert Roybal testified that on the day of the accident,
about six hours into his shift, he started to cut the left side
of the No. 2 Entry. Before the accident occurred, Valdez moved
the continuous miner cable and Roybal backed up the miner.
He
then cleaned the right side of the entry, backed up, and then
cleaned the center. His last intended move was to again clean
the left side. At that point, he saw Valdez in a cross-cut; he
was out of the way. Roybal turned to his left, centered the
tail, and started moving the equipment to the face.
He then
heard some coal "dripping" on the tin covering the light. When
he looked to his right, he saw Valdez and he knew what had happened. Roybal had not seen Valdez walk up on his blind side.
(Tr. 76-78; Exs. R-1 and C-11 are drawings of the scene.)
After he saw Valdez in the crosscut, Roybal looked away, to
keep the ventilation tubing in his vision.
(Tr. 79).
move.

Valdez had not signaled Roybal to indicate he was going to
(Tr. 81-82).

After the accident, Roybal gave statements to foreman Jerry
Romero as well as to Mark Boyes, general foreman. He also participated in the investigation that followed the next day.
(Tr.
82). He met with Robert Butero and Mike Romero, Union safety
officials at the home of Artie Maestas.
(Tr. 83, 84). At the
home meeting, Roybal explained how the accident happened.
CTr.
85). Later, he explained to MSHA officials how the accident had
happened.
CTr. 86). On October 16, company representative Huey
notified him he would be on "load out" until further notice. He
later received a "blue slip." (Tr. 88, 89; Ex. C-2).
tion.

No one threatened him about participating in the investiga(Tr. 109, 110).

Michael Romero was in an entry adjacent to the one where
Roybal was operating the mining machine. He heard a crew member
yelling that Valdez was pinned against the rib and needed help.
(Tr. 106, 190). Romero immediately went to the entry where
Roybal had been operating the machine and found Valdez seriously
hurt.
(Tr. 190). He learned that Valdez had been crushed
against the rib by Roybal's mining machine.
(Tr. 190).

2447

Mr. Romero and other crew members administered emergency first
aid and notifed appropriate officials.
(Tr. 191). Valdez was
taken out of the mine alive, but he died in the hospital early in
the morning on October 10.
(Tr. 190, 290).
Shortly after the accident occurred, Mr. Romero asked
Mr. Roybal what had happened.
He told Mr. Romero that the throttle stuck while he was pivoting the machine, causing the mining
machine to pin Valdez, crushing him against the rib.
CTr. 190,
203-204). Mr. Roybal later told Mr. Romero that he had been
backing up the mining machine to reposition it in the entry and
that he had not known that Valdez was beside him next to the rib.
(Tr. 199-200, 203-204). On the night of October 9, Mr. Romero
filled out a company form entitled "Foreman's First Report of
Accident" in which he summarized his understanding of the nature
and cause of the accident.
(Tr. 194-195; Ex. R-2). He included
Roybal's explanation of the stuck throttle in the report.
(Tr.
196). Later that same night, Mr. Romero completed another form
entitled "Colorado Employee Personal Injury or Accident Report,"
which also provided information about the accident and its cause.
(Tr. 197; Ex. C-6). That form essentially repeated information
that was on the foreman's first report.
Notwithstanding the
information he provided on these forms, Mr. Romero had doubts
that the throttle on Roybal's mining machine had been stuck,
since he witnessed Mr. Roybal pivot the machine immediately after
the accident and the throttle did not stick.
(Tr. 193, 199).
Mr. Romero also began to doubt that Mr. Roybal knew where Valdez
was located when he pivoted the machine.
(Tr. 199-200). Mr.
Romero discussed his doubts with the company's accident investigators.
(Tr. 199-200). After he talked with Mr. Roybal about
the cause of the accident in the mine right after it happened,
Romero had no further contact with him.
(Tr. 201-202).
PRELIMINARY INVESTIGATION
The company's investigators, accompanied by a federal inspector, quickly arrived on the scene and interviewed Mr. Roybal
and the other members of the crew.
(Tr. 222). Mr. Roybal gave
the company's investigators essentially the same account he had
given Mr. Romero, including his claim that the throttle on the
machine had stuck.
(Tr. 228-229). The company's investigators
took notes of each person's story.
(Tr. 222). These notes were
turned over to senior management, including Mr. Caller and Dave
Huey, WFC's Manager of Mine Operations.
(Tr. 223, 225-226).
In addition to interviewing eye-witnesses, Frank Perko,
WFC's Safety Supervisor, and Mel Shively, the local MSHA inspector, conducted an inspection of the accident scene.
(Tr. 31,

2448

221, 228). Mr. Shiveley reported the results of the preliminary
investigation to Mr. Callor.
(Tr. 227-228). Mr. Shiveley told
Mr. Callor they couldn't find anything wrong with the mining
machine throttle when the machine was tested.
(Tr. 31).
On the morning of October 10, Mr. Callor met with UMWA
International Safety Representative Robert Butero and UMWA Local
President Mike Romero.
CTr. 229). Based on the reports he had
received from the company investigators, Mr. Callor briefed them
on what he understood to be the sequence of events leading to the
accident and its cause.
(Tr. 229).
THE FEDERAL INVESTIGATION
The afternoon of October 10, MSHA and state investigators
arrived at the mine and examined the accident scene underground
with WFC and UMWA officials and the witnesses to the accident.
(Tr. 230-231).
The throttle on the continuous miner was not
checked at that time.
(Tr. 235-236).
After the MSHA and state investigators completed their
underground investigation, they interviewed Mr. Roybal and the
other miners on his crew.
(Tr. 233). During his interview,
Mr. Roybal continued to claim that the mining machine throttle
had stuck and that Valdez had been positioned well behind him
immediately prior to his backing up the mining machine.
(Tr.
233, 308-309).
Tom Hay, however, was 30 to 40 feet away from the
accident site and the noise from his shuttle car and a nearby
auxiliary fan would have made it difficult to hear whether a
throttle stuck.
(Tr. 206, 297-298, 298, 308-309). 3/ As a
result of that testimony, Mr. Callor decided that the mining
machine throttle should be checked more carefully.
(Tr. 233-234).
Mr. Callor conferred with Archie Vigil, the supervisor of the
MSHA field off ice in Trinidad, and they decided an MSHA expert
should examine the throttle.
(Tr. 234). Accordingly, Mr. Vigil
made arrangements for an MSHA hydraulics expert to come to the
mine from Denver to tear down the throttle valve.
(Tr. 32, 234).

ll

Mr. Romero testified that, at the time of the accident,
Mr. Hay should have been sitting in his shuttle car which was
located 30-40 feet from the scene of the accident.
(Tr. 210; Ex.
R-1 location of the shuttle car in relation to the continuous
miner.) Mr. Callor testified that noise from a 60-horsepower fan
and the engines of the shuttle car and the continuous miner would
have made it difficult to hear whether the miner's throttle stuck.
(Tr. 298, 352-353).

2449

Late in the day on October 11, Mr. Huey decided it would be
best to remove Mr. Roybal from further operation of a mining
machine and transferred him to another job.
(Tr. 321). Mr. Huey
made that decision because, as a result of the accident, he did
not believe Mr. Roybal was in a state of mind to safely operate a
mining machine; that transfer was not meant to be disciplinary
action.
(Ex. C-12). Accordingly, Mr. Roybal was informed on
October 12 that he was being removed from his new job as a mining
machine operator at least until MSHA's accident investigation was
over.
(Tr. 43).
On the morning of October 12, Mr. Huey and MSHA officials,
including Stanley Kretoski, the MSHA District 9 Special- Investigator, as well as the MSHA hydraulics expert, re-entered the mine
to check the continuous miner.
(Tr. 32-33, 236, 315). Under the
supervision of the MSHA officials, Huey tested the miner, but
found no operating problems and no stuck throttle.
(Tr. 33,
315-316). The throttle mechanism and the hydraulic valves were
then disassembled underground under MSHA supervision and removed
to the surface where they were taken apart and examined by MSHA's
hydraulics expert and Leonard Carnavale, a maintenance expert at
the mine, who also serves as a UMWA Local official.
CTr. 236237, 316). No problems were found with the throttle mechanism
or valve.
(Tr. 34-35, 236-237, 316-317). In fact, the MSHA
investigator commented that the valves were extremely clean.
CTr. 317). At that point, Mr. Caller doubted that the throttle
had stuck; he began to believe that the accident had been caused
by Mr. Roybal's negligence in not assuring himself that he knew
where Valdez was when he backed up the mining machine.
(Tr. 237).
The MSHA officials agreed that there was no problem with the continuous miner and that the accident must have been caused by
human error, i.e., Valdez put himself in a dangerous position and
Mr. Roybal failed to check Valdez's location before pivoting the
machine.
(Tr. 237)._
Between October 9 and 11, Charles McGlothlin, WFC's VicePresident for Operations, had been briefed regularly on the
course of the accident investigation and the company's search for
the cause of the accident.
CTr. 366-368). ~/ Mr. Callar and

4/ McGlothlin is the senior on-site company official for WFC
operations, including the Golden Eagle Mine. He has final
authority on personnel decisions.
(Tr. 362-363, 373).

2450

witnessed the valve tear-down; Mr. Callor reported the results to
Mr. McGlothlin.
(Tr. 316, 326-327, 370). Both Callor and Huey
began to suspect that Mr. Roybal's claim that a stuck throttle
caused the accident was not true. Mr. Roybal was persisting in
that claim.
(Tr. 373). Messrs. Callor and Huey told
Mr. McGlothlin of their suspicions.
(Tr. 372-373).
INVESTIGATION FINDINGS
On October 12, MSHA conducted a conference at the mine to
review the accident investigation up to that time.
(Tr. 239,
318-319). 5; Chief Investigator Kretowski gave company and UMWA
representives his preliminary conclusions about what ccrused the
accident.
(Tr. 239, 318-319). His conclusion was that the accident had been caused by Roybal's failure to know where his helper
was when he backed up the machine.
(Tr. 240). 6; At that conference, Union representative Butero was critical of MSHA's investigators for failing to address the time it took to remove
Valdez from the mine and in relation to the number of blankets on
the section and the adequacy of the task-training provided
Mr. Roybal.
(Tr. 149, 163). Mr. Kretowski told Mr. Butero that
the evacuation time and the blankets were not connected with the
cause of the accident.
(Tr. 163). Mr. Butero followed up his
criticisms of the MSHA investigation with a letter in mid-October
to the MSHA District 9 Manager.
(Tr. 147-149). Although
Mr. Butera had privately told Mr. Kretowski before the October 12
conference started that he intended to write such a letter, no
one from WFC saw the letter until after Mr. Roybal was suspended
with intent to discharge.
(Tr. 149, 164, 243, 402).
After the conference with MSHA, WFC officials discussed on
several occasions whether Mr. Roybal should be fired.

5/
Although this conference was called a "closeout" conference,
it was not the close of MSHA's accident investigation. The MSHA
accident investigation did not end until October 31, according to
those conducting it.
(Tr. 36-37, 256).
6/
Leonard Carnavale, the UMWA representative who assisted in
the valve tear-down, agreed with Mr. Kretowski that the accident
was the result of human error. The human error consisted of
Valdez's placing himself in a bad position and Mr. Roybal's not
knowing where Valdez was.
(Tr. 239-240).

2451

(Tr. 377).
Both Messrs. Callor and Huey recommended to
Mr. McGlothlin that Mr. Roybal be fired for Cl) negligence,
(2) ~or lying during the company's and MSHA's accident investigations 7; and (3) for conspiracy, because of testimony given by
Mr. Roybal and other miners during the investigation who, in management's view, were trying to lay blame for the accident on the
equipment, not Roybal.
(Tr. 61, 252, 324-325, 372).
Mr. McGlothlin, however, was not willing to take any action with
respect to Mr. Roybal until MSHA's accident investigation was
completed.
(Tr. 377, 388-90). Mr. McGlothlin thought that more
information, including any mitigating circumstances, might result
from the continuing MSHA investigation.
(Tr. 377, 390).
On October 17, Colorado State mine safety regulatory officials presented WFC with their written report about the cause of
the accident.
(Tr. 44, 248, 323, 376). The primary cause of the
accident, according to the state investigator, was "[Roybal] was
not aware of where his helper was ••• "when he backed up the
equipment.
(Tr. 45, 249; Ex. R-8 at 3).
Concerned about the effect of the collective bargaining
agreement between WFC and the UMWA with respect to any disciplinary action against Mr. Roybal, Mr. McGlothlin discussed the
Roybal matter with the president of KNEnergy, WFC's parent company, as well as with a labor consultant used by WFC for contract
interpretation purposes and with outside legal counsel.
(Tr.
392). By that time, Mr. McGlothlin had talked extensively with
Messrs. Callar and Huey, who had explained to him Mr. Roybal's
degree of negligence, as evidenced by the position of the mining
machine when the accident occurred.
(Tr. 46, 61, 329-330).
UNION REPRESENTATIVES
Mike J. Romero, .President of Local Union 9856, District 15,
has represented Mr. Roybal since 1979.
Prior to this accident, Mr. Roybal had a very good work and
safety record.
(Tr. 124, 125).
Mr. Romero received a copy of the blue slip (Ex. C-2) on the
day it was served on Mr. Roybal, namely, November 1, 1989.
(Tr.
127).

7/
Making false statements during accident investigations is a
violation of Rule 7 of WFC's Rules of Conduct. Mr. Roybal was
aware of and had acknowledged receipt of a copy.of such Rules.
(Tr. 216-217~ Exs. R-3, R-4).

2452

Company representative Huey stated to Mr. Romero that they
were "tired of the community accusing WFC of the fatality and
blaming WFC. 11 Mr. Romero denied Mr. Huey's assertions.
The next day, again in Mr. Huey's office, Mr. Callor said
"they were tired of being hammered" and "tired of people going to
Arlington. "
(Tr. 12 9) •
Robert Dale Butero also testified. He is an international
representative of the International Union of the United Mine
Workers of America. He is assigned to the Union's Department of
Occupational Health and Safety.
(Tr. 130).
Mr. Butero went to the Golden Eagle Mine when he was notified of the accident.
(Tr. 133). After talking to company representatives, he wanted·to talk to the crew. As a result, a
meeting was held at Art Maestas's house. No company representatives were present. Mr. Butero told those present they were going to give statements to MSHA; he advi.sed them to give true
statements.
(Tr. 136-138, 162).
The crew were later questioned in the presence of the witness, an MSHA investigator, a state inspector, and company representatives. At that time, Mr. Roybal stated the throttle had
stuck.
(Tr. 140).
Mr. Butero stated he didn't believe the task training given
to Mr. Roybal complied with MSHA's regulation. At that point, it
bec~me very combative.
(Tr. 141). In the course of the meeting,
Mr. Butero raised several issues:
task training, failure to have
proper blankets, inadequate transportation from the mine (whether
the miner died of shock or injuries).
(Tr. 142-147). Mr. Butero
agreed no citations were issued for the areas about which he was
concerned.
(Tr. 163.).
MSHA said they were also going to have an MSHA Tech support
man check the throttle valve. This was done the following day.
(Tr. 147).

Mr. Butero also wrote to John DeMichiei, MSHA district
manager.
In his letter, he complained about the investigation
and he expressed his concerns.
(Tr. 129, 149). ~/

~/

The letter to Mr. DeMichiei was not in evidence.

2453

On October 31, 1989, after writing to Mr. DeMichiei, MSHA
reviewed the company's training records. About that time,
Mr. Butero had a lengthy discussion with WFC's attorney
Larry Corte. Mr. Corte was wondering why the union was "hammering" them through the investigation.
(Tr. 152, 153). Mr. Butero
explained why he wrote the letter to MSHA and he gave him a copy.
Mr. Corte replied, "You're hammering us and stuff. If you don't
quit, we're going to have some action." Then he said, "We're
starting a good safety program here."
(Tr. 154). Mr. Butero
didn't know exactly what he meant.
(Tr. 155).
On November 1 or 2, Mr. Butero learned Mr. Roybal had been
suspended with intent to discharge.
(Tr. 156).
In a mining community when a fatality occurs, people choose
sides. Some blame the company, others blame the union.
(Tr.
157).
Later Mr. Butero recommended that a 105(a) complaint be
filed. Mr. Roybal agreed.
(Tr. 160, 161).
Mr. Butero wrote the discrimination complaint. In pursuing
the case, Mr. Butero talked to Linda Raisovich-Parsons in Washington and told her the facts of the case.
(Tr. 164-166).

Mr. Butero agrees it was fair for the company to conclude
that Mr. Roybal had performed an unsafe act resulting in a
fatality; further, there was some basis for the company to
believe someone wasn't telling about the stuck throttle "as it
happened" and several miners agreed that they would identify the
cause of the accident as the machine.
(Tr. 168-170).
The State of Colorado report was not issued by October 12.
(Tr. 17 4).
DECISION TO DISCHARGE
On October 31, MSHA investigators completed the last part of
their accident investigation by auditing WFC's training records,
including those of Roybal and Valdez.
(Tr. 37, 256, 379-380,
396). No violations were found. When the audit had concluded,
the MSHA investigators told Mr. Callar that the Valdez fatality
investigation was over.
(Tr. 163-164, 256). 9/ Messrs. Callor
and Huey reported to Mr. McGlothlin that MSHA-had completed its
investigation.

~/

MSHA issued a written accident investigation report, but not
until December 1989; it was received into evidence as Exhibit R-9.
(Tr. 262-263).

2454

(Tr. 380).
Shortly thereafter Messrs. Caller and Huey met with
Mr. McGlothlin to make a decision about Mr. Roybal.
CTr.
256-257, 326). Since no new facts had come to light during
MSHA's investigation, Mr. McGlothlin decided to accept Mr. Caller
and Mr. Huey's recommendation and he approved Mr. Roybal's suspension with intent to discharge.
(Tr. 379-380, 397). 10/
Messrs. McGlothlin, Huey, and Caller drafted a Notice or-suspension with Intent to Discharge that day.
(Tr. 256-257, 326, 397).
Mr. McGlothlin gave it to his secretary for typing and instructed
Mr. Huey to issue it to Mr. Roybal the next day, November 1.
(Tr. 257, 328, 331, 397).
Huey gave Mr. Roybal the notice on the afternoon oI November 1 in the presence of Mr. Roybal's UMWA representative.
(Tr.
328, 330-331). The Notice informed Mr. Roybal that the company
believed he had engaged in an unsafe act which resulted in the
Valdez fatality, had violated company safety rules, had misrepresented the facts to investigators, and had engaged in a conspiracy to blame the company for the Valdez accident.
(Tr. 326-328;
Ex. C-2).
The next day the UMWA filed a grievance under the collective bargaining agreement contesting Mr. Roybal's suspension,
and WFC and the UMWA began the grievance procedure steps under
the collective bargaining agreement.
(Tr. 332, 398).
THE § 105(c) ACTIONS
On November 13, the UMWA filed a § 105(c) complaint on
Mr. Roybal's behalf.
(Tr. 161-162, 164; Ex. c-1). On February 16, 1990, Linda Raisovich-Parsons, a UMWA official in Washington, filed the§ 105Cc)(3) complaint at issue here.
(Tr. 113).
Mr. Roybal said he never· saw the second complaint and, indeed,
testified that the allegation in the complaint that he had been
"discriminated against because he had participated in an MSHA

10/ After Mr. McGlothlin accepted the recommendations of Messrs.
Caller and Huey, and after consultation with counsel for WFC,
Mr. McGlothlin reported WFC's conclusions concerning the cause of
Valdez's death to local law enforcement authorities.
(Tr. 383384, 399). A meeting was held in late November between Messrs.
McGlothlin, Lawrence J. Corte, WFC counsel, and the county district attorney and county sheriff.
(Tr. 383-384). The district
attorney informed Mr. Roybal in January 1990 that no criminal
charges against him were contemplated.
(Ex. C-15).

2455

dent investigation" was not true.
(Tr. 114) 11; Mr. Roybal
admitted that no one from WFC discussed the MSHA accident
investigation with him.
(Tr. 109-110). 12/
COLLECTIVE BARGAINING AGREEMENT
In the meantime, Mr. Roybal's grievance was being processed
in accordance with the collective bargaining agreement.
(Tr.
173, 260-262).
Unable to resolve the grievance through the informal negotiations provided for in the contract, Mr. Roybal's
grievance was heard by an arbitrator. After the hearing, the
arbitrator decided that Mr. Roybal had been negligent but that
the company's decision to discharge him was too severe:- Accordingly, the arbitrator ordered WFC to reinstate Mr. Roybal effective December 1, 1989, but upheld the company's suspension of
Mr. Roybal for the period of November 1, 1989, to November 30,
1989. WFC reinstated Mr. Roybal as required, paid him continuous
miner operator wages, but did not allow him to operate a mining
machine.
(Tr. 114-115, 218-219, 261-262). At the time of the
hearing in this proceeding, Mr. Roybal was employed by WFC as a
belt cleaner being paid miner operator wages.
DISCUSSION
Under the Mine Act, a complaining miner bears the burden of
proving that he was engaged in a protected activity, and that the
adverse action complained of was motivated in any part by that
activity.
In this case, it is conceded that Mr. Roybal engaged in a
protected activity by participating in the MSHA fatality investigation.
It is further conceded that WFC took adverse action
against Mr. Roybal by suspending him with intent to discharge.
However, Mr. Roybal has failed to show the adverse action
was motivated in some part by the protected action.
The record

11/ There was no testimony that WFC had interfered with Mr. Roybal 's participation in MSHA's accident investigation in any way.
12/ The WFC personnel responsible for ordering Mr. Roybal's suspension with intent to discharge agreed with Mr. Roybal's testimony on this point.
(Tr. 36, 201, 224, 241, 320, 371).

2456

fails to show any such motivation. In the second complaint 13/
filed here, Mr. Roybal alleges he had been "discriminated agaTnst
because he had participated in an MSHA investigation." However,
at the hearing he asserted this was not true.
(Tr. 114). Further, there was no evidence that WFC had interfered with Mr. Roybal 's participation in MSHA's accident investigation in any way.
Finally, Mi. Roybal admitted that no one from WFC discussed
the MSHA accident investigation with him.
CTr. 109-110). In
addition, WFC witnesses Callor, Romero, Huey, and McGlothlin 14;
corroborated Mr. Roybal's testimony.
(Tr. 36, 201, 241, 320,~
371).
In addition to the foregoing, the evidence establishes that
WFC's decision to suspend Mr. Roybal was based on a valid business judgment. These reasons, stated in WFC's notice CEx. C-2)
were Cl) Mr. Roybal's failure to comply with standard operating
job procedures, (2) unsafe act resulting in fatality, (3) misrepresentation of facts, (4) conspiring with fellow employees
against Wyoming Fuel Company.
The first two reasons are amply supported by the uncontroverted evidence. The third factor is also apparent: during the
period of the investigation, Roybal blamed the accident on the
stuck throttle. However, the evidence indicates the throttle was
not defective. At the hearing, Roybal did not refer to the
throttle in any manner. The fourth facet of WFC's discharge,
conspiring with fellow employees, was not established in the
evidence. However, the Commission's function is not to pass on
the wisdom or fairness of the operator's business justification,
but rather only to determine whether they are credible, and
whether they could have motivated the particular operator as
claime?. Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (1982);
Secretary on behalf of Brock Blue Circle, Inc., 11 FMSHRC 2181,
2214 (1989) (Koutras; J).
I find the company's motivations to be
credible and they motivated the operator to proceed as it did.
Mr. Roybal's witness Mr. Butero believed the company's views
of the accident were erroneous. However, he testified that WFC
(Tr. has a reasonable basis to reach such conclusions. I agree.
167-170).

13/ It is not necessary to explore the activities involving the
filing of the complaints in this case.
(Tr. 161-162, 164; Ex.
C-1).
14/ These are the WFC personnel responsible for ordering
Mr. Roybal's suspension with intent to discharge.

2457

In sum, Mr. Roybal has failed to establish that the adverse
action taken against him was for any protected activities.
Mr. Roybal argues that WFC's activities establish a discriminatory intent.
Specifically, he claims WFC discriminated
against him because of his Union's protected activities during
the investigation 15/ as well as Mr. Butero's letter to MSHA's
District 9. 16/ ~
As to the initial facet, Mr. McGlothlin testified that allegations concerning first aid safety, transportation, training,
and recordkeeping did not relate to Mr. Roybal. He indicated the
misrepresentation of facts "has to do with the throttla valve
that he alleged malfunctioned and caused the accident."
(Tr.
389).
Further, Mr. McGlothlin was not aware of the Butero letter
until after Mr. Roybal was suspended.
(Tr. 154, 382).
Mr. Roybal also relies on the Corte and Caller statements to
establish discriminatory motive.
The witnesses in this case all showed considerable partisanship.
I consider the Corte statements (Tr. 153, 154), as
related by Mr. Butero, to be hesitant and inconclusive. In analyzing the statement Mr. Butera himself stated "it didn't dawn on
me that it might be action against Mr. Roybal."
(Tr. 155). I
agree it would be speculative to conclude that the Corte statement established discriminatory intent.
In addition, there is no evidence that Mr. Corte had any
involvement in Mr. McGlothlin's decision to suspend Mr. Roybal,
nor is there any evidence that any WFC management official was
aware that Mr. Corte had talked to Mr. Butero.
(Tr. 397).
The Callor statements (Tr. 292-294) were made during a
grievance meeting concerning Mr. Roybal's suspension. The meeting was after Mr. Roybal had been suspended.
In any event, the

15/ Mr. Butero complained to MSHA about task-training, inadequate blankets, and evacuation methods.
(Tr. 149, 163) MSHA's
representative told Mr. Butera that these factors were not connected to the cause of the accident, hence not related to the
investigation.
(Tr. 163).
16/

The Butera letter was not in evidence.

2458

main thrust of Mr. Caller's statements was that it was seeking
advice whether it could counter what it saw as the Union's disruption of the MSHA investigation. An operator is entitled to
seek expert advice as to what its rights are without being in
violation of section 105{c) of the Mine Safety Act.
Further, Mr •. Roybal claims WFC's contact with the Las Animas
County District Attorney {Colorado) was an apparent attempt to
persuade the District Attorney to file charges against him.
The uncontroverted evidence shows the contact between WFC
and the District Attorney occurred because WFC officials believed
that the evidence uncovered during the accident investigation
indicated there may have been a negligent act that resulted in
the death.
{Tr. 383).
'
Company attorney Corte felt there was an obligation to
report the fatality to the authorities. {Tr. 383).
No doubt, the contact with the District Attorney was to have
him file charges. Given the circumstances involved, this conduct
does not establish a discriminatory intent against Mr. Roybal
within the meaning of the Mine Act.
Finally, Mr. Roybal perceives a discriminatory inference in
WFC's delay until October 31 before taking adverse action against
him.
The decision to suspend Mr. Roybal was made following MSHA's
review of WFC's training records. The event marked the conclusion of the MSHA accident investigation.
{Tr. 379-380, 396).
The management's communications with legal counsel and a Labor
Relations consultant were made for the purpose of identifying
what actions could be taken against Mr. Roybal. {Tr.392-396).
WFC's delay was not inappropriate, since MSHA's investigation could have disclosed additional facts, including mitigating
factors, which might indicate that suspension was inappropriate.
{Tr. 390). Further, given the potential for litigation, WFC's
consultations with legal counsel and a labor expert, were not
inappropriate.
In support of its position, Mr. Roybal relies on Phelps
Dodge Corporation, 3 FMSHRC 2508 (1981), rev'd on other grounds
sub nom, Donovan ex rel. Chacon v. Phelps Dodge Corp., 709 F.2d
86 {D.C. 1983); Berch v. Federal Mine Safety & Health Review
Com'n, 719 F.2d 194 {6th Cir. 1983) citing NLRB v. Transportation
Management Corp., 51 U.S.L.W. 4761 {U.S. June 15, 1983); Eastern

Associated Coal Corp., 7 FMSHRC 1766 (1985), aff'd in part and
rev'd in part Eastern Associated Coal v. Federal Mine Safety &
Health Review Com'n, 813 F.2d 639 (4th Cir. 1987)~ and Secretary
of Labor, Mine Safety & Health Administration CMSHA) on behalf of
Bobby Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1 (1982). However, these cases are not inopposite the views expressed herein.
For the foregoing reasons, the complaint herein is
DISMISSED.

Law Judge

Distribution:
Susan J. Tyburski, Esq., BOYLE, TYBURSKI & TOLL, 50 South Steele,
Suite 800, Denver, CO 80209 (Certified Mail)
Timothy M. Biddle, Esq., CROWELL & MORING, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail)

/ek

2460

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

22041 ·

NOV 161990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION. (MSHA) ,
ON BEHALF OF
ALONZO WALKER,
Complainant

DISCRIMINATION PROCEEDING
Docket No. SE 90-86-DM
MSHA Case No. MD 90-03
Selma Mine

v.
DRAVO BASIC MATERIALS COMPANY,
INC.,
AND
R & S MATERIALS, INC.,
Respondents
ORDER
Before:

Judge Fauver

Complainant has filed a satisfaction of order, stating that
the relief provided in the order of September 28, 1990, has been
fully accorded.
WHEREFORE IT IS ORDERED that the decision of August 10,
1990, and the order of September 28, 1990, 'constitute a final
disposition of this proceeding.

(J;/.J_;_,..,.
9'MA "'V'William Fauver
Administrative Law Judge
Distribution:
William Lawson, Esq., Office of the Solicitor, U.S. Department of
Labor, 2015 Second Avenue North, Suite 201, Birmingham, AL 35203
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., USX Tower, 57th
Floor, 600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)
Harold A. Bowron, Jr., Esq., Balch and Bingham, 1710 North Sixth
Avenue, P.O. Box 306, Birmingham, AL 35201 (Certified Mail)
/fb

2461

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

NOV 161990
CURTIS R. PICKEL,
Complainant
v

DISCRIMINATION PROCEEDING

B & LS CONTRACTING, INC.,

VINC CD 90-05

n~rket

No. LAKE 90-114-D

ORDER OF DISMISSAL
Before:

Judge Melick

Complainant Curtis Pickel, requests approval to withdraw
his complaint in the captioned case for the reasoe that "we
have reached an agreement between ourselves". Un er the
circumstances herein, permissi n to withdraw is g anted.
29 C.F.R. § 2700.11. This ca e is t ·erefore dismfssed and
the hearings previously sched led a; accordingly! can~elled.

j'

i
I

/ /) G/L.-'_/l I /I. ;-.,\(. .
I\·

I
Gary elrck
Adminf strative La
.·

ii

Distribution:

!/

!

I.../

,,

-----

Judge

\

I

"I

Mr. Curtis R. Pickel, 201 S. Main Street, Bicknel~, IN 47512
(Certified Mail)
Martin J. Klaper, Esq., Ice, Miller, Donadio & Ryan, One
American Square, Bo~' 82001, Indianapolis, IN 46282
(Certified Mail)
nb

2462

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

NOV 201990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.
THE INDUSTRIAL COMPANY OF
WYOMING (TIC),
Respondent

.

..
..
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST 89-108
A.C. No. 48-00732-03503 ZC7
Belle Ayr Strip

DECISION
Appearances:

S. Lorrie Ray, Esq., Office of the Solicitor, U.S.
Department of Labor, Denver, Colorado,
for Petitioner;
Sharp & Casson , P.C., Steamboat Springs, Colorado,
for Respondent.

Before:

Judge Cetti

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section llOCa) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
~(the "Act").
The Secretary charges the Industrial Company
of Wyoming CTIC) with a 104(d)(l) significant and substantial
violation of 30 C.F.R. § 77~204.
TIC filed a timely answer to the Secretary's proposal for
penalty, denying the alleged violation. After notice to the parties, an evidentiary -hearing on the merits was held before me at
Steamboat Springs, Colorado. Oral and documentary evidence was
introduced. Both parties have filed post-hearing briefs which I
have considered, along with the entire record in making this
decision.
STIPULATIONS
1. The decedent, Jeffrey Rosenau, sustained fatal injuries
when he fell through a 6-foot, 6-inch square opening at the top
of the Fluid Dryer Bin Chamber at Level 183 of the dryer
building.
2.

The decedent fell approximately 44 feet.

2463

3. The decedent was wearing a safety belt with a lanyard,
but the lanyard was not tied off at the time of the fall.
4. The printout of the history of respondent's violations
(Ex. A) is accurate.
5. Although respondent denies that it committed any violation and denies that any penalty should be imposed, the proposed
$2,000 penalty would not affect the respondent's ability to continue in business.
6. The Mine Safety and Health Administration has no written or published guidelines, standards, or policies regarding the
structural steel construction or steel erection practices in the
construction industry.
7. Respondent immediately abated the alleged violation in
good faith.
I

STATEMENT OF FACTS
Respondent, The Industrial Co. of Wyoming CTIC), is a
medium-size heavy industrial construction company. The majority
of its activity and service involves structural steel erection.
At the time of the Accident, the steel erection project at which
respondent was working was located near Gillette, Wyoming, at the
Belle Ayr Mine, owned by AMAX Coal Company. The prime contactor,
McNally-Pittsburgh, Inc., had contracted with AMAX to design and
erect certain structures and machinery in the modernization of
the Belle Ayr Mine. McNally subcontracted to Respondent, TIC,
the structural steel erection involved in the construction of the
coal dryer building;
Mr. Jeffrey Rosenau was an experienced iron worker who had
worked high in the air for several years before he was hired as
an iron worker by TIC. At the Belle Ayr site, Mr. Rosenau first
worked on the construction of various steel structure components
and trusses.
He worked on the ground and up to 30-40 feet in the
air. Later, at his request, he was transferred to work as a
connector on the erection of the coal dryer building. He worked
under Kevin Kelly, the iron worker lead man for TIC.
On the day of the accident, Mr. Rosenau and Jessie Thomas
were working as connectors installing steel beams on the coal
dryer building, at level 183, which was 83 feet above the ground.

2464

Iron workers operating as connectors usually work at the highest
level of the structure being erected. The steel beams were
hoisted up to them by a crane located on the ground next to the
building. The connectors working high in the air positioning
each beam while still attached to the crane into a pre-designated
position, putting sufficient bolts in each end of the beam to
secure it in place.
The accident occurred at approximately 5 o'clock on June 3.
Just prior to the accident, Mr. Rosenau and Mr. Thomas were connecting and bolting up steel beams over the surge bin, a large,
open, uncovered structure approximately 18 feet by 30 feet deep,
which had been installed the previous day. This bolting-up procedure followed the reinstallation of a steel beam which had
inadvertently been installed backwards. Mr. Rosenau apparently
ran out of bolts, got up from where he was working directly over
the surge bin, and walked in the direction of the bolt bag about
28 feet away. The bolt bag was located near the opening to the
dryer bin on Level 183 of the coal dryer building. It is not
known for certain precisely what route Mr. Rosenau took from the
surge bin to the bolt bag or how the accident occurred. There
were no eye witnesses to the accident.
However, Mr. Rosenau did
pass through the opening of the dryer, as he fell through space.
The opening was surrounded by structural steel beams located just
above the opening. These are the beams, which would eventually
support the decking or floor at Level 183. These beams were not
yet squared and the bolts holding them in place were not fully
tightened and thus the beams were not in final place.
Mr. Rosenau received fatal injuries after falling approximately
44 feet to the bottom of the dryer bin. Mr. Thomas did not see
Mr. Rosenau fall, but did hear what sounded to him like tools
bouncing off the steel structure.
The Department of Labor, Mine Safety and Health Administration CMSHA) investigated the accident and, in its report received
in evidence, summarized how the accident occurred as follows:
Jeffery Rosenau, age 26, Iron Worker, fell from a
beam he was traveling on through a 6-foot, 6-inch square
opening at the top of the Fluid Dryer Bed Chamber. The
victim fell about 44 feet, receiving fatal injuries.
Rosenau was wearing a safety belt with lanyard, but the
lanyard was not tied off because he was moving from one
location to another.

2465

MSHA stated in the body of its report:'
Work progressed normally until about 4 p.m. While
installing steel beams, it was determined that a steel
beam had been installed incorrectly. The steel beam was
attached to a Bucyrus Erie Crane used for hositing and
positioning steel, unbolted, turned around, repositioned
in the correct direction, and secured in place. Bolts
used to attach other beams to the installed beam were
located approximately 28 feet from the beam to be installed in the immediate work area.
About 5 p.m., Rosenau unlatched his safety lanyard
and began walking a W 10 by 22-wide flange I-beam 10.17
inches deep with a flange width of 5.75 inches. He apparently gathered enough bolts from where the bolts were located, and started back to the work area.
The beam he was
traversing was located above the dryer chamber adjacent to
where the top unit of the chamber was to be installed. A
6-foot, 6-inch square opening in the top of the chamber was
located south of the I-beam he was traversing. Rosenau
lost his footing and fell through the opening.
MSHA's Narrative Findings for a Special Assessment described
the accident as follows:
The injuries were caused when the victim slipped or
stumbled as he was walking on an I-beam with a 5.75-inch
flange; and he fell 43 feet, 8 inches. The victim was
wearing a safety belt with lanyard, but because of his
movements, he was not able to tie off to prevent a fall.
Based upon the record, I find that this fatal fall-of-person accident occurred when the 26-year old steel erection worker
slipped or stumbled as he was walking on an I-beam on his way
back to his immediate work area after obtaining additional bolts
he needed to complete the steel beam connecting erection work he
was performing at the 183 level of the dryer building. In accordance with the usual and customary practice of connectors in
the steel erection industry, he was walking on the 5.75-inch wide
flange of an I-beam when he slipped or stumbled and fell from the
beam. As he fell into space, he fell through the 6 x 6'6" opening of the dryer bin and landed on the bottom of the bin. The
victim was wearing a safety belt with lanyard, which he used, as
is the custom and practice of connectors in steel erection to
prevent fall-of-person injuries. Undoubtedly, he unlatched the
end of the lanyard so he could travel across the steel gridwork

2466

at Level 183 where the bolt bag was located, approximately 28
feet away. Thus decedent was not tied off at the time of the
accident because he was traveling to an area beyond the length of
the lanyard.
The parties stipulated that MSHA has no written or published
guidelines, standards, or policies regarding the construction of
structural steel or steel erection practices in the construction
industry. Four witnesses - Kevin Kelly, Lee Dessnar, Steve
Johnson, and Melvin Cox - all experienced in the steel-erection
industry - testified regarding the construction methods utilized
by Respondent in the construction of the coal dryer building and
about the standards, customs, and practices used in the- stuctural
steel erection industry generally. Each of these four witnesses
testified that the methods and practices utilized by TIC in the
construction of the coal dryer building were consistent with
those standards, customs, and practices.
Kevin Kelly, who has been an iron worker for more than six
year and who has worked on approximately 20 structural steel
buildings similar to the coal dryer building during that time
period, testified that the standard and customary sequence of
construction of a building of this type is to set the vertical
columns, set the steel beams in what will eventually be a horizontal floor, set any equipment or machinery that may come up
through that floor, put bolts in the ends of the steel beams,
tighten the bolts and square the structure, and then install the
flooring and cover all holes which would not otherwise be covered
by flooring or filled with machinery. Lee Desner, who has been
and iron worker for eight to ten years, and who has worked on
approximately 30 structural steel buildings during that time
period, testified to the same standard and customary sequence of
construction followed both in the structural steel erection industry generally and- by Respondent in the construction of the
coal dryer building. Steve Johnson, who has been involved in
instructural steel construction for 20 years, and who was the
construction manager for Respondent at the Belle Ayr Mine, also
testified to the standard and customary fashion in which a structural steel building such as the coal dryer building is erected,
and that the coal dryer building was constructed in the standard
and customary fashion. Melvin Cox, who was the project superintendent at the Belle Ayr Mine for McNally-Pittsburgh, Inc., and
who has 19 years of experience in the structural steel erection
industry, participating directly in the construction of over 100
structural steel buildings, testified that the sequence of construction of a structural steel building always follows a standard sequence of standing the vertical steel columns, installing
any equipment which will pass up through the building, installing

2467

the steel beams which will eventually support a horizontal floor,
one layer at a time, bolting the beams in place, "rattling" or
squaring and tightening the beams, and then installing the flooring and covering all openings which will not be covered by flooring or immediately filled by equipment or machinery.
He further
testified that the standard sequence and methods of construction
of structural steel buildings are always the same no matter what
the design or ultimate function of that building, and that Respondent constructed the coal dryer building and Level 183, the
site of the accident, in conformance with the standards and customs of the structural steel erection industry.
All of the witnesses who testified at the hearing-stated
that Level 183, the site of the accident, was an open gridwork of
steel beams with numerous openings through which men or materials
could fall and that the dryer bin opening was but one of many
such similar openings. The photographs (Exhibits 5, B, D, E, F
and G) received into evidence, also clearly depict the state of
construction of Level 183 and the open gridwork of steel beams,
containing approximately 46 openings through which men or materials could have fallen the same or a similar distance as through
the dryer bin opening.
Jessie Thomas, Lee Dessner, Steve Johnson and Melvin Cox,
all testified without exception that, given the stage of construction existing at Level 183 of the coal dryer building at the
time of the accident, the dryer bin opening would not have been
covered; they would not have covered it and they would not have
expected it to be covered. Further, those witnesses testified
that the dryer bin opening would have been covered in the standard and customary sequence of construction always followed in the
structural steel erection industry and that there was no reason
to deviate from that standard sequence.
MSHA inspector Caughman testified that the highest floor
below Level 183 was a completed floor and, as such, it had no
uncovered openings in it.
Jessie Thomas, Lee Dessner, Steve Johnson and Melvin Cox
also testified without exception that, as experienced iron workers, they did not consider the dryer bin opening to be any different or more hazardous than any of the approximately forty-five
other similar openings present a Level 183 at the time of the
accident and that they did not recognize it as a hazard which
needed protection.
Kevin Kelly and Steve Johnson both testified that, at the
stage of construction existing at the time of the accident, the

2468

dryer bin cover was not installed because to install it out of
the standard and customary sequence would have created a construction problem; that since the cover was to be attached to
both the bin top and to the surrounding steel beams, it could not
be installed until the steel beams had been installed, square&
and tightened, which had not yet occurred; and that, in fact, it
had to be moved again in order to complete the construction of
Level 183.
MSHA Inspectors Ferguson called by the Secretary admitted
that, if Mr. Rosenau had fallen in any other direction through an
opening of a similar nature for a similar distance, MSHA would
not have cited Respondent for any violation of 30 C.F.R. § 77.204.
Mr. Cox testified that falls through the openings to the south
and the north of the dryer bin opening, as well as through most
of the openings at Level 183 would have involved a fall of the
same distance as through the dryer bin opening.
MSHA Inspectors Ferguson and Caughman also testified that
MSHA did not require the covering or protecting of any of the
other forty-five similar openings at Level 183, that MSHA considered the area safe for resumption and completion of normal
structural steel construction activities after the dryer bin
opening had been covered, and that MSHA did not cite Respondent
for any violations for the other forty-five openings in this
incomplete structure with its steel gridwork of openings through
which men or materials could have fallen.
II
MSHA, after investigating the fatal accident, issued a citation alleging TIC violated the provisions of 30 C.F.R. § 77.204
which read as follows:
§ 77.204

Openings in surface installations;
safeguards.
Openings in surf ace installations
through which men or material may fall
shall be protected by railings, barriers,
covers or other protective devices.
I

The Secretary's position appears simple and straightforward.
The decedent obviously fell through an opening through which men
or material could fall. Nevertheless, the application of this
regulation to the facts of this case strikes me as being an inappropriate wooden application of this regulation.

2469

TIC asserts that 30 C.F.R. § 77.204 is unenforceably vague
as applied to the facts of this case because it does not give
fair warning to TIC, or any other structural steel erection contractor, that the conduct complained of--lack of a cover or barrier over the dryer bin opening--is prohibited by the terms of
that regulation.. TIC asserts that to pass constitutional muster,
the regulation must provide adequate notice to TIC of the precise
parameters of its responsibility and that 30 C.F.R. § 77.204 of
30 C.F.R. especially in light of the introduction to Part 77
contained in § 77.200, does not provide such adequate notice and
fair warning.
TIC contends that whether the regulation provides constitutionally adequate warning and notice is measured by the standards, practices and customs of the industry at issue, i.e., the
structural steel erection industry. Measured by the standards of
conduct followed in that industry, § 77.204 fails to provide the
adequate notice and fair warning, because those customs, practices and standards, as adhered to by TIC in this construction
project, do not expect or require the covering of this one opening among approximately forty-six similar openings at the stage
of construction existing at the time of the accident. Further,
when measured against the reasonable man in the industry standard
used by the courts to determine if a person engaged in the structural steel erection industry would have recognized this one
opening among forty-six similar openings as a hazard and protected against it, the evidence is clear and undisputed that such
an opening in the incomplete, open and unexisting at Level 183 on
the day of the accident would not have been covered or otherwise
protected ••
TIC asserts an employer cannot be cited and penalized where
his conduct is not specifically addressed by a regulation, as has
been admitted by MSHA in this case, and where that conduct complained of, conforms to the common practice and customs of those
engaged in the structural steel erection industry.
By its express terms, 30 C.F.R. § 77.204 does not specifically apply to ongoing, incomplete construction of structural
steel buildings at the stage of construction existing at the time
of the accident.
TIC asserts a building, especially one level in
that building under construction and incomplete, cannot be "maintained" and "repaired" pursuant to § 77.200, and the obvious inintent of § 77.204 is to require the covering or other protection
of an opening in an otherwise completed building or completed
floor of a building.

2470

TIC argued that given the stage of construction existing
at Level 183 of the building being erected, the condition complained of by MSHA was not foreseeable, and therefore, cannot
form the basis of a citation and a penalty. TIC correctly points
out that the testimony is clear and uncontroverted that it was
not foreseeable that this one opening among forty-six similar
openings posed any problem or hazard different from the others
existing at Level 183 at the time of the accident and for which
MSHA has admitted it did not and would not cite Respondent.
At the hearing, I heard evidence regarding important facts
from witnesses experienced in the matters at issue. I also heard
opinion testimony from MSHA inspectors who admitted they have no
experience in the steel erection industry. Thus many of the
facts, as established by Respondent's witnesses were uncontroverted. The matters established by Respondent--and left uncontroverted by Petitioner--relate to the customs, standards and
practices of the structural steel erection industry and the fact
that at the stage of construction that existed at the time of the
accident, o_ne opening among forty-six similar openings did not
create a different or more hazardous condition than the other
openings, and would not have been covered at that stage of the
construction.
Elaborating on the constitutional argument TIC contends that
30 C.F.R. § 77.204 is unenforceably vague as applied on due process grounds because in the factual circumstances presented by
this case. It does not give fair warning to TIC, in light of the
common understanding and commercial practices applicable to the
structural steel erection industry, that the conduct complained
of is proscribed by its terms.
TIC in its post-hearing brief states the following:
A. Where the imposition of penal sanctions is at issue in a proceeding brought by
an enforcing administrative agency, the due
process clause of the United States Constitution requires that the regulation sought to be
enforced give "fair warning" of the conduct it
prohibits or requires, and if it does not, it
is unenforceable. United States v. L. Cohen
Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65
L.Ed. 516 (1921). The United States Supreme
Court and the Circuit Courts of appeal have
consistently held that regulations sought to
be enforced must clearly describe what conduct

2471

is required or prohibited, and if the regulation is too broad or general and does not provide that specificity, it is unconstitutionally vague and unenforceable.
"[B]ecause we assume that man is free to steer between lawful
and unlawful conduct, we insist that laws give
the person of ordinary intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly." Grayned v.
City of Rockford, 408 U.S. 104, 108, 92 S.Ct.
2294, 2298, 33 L.Ed.2d 222 (1972), quoted in
Diebold v. Marshall, 585 F.2d 1327, 1335 (6th
Cir. 1978). The principle to be applied is
the due process requirement of fundamental
fairness and, "[elven a regulation which governs purely economic or commercial activities,
if its violation can engender penalties, must
be so framed as to provide a constitutionally
adequate warning to those whose activities are
governed." Diebold, Inc. v. Marshall, _supra
at 1335-36. See also, ~' Phelps Dodge Corporation v. FMSHRC, 681 F.2d 1189, 1193 99th
Cir. 1982); Kropp Forge Co. v. Secretary of
Labor, 657 F.2d 119, 122-24 (7th Cir. 1981);
B & B Insulation, Inc. v. OSHRC, 583 F.2d
1364, 1367-71 (5th Cir. 1978). "Regulations
must 'give the person of ordinary intelligence
a reasonable opportunity to know what is prohibited'." Phelps Dodge Corporation v.
FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982);
Kropp Forge Co. v. Secretary of Labor, 657
F.2d 119, 122-24 (7th Cir. 1981); B & B Insulation, Inc. v. OSHRC, 583 F.2d 1364, 1367-71
(5th Cir. 1918).
"Regulations must 'give the
person of ordinary intelligence a reasonable
opportunity to know what is prohibited'."
Phelps Dodge Corporation v. Federal Mine Safe_!:y, supra at 1194, quoting Lloyd c. Lockrem,
Inc. v. United States, 609 F.2d 940, 943 (9th
Cir. 1979). This "reasonable opportuity" requires that a regulation give those to whom it
purportedly applies "adequate notice • • • of
the exact contours of his responsibility."
Dravo Corporation v. OSHRC, 614 F.2d 1227,
1234 (3rd Cir. 1980), quoted in Kropp Forge
Co. v~ Secretary of Labor, supra at 122. Obviously, an alleged violation of 30 C.F.R.
§ 77.204 exposes Respondent to penalties, and
these principles of law apply in this case.

2472

B. The question whether a regulation provides such "adequate notice" is to be answered
"in the light of the conduct to which [the
regulation] is applied." United States v.
National Dairy Products Corp., 372 U.S. 29,
36, 83 Sup. Ct. 594, 600, 9 L.Ed.2d 561
(1963), quoted in Diebold, Inc. v. Marshall,
supra at 1336.
"[T]he constitutional adequacy
of the warning given must be measured by common understanding and commercial practice'."
Diebold, Inc. v. Marshall, supra at 1336,
quoting United States ex rel. Shott v. Tehan,
365 F.2d 191, 198 (6th Cir. 1966). In other
words, the "common understanding and commercial practice" to which these standards of
analysis apply is that of the practices, customs and procedures that establish the standards of conduct in the industry in which the
employer participates. See Diebold, Inc. v.
Marshall, supra at 1336-37, and Cape and Vineyard Division v. OSHRC, 512 F.2d 1148, 1152-53
Clst Cir. 1975). Such standards of conduct
are those of "a reasonable prudent employer"
in that industry. See B & B Insulation, Inc.,
supra at 1370.
"[Alilappropriate test is
whether a reasonably prudent man familiar with
the circumstances of the indus-try would have
protected against the hazard." Cape and Vineyard Division, supra at 1152. This "reasonable man standard" is used by the courts to
determine if a reasonable person engaged in
the industry in question would have recognized
the hazard and protected against it. B & B
Insulation, Inc., supra at 1369-70. This
Court must look to persons whose conduct would
be subject to judgment by that reasonable man
standard, i.e., employers engaged in the steel
erection industry.
The conduct of the reasonably prudent employer is established by reference to industry
custom and practice. Cape and Vineyard Division, supra at 1152.
The standards, customs and practice of
the steel erection industry were established
through the undisputed testimony of Kevin

2473

Kelly, Lee Dessner, Steve Johnson and Melvin
Cox, persons experienced in the structural
steel erection industry, and those witnesses
testified without contradiction that the dryer
bin opening was not a recognizable hazard,
given the stage of construction existing on
June 3, 1988, and would not have been covered
or otherwise protected by a reasonable employer in the industry.
Diebold, Inc., supra at 1336, sets forth
certain factors which in combination deprived
the employer in that case of constitutionally __
adequate warning as to what conduct was prohibited by the regulation at issue. Examination of similar factors in this case leads to
the same result. 30 C.F.R. § 77.200, the introductory and definitional section to Subpart C of § 77, states as follows:
All mine structures, enclosures, or
other facilities (including custom coal
preparation) shall be maintained in good
repair to prevent accidents and injuries
to employees.
First, an employer could conclude from
from this general language that buildings ununder construction, which by their very nature
cannot be "maintained" or "repaired" until
they are completed, were exempted from the
broad, general requirements of that section,
as well as of § 77.204.
Second, the undisputed "common understanding in commercial practice" relating to
the erection of structural steel buildings as
testified by Kevin Kelly, Lee Dessner, Steve
Johnson and Melvin Cox, do not require the
covering of an opening such as that for which
Respondent was cited in this case at the stage
of construction which existed at the time of
the accident. Those witnesses testified that
structural steel erection always follows a
standard and customary sequence, which is the
only way such buildings can be constructed,
and that that sequence was followed with respect to the construction of the dryer building in which the dryer bin opening was located.

2474

From that, this Court must conclude that TIC,
as an average employer in the structural steel
erection industry, was unaware that § 77.204
required the covering of one opening at the
stage of construction existing on June 3,
1988, while approximately 45 other openings of
similar or identical nature were not required
to be covered. Therefore, whether TIC or any
other employer in the structural steel erection industry looked to § 77.200 and § 77.204
or to industry customs and practices, it would
have been led to the conclusion that the dryer bin opening at issue in this case was exempted
from the requirement of a covering or other
protective measures at the stage at which the
construction existed on June 3, 1988.
Petitioner has also recognized that Respondent's conduct in this case must be measured by "the stage of construction that an
opening existed" and the particular "nature of
the construction" involved, i.e., open structural steel erection.
(Section 4.b of Petitioner's Response to Pre-Hearing Order).
Petitioner has thus recognized and admitted
that the standards, customs and practices of
the steel erection industry provide the benchmark by which Respondent's conduct is to be
measured. The testimony presented by Respondent at the hearing in this matter clearly established--wi thout refutation by Petitioner-the standard and customary sequence of construction in the structural steel erection
industry and -the methods and procedures used
to accomplish that construction.
The constitutional adequacy of the conduct mandated or prohibited by § 77.204 must
be measured by those standards and customs, as
presented by witnesses Kevin Kelly, Lee Dessner, Steve Johnson and Melvin Cox. Diebold,
Inc. v. Marshall, supra at 1336-37. Respondent complied with the standards and customs of
conduct of "a reasonable prudent employer" in
the steel erection industry, B & B Insulation,
Inc., supra, and measured by those standards
and customs, § 77.204 clearly fails to provide
constitutionally adequate warning.

2475

Where an employer's conduct is not addressed by a detailed and precise regulation
and that conduct conforms to the common practice and customs of those similarly situated
in the industry, the employer cannot be cited
and penalized. B & B Insulation, Inc., supra
at 1371.
C. The testimony was clear and uncontroverted that if Mr. Rosenau had fallen to either side of the dryer bin opening or in almost any other of the numerous openings exisexisting in Level 183 on June 3, 1988, he
would have fallen almost as far as he fell
through the dryer bin opening CT. 300-04).
MSHA Inspectors Ferguson CT. 103, lines 14-19)
and Caughman CT. 190, lines 4-B, p. 210, lines
4-8) both stated unequivocally that had Mr.
Rosenau fallen in any other direction for the
same distance, MSHA would not have cited the
Respondent for a violation of 30 C.F.R.
§ 77.204.
Witnesses Kelly, Dessner, Johnson
and Cox all clearly testified that the dryer
bin opening was no different from nor more
hazardous a condition than any of the other
forty-five openings existing on Level 183 at
the time of the accident.
(See pages 6-7 of
this Brief for relevant citations to the
record).
Section 77.204 does not require the covering or protecting of bin openings while providing that all other openings of a similar
nature through which men or materials may fall
a similar distance with a similar result need
not be covered or protected. However, this is
now the arbitrary interpretation which MSHA
wishes to have this Court give to § 77.204.
The law is clear, however, that MSHA and the
Secretary of Labor cannot construe § 77.204
to mean what it does not adequately and
clearly express, even if the foregoing was
intended by that agency. Phelps-Dodge Corp.,
supra. at 1193, and Gates & Fox Co., Inc.,
supra at 156. To allow otherwise would result
in arbitrary, subjective and inconsistent interpretations of the unclear regulation. The
rule-making procedures of the Administrative
Procedures Act may not be supplemented by ad

24 76

hoc adjudicatory proceedings based on an MSHA
inspector's subjective interpretation. NLRB
v. Wyman-Gordon Co., 394 U.S. 759, 564, 89
s.ct. 1426, 22 L.Ed.2d 709 <1969). Further,
MSHA and the Secretary of Labor would apparently assert the authority to decide what a
reasonable prudent employer would do under the
circumstances and state of construction existing in this case on June 3, 1988, even though
the uncontroverted testimony clearly established that none of the experienced witnesses
would have followed the course of action which
MSHA and the Secretary of Labor would now attempt to dictate. MSHA and the Secretary of
Labor may not disregard this demonstrated and
uncontroverted industry custom and practice
which was followed by Respondent in this case.
B & B Insulation, Inc., supra at 1370-71. As
stated above, only by reference to industry
customs, practices and standards can the conduct of the "reasonable prudent employer" be
established, and Respondent's conduct in this
case must be measured by those industry customs, practices and standards. Id.; Cape and
Vineyard Division, supra at 1152. Petitioner
has wholly failed to prove that a reasonable
prudent employer familiar with the customs,
practices and standards in the structural
steel erection industry would have recognized
the dryer bin opening as a hazard and, therefore, covered or otherwise protected this one
opening among forty-six similar openings.
D. Specific standards of conduct are
desirable so that the goal of reducing industrial accidents can be reached by employer
compliance through elimination of specifically
identified safety and health hazards by specifically prescribed remedial measures.
"Preventive goals are obviously not advanced where
broad standards are extended to encompass
every situation which gives rise to an unlikely accident." B & B Insulation, Inc., v.
OSHRC, supra at 1371. Thus, in the case at
hand, the Secretary of Labor bears the burden
of clearly demonstrating that a reasonable
structural steel erection employer at the
stage of construction existing on June 3,

2477

1988, would have recognized the dryer bin
opening to be a hazard and, therefore, required the use of "railings, barriers, devices" to protect open gridwork that is necessarily created as steel beams are lowered in
place by a crane and bolted to pre-existing
framework in a building under construction at
a level not yet prepared for installation of
covers, machinery and flooring.
See B & B
Insulation, Inc. v. OSHRC, supra at 1372.
Petitioner's own witnesses stated that such
openings need not be covered and, as a result,
Petitioner has not met his burden of proof. -II.

30 C.F.R. § 77.204 does not apply to
ongoing, incomplete construction of
structural steel buildings.

30 C.F.R. § 77.204 appears in Subpart C
of Part 77, 20 C.F.R., Chapter 1. Subpart C
is entitled "Surface Installations." The general requirement of Subpart C appears in
§ 77.200 which states:
"All mine structures,
enclosures or other facilities (including custom coal preparation) shall be maintained in
good repair to prevent accidents and injuries
to employees." Section 77.204 states:
"Openings in surface installations through which
men or material may fall shall be protected by
railings, barriers, covers or other protective
devices." Neither of these provisions gives
specific fair warning that they apply to the
erection of structural steel framework and
the procedures and processes necessary thereto, as presented by the facts and circumstances specific to this case.
First, § 77.200 refers to "structures,
enclosures, or other facilities" which "shall
be maintained in good repair", thereby strongly implying that § 77.200 is to apply to completely constructed "structures, enclosures,
or other facilities" which can be "maintained
in good repair." Buildings under construction
cannot be "maintained" and "repaired".
CT.
272, lines 7-21). Second, § 77.204 refers to
"openings" in such "structures, enclosures, or

2478

other facilities," requiring them to "be protected by railings, barriers, covers or other
protective devices." The basic purpose of
these provisions, fairly fairly read, is to
require protection by "railings, barriers,
covers, or other protective devices" of "openings" in completed structures, such as floor
openings in completed floors or roof openings
in completed roofs, and neither § 77.200 nor §
77.204 can, in fundamental fairness, be applied to ongoing, incomplete construction of
structural steel beam frameworks in which open __
spaces between beams are necessarily created
and existing as construction progresses.
The only case involving 30 C.F.R.
§ 77.204 of which Respondent is aware is Sec-

retary of Labor v. Pittsburg & Midway Coal
Mining Co., 3 MSHC 1637 (Central Dist. 1984).
That case involved the issuance of several
citations to the operator, one of which was a
§ 77.204 citation for failing to provide a
railing at the opening of a loading dock in a
warehouse. That case involved a completed
building, and the Court held that the definition of a surface installation in § 77.200 was
broad enough to include a loading dock, an
opening in and being used in a completed
structure. Common sense and fairness do not
allow a reading of § 77.204 to require "maintenance" and "repair" of an ongoing, incompletely constructed structural steel building.
III.

The condition complained of by MSHA was
not foreseeable, and, therefore, cannot
form the basis of a citation and
penalty.

The testimony presented at the hearing
clearly established that there were approximately forty-six similar gridwork openings at
Level 183 and that such openings are inherent
in the construction of structural steel buildings at the stage of construction present at
Level 183 on June 3, 1988. The construction
was still in progress, and ironworkers continued to move across all of the open grids to
perform their work in the construction of the

2479

dryer-·building before the accident on June 3,
1988, during the investigation and abatement
process, and after the investigation during
the completion of the dryer building project.
CT. 49, lines 10-21; p. 108, lines 10-25; p.
109, lines 1-25; p. 110, line l; p. 197, lines
11-14~ p. 230, lines 11-25; p. 231, lines
1-9).
Respondent's witnesses testified that it
was not foreseeable that this one open area in
relation to the other forty-five open areas
would or could be a problem at that stage of
construction. CT. 272, lines 22-25; p. 273,
lines 1-8; see pages 6-7 of this Brief for
further relevant citations to the record).
They further testified that they did not deem
that opening any different a condition or hazard than any of the other openings necessarily
present and inherent in the construction of
structural steel buildings.
(See pages 6-7).
In the case of Pyro Mining Company v. FMSHRC,
3 MSHC 2057 (6th Cir. 1986), the Court found
that where a condition claimed by MSHA to be
properly the subject of a citation was not
foreseeable to the operator, that conditon
could not be the basis for a finding of negligence and issuance of a citation.
In the case
at hand, only with the benefit of hindsight
and by ignoring the clear and uncontroverted
testimony of Respondent's witnesses can a
finding be made that the open area complained
of and the rsulting accident involving that
open area were foreseeable to the Respondent.
The condition of Level 183 was standard and
customary for the stage of construction
existing on the date of the accident, and
given the unforeseeability of this condition,
it cannot be the basis for a valid citation.
III

The purpose of the safety standard § 77.204 is to protect
against fall-of-person injuries. The section states several
specific ways this can be done and concludes with the phrase
"or other protective devices." It can be argued that the decedent was wearing and using whenever practical a "device" (safety
belt and lanyard) to prevent a fall-off-person accident even

2480

though at the time of his fall he was not able to "tie off." He
was not able to "tie off" because he was moving to a location
beyond the length of his lanyard. It is also noted that there is
no evidence that anyone worked at Level 183 other than the two
steel erection workers (connectors) positioning and bolting beams
hoisted up to them by a crane. There is no evidence these connectors did not use their safety belts and lanyards to prevent
fall-of-persons accident whenever it was practical to do so. The
decedent and his fellow connectors were working together to bolt
in place the steel beam that would support the decking or flooring at the level. It should be noted that there was undisputed
evidence from the inspector and others that the highest completed
floor below the 183 Level had no uncovered or unprotected
openings.
It can also be noted that what caused the accident in this
case was not the opening in the bin but the fact that this ironworker slipped or stumbled and fell while traversing on a beam in
the customary manner of steel erection work while connecting. It
was only after falling into space that he fortuitously passed
through the opening in the top of the dryer bin rather than falling in another direction which would have resulted in the same
tragic result but no citation.
The crucial question, as I see it, is the applicability of
30 C.F.R. § 77.204 to the facts of this case given the nature of
steel erection which involves positioning and bolting together
steel beams hoisted into the air by a crane to create a steel
gridwork of many openings.
The opening involved in this case was not an opening in a
f lo·or, a walkway, or an work platform which in my opinion would
clearly come within the perview of the cited safety standard even
in an unfinisted building under construction. Under the circumstances and facts of this case I find and conclude that at the
stage of construction that existed at the time of the accident
that there was no violation of 30 C.F.R. § 77.204.

2481

ORDER
1. Citation No. 3226562 is VACATED and its related proposed
civil penalty SET ASIDE.
2.

Docket No. WEST 89-108 is DISMISSED.
, ..

-

.......

~·-·~ ~ {!ffic

F. cettiV
istrative Law Judge

t

Distribution:

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO
80294 (Certified Mail)
Richard T. Casson, Esq., SHARP & CASSON, 401 Lincoln Avenue,
P.O. Box 774608, Steamboat Springs, CO 80477 (Certified Mail)

/ek

2482

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

22041

NOV 201990
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 90-87
A.C. No. 15-16162-03542

v.
Docket No. KENT 90~88
A.C. No. 15-16162-03525

BEECH FORK PROCESSING, INC.,
Respondent

Docket No. KENT 90-89
A.C. No. 15-16162-03526
Beech Fork Mine No. 1
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

On November 9, 1990, the parties filed a Joint Motion for
approval of a settlement reached by the parties in these cases.
The violations were originally assessed at $10,123 and the
parties propose to settle for $8000.
The penalties for the twenty violations in Docket No. KENT
90-87, the agreement proposes to reduce from $5704 to $4288; the
penalties for the fourteen violations in Docket No. KENT 90-88
from $3315 to $2608; for the penalties for the five violations in
Docket No. KENT 90-89, originally assessed at $1104, the parties
agree that the amount originally assessed will be paid.
The settlement is based on Respondent's inability to pay the
amounts originally assessed. The motion states that Respondent
is suffering financial difficulties, and might be forced to cease
operation if it were required to pay the full penalties.
I have considered the motion in the light of the criteria in
section llO(i) of the Act, and conclude that it should be
approved.
Accordingly, the settlement is APPROVED and Respondent is
ORDERED to pay the sum of $8000 as follows:

2483

$1000 on December 1, 1990, and $1000 per month thereafter
until the $8000 is paid in its entirety.
• •

1·

'

·

;JU

I

· }/o/u !,(__[.::; ./rr.J "'va'(_,1,/l c~
1

.·

James A. Broderick
Administrative Law Judge

Distribution:
W. F. Taylor, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
James H. Booth, President, Beech Fork Processing, Inc., P.O. Box
190, Lovely, KY 41231 (Certified Mail)
slk

2484

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

22041

NOV 231990
ARCH OF KENTUCKY, INC.,
Contestant

CONTEST PROCEEDING

v.

Docket No. KENT 90-395-R
Citation No. 3384541; 7/17/90

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

No. 37 Underground Mine
Mine ID 15-04670

ORDER OF DISMISSAL
Appearances:

Before:

Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant,
and Combs, Lexington, Kentucky, for Contestant.
Mary Sue Taylor, Esq., Office of the Solcitior,
U.S. Department of Labor, Nashville, Tennessee,
for Respondent

Judge Melick

At hearing, following modification by the Secretary of
the subject citation from one issued under section 104Cd)(l)
of the Federal Mine Safety and Health Act of 1977 to one
issued under section 104(a), Contestant requested approval to
withdraw its Contest in the captioned case, Under the
circumstances herein, permission to withdraw was granted.
29 C. F .R. § 2700 .11. This ise ·{· s there!re dismissed.

i/.
~

~L

v
1

. I -' .U . .

f

1

1.

I

I

i

I

{ 1. · /_,..--,\

Gary ,Mel1c]( 1\. r . . AdmiriistratiJie Law Judge
I

Distribution:

1

-/

f

/i

I

Marco M. Rajkovich, Jr., Esq.; 250 West Main Street,
Lexington, KY 40507
(Certif~ed Mail)
I

Mary Sue Taylor, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
nb

2485

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

NOV 2 61990
RICHARD R. MAYNES,
Complainant

v.

..
.
..:

DISCRIMINATION PROCEEDING
Docket No. CENT 89-132-DM
MD 89-35

PHELPS DODGE CORPORATION,
Respondent
DECISION
Appearances:

Michael J. Keenan, Esq., Ward, Keenan & Barrett,
Phoenix, Arizona,
for Complainant;
Michael D. Moberly, Esq., Ryley, Carlock & Applewhite, Phoenix, Arizona,
for Respondent.

Before:

Judge Lasher

This proceeding arises under Section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seg.,(1982) (herein "the Act"). Complainant's initial complaint
with the Labor Department's Mine Safety and Health Administration
(MSHA) was dismissed. Both parties were well represented at the
hearing. l;
CONTENTIONS OF THE PARTIES
Complainant contends that when he became unit chairman for
the Steelworkers Union in ~988, he became involved in efforts to
resolve a dispute over certain protective equipment at the Ivanhoe concentrator and that, because of this and his engaging in
various safety-related issues as well as non-safety related issues which he engaged in as a union representative, he was retaliated against by Respondent.
(I-T. 22-23). Specifically, Complainant alleges that the disciplinary action (discharge) taken
by Respondent against him was due to his pursuit of an MSHA
complaint over safety equipment, various safety complaints he
lodged in his capacity as union representative, and his pursuit of safety-related grievances.
CI-T. 24).

1/
The hearing was held on four hearing days over a two-term
hearing period, i.e., February 7, 8, and 9, 1990, and May 8, 1990.
For each of the four days of hearing there is a separate transcript beginning with page one. Accordingly, transcript citations will be prefaced with "I", "II", "III", and "IV" for
February 7, 8, and 9, and May 8, respectively.
2486

Respondent contends that it is engaged in a dangerous mining operation and has concern for the safety of its employees and
that in furtherance thereof it has implemented a rule that an
employee may be discharged for reporting to work under the influence of alcohol. Respondent points out that it has implemented a specific drug and alcohol policy which includes testing of
employees who are suspected of being under the influence. Specifically, Respondent contends that when Complainant Maynes arrived
at work on November 23, 1988, his supervisor Israel T. Romero
suspected him to be under the influence because of his actions,
his characteristics, his appearance, and the fact that he was
chewing a large wad of chewing gum. According to Respondent,
Mr. Romero asked a fellow supervisor Monty Wilson to coafirm his
conclusion and Mr. Wilson stepped close to the Complainant and
smelled alcohol on the Complainant's breath. After Mr. Wilson
reported this to Mr. Romero, Romero contacted his supervisor who
shortly thereafter questioned Mr. Maynes and also observed unusual behavior and smelled alcohol.
Respondent contends Cl) Mr. Maynes was asked to undergo a
drug and alcohol test at this point, in accordance with its policy; (2) Mr. Maynes, after initially agreeing to take the test,
refused to take the test; and (3) Maynes was thereafter discharged on two independent grounds, first for refusal to submit
to the drug and alcohol test, and secondly for reporting to work
under the influence.
CI-T. 25-31; II-T. 223; III-T. 13; Ex.
R-6).
FINDINGS
Respondent's mine is located at Santa Rita, New Mexico,
where it operates an open pit operation together with a concentrator and a smelter CI-T. 33) with a total payroll of 1600 employees. In November 1988, 125 employees were employed at the
concentrator where Maynes primarily worked.
CII-T. 98, 104, 166).
Respondent has a collective bargaining agreement with the Steelworker's Union, as well as with other unions.
CI-T. 34).
Complainant, a 16-year employee of Respondent and Steelworkers member, was a concentrator maintenance mechanic since
approximately 1983.
CI-T. 114, 115, 117; II-T. 98). Complainant, who worked around "moving parts" and electricity CI-T. 116),
described his work functions this way:
Besides compressors, I have worked on mobile
equipment, operating mobile equipment, preventive
maintenance, lubrication, which I would--I would

2487

get oil samples.
I perform--change oils on the
bearing units in the pump, bearing units in various
conveyors, working on conveyors and feed pumps,
water pumps.
CI-T. 116).
Mr. Maynes conceded at the hearing that his job had the
potential to be dangerous.
CII-T. 73, 7 4) • ~/
Complainant engaged in various mine safety (protected)
activities prior to his discharge:
1. In early 1988, he assisted Manuel T. Serna, a Steelworkers' Safety Committeeman and MSHA designated representative, to
obtain the signatures of other employees in the mechanical depa'rtment on a petition initiated by the Steelworkers and filed
with MSHA regarding Respondent's alleged failure to provide
safety equipment (protective clothing).
CI-T. 34, 37, 39-42, 46,
120-121). ~/
2. One of Mr. Mayne's union positions (which he assumed on
August 24, 1988) was that of unit chairman.
CI-T. 122). Samuel
Silva, who like Maynes was a maintenance mechanic, held at different times the union positions of shop steward and unit chairman. Mr. Silva described the duties of unit chairman as follows:
A unit chairman is the person responsible for
all of the stuff that goes on within the union.
That means appointing safety reps, job evaluation,
shop stewards, grievance committees, setting up
grievance committees, setting up safety meetings,

2/
In the summer of 1988, several months before Maynes was discharged, Respondent had a fatal accident at its Tyrone plant,
which resulted in its receiving a penalty of approximately $6000
from MSHA for allowing an employee to operate equiment while under the influence.
CII-T. 196-197). Respondent also established, relevant to the necessity for its drug/alcohol testing
policy, that it had a high accident rate in its concentrator
maintenance department where Mr. Maynes was employed CII-T. 146,
167-168). I infer, as Respondent contends, that it would have
been sensitive to enforcement of its alcohol policy on November
23, 1988, as a result of those two factors.
3/
Other miners circulated these petitions without being discharged or disciplined.
(I-T. 51, 95-96).

2488

educating people on safety, just over all, you know,
the people that are there, that work for him.
CI-T. 55).
3.
In September 1988, Complainant, as Unit Chairman, participated in processing grievances CExs. C-8, C-9,; I-T. 57) involving safety matters, which activity was known to Respondent's
management personnel. At one of the meetings held with company
management attended by Tony Altringham, General Superintendent of
the Ivanhoe concentrator CI-T. 41, 64), Mr. Maynes mentioned that
he had contacted MSHA with respect to the matter.
CI-T. 60-63).
Respondent concedes that Complainant participated in making
safety complaints (Respondent's Brief, p. 26).
The record is
clear, and I infer from the public nature of Mr. Maynes' activities, that Respondent was aware that Maynes held a position with
the Steelworkers CII-T. 109), that he engaged in various mine
safety activities and voiced safety concerns.
CI-T. 66-69, 120,
124, 126; II-T. 4, 7-10, 15-18, 20, 24, 40, 147).
On November 23, 1988, Mr. Maynes' shift was to commence at
7:30 a.m.
CII-T. 117). His immediate supervisor was Israel T.
Romero, maintenance supervisor at the Chino concentrator.
CII-T.
92, 98, 105, 165). Romero customarily met with his crew in the
lunchroom shortly before 7:30 a.m. each day to give them their
assignments. At this time, Sam Bencomo, a pipefitter in the
maintenance department, told Romero that Maynes wanted him
(Romero} to know that he (Maynes) was going to be a few minutes
late. Maynes was not in the lunchroom when Romero gave out the
work assignments. Romero then waited a few minutes in his office
and started to leave when he observed Maynes coming toward him.
Maynes came up to Romero and tried to stand next to him.
CII-T.
118-119, 166). Maynes told Romero at about 7:40 a.m.
CII-T.
124) that he was late because he had forgotten his keys and then
said that, if it was okay with Romero, he wanted to leave early
that afternoon to go check his children out of school and get
them hunting licenses.
CI-T. 119; II-T. 78).
Romero noticed something wrong with Maynes, stating in his
testimony that " • • • I was attempting to face him and he kept
sort of turning away from me."
CII-T. 119). Maynes had a "big
wad of gum" in his mouth. Romero observed that Maynes' face was
"kind of flushed," or semi-swollen, and that his eyes were quite
red. Romero also detected the smell of alcohol on him.
CII-T.
120). Romero credibly testified that this was the "smell of
fresh alcohol."
CII-T. 121-125, 148, 150, 151, 152). Romero,
although concerned, gave Maynes his work assignment but then,

2489

because he had so many prior problems with Maynes, started tq
look for another supervisor to confirm his suspicion that Maynes
was either very hung over or still drunk.
CII-T. 120-124). He
asked Monty Wilson, a front-line foreman, i.e., concentrator
maintenance foreman CII-T. 165, 179), to talk to Maynes and come
back and tell him what he thought. Romero did not tell Wilson
the nature of his suspicion, i.e., alcohol.
(II-T. 123-124,
173). Wilson then approached Maynes, who was in the locker room,
and noticed that Maynes had a "wild expression" on his face, his
"eyes were big," his face "was red and flushed," and that he had
an enormous wad of gum in his mouth.
CII-T. 174, 183-186).
Wilson also detected the strong smell of alcohol on Maynes'
breath.
(II-T. 175-176, 184).
Wilson then returned a short time later and told Romero:
I think you have a problem with Richard Maynes.
I think he's under the influence, and I think,
for his sake and everybody's sake, you better
do something.
CII-T. 124). See also II-T. 153,
176, 186.
Wilson testified that he had the impression that Romero was
going to do something about the situation and that, if he had not
had such impression, he "would have definitely called Richard in
the office right then on the spot."
CII-T. 178).
Romero then proceeded to the office of his supervisor, maintenance Superintendent Jim Crowley, and advised him of the problem.
CII-T. 125). Crowley told Romero to get Maynes and take
him to his (Romero's) office.
CII-T. 126). Romero did so.
Maynes still had the wad of gum in his mouth and he had a can of
soda in his hand.
CII-T. 128). When they arrived at Romero's
off ice, Tony Mendoza_, the Respondent's plant safety inspector
(II-T. 189), was there.
(II-T. 203-206; III-T. 6). At this
point, Mr. Mendoza had no knowledge that Maynes had made safety
complaints or that he initiated safety grievances.
CII-T. 203).
Mendoza observed that Maynes' face was flushed and that he was
ravenously chewing a large wad of gum.
CII-T. 204-205). Maynes
would look away from Mendoza when Mendoza asked him questions.
CII-T. 205-206). Mendoza could smell alcohol even through the
odor of the chewing gum.
CII-T. 206). Maynes was also smoking
heavily, according to Mendoza, and drinking "a lot of soda pop.
CII-T. 207). Mendoza felt that Maynes was trying to mask the
smell of alcohol CII-T. 207, 208, 231-232). Maynes, in his
testimony, denied he was under the influence.
CIII-T. 63).

2490

Mendoza conducted a conversation with Maynes, who admitted
drinking a six-pack the night before CII-T. 50, 130, 157, 205).
Maynes said he had the last one at 1:30 in the morning.
(Maynes'
version of what he had to drink on the evening of November 22,
1988, is set forth at II-T. 40-43, 52). Mendoza asked Maynes if
he would submit to an alcohol and drug test and Maynes said that
he would.
CII-T. 50, 131, 206, 208). Mendoza went out to his
van to obtain a consent form CII-T. 207). Maynes asked Romero if
he could use the phone and asked for Tony Trujillo's number.
Trujillo is Respondent's Personnel Safety Supervisor. Romero
gave him the number of Gwen Hansen, industrial relations representative, who works for Trujillo. Mendoza walked back--into the
office and he gave Maynes Mr. Trujillo's phone number. Maynes
told Trujillo in Spanish that he was being asked to take a drug
and alcohol test and that Romero was harassing him again CII-T.
51, 131-133, 207, 234; III-T. 5). Trujillo advised Maynes to
take the test after Maynes admitted drinking the night before.
Trujillo advised Maynes the penalty for not taking the test was
"probable termination."
CIII-T. 7, 38).
Romero, being needed elsewhere, left his office a few minutes after 8 a.m. At this juncture, as far as Romero knew,
Maynes was going to take the test CII-T. 133-134, 165). 4;
Mr. Maynes then made another phone call, apparently to his union
president and, after hanging up, he requested to see his shop
steward, Samuel Silva, who was summoned. Silva and Maynes
stepped out of the office and conferred. After five minutes,
Mendoza called Maynes back in CII-T. 207-209).
Mr. Mendoza then produced the drug and alcohol consent form.
(Ex. C-5) and read and explained it to Mr. Maynes.
Mr. Mendoza persuasively testified as to the efforts he then
went through to advise Mr. Maynes concerning the test and, after
Maynes protested, concerning the effect of taking the test "under
protest,"

4/
Romero had no further involvement with Maynes on November 23, 1988, and he testified that, other than testifying at a
subsequent hearing, he had nothing to do with any decision in
connection with Maynes CII-T. 134), specifically indicating he
played no part in the decision to discharge Maynes either by
recommending such, or by being consulted with regard to such
CII-T. 164).

2491

I began reading this authorization, explaining the program as I was reading it. When we got
down to the last two lines where it states, 'I
voluntarily submit to the test and desire those
results to be released to Chino Mines security
personnel,' he asked me how much alcohol a persoon had to have in his system to come out positive.
I advised him it depended on several areas.
How much sleep, how much food and liquids, and I
advised him I was in no position to make a determination on his case.
I advised him, by submitting to the test, that
it was not going to incriminate if it was negative.
If his test was negative, he would be returned to
work with no loss in pay or benefits. At that
point, he indicated that he would take the test,
but under protest.
I advised him that the standing rule in the
medical community is, if an employee, an individual, goes into a clinic for any type of service
and he protests it, that the medical community
will not withdraw the sample or subject him to
any type of treatment in that respect.
He again indicated that he would protest it.
I explained the program again.
I advised him, essentially three times, if he fails to submit to
the test, he would be suspended pending a hearing
or probable termination.
Q.

Do you recall saying that to him on three occasions?

A.

Yes, sir.

Q.

Why so many times?

A.

I like Richard.

Q.

Do you recall explaining to him taking the test under protest was the same as a refusal?

A.

Yes, sir.

Q.

How many times did you explain that?

A.

At least three times.

I didn't want him to get in that situation.

2492

Q.

For the same reason?

A.

Yes, sir. And he continued his statement about taking it
under protest. Finally, I just advised Mr. Maynes, I said,
"Well, if you would not take it voluntarily, then it's under
protest, and I have no choice but to suspend you, pending a
hearing for termination."
He said, "Well, that's fine.
I understand." I said, "For
your sake and my sake, indicate that you--you're protesting
it." At that point, he made his statement, "I, Richard R.
Maynes, protest--."

Q.

Okay.
You're reading, when you say this statement, you are
referring to the handwritten notation on the consent form?

A.

Yes, sir.

Q.

He wrote that in your presence?

A.

Yes, he did.

CII-T. 210-212).

(Emphasis supplied).

It is clear, and I find that Cl) Tony Mendoza, Respondent's
Plant Safety Manager, advised Complainant at the meeting on the
morning of November 23, 1988, that Complainant could not take the
alcohol test "under protest" because it would not be administered, and that "under protest" was the same as refusal.
CI-T.
87-88, 106; II-T. 54, 219-212, 222); (2) Mendoza told Complainant
at this meeting that if he refused the test he-would be suspended pending a hearing to determine what further discipline would
be implemented CI-T. 106; II-T. 211-212, 222), and (3) Complainant refused to take the alcohol test CI.T. 87-89, 105, 106, 107;
II-T. 54, 71, 210-212; IV-T. 15). ~
After Maynes refused to take the test, he was suspended
CII-T. 216) by Mendoza CII-T. 225). ~/ The procedure implemented

5/
Mr. Maynes wrote on the consent form CEx. C-5; II-T. 71) as
follows:
"I Richard R. Maynes, protest takeing (sic) this test
and refuse to take it. Because I am working under protest with
foreman I.T. Romero."
6/
While Mr. Mendoza made the decision to request that Maynes
take the drug and alcohol test and the decision to suspend
Maynes, he played no part in the subsequent decision to discharge
Maynes CII-T. 225). Such decision, after a hearing on November
28, 1988 CII-T. 225-226), is more fully detailed subsquently
herein.

2493

by Mendoza, of which Mr. Maynes was specifically advised, was
consistent with Respondent's drug and alcohol policy and rules of
conduct.
CExs. R-2 and R-4; II-T. 216, 230-231, 247).
After being suspended by Mendoza, Mr. Maynes was driven home
by Steven Escobar, a security guard for Burns Security Service,
who was employed at the mine.
CII-T. 56). ~/
At approximately 11:15 a.m., Mr. Maynes went to the Grant
County Sheriff's Department and took a breathalyzer test; the
test results were negative - there was not a detectable amount of
alcohol in Mayne's system.
CE. c-7; II-T. 58-62). Maynes then
drove to the Gila Regional Medical Center for a blood--test, which
was administered at approximately 12:12 p.m. CEx. C-6; II-T.
62-66), the results of which were also negative CII-T. 64-65).
These tests were administered approximately 3.5 to 4 hours after
Maynes was asked to take the test by Respondent CII-T. 69), were
arranged for by Maynes, on his own, and were not taken pursuant
to Respondent's drug and alcohol policy CII-T. 69).
On November 28, 1988, a hearing was held at which management
and union representatives, among others, were present.
CIII-T.
8-10). Both sides were permitted to present evidence and to ask
questions.
CI-T. 66-67; III-T. 9-11).
After the hearing was concluded, Mr. Trujillo, Jim Crowley,
Concentrator General Maintenance Superintendent, and John
Strahan, mechanical superintendent, jointly concluded that
Mr. Maynes should be discharged CIII-T. 11, 12, 45) 8/ and
presented their recommendation on November 29, 1988, to Duke
Milovich, manager of the mine CIII-T. 11, 12) who concurred in
the decision to discharge Maynes.
CIII-T. 12-13).

21

Escobar did not testify during the Commission hearing. He
did testify at an arbitration hearing to the general effect that
he did not smell alcohol on Maynes or detect other indications
that Maynes was under the influence (Court Ex. 1, pp. 162-170).

8/
At the hearing, Mr. Maynes presented the breathalyzer results from the sheriff's office and admittance report from the
Gila Regional Center. Trujillo's view was, "I really wasn't interested in those documents. The fact remained, as was discussed
during that hearing, that he had refused the company drug and
alcohol test and the merits of his going out four - five hours
later and taking that test on his own had no merit, as far as I
was concerned, in accepting those documents."
CII-T. 41).
(Emphasis added).

2494

By letter dated December 1, 1988, from Mr. Crowley, Maynes
was advised of his discharge.
CEx. R-6; III-T. 13).
Mr. Maynes was discharged for two separate and independent
reasons:

1.

For reporting to work under the influence of alcohol,

2.
~flicy.

For failure to comply with Respondent's drug/alcohol
(Ex. R-6; II-T. 81; III-T. 13, 14, 15, 44; IV-T. 15).

and

One of various contentions raised by Complainant is that Respondent had no "formal" drug and alcohol testing program CComplainant' s Brief, p. 4). The record clearly reveals, however, that
Respondent had in place on November 23, 1988, clear-cut rules and
policy Cl> prohibiting a miner's reporting to work under the influence of intoxicants and (2) requiring an employee suspected of
being under the influence to submit to "medical" testing under
penalty of disciplinary action for refusal. Thus, its Rules of
Conduct (Ex. R-4; II-T. 230-231; III-T. 14-16) provide inter alia
COMPLIANCE WITH RULES OF CONDUCT
The company expects all employees to observe common sense rules of conduct based on honesty and
common decency. Employees who violate these
widely accepted industrial rules of conduct may
be disciplined including discharge, depending
upon the seriousness of the offense. Following are examples of the most frequently encountered violations of the rules of conduct.
1.

Insubordination.

2.

Drinking, possession, or furnishing drugs to
others.

3.

Unlawful possession, use of, or furnishing
drugs to other employees.

9/

Agreeing to take the test "under protest" is the same as
to take the test.
CII-T. 54-56; IV-T. 9, 10, 11, 15, 28,
46, 50).

r~fusal

2495

4.

Reporting to work under the influence of
intoxicants or drugs.

* * * * *
Respondent's drug and alcohol policy (Ex. R-2; II-T.
191-196) provides in part:
DRUGS/ALCOHOL ABUSE
During the 1985 calendar year, Chino has experienced an increase of apparent drug usage. There
have been several occasions when marijuana has
been found on the property.
To assure all employees a safer working area and
to be in complete compliance with MSHA Standard
56.2001, which states intoxicating beverages and
narcotics shall not be permitted or used in or
around mines, persons under the influence of alcohol or narcotics shall not be permitted on the job.
The Chino Mines Rules of Conduct lists the following
violations:

* * * * *
4.
drugs.

Reporting to work under the influence of intoxicants or
THE FOLLOWING STEPS WILL BE IMPLEMENTED TO CURB
SUSPECTED USAGE OF ILLICIT DRUGS AND ALCOHOL

Searches
a.

Change Rooms: Dogs trained to detect drugs will be
utilized to conduct searches in the change rooms. Employees will not be required to be present during this
tour.
If detection occurs, then the employee will be
required to open his/her locker and allow a search of
his/her locker and allow a search of his/her belongings.
If the employee is not at work and cannot be
reached, his personal lock will be removed and replaced
with a Company lock. This Company lock will remain in
place until such time as the employee is physically
present to conduct a search of the locker contents.
CA
shop steward, if requested by the employee, may be
present.) The Company will replace locks that it re-

2496

moves at no cost to the employee. If an employee refuses to allow a search of his/her locker, the lock
will be cut off (and replaced) by the Company. Refusal
to open a locker will be considered a disciplinary
matter.
b.

Lunchboxes: As employees are entering the clock station, they may be asked to open lunchboxes, purses,
bundles, etc.
If an illicit substance is found, the
employee will be escorted to a neutral area for further
investigation. Failure to comply will be considered
under the disciplinary policy.

c.

Testing: If the Company has reasonable cause to suspect an employee is under the influence of drugs or
alcohol, that employee will be requested to submit
himself/herself to a medical test. If the employee
refuses to take such a test, appropriate action will be
taken.

The record establishes that Mr. Maynes, prior to November 23, 1988, knew or should have been aware of these rules and
policies (II-T. 191, 193, 194-196; III-T. 14).
In an effort to establish that Respondent's application of
its drug/alcohol policy to Maynes was disparate and thus discriminatory, Complainant introduced evidence that another employee, Robert Maldonado, who was involved in a truck accident in
June 1987, and also completed his testing authorization form
"under protest" was not discharged.
(Ex. C-17; III-T. 48). The
form first executed by Maldonado on June 20, 1987 (Ex. c-17),
was altered to strike through the printed phrase:
"However, I
voluntarily submit to the test and desire those results be released to Chino Mines_ Security personnel," and initialed by
Maldonado. Also, after Maldonado's signature appear the words
"Under Protest."
(III-T. 59; IV-T. 57).
Respondent, however, established that Maldonado subsequently
authorized release of the test results to the Respondent without
indication of protest.
(Ex. R-8; III-T. 49; IV-T. 7-9, 21-24,
29, 46, 48). He passed the test CIII-T. 60; IV-T. 49).
The record is not contradictory that, if the authorization
form indicates that an employee is taking the test under protest,
that neither testing facility, Gila Regional Medical Center or
Med Square, would both perform the test and release the results
to the Company.
(II-T. 54; III-T. 49, 59; IV-T. 10-13, 22-24,
51, 52, 70).

2497

DISCUSSION AND ADDITIONAL FINDINGS
In order to establish a prima facie case of mine safety discrimination under Section 105Cc} of the Act, a complaining miner
bears the burden of production and proof to establish Cl} that he
engaged in protected activity, and (2) that the adverse action
complained of was motivated in any part by that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797-2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 C3d Cir. 1981):
and Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-818 (April 1981). The operator may rebut the
prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by
protected activity. If an operator cannot rebut the prima facie
case in this manner it may nevertheless affirmatively defend by
proving that Cl} it was also motivated by the miner's unprotected
activities, and (2) it would have taken the adverse action in any
event for the unprotected activities alone.
The operator bears
the burden of proof with regard to the affirmative defense. Haro
v. Magma Copper Co., 4 FMSHRC 1935, 1936-1938 (November 1982).
The ultimate burden of persuasion does not shift from the complainant. Robinette, 3 FMSHRC at 818 n. 20. See also Baich v.
FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983): Donovan v. Stafford Const. Co., 732 F.2d 954, 958-959 CD.C. Cir. 1984) (specifically approving the Commission's Fasula-Robinette test>: and
Goff v. Youghiogheny & Ohio Coal Company, 8 FMSHRC 1860 (December
1986).
In terms of the required prima facie case in discrimination,
Complainant clearly established the first elements thereof, i.e.,
that he had engaged in protected safety activities and that Respondent's management was aware thereof prior to the time he was
suspended on November 23, 1988, and subsequently discharged.
The first of the two decisive issues posed are whether the
adverse action taken by Respondent against Complainant was "in
any part" motivated by Complainant's protected activities.
The affirmative defense provided under the Commission's discrimination formula raises the second issue:
Even assuming arguendo that Respondent was in part motivated by Complainant's protected activities, was it also motivated by his unprotected activities and would it, in any event, have discharged him for his
unprotected activities alone.
Under the 1977 Mine Safety Act, discriminatory motivation is
not to be presumed but must be proved. Simpson v. Kenta Energy,

2498

Inc. and Jackson, 8 FMSHRC 1034, 1040 (1986).
Here, the Complainant, in order to carry his burden of establishing discriminatory motivation, seeks to have an inference thereof drawn from
various circumstantial factors.
Respondent's management witnesses, however, have convincingly testified th.at they were not motivated by Complainant's protected activities in discharging, or recommending the discharge
of, Mr. Maynes.
The evidence introduced by Complainant to establish a motivational nexus between the allegedly discriminatory adverse action (discharge) taken against him and his mine safety__ activities
was not convincing. 10; For example, Mr. Maynes contended that
his supervisor, I.T.~omero, was harassing him because Romero
once told him that he'd be "watching him." Romero's explanation,
however, was plausible:
Mr. Maynes had been working in the crusher the
day before and had an accident, if I remember correctly, he had strained his back.
The next morni-g, he came to work for me and I told him, in
front of the mechanics, I told the other mechanic
to watch out for him, and I told him I would be
watching him.
It was out of concern for the injury that he had before, not because I was harassing him.
CII-T. 136-137).
Mr. Maynes also complained that, at certain five-minute
safety meetings, he had been prohibited from raising specific
safety concerns. Romero, satisfactorily explained what had
occurred:

Q.

With respect to the five-minute safety meeting, you heard
Mr. Maynes testify he had occasionally been precluded from
raising specific concerns in some of those meetings.
Do you
remember that testimony?

A.

Yes, I recall that testimony.

10/ Complainant's contention that the Respondent's handling of
Mr. Maynes' "under protest" alcohol testing situation was disparate and discriminatory when compared to the Robert Maldonado
situation has been evaluated previously herein and is rejected.

2499

Q.

Do you remember any incident of that nature?

A.

No.
I recall having told Mr. Maynes that, when it came to
safety malfunctions out there, okay, that I expected him to
go out into my area, and if he's found something like that,
I expected him to come and report it to me on that day or
then; that I did not want somebody coming into my five-minute talks and trying to report to me something that he discovered three or four days earlier.
Because it's a safety
concern we need to address it then.
Mr. Maynes, on a couple of occasions, wanted to do exactly
that, and so I repeated myself to him.
(II-T. 11~).

The testimony of Respondent's witnesses was credible and
convincing in establishing that the various management personnel
who observed Maynes on November 23, 1988, were reasonable in
their belief that his unusual behavior was due to his being under
the influence.
Thus, in addition to the smell of alcohol on his
breath and the various types of unusual behavior described in
detail above, Mr. Maynes had come in late that morning and immediately asked to leave early.
I find no basis in the evidentiary
record in this matter, including the non-authorized breathalyzer
and alcohol tests obtained by Mr. Maynes on his own several hours
after he reported to work, to conclude that Mr. Maynes was not
under the influence withn the meaning and proscription of Respondent's Rules of Conduct. The tests obtained by Mr. Maynes
himself later in the day do not excuse his refusal to take the
tests required by the Respondent's alcohol/drug policy. Respondent established by the clear preponderance of the credible evidence that a miner's agreement to take such tests "under protest"
is equivalent to refusal and Mr. Maynes was so advised and given
every opportunity to take the tests required under the company's
policy.
As Respondent points out in its Brief:
No one from the Company told Maynes that he was
free to undergo an alcohol test several hours later
at a place of his own choosing and have that test
satisfy his obligation to undergo an alcohol test
pursuant to the Company's drug and alcohol policy.
The Company was entitled to a timely alcohol test
performed by its carefully selected medical facility
that was certified to perform such tests.
If the
Company cannot require its employees under circumstances such as those present here to undergo an

2500

alcohol test when requested to do so, and discharge
those employees who refuse to take the test, then
the Company's ability to comply with regulations
promulgated under the Act, to insure that its employees are not under the influence of alcohol, and
to promote the safety of its employees and operations,
is severely damaged, if not destroyed. Cf., Mullen
v. Jim Walter Resources, Inc., 3 MSHC (BNA) 1635,
1636 (1984) (reasonable for company to require employees to submit to prompt alcohol test at medical
facility.of the company's choice because, by refusing and later obtaining a test from a private phys~
cian on her own, employee "caused a lower showing of
blood alcohol content").
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, suc.h illegal motivation may be established if the facts support a reasonable inference thereof.
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC
2508, 2510, 2511 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d CD.C. Cir. 1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-1399 (June 1984).
The weight of the evidence in this record is not probative that
Respondent was illegally motivated in whole or in part, nor is
there support for drawing an inference of such discriminatory
intent.
In reaching the conclusion that Complainant failed to establish that his suspension and discharge were discriminatorily motivated, consideration also has been given to the fact that the
instant record does not reflect a disposition on the part of Respondent's management personnel, individually, or collectively,
to engage in such conduct. A history of, or contemporary action
indicating, antagonism or retaliatory reaction to the expression
of safety complaints, was not persuasivley shown. Complainant
points out several instances of what he considered hostile words
or action taken by management personnel toward him. Yet, such
were not demonstrated to be beyond normal workplace occurrences
or, more to the point, were not shown to be attributable to his
protected activities. There was no evidence of retaliation
against other employees who had engaged in safety activities or
who expressed safety complaints. Thus, other employees besides
Maynes handled safety grievances and were not disciplined or
discharged. For example, Samuel Silva, as shop steward, did so.
CI-T. 51, 95-96; II-T. 135; III-T. 25-26).
Further, other employees of Respondent who either refused to take the required
blood alcohol test or failed it were terminated.
CII-T. 216,
217, 223-224, 236-239, 241; IV-T. 9, 21, 28, 32, 35, 58).

2501

CONCLUSIONS
Respondent's motivation in suspending and then discharging
Complainant was for his two independent unprotected activities
(reporting to work under the influence and refusing to comply
with Respondent's drug/alcohol policy) and the decision to take
such adverse actions was justified. These adverse actions were
not wholly or in part discriminatorily motivated.
Thus, Complainant has failed to establish a prima facie case of discrimination under Section 105(c) of the Mine Act.
Even assuming arguendo, that it were established oy a preponderance of the reliable probative evidence, that Complainant's
suspension and discharge were motivated in part by his protected
activities, Respondent established by a clear preponderance of
such evidence that it was also motivated by Complainant's unprotected activities and that it would have taken the adverse action
in any event for such. 11;
ORDER
Complainant, having failed to establish Mine Act discrimination on the part of Respondent, the Complaint herein is found to
lack merit and this proceeding is DISMISSED.

~;J'L./~ 4·~~/h 91.
/~f'ch~ A. {;;her, ~;: Administrative Law Judge
Distribution:
Michael D. Moberly, Esq., RYLEY, CARLOCK & APPLEWHITE, 101 North
First Avenue, Suite 2600, Phoenix, AZ 85003-1973 (Certified
Mail)
Richard A. Maynes, P.O. Box 109, Central, NM 88026
Mail)

(Certified

Michael J. Keenan, Esq., WARD, KEENAN & BARRETT, 2020 North
Central, Suite 1020, Phoenix, AZ 85004
(Certified Mail)
/ek

11/

See Gravely v. Ranger Fuel Corp., 6 FMSHRC 799 (1984).

2502

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

NOV 2 61990
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 90-141
A.C. No. 46-03805-03961

v.
Martinka No. 1 Mine..SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION

Appearances:

Before:

Glenn M. Loos, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for the Secretary of Labor (Secretary);
David M. Cohen, Esq., Lancaster, Ohio and
Joseph S. Beeson, Esq., Robinson & McElwee,
Charleston, West Virginia, for southern Ohio
Coal Company (SOCCO).

Judge Broderick

STATEMENT OF THE CASE

The Secretary seeks a civil penalty for an alleged violation
of 30 C.F.R. § 75.1725(c) charged in a citation issued August 8,
1989. The citation resulted from the investigation of an
accident occurring on May 5, 1989, and concluded that socco was
not following safe wO-rk.procedures involving tagging and locking
out machinery when workers are exposed to moving parts. Both
parts conducted pretrial discovery.
Pursuant to notice, the case
was heard in Morgantown, West Virginia on September 19 and 20,
1990. James Young, John s. Guido and Louis DeRosa testified on
behalf of the Secretary; William Laird and Randolph Ice_ testified
on behalf of SOCCO. Both parties have filed posthearing briefs.
I have considered the entire record and the contentions of the
parties and make the following decision.
FINDINGS OF FACT
I

At all times pertinent to this proceeding, SOCCO was the
owner and operator of an underground coal mine in Marion County,
West Virginia known as the Martinka No. 1 Mine. socco is a large
operator.
In the 24 months prior to the violation alleged in

2503

this proceeding, socco had a history of 1049 paid violations in a
total of 971 inspection days. None of these was a violation of
30 C.F.R. § 75.1725(c). This history is not such that penalties
otherwise appropriate should be increased because of it.
II

On August a, 1990, Federal Coal Mine Inspector James Young,
when he arrived at the subject mine site, was given a written
request by two union representatives to investigate an accident
which had occurred at the mine on May 5, 1989. The request
stated the miner Sam Guido was injured when the No. 5 conveyor
belt was turned on while Guido was working on it. Insp-ector
Young interviewed Martinka foremen William Laird and John Gowers,
and miners Louis DeRosa, Frank Renick, and Dempsey McHenry. He
did not interview Sam Guido who was not at work that day.
III

Following his investigation Inspector Young issued a
section 104(a) citation fo~ a violation of 30 C.F.R. § 75.1725(c)
because Respondent was not following safe work procedures
involving tagging and locking out machinery when miners were
exposed to moving parts. The inspector determined that the
violation was significant and substantial and was the result of
SOCCO's moderate negligence.

IV
On May 5, 1989, a crew working under belt supervisor Laird
was engaged in extending the 5-54 inch belt during the midnight
shift. The section had advanced and the belt had to be extended
by one block. The top rollers were installed, and bottom rollers
had still to be installed. Laird travelled to the headgate to
take up the slack in the belt. He was unable to take up the
entire slack with the take-up device so he called foreman Gowers
to tell him he was going to start the belt. Gowers did not tell
Guido and DeRosa who were working on the belt that the belt was
going to be started. Neither did Laird tell them before he went
to the headpiece. Guido had returned to the belt after having
urinated and his gloves were on the belt. He intended to finish
setting the top roller using a "come-along" (also called a "red
devil"), when the belt was turned on. Guido was an experienced
beltman. DeRosa was about 10 feet from Guido and had gone to the
tailpiece to get some additional cribs. He heard the belt "bump"
once or twice, and heard Guido yelling after the belt started.
The come-along bounced along the belt after it was started.
Dempsey McHenry shut off the belt. Guido claimed that he
sustained injuries to his leg.

2504

Guido has had a substantial number of prior work connected
injuries at Martinka. He also has a history of absenteeism.
socco has attacked Guido's credibility and suggests that his
testimony is influenced by the fact that he has a pending
personal injury suit against socco arising out of the accident.
However, the testimony of DeRosa alone establishes that the belt
was ·started without warning when miners were working on or near
it.

REGULATION
30 c.F.R. § 75.1725(c) provides as follows:
Repairs or maintenance shall not be performed
on machinery until the power is off and the
machinery is blocked against motion, except
where machinery motion is necessary to make
adjustments.

ISSUES
1. Whether the evidence establishes a violation of the
standard as charged?
a. Whether extending a belt constitutes repairs
or maintenance on machinery?
b. If so, whether motion of the belt was necessary
to make adjustments?
2. If a violation is established, whether it was
significant and substantial?
3. If a violation is established, what is the appropriate
penalty therefor?

CONCLUSIONS OF LAW
I

socco was at all times pertinent to this proceeding subject
to the provisions of the Mine Act in the operation of the
Martinka mine.
I have jurisdiction over the parties and subject
matter of this proceeding.

II
I conclude that the action in extending the belt described
in finding of fact IV constitutes maintenance on machinery as
that term is used in the regulation 30 C.F.R. § 75.1725{c). The
term maintenance may mean preserving a thing in proper condition,

2505

or it may include continuance, extension or prolongation. It is
defined in the American Heritage Dictionary of the English
Language (New College edition 1976) as 11 1.a The act of
continuing, carrying on, preserving or retaining something
3. The work of keeping something in proper condition." The
Synonym Finder, J.I. Rodale (1978) lists the following synonyms
11
for maintenance:
1. preservation, upkeep, annual upkeep,
keeping up; 2. continuance, continuity, extension, prolongation;
perpetuation, persistence, perseveration, repetition." (p.697) A
belt move includes adding belt to an existing belt system, adding
rollers, taking up the belt slack, and placing blocks to support
the belt tail piece. All of these functions are necessary to
produce coal as the face advances. The belt system is or
includes machinery. Extending it involves adding and adjusting
activities which constitute maintenance.

III
The evidence establishes that power was resumed on the belt;
it was "bumped" once or twice before being started while miner
Guido was performing maintenance work on the belt. There is
conflicting evidence as to exactly what he was doing and whether
he was actually on the belt when it started. I am not the proper
forum to decide whether and to what extent Guido was injured as a
result of the belt being turned on. I only have to decide
whether a violation occurred. The evidence however, is clear
that neither Guido nor DeRosa were informed that foreman Laird
was going to start the belt. Although motion of the belt is
necessary to make adjustments, it obviously cannot safely be
accomplished while the belt is being worked on. All the affected
miners must be informed if a belt which has been locked out is
going to be started up. This was not done here. I conclude that
a violation of 30 C.F.R. § 75.1725(c) has been established.

IV
Making repairs or adjustments on a belt while the belt is
moving is a serious violation. This is so whether or not the
injury Guido complains of resulted from the violation. Such a
violation is reasonably likely to result in serious injury.
Therefore it was appropriately designated as significant and
substantial. Foreman Laird believed that he had informed the
miners working on extending the belt that he was going to start
the belt to take up the slack. In fact he informed foreman
Gowers, and Gowers failed to notify Guido and DeRosa.
I conclude
that the injury resulted from socco•s negligence.
Based on the criteria in section llO(i) of the Act, I
conclude that an appropriate penalty for the violation is $300.

2506

ORDER
Based on the above findings of fact and conclusions of law
IT IS ORDERED:
1.

Citation 3118169 issued August 8, 1989, is AFFIRMED.

2. Respondent shall within 30 days of the date of this
decision pay the sum of $300 for the violation found herein.
?

•

kt·ites: /kO:vcle-c,-'1-eL_

1

~ ~ames A. Broderick

Administrative Law Judge

Distribution:
Glenn Loos, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
David M. Cohen, Esq., American Electric Power Service Corp., 161

w. Main Street, Box 700, Lancaster, OH 43120 (Certified Mail)
slk

2507

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

NOV 2 61990
DISCRIMINATION PROCEEDING

DENNIS WAGNER,
Complainant

v.

Docket No. VA 88-21-D

PITTSTON COAL GROUP,
CLINCHFIELD COAL COMPANY,
JACK CRAWFORD,
MONROE WEST,
WAYNE FIELDS,
Respondent

..

ORDER OF DISMISSAL

Before:

Judge Broderick

On October 26, 1990, I issued an order to Complainant to
show cause within 20 days why the remaining allegations of the
complaint should not be dismissed because such allegations were
also charged in the case of Secretary/Wagner v. Clinchfield coal
Company, Docket No. VA 88-l9-D. Complainant has not responded to
the order to show cause.
Therefore, the above proceeding is DISMISSED.

;J

"7

.1/t~11.£S )--/jr:>dL. ~c:/:.__
James A. Broderick
Administrative Law Judge

Distribution:
Jerry Talton, Esq., 222 East Main Street, Front Royal, VA 22630
(Certified Mail)

w. Challen Walling, Esq., Penn, Stuart, Eskridge & Jones, 306
Piedmont Avenue, P.O. Box 2009, Bristol, VA 24203 {Certified
Mail)
slk

2508

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

22041

NOV 2 61990
LARRY E. SWIFT,

DISCRIMINATION PROCEEDING
Complainant

v.

Docket No. PENN 90-233-D
PITT CD 90-31

CONSOLIDATION COAL CO.MPANY,
Dilworth Mine
ORDER OF DISMISSAL
Before: Judge Melick
Complainant requests approval to withdraw his complaint
in the cpationed case for the reason that the issues
underlying the Complaint were "substantially resolved"
through a grievance settlement.
Under the circumstances
herein, permission to withdraw is granted.
29 C.F.R. §
2700.11. This case is therefore dismissed.

J~1·
,

,c
~· G1v0\ \\J,/l_.j--\._
.

I

/Gary Melick \ [
' AdministrativE:l Law Judge
(703) 756-6261
Distribution:
Mr. Larry E. Swift, Chairman, UMWA, Local Union 1980, Health
and Safety Committee, 206 S. Walnut St., Masontown, PA 15461
(Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company,
Consol Plaza, 1800 Washington Road, Pittsburgh, PA
15241-1421 (Certified Mail)
nb

2509

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

NOV 2 81990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
BOB WAYNE HUBENAK,
Complainant
v.

..

DISCRIMINATION PROCEEDING
Docket No. CENT 90-34-DM
MD 89-56
Bayer Alumina Plant

ALUMINUM COMPANY OF AMERICA,
Respondent
DECISION
Appearances:

Janice L. Holmes, Esq., Office of the Solicitor,
U. s. Department of Labor, Dallas, Texas, for the
Complainant~

Linda F. Schneider, Esq., Aluminum Company of
America, Pittsburgh, Pennsylvania, for the
Respondent.
Before:

Judge Weisberger

Statement of the Case
This case is before me, based on a Complaint filed by the
Secretary (Complainant), on behalf of Bob Wayne Hubenak, alleging
that the Operator (Respondent) violated Section 105(c)(2) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c)(2)
(the Act). Pursuant to notice, the case was scheduled for
hearing on May 15, 1990. On April 25, 1990, Respondent filed a
Motion for Continuance, and the hearing was rescheduled to
commence on June 26, 1990. On June 22, 1990, Complainant filed a
Motion for Continuance, and the case was rescheduled to commence
on October 10, 1990.
On July 12, 1990, the case was reassigned to the undersigned.
The hearing was rescheduled and subsequently heard in Corpus
Christi, Texas, on September 10-11, 1990. Bob Wayne Hubenak,
Robert W. White, Harry Elrod, Kerry Keller, and Jim Isaac
Simmons, Jr. testified for Complainant. Charles F. DiMascio,
Jeffrey Alan Shockey, Johnny Palmer, Jr., Thomas G. Russell,
Harry Elrod, and Kerry Keller testified for Respondent.

2510

Proposed Findings of Fact and Memorandum of Law were filed
on November 6, 1990. Respondent filed a Response on March 14,
1990, and a Response was filed by Complaintant on November 15,
1990, Respondent also filed a Joint Motion to Amend Pretrial
Stipulations and this motion is granted. Complainant's Motion,
filed November 15, 1990, for Leave to Amend its Proposed Findings
of Fact, is granted.
Stipulations
The Parties entered into the following stipulations:
1. Jurisdiction over this action is conferred upon-the
Federal Mine Safety and Health Review Commission under
Section 105(c}(2} and Section 133 of the Act.
2. Respondent's Bayer Alumina Plant, referred to as
Point Comfort Operations, located in Calhoun County,
Texas, is a mine as defined in Section 3(n} of the Act,
the products of which affect commerce under Section 4
of the Act.
3. At all relevant times Respondent, Aluminum Company
of America ("Alcoa"), did business and operated its
Point Comfort facility in production of alumina, and
therefore is an operator within the meaning of
Section 3(d) of the Act.
4. Bob Wayne Hubenak was hired by Alcoa, at its Point
Comfort Operations, in March 1969.
5. In April 1969, Mr. Hubenak was assigned to work in
the Precipitation Department and has worked in the
department since that time.
6. At all times relevant to this case, Mr. Hubenak
held the position of "Area Operator" or "tank pumper"
in the Precipitation Department and was therefore a
miner within the meaning of Section 3(g) of the Act.
7. On or about March 24, 1989, some overhead pipeline
which was suspended by several broken metal pipe
hangers fell to the ground. The area was barricaded to
prevent access to the area.
8. Following this incident, Company management
inspected all pipe hangers in the area.

2511

9. Company management directed the Engineering
Department to initiate a detailed inspection of pipe
hangers and pipe supports in the Precipitation
Department.
10. After Mr. Hubenak learned that two MSHA inspectors
would be inspecting the lights in his work area, he
reported the broken pipe hangers to MSHA inspector
Robert White.
11. Upon learning of the condition of the pipe hangers,
Alcoa barricaded the area to prevent others from walking
under the pipes.
12. A citation was issued to Alcoa by the MSHA Inspector
for a violation of 30 C.F.R. § 56.20011. Alcoa did not
contest the citation and promptly abated the condition.
13. Hubenak engaged in protected activity by reporting a
hazardous condition to an MSHA Inspector.
14. On or about May 4, 1989, Mr. Hubenak was given a
5 day disciplinary suspension.
15. On or about May 24, 1990, Mr. Hubenak was also
advised that he would receive an additional 25 day
suspension, but the suspension was not given.
16. Hubenak's complaint to the Secretary was filed on
June 1, 1989.
17. After an investigation, the Secretary filed her
complaint, on Hubenak's behalf, with the Commission on
December 20, 1989.
18. Hubenak's-damages are equal to five (5) days pay at
the rate he was receiving in May 1989, or $532.52,
together with interest at the short-term Federal rate
applicable to the under-payment of taxes in accordance
with Local Union 2274, District 28, United Mine Workers
of America v. Clinchfield Coal Co., 10 FMSHRC 1943,
aff'd, 895 F.2d 773 (10th Cir. 1989).
19. Paul Ernest Kelm was the Miner's Representative for
Local 4370 of the united Steelworkers of America at
Aloca's Point Comfort Operations at all times pertinent
hereto. Prior to March 27, 1989, Kelm informed Hubenak
that he would not represent him concerning safety
complaints.

2512

Findings of Fact and Conclusion of Law
Bob Wayne Hubenak is a miner employed by the Operator as a
tank pumper in the Precipitation Department of its Point Comfort
Operation.
During the period in question, Hubenak worked in the
area known as R-45, which contains approximately 6,000 pipe
hangers spread over 200 acres.
In the pertinent period at issue,
Hubenak worked the 4:00 p.m. to midnight shift on March 24, 25,
26, and 27, 1990. In the R-45 area, sometime during the shift
that Hubenak worked on March 24, some overhead pipeline that had
been suspended by several broken metal hangers, fell to the
ground. According to Hubenak at approximately 7:30 p.m. on
March 27, he came by the control room in the R-45 area. He said
that the operators in the control room were talking abou~ the
incident of a 150 foot section of pipe that had fallen on
March 24. Hubenak went to check his work area to see if there
were any broken hangers. According to Hubenak, he saw one or two
broken hangers. Hubenak then went to the supervisor's office.
In essence, he said that he asked his supervisor and the MSHA
Inspectors who were present whether he could get in trouble by
making a safety complaint to the Inspectors, and was told that he
could not. According to Hubenak, while in the supervisor's
office, in the presence of Kerry Keller, Paul Kelm,
Bernard Gaash, and J. B. Steamer, he told the MSHA Inspectors,
while looking at the former, that he had observed broken pipe
hangers. He then went with the Inspectors, along with the others
who were present, to inspect the broken hangers.
According to Hubenak, approximately 2 weeks later, Harry
Elrod, who was the area superintendent for precipitation during
the period in question, asked him what happened the night of
March 27, and advised him that he should have first informed his
supervisor of the broken hangers that he observed, and that
accordingly, he (Elrod) was contemplating taking disciplinary
action. Hubenak indicated that on May 4, Elrod again asked him
what happened on March 27, and he (Hubenak) informed the latter
that he told the MSHA Inspectors of the condition of the hangers,
" • • • because I could get something done before somebody got
hurt."(Tr.35) Elrod informed him that he was giving him a 5 day
suspension.
The Commission, in a recent decision, Goff v. Youghiogheny &
Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discrimination. The Commission, Goff, supra, at 1863,
stated as follows:
A complaining miner establishes a prima facie case
of prohibited discrimination under the Mine Act by
proving that he engaged in protected activity and that

2513

the adverse action complained of was motivated in any
part by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United castle Coal
Co., 3 FMSHRC 803, 817-18 (April 1981). The Operator
may rebut the prima facie case by showing either that
no protected activity occurred or that the adverse
action was not motivated in any part by protected
activity. Robinette, 3 FMSHRC at 818 n. 20. See also
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59
(D.C. Cir. 1984}; Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983} (specifically approving the
Commission's Pasula-Robinette test}.
There is no conflict in the record with regard to-the fact
that on March 27, 1989, Hubenak informed MSHA Inspector Robert W.
White of the existence of broken pipe hangers in the R-45 area.
As such, Hubenak was clearly engaged in protected activities.
Further, the record establishes that Hubenak suffered adverse
action, namely, a 5 day suspension. Thus, the key issue for
resolution, is whether the Secretary has established a prima
facie case by proving that the 5 day suspension was "motivated in
any part" by Hubenak's having reported the condition of broken
pipe hangers to the MSHA Inspector (protected activity}.
(Robinette, supra, at 817-818).
In essence, it is the
Secretary's position that Hubenak was suspended because he chose
to report the unsafe condition to the MSHA Inspector, rather than
to his supervisor. As such, it is argued that Respondent has
interfered with Hubenak's right to report an unsafe condition to
an MSHA Inspector. Further, the Secretary argues that Respondent
has not, up to this point, disciplined any of its employees for
failure to report an unsafe condition to a supervisor.
I did not
find merit to these arguments for the reasons that follow.
Jim Isaac Simmons, Jr., who worked for Respondent for
28 years as an area operator or tank charger in the R-45 Area,
testified that he was not aware of any of Respondent's employees
who had been disciplined for not turning in a safety violation to
a supervisor. Also in this connection, Elrod testified that in
the 3 years that he was in charge of the R-45 Area, he did not
discipline any miner for failure to report a safety violation to
a supervisor.
I find that these statements of Simmons and Elrod
do not establish any discriminatory action against Hubenak. To
establish that Hubenak received disparate treatment, it must
first be proven that there were situations where other employees
were aware of safety violations or hazardous conditions, but did
not report them to their supervisors.
It next must be
established that Respondent knew of these situations and did not
discipline the employees in question. The record does not
contain any evidence that Respondent was aware that there were
other employees who had knowledge of unsafe conditions, but did

2514

not report them to their supervisors. Nor does the record
contain evidence that there were any incidents, aside from the
situation in issue, wherein Respondent's employees knew of
hazardous conditions or safety violations, and did not report
them to their supervisors. Accordingly, evidence that no other
employees were disciplined for not reporting safety violations
does not, per se, establish that Hubenak was discriminated
against.
Nor does the record contain sufficient evidence to predicate
an inference that Respondent's action, in suspending Hubenak, was
motivated in any part by his having reported unsafe conditions to
the MSHA Inspector. Any inferences in the record from which this
conclusion might be drawn, have been successfully rebutted by
Respondent.
The only evidence of record that would tend to
establish that Respondent manifested or harbored a negative
attitude towards miners making safety complaints, is found in
the testimony of Hubenak and Simmons. Simmons, in essence,
testified that "supervisors" consider it "nitpicking" and give
extra work, if a miner turns in a lot of safety complaints or
repeats a safety complaint (Tr. 153).
I do not place much weight
upon this testimony of Simmons, as he did not cite the date or
nature of any specific incidents. Also, it is significant to
note that Simmons was not in Hubenak's work crew in the period in
question, and there is no evidence that he was supervised at any
time by Steamer, who was Hubenak's supervisor, during the period
in question.l/
Hubenak related that on one occasion, in June or July 1989,
when he inquired of his Supervisor Ed Savalla as to how the
latter checked belts, the latter indicated" .•• you just griping.
You just don't want to work.
Go up there and put that belt on
and go to work, clean that secondary."
(sic) (Tr.45).
Hubenak
indicated that on another occasion when he complained for the
second time that a "blind" had not been placed in the correct
position, Savalla said " • . . lo6k like you never make no
mistakes."
Csic) CTr. 48) • Inasmuch as Savalla was not
Hubenak's supervisor during the period in question, and there was
no evidence that Savalla in any way had participated in the
decision to suspend Hubenak, I do not place much weight on this
testimony of Hubenak. Further, Elrod, who suspended Hubenak, was
the individual fully responsible for taking such an action.

1/ On cross-examination Hubenak indicated that he did not have
any problems with Steamer, and specifically was not afraid that
the latter would take any action against him, if he turned in a
safety complaint.

2515

There is no evidence that Elrod had ever manifested any animosity
toward Hubenak or other miners making complaints to MSHA
Inspectors or to management. On the contrary, the Secretary has
not contradicted the testimony of Elrod, Charles F. DiMascio,
Respondent's Director of Safety and Industrial Hygiene, Jeffrey
Alan Shockey, who was the Safety and Industrial Hygiene Manager
at Point Comfort Operation during the period in question, and
Johnny Palmer, Jr., Production Manager, Alumina, all of whom
described Respondent's strong policy of requiring employees to
report safety and health hazards.
It appears to be the Secretary's position that, in
actuality, Hubenak's suspension by Respondent was motivated, in
part, by the fact that Hubenak chose to report a hazardous
condition to the Inspector rather than a supervisor.
On the
other hand, it is Respondent's position that the only motivation
for its suspension of Hubenak, was because the latter had not
reported, to his supervisor, a hazardous condition which he had
known about for more than 2 days.
In essence, for the reasons
that follow, I find the evidence establishes that a good faith
reasonable belief that Hubenak did not report to his supervisor
the hazardous conditions which he had known of for a few days,
was the only basis for the determination by Elrod to suspend
Hubenak.
According to Hubenak, on the evening of March 27, he
went to inspect for broken hangers, and discovered one or two.
He did not seek out his supervisor, but decided to report instead
to the MSHA Inspector, "because I could get something done before
somebody got hurt," (Tr. 35).
According to Elrod, when he
confronted Hubenak a few days after March 27, he asked him why he
had not notified management if he had known, for a couple of
days, of the existence of broken hangers. ·The latter did not say
that he had just discovered the hangers on March 27, but, he made
this assertion the first time when he was confronted again on
May 4 when he was suspended.
Further, Elrod indicated that he
was told by Keller that Hubenak had found the broken pipes after
the 150 length of pipe had fallen on the night of March 24.
Accordingly, Elrod concluded that Hubenak had known of the
hazardous condition when he worked over the weekend, March 24-26,
and had not reported it to his supervisor in violation of Company
policy.~/
2/ In this connection, the Secretary did not rebut the testimony
of Respondent's witnesses that it was standard operating
procedure to have placed guidelines dated April 20, 1988, on a
bulletin board, which set forth, as pertinent, as follows:
"The
employee who believes that safety or health hazard exists shall
notify his supervisor, discuss.the situation, and try to resolve
the problem • • • • "
(Exhibit R-5J.
Also, the Secretary did not
rebut the evidence of Shockey that all employees are provided
with a copy of the Safety Code of Conduct.
Further, the
personnel file of Hubenak contains notes indicating "went
through" the safety book on various dates in 1977, (Exhibit R-12,
page 000306).
2516

Company policy is embodied in the Safety Code of Conduct, which
provides, as pertinent, as follows:
"5. Be alert for unsafe
conditions and report them immediately to your supervisor."
(Exhibit R-3, page 000031).
I specifically find that there was a reasonable basis for
Elrod to conclude that Hubenak had known about the broken hangers
since the weekend commencing March 24, and had not reported this
to his supervisor. Hubenak did not testify to rebut Elrod's
testimony, that when he asked Hubenak a few days after March 27,
why he did not inform management if he had known, for a few days,
about the broken hangers, and he CHubenak) did not maintain that
he first learned of the conditions on March 27. Further, Elrod
based his conclusion as to Hubenak's actions upon information
provided him by Keller.
This was corroborated by Keller, who
indicated that Hubenak had told him that over the weekend
(March 24-26) he had inspected for broken pipes and found some on
a pipeline, although he (Hubenak) did not indicate exactly when
this occurred. Hubenak did not rebut this testimony of Keller.
Accordingly, I find that Elrod had good cause to conclude that
Hubenak had known of the existence of broken hangers over the
weekend, and had failed to report this condition to his
supervisor. According to Elrod, he concluded that is "totally
intolerable" if employees who are aware of unsafe conditions,
fail to report them (Tr. 336).
I thus conclude that Respondent's action in suspending
Hubenak was motivated solely by his failure to inform his
supervisor, or other management officials, of the existence of
broken hangers, which Respondent reasonably believed Hubenak had
known about since the weekend of March 24, ·1989.
I thus conclude
that Respondent has successfully rebutted the Secretary's case,
and that the Secretary has failed to establish a prima facie
case, i.e., that Hubenak's suspension was motivated, in any part,
by protected activities. Accordingly, the Complaint shall be
dismissed.
ORDER
It is hereby ORDERED that the Complaint filed on
December 26, 1989, be DISMISSED.

£~

Avram Weisberger
Administrative Law Judge

2517

Distribution:
Janice L. Homes, Esq., Office of the Solicitor, u. s. Department
of Labor, 525 Griffin Square, Suite 501, Dallas, TX 75202
(Certified Mail)
Linda F. Schneider, Esq., General Attorney Aluminum Company of
America, 1501 Alcoa Building, Pittsburgh, PA 15219 (Certified
Mail)
dcp

2518

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

NOV 2 81990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. PENN 90-52
A.C. No. 36-07783-03515

v.
Slope No. 1 Mine
HICKORY COAL COMPANY,
Respondent
DECISION
Appearances:

Susan M. Jordan, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Mr. William Kutsey, Owner, Hickory Coal Company,
Pine Grove, Pennsylvania, pro se, for the
Respondent.

Before:

Judge Fauver

This is an action for civil penalties under § 105(d) of the
Federal Mine Safety and Health Act of 1977,, 30 u.s.c. § 801 et
seq.
The case came on for hearing at Harrisburg, Pennsylvania, on
November 1, 1990. After extensive testimony and the admission of
documentary evidence, a settlement conference was held between
the parties and before the judge.
Based upon the conference, a
settlement was reached and approved by the judge.
ORDER
WHEREFORE IT IS ORDERED that:
1.
The parties' oral motion to approve a settlement
agreement is GRANTED.
2.
Respondent is ASSESSED a civil penalty of $100 for each
of the two citations involved herein and shall pay such penalties
of $200 within 30 days of this decision.

2519

3.

Citation No. 267748 and Order No. 2677021 are AFFIRMED.

4.

Citation No. 2676999 is AFFIRMED.

5. Order No. 2677042 is MODIFIED to provide that:
"The
Michigan front-end loader, Model No. 55a, is permitted to be used
for loading run of mine coal only; and all use of the front-end
loader shall be confined to the loading area." As so modified,
Order No. 2677042 is AFFIRMED.

/.tJtc~ ~tJvtl//f/1--

%.11iam Fauver
Administrative Law Judge-Distribution:
Susan M. Jordan, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Mr. William Kutsey, owner, Hickory Coal Company, R.D. #1,
Box 479, Pine Grove, PA 17963 (Certified Mail)
/fb

2520

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

22041

NOV 301990
DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
WILLIAM A. MARSHALL,
Complainant

Docket No. LAKE 90-78-DM
Quality Pit & Mill

v.
QUALITY READY MIX, INC.,
DECISION APPROVING SETTLEMENT
AND DISMISSING PROCEEDING
Before:

Judge Broderick

On November 21, 1990, the Secretary submitted a settlement
agreement executed by Complainant William Marshall and by counsel
on behalf of the Secretary and Respondent. The agreement provides
that Respondent shall pay William Marshall the sum of $4500 in
settlement of his claim against Quality Ready Mix, that Marshall's
personnel
file
shall
reflect that he was
separated from
Respondent's employ by mutual agreement of the parties. It further
provides that the Secretary withdraws her demand for a civil
penalty against Respondent in this proceeding.
I have considered
the agreement in the light of the purposes of the Act and conclude
that it should be approved.
Accordingly, the settlement agreement dated November 18, 1990,
by and among the Secretary of Labor, William M. Marshall and
Quality Ready Mix is APPROVED.
IT IS ORDERED that the terms of the settlement agreement
including the payment by Respondent to Marshall of the sum of $4500
shall be carried out within 30 days of the date of this order.
Upon compliance with this order, this proceeding is DISMISSED •
...,

.
./

~

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,/

2521

,~::)?'V (lt/1/1L{!,(('

wt

v.; II' ~ _ /

_./

"

,

.......___

James A. Broderick
Administrative Law Judge

Distribution:
Bruce Scott Goldstein, Esq., U.S. Department of Labor, Office of
the Solicitor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Theresa Jones, Esq., Robert J. Brown, Esq., Thompson, Hine and
Flory, 2000 Courthouse Plaza, N.E., P.O. Box 8801, Dayton, OH
45401-8801 (Certified Mail)
slk

2522

ADMINISTRATIVE LAW JUDGE ORDERS

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

22041

November 8, 1990

JOHN A. GILBERT,
Complainant
v.

..

Docket No. KENT 86-49-D
BARB CD 85-61

SANDY FORK MINING COMPANY,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA},
on behalf of
JOHN A GILBERT
Complainant

DISCRIMINATION PROCEEDING

No. 12 Mine

.
.

DISCRIMINATION PROCEEDLNG
Docket No. KENT 86-76-D
BARB CD 85-61
No. 12 Mine

v.
SANDY FORK MINING COMPANY,
Respondent
DECISION
Appearances:

Before:

Tony Oppegard, Esq., Appalachian Research and
Defense Fund of Kentucky, Inc., Hazard, Kentucky,
for John A. Gilbert;
Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Secretary of Labor;
Ronald E. Meisburg, Esq., and c. Gregory Ruffenach, Esq.,
Smith, Heenan and Althen, Washington, D.C., for
Sandy Fo-rk Mining Company, Inc.

Judge Melick

These cases are before me upon remand by the United States
Court of Appeals for the District of Columbia Circuit in John A.
Gilbert v. FMSHRC, 866 F.2d 1433 (1989} and upon subsequent
direction by the Commission on June 2 8, 199.0, to resolve several
specific issues.
'
The facts and procedural history of these cases are set
forth in detail in previous decisions.
See 9 FMSHRC 1427 (1987}
and 12 FMSHRC 177 (19 90}.
In brief, following an initial
evidentiary hearing, this judge determined that Sandy Fork
Mining Company, Inc. (Sandy Fork} had not violated Section
105(c}(l} of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq., the "Act".
8 FMSHRC 1084 (1986}.
That
decision was affirmed by the Commission but was subsequently

2523

reversed by the Court of Appeals which remanded the cases for
resolution of several specific questions.
The Court explained:
On the record as we understand it, it is plain that
Gilbert made a good faith attempt to communicate his
reasonable fears to management. What is not clear,
however, is whether management addressed Gilbert's
concerns in a way that his fears reasonably should
have been quelled.
In other words, did management
explain to Gilbert that the problems in his work area
had been corrected? Or did management indicate to
Gilbert that he would be assigned to another area in
the mine that was free of safety problems? Or did
management indicate to Gilbert that the situation was
unsettled, and that he should wait five hours Cun~il
the start of his assigned shift) before inquiring
further about safety conditions in his area? These
questions must be answered by the Commission in order
for it to determine whether the management at Sandy
Fork reasonably addressed Gilbert's fears on the
morning of August 7.
If management effectively
"stonewalled" Gilbert in responding to his inquiries
on the 7th, then his continued fears regarding work
hazards were reasonable, and his refusal to return to
work cannot be viewed as either unreasonable or in bad
faith.
On remand, the commission will be required to
make the necessary factual findings to address these
issues.
These specific questions all relate to the larger issue of
whether Gilbert's refusal to appear for work on August 7, was
supported by the requisite good faith, reasonable belief in a
hazard--an issue on which the Complainant bears the burden of
proof. Secretary on behalf of Pasula v. Consolidation Coal
Company 2 FMSHRC 2786 (1980) rev'd on other grounds sub nom.
Consolidation coal Company v. Marshall 663 F.2d 1211 (3rd 1981);
Secretary on behalf of Robinette v. United castle Coal Company,
3 FMSHRC 803 (1981).
In its initial decision following remand of this case the
Commission reviewed the applicable discrimination law cited by
the Circuit Court:
We note initially that the court endorsed several
important principles of Commission discrimination law.
Citing Secretary on behalf of Bush v. Union Carbide
Corp., 5 FMSHRC 993, 997 (June 1983) and Secretary on
behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803 (April 1981), the Court agreed with the
Commission that section lOSCc> of the Act "protects a
miner's right to refuse work under conditions that he
reasonably and in good faith believes to be hazardous."
866 F.2d at 1439. The Court subscribed as well to the

2524

Commission's view that in analyzing whether a miner's
fear is reasonable, the perception of a hazard must be
viewed from the miner's perspective at the time-of the
work refusal.
866 F.2d at 1439, citing Secretary on
behalf of Pratt v. River Hurricane Coal Company, 5
FMSHRC 1529, 1533-34 (September 1983) and Haro v.
Magma Copper Co., 4 FMSHRC 1935, 1944 (November 1982).
The Court also approved Commission holdings that to be
accorded the protection of the Act in engaging in a
work refusal, a miner need not objectively prove that
an actual hazard existed and, further, that a good
faith belief simply means an honest belief that a
hazard exists.
Id., citing Secretary on behalf of
Hogan & Ventura v. Emerald Mines Corp., 8 FMSHRC 1066,
1072-73 (July 1986); Pratt, supra, 5 FMSHRC at
1533-39, Haro, supra, 4 FMSHRC at 1943-44; and
Robinette, supra, 3 FMSHRC at 810.
To determine whether substantial evidence supported
t.he Commission's conclusion that Gilbert's August 7
work refusal lacked the required basis of a good
faith, reasonable belief in a hazard, the Court
adopted Commission guidelines for assessing a miner's
"good faith".
866 F.2d at 1440. First, the court
indicated that, where reasonably possible, a miner
refusing work should ordinarily communicate or attempt
to communicate to some representative of the operator
his belief in the safety or health hazard at issue
and, second, when a miner has expressed a reasonable,
good faith fear in a hazard, the operator has a
corresponding obligation to address the perceived
danger.
866 F.2d at 1440, citing, Secretary on behalf
of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126,
133 February 1982); Bush, supra, 5 FMSHRC at 997-98;
Secretary v. Metric Constructors, Inc •• 776 F.2d 469
Cllth Cir. 1985); Hogan and Ventura, supra, 8 FMSHRC
at 1074. Applying these principles, the Court found
that the record did not support the Commission's
determination that on August 7 Gilbert did not
entertain a good faith, reasonable belief that he
would be required to work in a hazardous area.
866
F.2d at 1140-41.
The Commission, in its initial decision on remand also
reviewed the court's evaluation of the evidence:
The Court presented its view of the evidence •
.Among other things, the court noted that Gilbert was
working in an area of the mine in which it appeared to
him that the prevailing roof conditions placed his
safety in jeopardy; that he left work on August 6 with
management's permission; that when he returned to work
on the morning of August 7 he learned from other

2525

miners of a roof fall that had ocdurred overnight in
the area where he had been working; and that when he
inquired of management representatives what_had-been
done to address the unsafe conditions, they "refused
to address his concerns." 866 F.2d at 1440-41. The
Court found that Gilbert's "initial fears" on August 6
were reasonable and that on August 7 "he made a good
faith attempt to communicate his reasonable fears to
management." 866 F.2d at 1441.
The Court, however, stopped short of outright
reversal of the Commission's decision, stating that it
was not "clear" whether "management addressed
Gilbert's concerns [on the morning of August 7] in a
way that his fears reasonably should have been quelled." 866 F.2d at 1441. See also 866 F.2d at 1441
n.11. The Court explained:
In other words, did management explain to
Gilbert that the problems in his work area
had been corrected? Or did management
indicate to Gilbert that he would be
assigned to another area in the mine that
was free of safety problems? Or did
management indicate to Gilbert that the
situation was unsettled, and that he should
wait five hours (until the start of his
assigned shift) before inquiring further
about safety conditions in his area? These
questions must be answered by the Commission
in order for it to determine whether the
management at Sandy Fork reasonably
addressed Gilbert's fears on the morning of
August 7.
If management effectively
"stone-walled" Gilbert in responding to his
inquiries on the 7th, then his continued
fears regarding work hazards were
reasonable, and his refusal to return to
work cannot be viewed as either unreasonable
or in bad faith.
866 F.2d at 1441.
The parties now before me on remand requested to submit
these issues on the existing record without further evidentiary
proceedings. The essential existing evidence in this regard was
summarized by the Commission in its February 16, 1990, decision:
There is no question on this record that mine
management was aware of the roof problems in the area
where Gilbert was working and was taking steps to
address the problems. As the judge found, and as we
noted, when Gilbert brought the conditions that he
perceived to be hazardous to the attention of his
section foreman on August 6, the foreman responded

2526

that he would add more cribs to support the roof and
that he would stand by and watch while coal was cut.
8 FMSHRC at 1089; 9 FMSHRC at 1330; Gilbert-then went
outside the mine and repeated his concerns to the
general mine foreman, who told Gilbert that he would
not insist that he resume work and that Gilbert should
go home and return the next day to meet with Phipps,
the general manager, and Begley, the mine
superintendent.
When Gilbert returned on August 7, Phipps and
Begley were underground conducting an examination of
the roof, and Gilbert was told by another miner that a
roof fall had occurred in the mine during the night.
After Phipps and Begley emerged from the mine, Giloert
talked separately with each of them.
Gilbert talked first with Phipps. Both Gilbert and
Phipps testified that Gilbert told Phipps that he was
afraid of the roof. Tr. I 39-40; III 89-92. Gilbert
asked Phipps what management was going to do about the·
roof and how the roof would be supported. Tr. II
39-40. Gilbert testified that Phipps responded that
"they [were] supporting what they could." Tr. I 39-40
Similarly, Phipps stated that "primarily" he told
Gilbert that the mine roof was all the top that the
mine had.
Tr. II 127. Both Phipps and Gilbert
testified that Phipps asked Gilbert if he had any
ideas for dealing with the roof (Tr. I 40; III 91),
and Gilbert testified that he offered a few
suggestions (Tr. I 40). Phipps further stated that he
did not try to "convince" Gilbert that the roof was
safe and that, although management was pursuing
several approaches for alleviating the roof problems,
he did not discuss those initiatives with Gilbert at
that time. Tr. III 127-28.
Gilbert then engaged Begley in a similar brief
conversation. Gilbert and Begley also agreed that
Gilbert told Begley that he was afraid of the roof.
Tr. I 40-41; II 109. Gilbert testified that Begley
replied that "that's all they can do ... that's all
the top they [had]." Tr. I 41. Begley stated that he
did not recall telling Gilbert anything about the top
on the morning of August 7. Tr. II 111-12. Begley's
recollection was that he and Gilbert discus~ed
Gilbert's possible job transfer rather than roof
problems.
Id. After these two conversations, Gilbert
left the mine.
The Court rejected the judge's and Commission's
determinations that in leaving the mine at this point,
some five hours before his shift was scheduled to

2527

begin and before he had been told the specific area of
the mine to which he would be assigned, G~lbert acted
precipitately and unreasonably.
866 F.2d at 1140.
Instead, the Court has directed us to determine
whether management explained to Gilbert that the
problems in his general work area had been corrected,
or had indicated that he would be assigned to another
area of the mine free of safety problems, or had
suggested that the situation was unsettled and that he
should wait until the start of his assigned shift
before inquiring further about safety conditions in
his area.
866 F.2d at 1441.
Within the limited scope of review on this remand-and
considering the uncontradicted and credible evidence it must be
concluded that Gilbert's safety concerns were indeed not
addressed in a manner sufficient to reasonably quell his fears
at the time of his meetings with Phipps and Begley on August 7
five hours before the beginning of his shift. To paraphrase the
Commission in its February 16, decision, given the Court's
belief that Gilbert did not act precipitately and its finding
that he entertained a good faith, reasonable belief in a hazard,
I feel similarly constrained to conclude that Gilbert's
departure from the mine and decision not to return for the
beginning of his work shift on August 7, constitutued a
constructive discharge in violation of section 105Cc)Cl) of the
Act.
ORDER

Sandy Fork Mining Company, Inc. discharged Complainant
John A. Gilbert on August 7, 1985, in violation of Section
105Cc)(l) of the Federal Mine Safety and Health Act of 1977.
Accordingly the appropriate parties hereto are directed to
attempt to reach stipulations regarding the criteria for
assessing civil pen~lties under section llO(i) of the ~t and
damages and costs including attorneys fees, within 20 days of
the date of this decision.
If the appropriate parties are
unable to reach stipulations as to these issues, hearings will
be held on the remaining issues on December 11, 1990 at
11:30 a.m. in London, Kentucky. The courtroom in which the
hearings will be held will be designated at a later date. This
is not a final decision in these cases and no final decision
will be issued until such time as all is ues relating o civil
penalties costs and damages are resolved

2528

Distribution:
Tony Oppegard, Esq., Appalachian Research and Defense Fund of
Kentucky, Inc., P.O. Box 260, Hazard, KY 41701 (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Ronald E. Meisburg, Esq., Smith, Heenan & Althen, 1110 Vermont
Ave., Washington, D.C. 20005 (Certified Mail)
William A. Hays, Esq., P.O. Box 817, Middlesboro, KY
(Certified Mail)
nb

2529

40965

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

November 15, 1990
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 90-289-M
A. C. No. 02-01738-05516

v.

Bagdad Millsite

CYPRUS BAGDAD COPPER
CORPORATION,
Respondent
DECISION DISAPPROVING SETTLEMENT
ORDER TO SUBMIT INFORMATION
On July 19, 1990, a copy of the operator's notice of contest
of the civil penalty was received by the Commission. On September 21, 1990, the Solicitor orally advised my law clerk that a
settlement had been reached and that a settlement motion would be
filed in lieu of a penalty petition. On October 29, 1990, the
parties filed a joint motion to approve settlement of the one
violation involved in this case. 1 The originally assessed
penalty was $2,500 and the proposed settlement is $250.
Citation No. 3467683 was issued for a violation of 30 C.F.R.
56.14107(a) because guards for the primary and secondary drive
pulleys for the Nos. 3 and 4 transfer belts were not adequate.
The Narrative Findings adopted by MSHA to support its original
assessment set forth that one miner was fatally injured as a
result of an accident in which he placed himself on the belt just
prior to the start-up of the conveyor system. The Narrative
Findings further recite that the violation was a contributing
factor to the fatal~ty because .the guardrails were not secured so
as to prevent an employee from simply lifting the guard and
because the distance between the guards wa.s wide enough to permit
an individual to go inside. This is apparently what happened
here as the Findings state that the miner was pulled into the
pulley by the belt. The operator was found negligent on the
basis that it is the duty of management to see that all moving
parts are adequately guarded at the worksite.
§

The settlement motion advises that the Secretary now be1 ieves that insufficient evidence exists to support the degree of
negligence initially asserted. Actually, the citation only found
The parties attached to the motion a copy of the MSHA
assessment sheet, narrative findings for special assessment and the
citation.

2530

moderate negligence. The settlement motion now says there was no
negligence and that the Secretary no longer asserts that the
violation caused the accident. However, the motion fails to
discuss any of the salient facts which have led the Secretary to
conclude that the operator was not at fault and, even more
importantly, why the cited violation which was first thought to
be a cause of the accident, now has nothing to do with it.
It is well established that the Commission and its Judges
bear a heavy responsibility in settlement cases pursuant to
section llO(k) of the Act, 30 u.s.c. § 820(k). See, s. Rep. No.
95-181, 95th Cong., 1st Sess., 44-45 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977, at 632-633 (1978); Wilmot Mining Company, 9
FMSHRC 684 (April 1987). Further, it is the Commission's responsibility to determine the appropriate amount of penalty, in
accordance with the six criteria set forth in ~ection llO(i) of
the Act.
30 U.S.C. § 820(i). Sellersburg Stone Company v.
Federal Mine Safety and Health Review Commission, 736 F.2d 1147
(7th Cir. 1984). Consolidation Coal Company, 11 FMSHRC 1935
(October 1989).
The Commission's obligation to oversee the propriety of
recommended settlements is particularly pronounced in a case such
as this which presents a fatality. The parties must provide the
precise circumstances which they believe support their present
views and justify the suggested 90% reduction in the penalty
amount. The Commission cannot accept a settlement motion in any
case on faith alone, much less in a matter such as this.
In light of the foregoing, it is ORDERED that the proposed
settlement be and is hereby DISAPPROVED.
It is further ORDERED that within 21 days from the date of
this order the parties SUBMIT information sufficient to support
their settlement recommendations. Otherwise the case will be set
for hearing.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Douglas White, Esq.,Counsel, Trial Litigation, Office of the
Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Room
414, Arlington, VA 22203
(Certified Mail)

2531

Alan M. Raznick, Esq., Office of the Solicitor, U. s. Department
of Labor, 71 Stevenson Street, Room 1110, San Francisco, CA
94105-2999
(Certified Mail)
Michael R. Peelish, Esq., Cyprus Minerals Company, 9100 East
Mineral Circle, P. o. Box 3299, Englewood, co 80155
(Certified
Mail)
Mr. Harry w. Cosner, Vice President, Cyprus Bagdad Copper
Corporation, P. O. Box 245, Bagdad, AZ 86321 (Certified Mail)

/gl

2532

-tr U. S. Government Printing Office: 1990 - 281-753 (24311)