JANVARY 1 997

CQMMISSION DECISIONS AND ORDERS
1 - 14 - 97
1-15-97
1 - 21 - 97
1 - 21-97
1 - 24-97
1 - 24 - 97
1-30 - 97
1-31 - 97
1-31-97

ASARCO, Inc.
Enlow Fork Mining Company
Lakeview Rock Products, Inc .
Midwest Material Company
A4stin Powder Company
Drew Drilling & Blasting , Inc.
HMI aka Heatherly Mining Inc.
Wal.k er Stone Company, Inc.
Billy McClanahan v. Wellmore Coal Corp.

CENT 95 - 8-RM
PENlq 94 - 259
WEST 97-38-M
LAKE 94-126-M
YORK 95-57-M
YORK 96-61 - M
CENT 96 - 84
CENT 94-97 - M
VA
95-9-D

Pg .
Pg.
Pg .
Pg .
Pg .
Pg .
Pg.
Pg.
Pg .

LAKE 95-26-R
WEVA 94 - 235 - R
WEVA 95-169
EAJ 96-5
LAKE 94-72
SE
96-355-M

Pg.
71
Pg . 77
Pg.
79
Pg . 125
Pg. 127
Pg . 131

WEVA 93 - 339-D
LAKE 94-255-R
CENT 96-81
WEST 96-291-DM

Pg.
Pg.
Pg.
Pg.

KENT 95 - 604 - D
KENT 96-178-R
CENT 96 - 112

Pg. 166
Pg . 206
Pg . 209

WEST 95-104
WEST 95 - 434-M
WEST 95-339-M
SE
94-550
PENN 97-20 - RM

Pg.
Pg.
Pg.
Pg .
Pg.

1

5

26
30
39
42
45
48
55

ADMINISTRATIVE LAW JUPGE DECISIONS
1-03 - 97
1 - 03-97
1 - 06-97
1-06 - 97
1-06 - 97
1 - 07-97
1-07 - 97
1-08-97
1-13 - 97

1 - 13-97
1-23-97
1 - 29-97
1 - 31-97

Buck Creek Coal, Inc .
Consolidation Coal Company
Anchor Mining Incorporated
Samuel McLaughlin .empl. by Consolidation
Buck Creek Coal, Inc .
Arenas Matilde Inc .
Sec . Labor for Perry Poddy v . Tanglewood
Energy, Inc .
Buck Creek coal, Inc.
Falkirk Mining Company
Kenneth Driessen v. Nevada Goldfields Inc.
Sec . Labor for Lonnie Bowling v. Mountain
Top Trucking, et a l.
Costain Coal Incorporated
HMI a.k.a . Heatherly Mining Inc.

134
137
149
157

ADMINISTRATIVE LAW JUQGE ORDERS
1-07-97
1-17-97
1-22-97
1-24-97
1 - 29-97

Basin Resources Inc.
Newmont Gold Company
Mobile Premix Sand & Gravel Co .
Jim Wal ter Resources, Inc.
Medusa Cement Company

i

211
216
220
226
229

JANUARY

1997

Review was granted in the following cases during the month of January:
Secretary of Labor, MSHA v. Christman Quarry, Docket No. LAKE 96-137-M.
(Judge Melick, December 12, 1996)
Lafarge Construction Materials v. Secretary of Labor, MSHA, Docket No.
LAKE 95-114-RM.
(Judge Barbour, December 16, 1996)
Secretary of Labor, MSHA v. Drew Drilling & Blasting, Inc., Docket No.
YORK 96-61 - M.
(Chief Judge Merlin, unpublished Default order of
December 16, 1996)
Secretary of Labor, MSHA v. Austin Powder Company, Docket No. YORK 95-57-M.
(Chief Judge Merlin, December 19, 1996)

Review was denied in the following case duri ng the month of January:

Prabhu Deshetty v . Manalapan Mining Company, Docket No. KENT 96-201-D.
(Judge Melick, December 12, 1996)

ii

COMMISSION DECISIONS AND ORDERS

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

January 14, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. CENT 95-8-RM
CENT 95-9-RM

v.
ASARCO, INC.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of DAVID HOPKINS

v.

Docket No. CENT 95-122-DM

ASARCO, INC.
BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1
ORDER
BY THE COMMISSION:
In these consolidated contest and discrimination proceedings arising under the Federal
Mine Safety and Health Act of 1977,30 U.S.C.·§ 801 et seq. (1994) ("Mine Act"), the parties
filed a Joint Motion To Approve Settlement on December 20, 1996 ("Joint Motion"). For the
reasons set forth below, we grant the Joint Motion.
On March 4, 1996, Administrative Law Judge Richard W. Manning issued a decision
fmding that ASARCO, Inc. ("ASARCO") violated section 105(c) of the Mine Act, 30 U.S.C.
§ 815(c), when it discharged David G. Hopkins, the complainant. 18 FMSHRC 317,335 (March
1996) (ALJ). In a Supplemental Decision and Final Order issued on July 16, 1996, Judge

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

1

Manning awarded Hopkins reinstatemenf and $12,752 in back pay (minus payroll deductions)~
· interest, and expenses. 18 FMSHRC 1160, 1163-65 (July 1996) (ALJ). Judge Manning also
ordered ASARCO to expunge from Hopkins' personnel records any mention of his discharge,
and to pay a civil penalty of$800 for its violation of section 105(c). !d. at 1165. On August 23,
1996, the Commission granted ASARCO's petition for discretionary review challenging the
judge's conclusions.3
On October 23, 1996, the parties filed a Joint Motion To Approve Settlement Agreement
which proposed that A~ARCO pay Hopkins $15,000 in settlement of Hopkins' claims against
the company and in consideration of his foregoing any rights to be reinstated or to seek
employment at any facility owned by ASARCO, releasing ASARCO from further liability. The
motion also proposed that ASARCO pay $500 in settlement of the $800 fine assessed by the
judge. In an order dated December 2, 1996, we denied this motion without prejudice. We
concluded that, to avoid the possibility of future litigation, the parties were required to indicate
whether ASARCO's payment to Hopkins represented a net amount to be paid to Hopkins or
whether deductions were to be taken out of the payment. We also concluded that the parties
failed to adequately support their proposed settlement of the penalty assessed by the judge, as
they were required to do under Commission Procedural Rule 31(b)(3), 29 C.F.R.
§ 2700.31(b)(3). We invited the parties to file a revised joint motion addressing these two
problems.
On December 20, 1996, the parties filed the Joint Motion. In the Joint Motion, the parties
state that ASARCO's $15,000 payment to Hopkins is subject to all applicable payroll deductions
withholding, and they have complied with Commission Procedural Rule 31(b)(3) by reciting
facts in support of their proposal to reduce the penalty assessed by the judge from $800 to $500.
Oversight of proposed settlements is committed to the Commission's sound discretion.
Pontiki Coal Corp., 8 FMSHRC 668, 674-75 (May 1986). The Commission has exercised this
discretion in the p~st in both section 105(c)(2) and section 105(c)(3) discrimination cases. See,
e.g., Reidv. Kiah Creek Mining Co., 15 FMSHRC 390 (March 1993); Secretary ofLabor on
behalfofGabossi v. Western Fuels-Utah, Inc., 11 FMSHRC 134, 135 (February 1989); and
Secretary ofLabor on behalf ofCorbin v. Sugartree Corp., 9 FMSHRC 197, 198 (February
1987). We have reviewed the Joint Motion and the record and, upon full consideration, we grant
the motion and approve the settlement.

2

Hopkins declined the offer of reinstatement.

3

In its petition, ASARCO also raises the question of whether the judge properly
concluded that ASARCO violated 30 C.F.R. § 57.14100(b) in connection with its discharge of
Hopkins. See 18 FMSHRC at 331-34,336. Since the Joint Motion requests Commission
approval of ASARCO's withdrawal of its petition, this issue is moot.

2

Accordingly? the Commission's direction for review is vacated and this proceeding is
dismissed.

•
Marc Lincoln Marks, Commissioner

3

Distribution
Henry Chajet, Esq.
Fiti A. Sunia, Esq.
Patton Boggs, L. L. P.
2550 M Street, N.W.
Washington, D.C. 20037
Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203

sgf

4

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

January 15, 1997

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

v.

Docket Nos. PENN 94-259
PENN 94-400

ENLOW FORK MINING COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'

DECISION
BY: Jordan, Chairman; Riley, Commissioner
These consolidated civil penalty proceedings, arising under the.federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involve two
accumulation violations of30 C.F.R. § 75.4002 and related preshift violations of30 C.F.R.

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

Section 75.400, entitled "Accumulation of combustible materials," provides:
Coal dust, including float coal dust deposited on rockdusted surfaces, loose coal, and other combustible materials, shall
be cleaned up and not be permitted to accumulate in active
workings, or on electric equipment therein.

5

§ 75.360 ( 1993)3 by Enlow Fork Mining Company ("Enlow") on November 15 and December .8,
1993. At issue is whether Administrative Law Judge Avram Weisberger correctly determined
that the November accumulation violation was not significant ·and substantial ("S&S").) and not
the result of unwarrantable failure/ and that Enlow did not violate the preshift regulation by
failing to record the accumulation. 17 FMSHRC 563 (April 1995) (ALJ). Also at issue is
whether the judge properly concluded that the December accumulation violation was the result of
unwarrantable failure and that Enlow violated the preshift requirement. /d. For the reasons that
foHow, we vacate and remand the judge's S&S and unwarrantable failure determinations for the
November accumulation violation and affirm his other detem1inations.
I.

Factual and procedural Back~round
A.

November Inspection (Order No. 3660021 and Citation No. 3659960)

On November 15, 1993, at 9:00a.m., Joseph Hardy, an inspector with the Department of
Labor's Mine Safety and Health Administration ("MSHA"), inspected the B-3 Lortgwall Section
ofthe Enlow Fork Mine, an underground coal mine located in Greene County, Pennsylvania. 17
FMSHRC at 563-64. At the tailgate area, he observed an accumulation of packed float coal dust

3

Former section 75.360, entitled "Preshift examination," provided in part:
(a) Within 3 hours preceding the beginning of any shift and before
anyone on the oncoming shift, other than certified persons conducting
examinations required by this subpart, enters any underground area of the
mine, a certified person designated by the operator shall make a preshift
examination.
(b) The person conducting the preshift examination shall
examine for hazardous conditions, test for methane and oxygen
deficiency, and determine if the air is moving in its proper
direction ....

Current section 75.360 applies to preshift examinations and expands these requirements.
4

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.

§ 814(d)( 1), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a ... mine safety or health hazard . . . ."
5

The unwarrantable failure terminology is taken from section 104(d)( I) of the Act,
which establishes more severe sanctions for any violation that is caused by "an unwarrantable
failure of [an) operator to comply with . . . mandatory health or safety standards .... "

6

and loose coal mixed with hydraulic oil on and around the tailgate gear case, fluid coupler, and
electric drive motor. /d. He also observed oil-soaked rags on top of the fluid coupler. /d. at 564.
An accumulation of hydraulic oil under the motor fluid coupler and gear box measured 4 feet by
10 to 15 feet. /d. In addition, he observed an accumulation of coal and float coal dust between
shields 148 and l 52, the shields closest to the tailgate. /d.
Hardy issued a withdrawal order pursuant to section 104(d)( 1) of the Mine Act alleging a
violation of section 75.400, and closed down the area. /d. The order was terminated at 11:30
a.m. after the area was c.leaned. Gov' t Ex. 2; Tr. 99.
After seeing the accumulations, Hardy checked to see if a preshift examination had been
performed and learned that William Young had preshifted the area that morning at 5:00 a.m. 17
FMSHRC at 564, 566-67. Upon determining that the accumulations were not recorded in the
preshift report, Hardy issued a section 104(d)( 1) citation for failing to report them. /d. at 564.
B.

December Inspection (Order No. 3660375 and Citation No. 3660374)

On December 8, 1993, at 9:00 a.m., as part of a spot inspection conducted pursuant to
section 103(i) ofthe Mine Act, 30 U.S.C. § 813(i), MSHA Inspector Joseph Reid observed, at the
2N belt entry, an area of accumulations of coal dust starting at the belt feeder and extending 200
feet outby. 17 FMSHRC at 570-71 . The accumulations were black in color and dry, and
consisted of loose coal, float coal dust, and fine coal on and around the belt feeder unit. I d. The
accumulations included fine float coal dust on the mine floor inby the feeder in a deposit 16 feet
long, 4 feet wide, and up to 5 inches deep, and a pyramid-shaped pile of fine float coal dust that,
at its deepest point, was 18 inches deep, 2 feet long, and 3 feet wide. I d. The inspector also
noted coal dust between 1/8 inch to 2 inches deep on cross members of the belt and the belt
structure itself. /d.
Inspector Reid issued a section 104(d)( 1) withdrawal order alleging a violation of section
75.400. Gov't Ex. 13. Enlow abated the violation at 10:30 a.m. by satisfactorily cleaning the
area. /d. Reid then checked the preshift examination records, which indicated that a preshift had
been made of the area between 5 and 7 a.m. that morning. 17 FMSHRC at 570. Because the
accumulations were not reported in those records, the inspector issued a citation under Mine Act
section 104(a), 30 U.S.C: § 814(a), alleging a violation of section 75.360(b)(l). ld. The citation
was terminated when the area was cleaned up and an adequate preshift examination was
perfor:med. Gov't Ex. 14.
Enlow contested the citations and orders, and the matters were consolidated for hearing
before Judge Weisberger. With respect to the November inspection, the judge determined that an
accumulation of coal dust, loose coal, and oil existed in violation of section 75.400. 17
FMSHRC at 565-66. He rejected the charge that there had been a preshift violation under section
75.360(b)(1), conduding that the Secretary of Labor had not established that violative
accumulations existed at the time of the preshift examination. ld at 566-67. The judge also

7

concluded that the accumulation violation \Vas not the result of unwarrantable failure. ld at 56768. In addition, he determined that the violation was not S&S, concluding that the Secretary
failed to establish that a fire or ignition was reasonably likely to have occurred because of the
violative accumulation. /d. at 568-69. Finding the gravity of the accumulation violation high,
the judge assessed a penalty of $2,000. ld. at 569.
With respect to the violations of December, the judge concluded that Enlow violated
section 7 5.400 because of the existence of accumulations of coal dust. !d. at 570-71. Due to the
extent of the accumulations, the judge ruled that at least some of the accumulations existed
during the preshift examination and concluded that Enlow violated section 75.360(b)(1) by
failing to report them. ld. at 5 72. He also determined that the accumulation violation was the
result of unwarrantable failure because Inspector Reid had previously issued a citation for an
accumulation violation and had discussions with management concerning the hazards of
accumulations and inadequate preshift examinations. Id. at 572-73. As the judge found no
reasonable likelihood of a fire or explosion resulting from the accumulations, he determined that
the accumulation violation was not S&S. /d. at 573-74. The judge found a high level of gravity
and assessed a penalty of $5,000 for the accumulation violation and $500 for the preshift
violation. ld at 574.
The Commission granted cross-petitions for discretionary review filed by the Secretary
challenging the judge's determinations regarding the November violations, and by Enlow
challenging the judge's determinations regarding the December violations.

IL
Disposition
A.

November Inspection

The Secretary contends that the judge erred in failing to address material record evidence
that established that the November accumulation violation was S&S, specifically pointing to
Inspector Hardy's testimony that the accumulations had packed around the gear box causing it to
become too hot to touch. S. PDR at 5-6; S. Br. 1, at 4-6.6 Enlow counters that the judge's S&S
determination is supported by substantial evidence/ asserting that the inspector's testimony with

6

The Secretary filed two briefs in this proceeding. The Secretary's brief of June 28,
1995 is referred to as "S. Br. I;" his brief of August 1, 1995 is referred to as "S. Br. 2."
7

When reviewing a judge's factual determinations, the Commission is bound by the
terms of the Mine Act to apply the substantial test. 30 U.S.C. § 823(d)(2)(A)(ii)(l). "Substantial
evidence" means "such relevant evidence as a reasonable mind might accept as adequate to

8

regard to the gearbox was speculative, whereas the testimony of its witness William Stewart, the
8
longwall maintenance coordinator, was accurate and reliable. E. Br. 2, at 4-9.
A violation is S&S if, based on the particular facts surrounding the violation, there exists
a reasonable likelihood that the hazard contributed to will result in an injury or illnes~ of a
reasonably serious nature. Cemenl Div.. Nat 'I Gypsum Co .• 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC I (January 1984), the Commission further explained:

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: ( 1) 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.
!d. at 3-4 (footnote omitted). See also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7'h Cir.
1995); Austin Power, Inc. v. SecretOJy ofLabor, 861 F.2d 99, 103-04 (51h Cir. 1988) (approving
Mathies criteria).
At issue here is whether the Secretary proved the third element of Mathies. An
evaluation of the reasonable likelihood of injury should be made assuming continued nonnal
mining operations. US. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985). When
evaluating the reasonable likelihood of a fire, ignition, or explosion, the Commission has
examined whether a "confluence of factors" was present based on the particular facts
surrounding the violation. Texasgulf. Inc., 10 FMSHRC 498, 501 (April 1988). Some of the
factors include the extent of accumulations, possible ignition sources, the presence of methane,
and the type of equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May
1990) ("UP&L"); Texasgulf, 10 FMSHRC at 500-03.
The substantial evidence standard of review requires that a fact-finder weigh all probative
record evidence and that a reviewing body examine the fact-finder's rationale in arriving at his
decision. See Universal c.:amera Corp. v. NLRB, 340 U.S. 474,487-89 (1951). In MidContinent Resources, Inc., 16 FMSHRC 1218, 1222-23 (June 1994), the Commission vacated
the judge's conclusion that an accumulation violation was not S&S because the judge failed to

support [the judge's] conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159,2163
(November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,229 (1938)).
8

Enlow filed three briefs in this proceeding. Its brief of June 14, 1995 is referred to as
"E. Br. 1;"that of August 15, 1995 is referred to as "E. Br. 2;" and its brief of August 25, 1995 is
referred to as "E. Br. 3."

9

adequately address the evidentiary record on the reasonable likelihood of injury. In this case, we
agree with the Secretary that the judge failed to adequately address the evidentiary record in
determining that it was not reasonably likely that the hazard contributed to by the accumulation
violation would result in an injury.
The judge failed to reconcile his finding that the "mine does liberate methane"
( 17 FMSHRC at 569), with his detem1ination that the violation was not S&S. As the
Commission recognized in Mid-Continent, 16 FMSHRC at 1222, "[aJccumulations, in
conjunction with a methane ignition in the face area, could propagate and increase the severity of
a fire or explosion." Enlow mine liberates more than 2,000,000 cubic feet of methane in a 24hour period, subjecting it to a 5-day spot inspection under section 103(i) of the Mine Act. Tr. 79.
The judge did not analyze the inspector's uncontroverted testimony that, because any methane
liberated from the face will pass through this area, the tailgate area was a likely spot for an
explosion. Tr. 92-93. We therefore conclude that substantial evidence does not support the
judge's finding that there was no "evidence that liberation of methane in explosive
concentrations was reasonably likely to have occurred." 17 FMSHRC at 569.9
Further, the judge failed to address "whether an injury would have been reasonably likely
to occur if mining operations had continued without the inspector's intervention." US. Steel,
7 FMSHRC at 1130. The inspector testified that the packing of accumulations on the outside of
the gear case and fluid coupler caused them to build up heat. Tr. 28-29, 72-75. He stated that the
gear case was too hot to touch and that, if the oil saturated coal dust and coal had continued to
build and mining continued, the gear box would have grown progressively hotter, posing a
serious danger of ignition. Tr. 25-28, 37, 73-75, I 05; Gov't Ex. 3, at 8-9. Although the judge
determined that the gear box did not represent an ignition source in its present condition, he
failed to address the danger of ignition if the packing of coal, oil, and oil-saturated coal dust
around the gear box continued unabated. On remand, we instruct the judge to evaluate the effect
of continued mining operations. See Mid-Continent, 16 FMSHRC at 1222 (remand appropriate
when the judge failed to take into account continued normal mining operations).
Additionally, the judge made findings that are not consistent with his S&S determination.
As the Secretary notes, his finding on gravity is incongruous wi:=.h a negative S&S determination.
S. Br. 1, at 6 n.4. The judge found, "[S]hould a fire or explosion have occurred, these persons
could have suffered serious injuries ... [and] the gravity of violation was relatively high." 17
FMSHRC at 569. Although the gravity penalty criterion and a finding of S&S are not identical,
they are frequently based upon the same factual circumstances.. Quinland Coals, Inc., 9
FMSHRC 1614, 1622 n.11 (September 1987). He also recognized a number of factors that,
taken together, have been held to show a reasonable likelihood of fire or ignition. See UP&L, 12
9

To the extent the judge suggested that, before an accumulation violation is S&S,
methane must be in the explosive range (17 FMSHRC at 569), he erred. In National Gypsum,
the Commission explained that, to be cited as S&S, the conditions created by the violation need
not be so grave so as to constitute an imminent danger. 3 FMSHRC at 828.

10

FMSHRC at 970-71; Texasgulf. l 0 FMSHRC at 500-03. For example, the judge found the
existence of accumulations of coal dust, loose coal, and oil. the liberation of methane in the
mine, the presence of rags over the top of the fluid coupler, dry coal dust on electrical boxes, and
ignition sources including bearings on the drive shaft and gear case and a 4160-volt drive motor.
17 FMSHRC at 566, 569. The judge failed to reconcile these findings with his determination
that the violation was not S&S.
Accordingly, we vacate the judge's determination that the accumulation violation was not
S&S and remand for his evaluation of all the material record evidence.
2.

Unwarrantable Failure

The Secretary argues that the judge erred in reaching his unwarrantable failure
determination by applying an incorrect legal standard and that, as a result, the judge failed to
address material record evidence on the issue. S. Br. 1, at 7-9. Enlow counters that the judge
applied the proper legal test and that his unwarrantable failure determination is supported by
substantial evidence. E. Br. 2, at 9-17.
In Emery Mining Corp., 9 FMSHRC 1997 (December 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. /d.
at 2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack of reasonable care." ld.; at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (February 1991 ); see also Buck
Creek, 52 F.3d at 136 (approving Commission's unwarrantable failure test). The Commission
examines various factors in determining whether a violation is unwarrantable, including the
extent of a violative condition, the length of time that it has existed, whether the violation is
obvious, whether the operator has been placed on notice that greater efforts are necessary for
compliance, and the operator's efforts in abating the violative condition. Mullins & Sons Coal
Co., 16 FMSHRC 192, 195 (February 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
(August 1992); Quinland Coals, Inc., 10 FMSHRC 705,709 (June 1988); Kill Energy Corp., 6
FMSHRC 1596, 1603 (July 1984). Repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they serve to put an operator on notice that
greater efforts are necessary for compliance with a standard. Peabody, 14 FMSHRC at 1263-64.
We agree with the Secretary that the judge employed an incorrect legal analysis with
respect to the factor of repeated similar violations and past warnings. The judge, discounting the
testimony of MSHA Inspectors Hardy and Robert Newhouse that they had met with mine
management to discuss inadequate cleanup and preshift procedures, incorrectly charactetjzed their
testimony as "not probative of the degree of [Enlow's] negligence in allowing the specific
materials at issue to have accumulated." 17 FMSHRC at 568 (emphasis in original). In
evaluating evid, ;nce of prior warnings as part of the unwarrantable failure analysis, the
Commission has not required the previous condition to involve materials identical to those
involved in the condition at issue. See Peabody, 14 FMSHRC at 1263 (rejecting contention that
7

11

only past violati'Ons involving same area may be considered for unwarrantable determination) .
. Thus, to the extent that the inspectors' discussions with management placed Enlow on notice of
its need for greater compliance efforts with section 75.400, those discussions were relevant to the
unwarrantable failure evaluation and should have been considered by the judge.
The judge als<? failed to address Enlow's claim that it attempted to correct its accumulation
problem in response to the prior warnings and violations. Such pre-citation remedial efforts can
be pertinent to an evaluation of whether the violative condition resulted from the operator's .
unwarrantable failure 'to comply. See UP&L, 12 FMSHRC at 972. Additionally, the judge failed
to consider that it took three to four miners 212 hours to clean up the accumulation, evidence
relevant to the extensiveness of the violation. Tr. 72, 99.
On remand, the judge should evaluate all the evidence related to prior warnings, including
the three citations for accumulations in other areas of the mine that were issued on October 6, 7,
and 28, 1993, approximately 1 month prior to the violation (Gov't Exs. 7, 8, 9), and Enlow's
2-year violation history (Gov't Ex. 12). He should also discuss all relevant evidence relating to
the operator's compliance efforts and the extensiveness of the violation.
Accordingly, we vacate the judge's conclusion that the violation was not the result of
unwarrantable failure and remand for reanalysis.
3.

Preshift Violation

The Secretary argues that the judge overlooked material record evidence that proved a
preshift violation, asserting that (1) Inspector Hardy provided compelling testimony that the
accumulation formed before the preshift examination, and (2) contravening testimony was
minimal. S. Br. 1, at 10-1 '2. The Secretary also submits that the judge's finding of no preshift
violation is inconsistent with.his determination of a violation of section 75.400. ld at 9-10.
Enlow responds that substantial evidence supports the judge's determination to vacate the order
because the judge properly credited three Enlow witnesses, including the preshift examiner, who
denied that the conditions existed at the time of the preshift examination. E. Br. 2, at 17·19.
We agree with Enlow that substantial evidence supports the judge's conclusion that Enlow
did not violate the preshift standard. Section 75.360 essentially restates the requirements of
section 303(d)(1) ofthe Mine Act, 30 U.S.C. § 863(d)(1). Under section 75.360(a), a certified
examiner must conduct a preshift examination within 3 hours before "the beginning of any shift
and before anyone on the oncoming shift ... enters any underground area of the mine ...."
Subsections (b) through (g) of section 75.360 set forth the required elements of the examination.
Under section 75.360(g), the results of the preshift examination must be recorded in a book at the
surface before miners are permitted underground.
We are not persuaded by the Secretary's assertion that the judge overlooked or
inadequately addressed the testimony oflnspector Hardy as to duration of the accumulation. S.

12

Br. 1, at 10-11. The judge discussed at length Hardy's opinion that the accumulations took more
than a shift to develop and weighed this testimony against the testimony of preshift examiner
Young and the two shield men on the midnight shift before the inspection. 17 FMSHRC at 56667. Young and the shield men testified they did not observe the c:ited accumulations and that they
cleaned the area during the shift prior to the inspection. Tr. 213,221-22,226-27,262,301-04.
They also testified that they saw some oil that was cleaned off during their shift. Tr. 200-04. 210,
227,292-94, 317-18. The judge also relied on the preshift examiner's written statement of
November 16, 1993, which described cleaning the area during the preshift. 17 FMSHRC at 566
n.l; Ex. C-2. The judge, in holding that "[t]he record does not convincingly establish when the
accumulations of oil observed by Hardy occurred" (17 FMSHRC a! 567), addressed and rejected
the Secretary's contention that the presence of oil and dried oil at the time of the inspection
indicated that it was in existence at the time of the preshift. 10 The judge specifically credited the
testimony of the preshift examiner (id.) and, absent extraordinary circumstances, we will not
overturn a judge's credibility findings on review. Farmer v. Island Creek Coal Co., 14 FMSHRC..
1537. 1540-41 (September 1992); Hollis v. Consolidation Coal Co., 6 FMSHRC 21,25 (January
1984).
Additionally, contrary to the Secretary's contention, a finding of an accumulation violation
is not inconsistent with a finding that "it [was] . .. not established that [the preshift] examination
was inadequate." 17 FMSHRC at 567. In finding the accumulation violation, the judge did not
state how long the accumulations were in existence. /d. at 566. The judge simply held that at
9:00 a.m. on November 15, 4 hours after the preshift had been conducted, accumulations of coal
dust, loose coal, and oil existed that had not been cleaned up. !d. Thus, we perceive no internal
inconsistencies in the judge's conclusions.

10

Our dissenting colleague claims we are "improperly raising the level of proof the
Secretary must provide in order to establish a preshift violation." Slip op. at 15 (Commissioner
Marks, concurring and dissenting). Since we agree with our colleague that the Secretary "does
not have to prove when the accumulations occurred" in order to establish a violation of section
75.360 (id. (emphasis in original)), he appears to misunderstand our position. We hold the
Secretary to the standard articulated by the judge below, who simply required the Secretary to
prove "that it was more likely than not that the accumulations observed by Hardy were in
existence at the time of Young's preshift examination." 17 FMSHRC at 567.
Moreover, our colleague, contending that the record contains substantial evidence to
support the Secretary's charge, would reverse the judge. However, even if the record permits us
to draw a different conclusion than the one drawn by the fact-finder, this does not mean the
judge's finding lacks substantial support and should be reversed. "[T}he possibility that two
inconsistent conclusions may be drawn from the evidence does not mean that the [fact-finder's]
findings are unsupported by substantial evidence, considering the record as a whole." NLRB v.
Vincent Brass & Aluminum Co., 731 F.2d 564, 567 (81h Cir. 1984). Accordingly, we decline to
overturn the judge's finding that no violation occurred.

13

Accordingly, we affirm the judge's determination that Enlow did not violate the preshift
-requirements on November 15, 1993.

B.

December Inspection
I.

Preshift Violation

Enlow claims that, because the December 8 accumulations did not present a hazard and
were not found to be S&S, 11 the judge erred in finding a violation of the preshift standard. E. Br.
1, at 4-5. Enlow also asserts that substantial evidence does not support a finding of violation. /d.
at 7-9. The Secretary counters that accumulations of combustible materials are hazards that
preshift examiners must report. S. Br. 2, at 6·11. He further responds that Enlow's argument
amounts to an improper attempt to engraft onto the preshift standard the S&S requirement that an
injury be reasonably likely to occur. /d. The Secretary also submits that the accumulation at issue
presented a hazard and the judge's determination ofviolation is supported by substantial evidence.
/d. at 11-16.
Section 75.360(b) requires that a preshift examiner "examine for hazardous conditions."
We reject Enlow's argument that, because the judge concluded the December accumulations were
not S&S, they were not "hazardous" within the meaning of section 75.360(b). The plain language
of section 75.360(b) does not support Enlow's construction. Section 75.360(b) does not specify
that hazardous conditions are only those reasonably likely to result in serious injury, nor does that
section repeat the S&S language from section 104(d) ofthe Act, requiring that the conditions be
"of such nature as could significantly and substantially contribute to the cause and effect of a ...
mine safety or health hazard ...."
Section 75.360(b) does not define the phrase "hazardous condition." However, the
Commission recognized in National Gypsum that, based on its dictionary definition, a "hazard"
denotes a measure of danger to safety or health. 3 FMSHRC at 827 & n. 7. The Commission has
approved the definition of "hazard" as "a possible source of peril, danger, duress, or difficulty,"
or "a condition that tends to create or increase the possibility of loss." Jd. (citing Webster's Third
New International Dictionary 1041 (1971)). Accumulations of combustible materials have been
recognized by Congress and this Commission as representing hazardous conditions. S. Rep. No.
411,91 51 Cong., P' Sess. 65 (1969), reprinted in Senate Subcommittee on Labor, Committee on
Labor and Public Welfare, 94'h Cong., 151 Sess., Part I Legislative History ofthe Federal Coal
Mine Health and Safety Act of /969, at 191 (1975) ("Coal Act Legis. Hist.") (''the operator [must]
not allow coal dust, loose coal, float coal dust or other combustible materials to accumulate ....
Tests, as well as experience, have proved that inadequately inerted coal dust, float coal dust, loose
coal, or any combustible material when placed in suspension will enter into and propagate an
explosion."); Old Ben Coal Co., 2 FMSHRC 2806, 2807 (October 1980) (there exists a "danger of
fire or explosion posed by the presence of dangerous quantities of combustible materials"). The

11

The Secretary did not appeal this ruling.

14

Senate committee report on the 1969 Coal Act stated that "(t]he presence of ... coal dust and
loose coal must be kept to a minimum through a regular program of cleaning up ..."and further
noted the dangers posed by mine fires along belt conveyors and the necessity for careful preshift
examinations of belts. Coal Act Legis. Hist. at 183, 191.
The preshift examination requirement " is of fundamental importance in assuring a safe
working environment underground." Buck Creek Coal Co., 17 FMSHRC 8, 15 (January 1995).
Congress explicitly acknowledged the importance of the preshift inspection by making it a
longstanding statutory mandate, dating back to the Federal Coal Mine Safety Act of 1952, 30
U.S.C. § 471 et seq. (1955). These provisions were strengthened in the Federal Coal Mine Health
and Safety Act of 1969, 30 U.S.C. § 801 et seq. ( 1976), and carried over in identical fashion to the
Mine Act. The preshift examination is intended to prevent hazardous conditions from developing.
Enlow's proposed interpretation of section 75.360(b) would restrict the attention ofthe preshift
examiner to only S&S conditions. This is antithetical to the purpose of the preshift requirement
which is to "prevent loss of life and injury." Coal Act Legis. Hist. at 183.
Thus, we agree with the Secretary that accumulations of combustible materials qualify as
hazardous conditions that should be recorded by a preshift examiner when found. We turn next to
Enlow's assertion that substantial evidence does not support the judge's conclusion that Enlow
violated section 75.360(b).
The inspector testified that he based his determination that the accumulations had been in
existence during the preshift examination upon the extensiveness of the accumulations and the
heavy concentrations he encountered. Tr. 474-75, 496-97. The inspector's conclusion is
supported by the presence of one accumulation measuring 4 feet by 16 feet by 5 inches in depth,
and another measuring 2 feet by 3 feet by 18 inches at its deepest point. Tr. 446-52. In addition,
he observed that the air current had picked up coal dust and that it settled on top of the electrical
box in a layer up to 2 inches deep, also indicating that coal dust had been left to accumulate for
more than one shift. Tr. 474-75.
Although there was some countervailing testimony about whether the accumulations
existed at the time of the preshift examination (Tr. 548, 552, 625-26), the judge specifically
credited the inspector's testimony over that of Enlow's witnesses. We decline to disturb his
credibility determinations. See Farmer, 14 FMSHRC at 1540-4.1; Hollis, 6 FMSHRC at 25. 12

12

We are also unmoved by Enlow's assertion that the inspector did not consider the cited
accumulations to be haza:dous at the time the order was issued. E. Br. 1, at 4-5. This argument
is belied by the fact that the inspector issued a section 104(d)(1) order alleging an S&S violation
of section 75.400 (Gov' t Ex. 13), and testified that the accumulations could either start or add to
a fire (Tr. 460, 462).

15

In sum, we conclude that substantial evidence supports the judge's determination of a
. violation of the preshift requirement. Accordingly, we affirm.the judge' s finding that Enlow
conducted an inadequate preshift examination, thereby violating section 75.360(b).
2.

Unwarrantable Failure

Enlow argues that. because the judge improperly relied on testimony by the inspector that
he issued a prior section 75.400 citation and had discussions with management about the
accumulation problem, the judge's determination that the December violation resulted from
unwarrantable failure is not supported by substantial evidence. E. Br. 1, at 9-12. It further claims
that the judge failed to consider the operator's prompt cleanup measures. Id at 11-12. The
Secretary counters that substantial evidence supports the judge's determination that the
accumulation violation w~.s a result of Enlow's unwarrantable failure. S. Br. 2, at 16-24.
With respect to the extent and obviousness of the violation, the judge accepted the
inspector's testimony that the violative accumulations were visible for a distance of approximately
200 feet from the belt feeder to the main belt, over the contrary testimony of Enlow' s witnesses.
17 FMSHRC at 571-72. Absent a compelling reason, we will not disturb this credibility
determination. Farmcr, 14 FMSHRC at 1540-41. As to the duration of the violative condition,
the judge also credited the inspector' s testimony that the accumulations had existed for more than
one shift, and implicitly rejected the testimony of the preshift examiner that the accumulations
were not present during the preshift. 17 FMSHRC at 572. Again, Enlow has not demonstrated
the extraordinary circumstances necessary for overturning this credibility determination.
With respect to repeated similar violations and past warnings, Inspector Reid testified he
repeatedly wrote citations at this mine for violations of section 75.400 in the belt entries. 13 Tr.
467-68. Enlow's violation history reveals approximately 60 citations for accumulations from
December 8, 1991 through December 7, 1993. Gov't Ex. 12. Inspector Reid testified that, upon
issuing citations for such violations, he discussed with Enlow management the importance of
cleaning the belts and keeping them free of accumulations. Tr. 468. He further testified that, on
several occasions, he questioned the adequacy of the mine's cleanup plan and discussed with
management the need to control float dust, "which [was] generated pretty regularly at these
681. Thus, we conclude substantial evidence supports the judge' s
crusher dump areas."
finding that Enlow had been placed on notice that greater compliance efforts were needed
regarding accumulations around all of its belts.

Tr.

We reject Enlow' s assertion that the Secretary did not introduce any past violations into
evidence~ the operator' s violation history was made a part of the record. Gov't Ex. 12. We are
13

We correct the judge's misstatement that Inspector Reid had previously issued "a
citation" for violation of section 75.400. 17 FMSHRC at 572. The inspector testified that he
issued repeated citations for section 75.400 violations. Tr. 468. The operator's history of
violations confirms thi.s testimony. Gov't Ex. 12.

16

also unconvinced by Enlow's argument that the Secretary may not rely on that violation history to
demonstrate unwarrantable failure because the judge admitted that exhibit for the limited purpose
of penalty assessment, and because the exhibit fails to reyeal the specifics of the prior violations.
See E. Br. 1, at 10; E. Br. 3, at 6-7 & n.4. Although the judge stated that Enlow's violation history
was probative of penalty, he did not expressly limit its use for other relevant purposes. Tr. 429.
In any event. the Commission may consider these past violations. See Peabody, 14 FMSHRC at
1263 ("[T]he Commission has not limited ... the circumstances under which past violations may
be considered by a judge in determining whether an operator's conduct demonstrated aggravated
conduct.")
As to the operator's abatement efforts, Inspector Reid testified without contradiction that
no one was cleaning the accumulation when he arrived at the section. Tr. 473. Where an operator
has been placed on notice of an accumulation problem, the level of priority that the operator
places on the abatement of the problem is a factor properly considered in the unwarrantable failure
analysis. Peabody, 14 FMSHRC at 1263-64; U.S. Steel Corp., 6 FMSHRC 1423, 1437 (June
1984) (unwarrantable failure may be proved by a showing that the violative condition was not
corrected or remedied prior to issuance of a citation or order). Although the judge did not
mention this factor, the evidence on abatement supports his unwarrantable fa.ilure determination.
We reject Enlow's assertion that its prompt post-citation abatement efforts militate against an
unwarrantable failure determination. In considering the abatement element, the Commission
focuses on compliance efforts made prior to the issuance of the citation or order. See, e.g.,
Peabody, 14 FMSHRC at 1263-64; Utah Power & Light Co., 11 FMSHRC 1926, 1933-34
(October 1989). Post-citation efforts are not relevant to the determination whether the operator
has engaged in aggravate' conduct in allowing the violative condition to occur.
·We conclude that evidence about all the unwarrantable failure factors, taken together,
constitutes substantial evidence supporting the judge's unwarrantable failure determination.
Consequently, we affirm that determination. 14

14

We find no merit in Enlow's other arguments on the unwarrantable failure issue.

17

III.
Conclusion
For the foregoing reasons, we vacate and remand the judge ~ s determinations that the
November 15. 1993 accumulation violation set forth in Order No. 3660021 was not S&S and not
the result of Enlow's unwarrantable failure to comply with the standard. If the judge finds that the
violation is S&S, the result of unwarrantable failure, or both, he shall assess an appropriate civil
penalty. We affim1 the judge' s dismissal ofCitation No. 3659960. We also affirm his
determinations that, as to Citation No. 3660374, Enlow violated the preshift standard and, as to
Order No. 3660375, Enlow' s December 8, 1993 accumulation violation resulted from
unwarrantable failure.

James C. Riley, Commissioner

18

Commissioner Marks, concurring and dissenting:
I am in agreement with my colleagues' disposition regardii1g the two violations cited on '
December 8, 1993, and therefore I concur in the decision to affirm the judge.
· With respect to the November 15. 1993, citation charging a violation of 30 C.F.R.
§ 75.360, my colleagues l:ave concluded that substantial evide!lce supports the judge's conclusion
that no violation occurred. I do not agree, and therefore I dissent.
My colleagues mistakenly contend that, in finding no violation, the judge adequately
considered and relied upon the relevant testimony of Inspector Hardy, as well as the testimony of
operator witnesses and the November 16, 1993, statement of the preshift examiner (Ex. C-2). Slip
op. at 8-9. I do not agree.
The November 16'h statement referenced and relied upon by the majority is not probative
of the condition of the subject B-3 long wall section of the mine. In fact, the judge also found it to
not be relevant. "It does not set forth in any detail the conditions observed by him [section
foreman William Young] on the shift, with the exception of some oil on the bottom mixed with
water, and 'oil film' on the toes of the shields." 17 FMSHRC 566 n.l. ~agree with the judge's
assessment of that document.
By contrast, the testimony of MSHA Inspector Hardy describing the unreported
accumulations is both detailed and specific. However, that testimony is rejected by the judge and
the majority, apparently because "[t]he record does not convincingly establish when the
accumulations of oil observed by Hardy occurred." Slip op. at 9 (citing 17 FMSHRC at- 567). In
affirming that legal conclusion, the majority is improperly raising the level of proof the Secretary
must provide in order to establish a preshift violation. 1
The Secretary does not have to prove when the accumulations occurred. He does,
however, have to prove that the accumulations were in existence when the preshift was conducted.
In this case, substantial evidence supports the Secretary's charge that the conditions observed by
Inspector Hardy had existed prior to the time the preshift inspection was conducted. However, if
the judge and the majority require a higher level of proof, i.e., that the Secretary prove when the
accumulations occurred, the Secretary will surely fall short in this case and most other cases. The
reason is obvious, the Secretary does not have inspectors posted in the mine at all times observing
the conditions. He must rely on circumstantial evidence regarding the physical appearance of the
area and in the case of accumulations - the size, color, compaction, and other indices that provide

1

Notwithstanding their notation professing to agree that the Secretary does not have to
prove when the accumulation occurred (slip op. at 9 n.l 0), my colleagues continue to affirm the
judge's conclusion which is based on, and infected by, his flawed legal analysis requiring the
Secretary to "convincingly establish when the accumulations of oil observed by [Inspector]
Hardy occurred." 17 FMSHRC at 567.

19

a basis for the expert opinion ofthe inspector. Tr. 10-13, 160-63. In this case,. Inspector Hardy's
·detailed description of the conditions he observed was clearly·and thoroughly set forth in the
section I 04( d)( 1) citation, and equally reasserted in his testimony at hearing.
In support of his issuance of the subject section 104(d)( 1) citation,2 charging a violation of
section 75.360. Inspector Hardy testified that at approximately 9:05 a.m. on November 15, i 993,
he first observed the following conditions which were not recorded in the book containing the
report of the preshift conducted 4 hours earlier. Tr. 31. 94.
•

Accumulations of float coal dust on and around the legs and lemniscates of
longwall shields 148 to 152 (Tr. 23-24, 33-34, 113-14, 122); loose coal scattered
~hroughout the legs of the shields within an area of approximately 20 to 25 feet by
I 0 to I 5 feet (Tr. 24, 31, 1 t 4·:15); coal dust black in color and dry to the touch. Tr.
34, 120, t 22.

•

Heavy accumulations of float coal dust, hydraulic gear oil and coal on the tailgate
gear case, fluid coupler and around the 4, I 60-volt drive motor causing the gear
case to be very hot, hotter than normal , because the accumulation "acts as an
insulator, which doesn't permit the heat to dissipate as readily as if it was
maintained in a clean condition." (Tr. 24-25, 29, 37, 105, 107-08, 130); coal

2

The condition or practice charged states, in part:
The preshift examination that was conducted on the B-3 longwall section
from 5:00a.m. to 7:00a.m. on 11115/93, was not adequate. The preshift
examination was called out to Steve Johnson at 7:50a.m. and no dangers
or hazardous conditions were reported. Also no violations were observed
or reported or entered into the book provided. Upon traveling to the
section and examining the face area the following hazardous conditions
were found; the 4,160 VIAC tailgate drive motor, tailgate gear case and
housing, were covered with float coal dust, loose coal, and hydraulic gear
case oil (Dexron II oil); float coal dust and loose coal had also
accumulated between the shields from # 148 shield to # 152 shield. The
preshift examiner's dates, times and initials were observed on the #150
shield which is immediately adjacent to the tailgate drive motor and gear
case. These conditions evidenced are in plain view of a preshift examiner
and management knew or should have reason to know these hazardous
conditions existed. The evidence at this location also indicates the
conditions were not recent; the loose coal was packed around the gear case
and the hydraulic oil had saturated and penetrated the loose coal packed
behind the gear case. ·

Gov't Ex. I.

20

surrounding the gear case was saturated with hydraulic gear oil (Tr. 24-25, 27) and
"[t]he coal that was packed in around the gear case was loose on top, but packed
heavy in the bottom. This doesn't happen in a short period of time. It takes time
for coal to settle in and get compacted." Tr. 27. The accumulation had existed
"definitely more than one shift with the conditions of the packed coal." Tr. 72; see
also Tr. 175. The coal accumulated behind the gear case was approximately 2~
feet high and "very visible:· Tr. 63, 125, 157, 163.
•

The oi l underneath the gear case "was apparent. You could see it without getting
down on your hands and knees; very obvious," (Tr. 28, 128) and extended to a
distance of"four feet by maybe ten to fifteen feet." Tr. 71, "I also used my hand
to swish some of the oil that was underneath [the gear case] and no water was
evident under the oil as well." Tr. 97-98, 117, 133, 414, 424-25. The oil may have
resulted from a blown soft plug on the fluid coupler which occurred on the
preceding Friday (the inspection and citati<?n occurred on Monday, November 15,
1993). Tr. 83, 156. There were oil saturated rags located on top of the fluid
coupler. Tr. 30.

•

"Due to the magnitude of the combustible materials I saw there, the float coal dust,
the extent of the float coal dust and the extent of the loose coal and the visibility of
this -- it was in plain view -- the pre-shift examiner had to have realized and seen
these conditions when he was there putting his dates, times and initials." Tr. 94;
see also Tr. 116-18,416. Due to "[t]he magnitude of the accumulation and the
magnitude of hydraulic fluid," the accumulation "could not have occurred" after
the preshift was conducted. Tr. 94-95, 140-42, 164, 413, 415, 422. Dried
hydraulic fluid observed on the machine components indicated that the oil had
been there "[m]ore than a shift." Tr. 95, 15 1, 167-68, 175.

The judge, after hearing this testimony, and presumably reading the subject citation,
concluded that Hardy "did not elaborate" upon his basis for concluding that the cited conditions
had existed prior to the preshift examination. 17 FMSHRC 567. I find the judge's conclusion
astonishing. The charging citation, and the live testimony of the inspector was detailed, clear, and
convincing. Of most significance, it was consistent and not impeached on cross-examination. I
can only wonder what more the judge could have required to support this charge. However, if
more was needed, more was provided by Enlow's own witnesses!
The testimony of Enlow witness William Young, the section foreman who conducted the
subject preshift inspection, includes important admissions that corroborate the testimony of
Inspector Hardy. Young admitted that in inspecting the tail drive area he "just looked more or less
down on what [he] could see there because the way the covers [of the tail drive] fit on there, there
was just an inch or two of a gap. [He] didn't look completely up under the covers." Tr. 222, 230,
247. "[He has] never gotten down on (his] hands and knees prior to that time and looked back in
there." Tr. 223-25. Moreover, he conceded that he never had been concerned about coal

21

accumulations behind the gear box. Tr. 227. He disclosed that he had never been told to inspect
.behind the motor and pan line, and that he only is "concerned about the material that collects in
around the motors that are visible to [him)." Tr. 249-50.
Enlow witness Terry Pozum, who was assigned to clean the subject area during the
preceding midnight shift, testified on direct examination that he did not know if he had cleaned
under the covers of the drive unit, and that he would only clean "lw]hat you can reach ... like on
the open side that is facing the shields." Tr. 264. He went further, conceding that his usual
cleanup would not have included the junction box area. and that on the night in question, he was
"pretty busy:· because he has "a short amount of time to do quite a lot of things. And you usually
don't have time to notice and look. Anything that you see really pops right out at you." Tr. 26465,268,276-77,279.
Enlow witness Timothy Ferrell, who was assigned as a shieldman in the subject B-3
section on the day shift, testified that during the inspection, when the tailpiece covers were
removed "[w]e found materials, coal and rock, packed in on the face side of the gear box and the
tailgate end." Tr. 323. He indicated that the cleanup took two or three men about I Y2 hours to
complete. Tr. 324-25.
Further corroborating Inspector Hardy ' s testimony, Enlow witness and mine foreman
Robert Weaver testified that after Inspector Hardy's inspection, Weaver suggested that the
accumulated oil observed could have come from a soft plug blow on the torque converter, which
had occurred on the preceding Friday, November 12. Tr. 400-01. However, after further
investigation, Weaver opined that the oil source was from the "tensioning unit or on the gear
case." Tr. 408.
Accordingly, J conclude that the record contains a more than adequate elaboration of
evidence supporting the inspector's conclusion that the violative conditions existed at the time of
the subject preshift examination.
The only other basis offered by my colleagues' in support of their determination that no
violation occurred, is found in their observation that "[t]he judge specifically credited the
testimony of the preshift examiner and, absent extraordinary circumstances, we will not overturn a
judge's credibility findings on review." Slip op. at 9 (citation omitted).
Initially, I suggest that a close examination of the judge's decision indicates that his
credibility ruling only supports his conclusion that a preshift examination occurred - a point not
even in dispute.3 Moreover, in his discussion of the testimony offered, for the related section

3

"I find Young's testimony credible, based upon my observations ofhis demeanor, that
he did perform a preshift examination at approximately 5:00a.m., in the area in question on
November 15." 17 FMSHRC 567.

22

75.400 violation, as well as the subject preshift violation, the judge expressly credited Hardy's
testimony and implicitly rejected conflicting testimony from Enlow witnesses:
I note the conflict in the testimony between Hardy and
Respondent's witnesses who were present in the area in question at
the time of the inspection on November 15, regarding the existence
of the conditions testified to by Hardy. I observed Hardy's
testimony and found him to be a credible witness.
17 FMSHRC 565. However, beyond that point, I conclude that this case does not tum on
credibility. Assuming arguendo that the Enlow witnesses are also credible, the record still
contains substantial evidence supporting the inspector's charge. That evidence is drawn not only
from the inspector's testimony, but also from the Enlow witnesses who professed not to have
observed much of what the inspector observed. This is believable - because it is clear from their
testimony that Inspector Hardy's inspection was far more thorough and inclusive. Obviously if
one doesn't look very carefully, one can honestly testify that no violative conditions were
observed!
For the foregoing reasons, I conclude the violation occurred as charged. Therefore, I would
reverse the ruling of the judge and remand for analysis of the special findings charged and
assessment of a civil penalty.
With regard to the related violation of section 75.400, cited on the same day, November
15, 1993, my colleagues have vacated the judge's conclusions that the violation was neither
unwarrantable nor S&S, and have remanded both issues for proper analysis. I agree with, and
concur with, the disposition as it relates to the issue ofunwarrantability. However, for reasons set
forth below, I conclude that the violation was S&S and therefore, I would reverse the ruling of the
judge.
Once again the issue is "whether the Secretary proved the third element of Mathies." Slip
op. at 5. As indicated in my concurring opinion in U.S. Steel Mining Co., 18 FMSHRC 862,868
(June 1996), I continue to believe that we must begin to find a way to stop the enforcement
confusion that continues to flow from the Mathies test and, in particular, the third element. To
that end, I again invite my colleagues, the Secretary, and affected operators to formally address
this issue in future cases.

23

With r~.spect to the issue of S&S in this matter, I conclude .that the violation was S&S
·because the risk, !O miner health and safety was neither purely technical nor remote or speculative.
Accordingly. I \VOtild reverse the judge on this issue and remand for a proper analysis on the issue
of unwarrantahil!t~··

(:~

~··
Marc Lincoln Marks, Commissioner

24

Distribution

Elizabeth Chamberlin, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisbe{ger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

jhe

25

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

January 21, 1997

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

v.

Docket No. WEST 97-38-M
A.C. No. 42-01975-05509

LAKEVIEW ROCK PRODUCTS, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'

ORDER

BY THE COMMISSION:
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U$.C.
§ 801 et seq. (1994) ("Mine Act"). On December 2, 1996, Lakeview Rock Products, Inc.
("Lakeview'') filed with the Commission a Motion to Reopen Case and for Relief from Order
Assessing Penalty, and a supporting Memorandum of Points and Authorities. In the motion,
Lakeview seeks to reopen a penalty assessment issued by the Department of Labor's Mine Safety
and Health Administration ("MSHA") that had become a final order of the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). Lakeview asserts that it is entitled to
relief under Fed. R. Civ. P. 60(b)(5) and (6).2 Lakeview attaches the affidavits of its secretary

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

Rule l(b) of the Commission's Procedural Rules provides that the Federal Rules of
Civil Procedure shall apply. "so far as practicable" in the absence of applicable Commission
rules. 29 C.F .R. § 2700.1 (b).
Rule 60(b) states, in part:

26

and treasurer, Gary V. Smith, and its attorney, Gregory M. Simonsen. Smith's affidavit
addresses Lakeview' s failure to submit a request for hearing ("Green Card") to contest the
alleged violations.
The Secretary of Labor opposes the request, arguing that Lakeview has failed to satisfy
any of the requirements for obtaining relief under Fed. R. Civ. P. 60(b). S. Opp'n at 4-6. The
Secretary also contends that Lakeview's request is untimely, since it actually seeks relief based
upon a claim of mistake under Rule 60(b)( 1), or misconduct by the adverse party under Rule
60(b)(3). ld at 5. According to the Secretary, Lakeview' s motion is therefore subject to the oneyear time limitation applicable to motions filed pursuant to Rule 60(b)(1 ), (2), or (3), which
cannot be avoided by invoking a different subsection, such as Rule 60(b)(6). ld In response,
Lakeview contends that the Secretary has attempted to mischaracterize 'its motion as one brought
pursuant to Rule 60(b)(1) and (3), and maintains that it has demonstrated its entitlement to relief
under Rule 60(b)(5) and (6). L. Reply Mem. at 5-7.
Under section 105(a) of the Mine Act, 30 U.S.C. § 815(a), an operator has 30 days
following receipt of the Secretary of Labor's proposed penalty assessment within which to notify
the Secretary that it wishes to contest the proposed penalty. If the operator fails to notify the
Secretary within that time period, the proposed penalty assessment is deemed a final order of the
Commission. 30 U.S.C. § 815(a).
Lakeview failed to file its hearing request in this ca8e because of its mistaken belief that
the citations at issue in this case would be covered by the Green Card it had submitted in another
case involving a different citation that arose out of the same inspection, conducted on May 2,
1994. See L. Mem. at 4, ~ 14; Affidavit of Gary V. Smith~~ 9-12. Although the basis for
Lakeview's failure to file a Green Card in this case appears to qualify as "mistake,"
"inadvertence," or "excusable neglect" within the meaning of Rule 60(b)(l), Lakeview seeks
relief pursuant to subsections (5) and (6) of Rule 60(b). Lakeview asserts that it is entitled to
relief under Rule 60(b)(5) because three Qfthe citations involved in this case are virtually the

[T]he court may relieve a party . .. from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence which by due
diligence could not have been discovered in time to move for a new trial
under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any o~er reason justifying relief from
the operation of the judgment.
Fed. R. Civ. P. 60(b).

27

same as a prior.citation (Citation/Order No. 4170702) that was later vacated.by an administrative
law judge following a hearing. L. Mem. at 8. Lakeview also asserts that it is entitled to relief
under Rule 60(b)(6) because the citations involved herein are also included in two other penalty
assessments that are being contested by two employees who are agents of Lakeview. /d. at 8-9.
In addition, Lakeview contends that it is entitled to relief under Rule 60(b)(6) because it has been
faced with an "avalanche of citations and assessments," the number and severity of which are out
of proportion to Lakeview' s safety record and were the result of unconscionable conduct of
MSHA's inspectors and their supervisor in attempting to make an example of Lakeview. /d. at
9-10.
Th~ Commission has held that, in appropriate circumstances and pursuant to Rule 60(b),

it possesses jurisdiction to reopen uncontested assessments that have become final under section
105(a). Jim Walter Resources, Inc., 15 FMSHRC 782,786-89 (May 1993); Rocky Hollow Coal
Co., 16 FMSHRC 1931, 1932 (September 1994). As noted above, relief from a final order is
available in circumstances such as a party•s "mistake, inadvertence, surprise, or excusable
neglect" (Rule 60(b)( 1)), or "fraud ... , misrepresentation or other misconduct of an adverse
party" (Rule 60(b)(3)). A Rule 60(b) motion "shall be made within a reasonable time, and for
reasons ( 1), (2), and (3) not more than one year after the judgment, order, or proceeding was
entered or taken." Fed. R. Civ. P. 60(b). This one-year time limit is an outside time limit for
motions requesting relief under subsections (1) through (3), and may not be circumvented by
utilization of subsections (4) through (6) of Rule 60(b), which are subject only to a reasonable
time limit, when the real reason for relief falls within subsections (1) through (3). 7 James Wm.
Moore et al., Moore's Federal Practice 1 60.28[2], at 60-316 to 60-317 (2d ed. 1996). See
Newhall v. Offshore Logistics Int'l, 803 F.2d 821, 827 (5th Cir. 1986) ('" where the reason for
relief is embraced in Clause (bXl), the one year limitation cannot be circumvented by use of
Clause ... (b-)(6)'") (quoting GulfCoast Bldg. & Supply Co. v. IBEW, Local No. 480,460 F.2d
105, 108 (5th Cir. 1972)); United States v. Cirami, 563 F.2d 26,32 (2d Cir. 1977) ("when the
reason asserted for relief comes properly within one of [the first three] clauses, clause (6) may
not be employed to avoid the one-year limitation"); Brown v. Burnside, 109 F.R.D. 412,413
(E.D.N.Y. 1986) ("if a case falls within Rule 60(bX1), a party cannot avoid the one-year time
limit by characterizing it as falling within Rule 60(b)(6)"); see also Klapprott v. United States,
335 U.S. 601,613 (1949) ("one year limitation would control if no more than 'neglect' was
disclosed by the petition").
Despite its attempt to characterize its motion as one brought pursuant to Rule 60(b)(S)
and (6), the explanation offered by Lakeview for its failure to file a Green Card in this case
appears to fall squarely within the coverage of Rule 60(b)(1) (or possibly Rule 60(b)(3) to the
extent that it alleges unconscionable conduct or other misconduct on the part ofMSHA).
Lakeview's motion was filed on December 2, 1996 (see 29 C.F.R. § 2700.5(d)), more than two
years after the proposed penalty assessment became a final order of the Commission. The
motion is therefore untimely under Rule 60(b). See Thomas Hale, 17 FMSHRC 1815, 1816-17
(November 1995); Ravenna Gravel, 14 FMSHRC 738, 739 (May 1992); Pena v. Eisenman
Chemical Co., 11 FMSHRC 2166,2167 (November 1989). As we have previously recognized,

28

the one year time limit contained in Rule 60(b)· "may not be extended., Pena v. Eisenman
Chemical Co., 11 FMSHRC at 2167. Accordingly, we deny Lakeview's request for relief under
Rule 60(b).
For the foregoing reasons, Lakeview's request for relief is denied. ·

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

Distribution

Clark B. Fetzer, Esq.
Kirton & McConkie
60 East South Temple, Suite 1800
P.O. Box 45120
Salt Lake City, UT 84145-0120
James B. Crawford, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

29

•

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

January 21, 1997

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

v.

Docket No. LAKE 94-126-M

MIDWEST MATERIAL COMPANY

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). At issue is whether former
Commission Administrative Law Judge Arthur J. Amchan properly concluded that a violation of
30 C.F.R. § 56.142ll(a)2 by Midwest Material Corporation ("Midwest Material"), involving the
use of improper and unsafe procedures in dismantling a crane boom that resulted in the death of
miner Thomas Reaska, was not the result of unwarrantable failure. 17 FMSHRC 636, 640 (April
1995) (ALJ). The Commission granted the Secretary of Labor's petition for discretionary
review. For the reasons that follow, we reverse the judge's determination that the violation of
section 56.1421l(a) was not the result of Midwest Material's unwarrantable failure, and remand
this matter for penalty assessment.

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners h~s been designated to exercise the powers of
the Commission.
2

Section 56.1421 1 provides, in relevant part:
(a) Persons shall not work on top of, under, or work from mobile
equipment in a raised position until the equipment has been ·
blocked or mechanically secured to prevent it from rolling or
falling accidentally.

30

I.
Factual and Procedural Background
In April 1993, Midwest Material acquired a sand and gravel plant on Route 26 in Lacon,
Illinois from Midwest Sand & Gravel Company ("Midwest Sand & Gravel"), an unrelated
company. 17 FMSHRC at 636-37. Following the acquisition, Jerry Henry, the owner of
Midwest Sand & Gravel, served as a consultant for Midwest Material at the Lacon site. ld. at
637. In addition, Midwest Material hired some of the individuals previously employed by
Midwest Sand & Gravel at the Lacon facility, including Edward Schumacher, a working
foreman, and miner Reaska. ld. Schumacher and Reaska had both worked in the sand and
gravel business for 15 to 20 years, primarily for Jerry Henry and Midwest Sand & Gravel. !d. at
639.
In May 1993, Midwest Material was preparing to move the Lacon plant across Route 26,
to a site near the river bed from which it extracted sand and gravel. ld. at 637. The company
planned to use an American 599C mobile crawler crane to disassemble and move the plant. !d.
In order to accomplish this task, it was necessary to add a 20-foot extension to the crane boom.
Id. On the morning of May 27, Richard Walsh, an on-site superintendent, instructed Schumacher
and Reaska to extend the length of the crane boom. ld. ·walsh designated Schumacher to be the
foreman in charge of the boom extension project. ld. at 639. Schumacher and Reaska had both
extended 'crane booms during their previous employment with Midwest Sand & Gravel, and were
therefore familiar with the correct procedures for accomplishing this task. Jd. at 637, 639.
The standard procedure for extending the crane boom is to first lower the tip of the boom
to the ground. ld. at 637. Next, the suspension lines that run from the top of the cab ofthe crane
along the length of the boom are relaxed and connected to the top, far end of the first section of
the boom by the cradle, a device attached to the suspension lines. ld. ; Tr. 43-46; Gov't Ex. 1,
inside cover (diagram). After the first section of the boom is secured in this manner, lifting
tension is again taken up on the suspension lines and those parts of the boom suspension lines
that go with the remaining sections of the boom are unfastened. 17 FMSHRC at 637; Tr. 43, 46;
Resp. Ex. 2, at 2. The lower set of retaining pins connecting the first and second sections of the
boom can then be driven out of their holes without danger since the boom will not flex, bend or
separate when the lower pins are removed. 17 FMSHRC at 637; Tr. 43, 46; Resp. Ex. 2, at 2.
Lifting tension in the boom suspension lines is then slowly released, causing the boom sections
to pivot on the upper set of retaining pins and to separate at the bottom (where the retaining pins
have been removed) as the boom is lowered to the ground. 17 FMSHRC at 637; Tr. 43, 46-47;
Resp. Ex. 2, at 2. At this point, the upper set of retaining pins is removed, thus completing the
process of separating crane boom sections. 17 FMSHRC at 637; Tr. 44, 47; Resp. Ex. 2, at 2.
The crane and the first section of the boom, safely supported by the crane's suspension lines, are
then backed away from the dismantled sections of the boom, and new sections can be safely
added. 17 FMSHRC at 637.

31

On the morning of May 27, Schumacher began the ptoject by entering the cab of the
crane and lowering the boom. Id. Reaska signaled Schumacher to stop lowering the boom when
it was still about five feet off the ground, contrary to standard procedure. !d. Schumacher left
the cab and went to his truck, located about 50 feet away, to get a cable come-along for use in
pulling down the cradle so it could be connected to the first section of the boom. !d.; Tr. 49, 73.
While Schumacher was at his truck, and prior to securing the first section of the boom, Reaska,
from underneath the boom, began driving out the pins that connected the first and second
sections. 17 FMSHRC at 638; Tr. 49, 52. This was also contrary to standard procedure. Tr. 7475, 96.
Consultant Jerry Henry then drove up and had a short conversation with Schumacher on
an unrelated manner. 17 FMSHRC at 638; Tr. 49-51. After a minute or two, Schumacher and
Henry walked back to the crane and watched Reaska complete the process of driving out the
connecting pins from the boom. 17 FMSHRC at 638; Tr. 51-52. Schumacher placed his hand
over the bottom angle of the boom. Tr. 52. Schumacher made no effort, however, to warn
Reaska not to drive out the pins connecting the boom sections until the boom could be properly
secured. T r. 197. When Reaska drove out the second of two lower retaining pins connecting the
first and second sections of the boom, the boom pivoted downward on the upper pins and the
first section of the boom fell on top of Reaska, pinning him to the ground. 17 FMSHRC at 638;
Gov' t Ex. I, at 1, 3. Henry was knocked down by second section ofthe boom, but was not
seriously injured. 17 FMSHRC at 638; Gov't Ex. 1, at 3. Reaska died at the scene. 17
FMSHRC at 638.
Jerry Spruell, an inspector from the Department of Labor's Mine Safety and Health
Administration ("MSHA"), investigated the accident and issued a citation pursuant to section
I 04(d)( I) of the Mine Act, 30 U .S.C. § 814(d)( I), alleging a "significant and substantial" and
"unwarrantable" violation of section 56.I4211 (a) for permitting an employee to work under a
crane boom that had not been blocked or mechanically secured. 17 FMSHRC at 636, 638; Gov't
Ex. 2. The Secretary of Labor proposed a penalty of $20,000 for the alleged violation. 17
FMSHRC at 636. Midwest Material challenged the proposed assessment, contending that it had
not violated the standard and, alternatively, that any violation was not the result of its
unwarrantable failure.
·
Following an evidentiary hearing, the judge concluded that Midwest Material had
committed a significant and substantial violation of section 56.14211 (a), but that the violation
was not the result of unwarrantable failure. !d. at 638, 640, 642 & n.2. The judge therefore
affirmed the citation under section 104(a) ofthe Mine Act, 30 U.S.C. § 814(a), rather than under
section I 04(d)( I), and assessed a civil penalty of $I ,500. !d. at 640, 642.
.
The judge found that the negligence of foreman Schumacher in connection with the
improper dismantling of the crane boom was imputable to Midwest Material, but concluded that
Schumacher' s conduct was not sufficiently aggravated to rise to the level of unwarrantable

32

failure. !d. at 639-40.3 The judge noted that although the hazard was obvious, it existed only
briefly before the accident, and therefore was distinguishable from situations where an operator
allowed an obvious hazard to persist for a significant period oftime. !d. at 640. The judge also
relied on the lack of any evidence in the record that Reaska and Schumacher were under pressure
to dismantle the crane quickly or that Midwest Material gained any production advantage from
performing this task improperly. !d. While fmding that Schumacher was aware that the correct
procedures for disassembly of the crane boom had not been followed, the judge concluded that
Schumacher's conduct "is better described as 'thoughtless' or 'inattentive,' rather than
'inexcusable or aggravate<j. "' !d. The judge concluded that the evidence did not support an
unwarrantable failure finding, but rather indicated only that "two competent, experienced miners
who knew how to do this job properly did it improperly for inexplicable reasons." !d.
The Commission granted the Secretary's petition for discretionary review, which
challenged the judge's finding that the violation of section 56.14211 (a) was not the result of
unwarrantable failure.

II.
Disposition
The Secretary argues that the evidence regarding the improper manner in which the boom
disassembly operation was performed compels a finding that Schumacher's conduct was
intentional and deliberate, which qualifies as "aggravated conduct" under the test for establishing
unwarrantable failure. S. Br. at 6-7. The Secretary also contends the judge failed to adequately
consider evidence that the violative conduct was extraordinarily dangerous, and that the
hazardous condition that resulted, and the operator's failure to respond to it, were visually
obvious. !d. at 7-8. In addition, the Secretary contends the judge failed to correctly apply the
legal test for determining the existence of unwarrantable failure. !d. at 5-6, 8-10. The Secretary
argues that the judge improperly relied upon the inexplicable nature of Schumacher's negligent
conduct as evidence of a lack of aggravated conduct. !d. at 8-9. The Secretary also contends the
judge erred in finding that Schumacher's conduct was not unwarrantable because the violative
condition existed only for a brief period before the fatal accident. !d. at 9-10.
In response, Midwest Material argues that the judge correctly determined that its violation
of section 56.14211(a) was not the result ofunwarrantable failure. 4 Midwest Material contends

3

The judge concluded that onJy Schumacher's conduct was relevant in determining
whether the violation was the result of"unwarrantable failure," noting that the Secretary had not
alleged negligence an the part of superintendent Walsh or any other company official, including
consultant Jerry Henry. !d. at 639.
4

The position of Midwest Material is set forth in a letter dated May 28, 1995 submitted
by its president, Paul Williams, in opposition to the Secretary's petition for discretionary review,

33

that the judge's ruling on the unwarrantability issue should not be overturned because it was
based upon his direct assessment of the testimony of witnesses who were at the scene of the fatal
accident.
The unwarrantable failure terminology is taken from section 104(d) of the Mine Act and
refers to more serious conduct by an operator in connection with a violation. In Emery Mining
Corp., 9 FMSHRC 1997 (December 1987), the Commission determined that unwarrantable
failure is aggravated conduct constituting more than ordinary negligence. Jd at 2001. This
determination was derived, in part, from the plain meaning of"negligence"- the failure to use
such care as a reasonably prudent and careful person would use, characterized by "inadvertence,"
"thoughtlessness," and "inattention." Jd Unwarrantable failure is characterized by such conduct
as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable
care." Jd. at 2003-04; Rochester & Piusburgh Coal Co., 13 FMSHRC 189, 194 (February 1991);
see also Buck Creek Coal. Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test).
We conclude that the judge misapplied the applicable standard for determining whether
the violation of section 56.14211 (a) was the result of unwarrantable failure, and that his finding
that the violation was not due to unwarrantable failure is not supported by substantial evidence.5
First, the judge failed to adequately consider that the negligent conduct of foreman Schumacher
resulted in a highly dangerous situation - ·a miner working directly underneath unsecured heavy
equipment to dismantle that very same equipment. The high degree of danger inherent in the
situation is evidenced by the fatal accident that resulted when Reaska removed the last pin
connecting the first and second sections of the boom. The Commission has relied upon the high
degree of danger posed by a violation to support an unwarrantable failure finding. See
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (August 1992) (finding unwarrantable
failure where the unsaddled beams "presented a danger" to miners entering the area); Warren
Steen Construction. Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding violation to be
aggravated and unwarrantable based upon "common knowledge that power lines are hazardous,
and ... that precautions are required when working near power lines with heavy equipment");
Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988) (finding unwarrantable failure where
"roof conditions were highly dangerous").

as explained in a subsequent letter from Williams dated September 23, 1995.
5

The Commission is bound by the terms of the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's factual determinations. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). The term "substantial evidence" means "such relevant evidence as a
reasonable mind might accept as adequate to support [the judge's] conclusion." Rochester &
Piusburgh Coal Co.. 11 FMSHRC 2159,2163 (November 1989) (quoting Consolidated Edison
Co. v. NLRB. 305 U.S. 197,229 (1938)). In reviewing the whole record, an appellate tribunal
must consider anything in the record that "fairly detracts" from the weight of the evidence that
supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 4 74, 488 ( 1951 ).

34

The judge's decision also fails to recognize that the violation took place in the presence
of a foreman, who, under Commission precedent, is held to high standard of care. See
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007,2011 (December 1987) ("section foreman is
held to 'demanding standard of care in safety matters"') (quoting Wilmot Mining Co., 9
FMSHRC 684,688 (April 1987)); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (November 1995)
(heightened standard of care required of section foreman and mine superintendent).

In view of the extreme danger posed to a miner working directly underneath the crane
boom left in an unsecured position, five feet off the ground, and the high level of responsibility to
which he is held, foreman Schumacher had a duty to exercise extreme caution and care until the
hazardous condition could be eliminated. In our view, Schumacher breached that duty in several
important respects. First, he failed to lower the crane boom completely to the ground, in
accordance with standard procedure. In addition, he left Reaska in the immediate vicinity of a
crane boom that he knew was unsecured, several feet off the ground, without warning him about
the danger that existed or instructing him not to work under the crane boom. Finally, he watched
Reaska drive·out connecting pins from under the unsecured boom without providing any warning
of the disastrous consequences that could, and in fact did, occur.
In addition, the judge did not take adequate account of the obvious nature of the hazard
created by Schumacher's negligent conduct, which is a further indication that the violation
involved a "serious lack of reasonable care." Even a casual observer at the accident scene could
have perceived that Reaska was being placed in a precarious and highly dangerous position as a
result of the failure to adhere to proper procedures for disassembly of the crane boom.6 Certainly
Schumacher, given his experience and familiarity with this task, and the high degree of care
required of him, should have appreciated the obvious hazard that existed and insisted on
adherence to proper procedures by, at a minimum, warning Reaska not to remove the connecting
pins or work underneath the crane boom until it could be properly secured. We have relied upon
the obvious nature of a hazard in making an unwarrantable failure determination. See, e.g.,
Cyprus Plateau Mining Corp., 16 FMSHRC 1604, 1608 (August 1994) (inoperable brakes on .
shuttle car); Quinland Coals, 10 FMSHRC at 708-09 (obvious nature of poor roof conditions).
Further, we agree with the Secretary's contention that Schumacher's inability to provide
any explanation for his negligence and the lack of safety precautions that resulted in this fatal
accident supports, rather detracts from, an unwarrantable failure finding. Although Schumacher
was familiar with the proper procedure for dismantling the crane boom, as well as the hazard of
working under a raised load, he testified that in the period immediately prior to the accident
neither he, Henry nor Reaska noticed they had missed a critical step in the process of the
dismantling the boom - attaching the cradle and the suspension lines to the first section of the
6

As even Schumacher acknowledged, anyone walking up to the scene of the accident
would have recognized that a critical step in the process of dismantling the boom -attaching the
crane' s suspension lines by the cradle to the first section of the boom- had not been completed
when Reaska removed the connecting pins. Tr. 96.

35

boom. Tr. 74-7 5, 148, 163. In explaining the failure to notice that the appropriate procedures
had not been followed. Schumacher testified as follows: "[N]obody noticed anything. We
[were) all just brain dead or just mentally blocked." Tr. 52.7 This lapse of judgment or presence
of mind on the part of the mine foreman with respect to the proper procedures for dismantling the
crane boom, in our view, qualifies as the type of"indifference" or "serious lack of reasonable
care" that constitutes unwarrantable failure, particularly in light of the extremely dangerous
position that Reaska was placed in as a result. Therefore, we conclude that the judge erred in
finding that the "thoughtless" and "inattentive" character of Schumacher's conduct supports a
finding that his conduct was not sufficiently aggravated to amount to unwarrantable failure.
In addition, we find that several other elements of the judge's analysis of Schumacher' s
conduct are faulty, and further undermine his conclusion that the violation of section 56.1421l(a)
was not the result of unwarrantable failure. The judge's reliance on the relatively brief duration
of the violative conduct was misplaced, in view of the high degree of danger posed by the
hazardous condition and its obvious nature. Given the extreme hazard created by Schumacher's
negligent conduct, that misconduct is readily distinguishable from other types of violations such as those involving the accumulation of coal dust - where the degree of danger and the
operator's responsibility for learning of and addressing the hazard may increase gradually over
time. Moreover, the judge failed to recognize that the hazardous condition existed for a brief
period of time only because it culminated in the collapse of the boom on Reaska, resulting in his
death.
In finding that this violation was not unwarrantable, the judge also relied upon the lack of
evidence in the record that Schumacher failed to insist on proper procedures because the miners
were under pressure to dismantle the crane quickly or that Midwest Material gained any sort of
production advantage from performing this task improperly. 17 FMSHRC at 640. This analysis
is also erroneous, however, because even though the record does not support the Secretary's
contention that Schumacher's conduct was intentional and deJiberate, this does not preclude a
finding that Schumacher's reckless indifference to the safety of a fellow miner is aggravated
conduct that constitutes unwarrantable failure. It is well established that intentional and
deliberate conduct is not a condition precedent to a determination of unwarrantable failure. See
Emery Mining, 9 FMSHRC at 2003-04; Rochester & Pittsburgh, 13 FMSHRC at 193-94; S&H
Mining, l 7 FMSHRC at 1923.
Based on these considerations, we conclude that the judge misapplied the unwarrantable
failure test, and that the record as a whole does not support the judge's determination that
Midwest Material did not engage in aggravated conduct. Rather, the record compels the
conclusion that Schumacher's conduct reflected reckless indifference and a serious lack of
7

In addition. MSHA Inspector Jerry Spruell testified that, when he questioned
Schumacher about the failure to follow proper procedures for dismantling the crane boom,
Schumacher stated, "[w]e drew three blank minds" -referring to himself, Reaska, and Henry.
Tr. 147.

36

reasonable care. Accordingly, we reverse the judge's determination that the violation was not the
result of Midwest Material's unwarrantable failure, convert the section 104(a) violation to a
section 104(d)( I) violation, and remand this matter to the Chief Administrative L~w Judge for
assignment to a judge for penalty assessment.8

III.
Conclusion
For the foregoing reasons, we reverse the judge's detennination that the violation of
section 56.142Il(a) was not the result of Midwest Material' s unwarrantable failure, and remand this case for assessment of an appropriate civil penalty.

•
Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

8

Judge Amchan has since transferred to another agency.

37

Distribution
Cheryl C. Blair-Kijewski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Paul Williams, President
Midwest Materials Company
Box 63, Suite I 03 B
Naperville, IL 60566
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

jhe

38

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

January 24, 199 7

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

v.
AUSTIN POWDER COMPANY
Docket Nos. YORK 95-57-M
YORK 96-13-M

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

v.
BRUCE EATON

BEFORE: Jordan, Chainnan; Marks and Riley, Commissioners1

DIRECTION FOR REVIEW
BY THE COMMISSION:
This proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act" or "Act"). On October 31, 1996, Administrative Law Judge
Paul Merlin affi.nned Citation No. 4424405 under section 104(d)(1), 30 U.S.C. § 814(d)(1) of the .
Act. 18 FMSHRC 1878, 1889. On December 10, 1996, the Commission granted in part the joint
petition for discretionary review filed by Austin Powder Company and Bruce Eaton. The
Commission agreed to review the issue of whether the judge erred by affirming the citation as
one issued under section 104(d)( l) of the Act.
On December 12, 1996, the Commission issued its decision finding that the judge failed
to take into account the Secretary' s modification of the citation. The judge' s decision was
vacated and the matter was remanded to the judge to determine the proper designation of the
citation and whether the penalty should therefore be reduced.
1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

39

On December 16, 1996, the judge issued a decision on remand wherein he deleted the
unwarrantable failure finding and affirmed the citation under seetion 104(a). He did not modify
his penalty assessment because he continued to find very high negligence. ·
On December 19, 1996, Austin Powder Company and Bruce Eaton filed a petition and
motion seeking reconsideration of the Commission's decision to deny review of the remaining
issues raised in their original November 27, 1996 petition for discretionary review.
Subsequently, on December 20, 1996, petitioners also filed a petition for discretionary review of
the December 16, 1996 decision on remand. That petition incorporates the essential assignments
of error contained in both the November 27, 1996 petition for discretionary review and the
petition and motion filed on December 19, 1996.
Upon consideration of the foregoing, we grant the petition for discretionary review filed
on December 20, 1996.2

.·

Marc Lincoln Marks, Commissioner

James C. Riley, Commissioner

2

The December 19, 1996, petition and motion, which requests substantially the same
relief as the subject petition for discretionary review, is moot.

40

Distribution

L. Joseph Ferrara, Esq.
Jackson & Kelly
2401 Pennsylvania Ave., N.W.
Suite 400
Washington, D.C. 20037
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

41

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

January 24, 1997

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. YORK 96-61-M

V.

DREW DRILLING & BLASTING INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

ORDER

BY THE COMMISSION:

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act"). On December 16, 1996, Chief
Administrative Law Judge Paul Merlin issued an Order of Default to Drew Drilling & Blasting
Inc. ("Drew") for failing to answer the proposal for assessment of penalty filed by the Secretary
of Labor on August 21, 1996, or the judge's Order to Respondent to Show Cause issued on
October 18, 1996. The judge assessed civil penalties of $2,500 proposed by the Secretary.
On January 13, 1997, the Commission received a letter from Edwin E. Drew, Jr.,
president of Drew, asserting that he was unable to respond to the proposal for assessment and
show cause order because he was then undergoing chemotherapy treatments which left him
incapacitated. Mr. Drew also asserts that his niece, who had worked part-time for the company
as a bookkeeper/secretary, left to take a full-time job elsewhere, and that other friends and family
who assisted with the company ' s paperwork during the period ofhis treatment "did not recognize
the importance of the notice sent by the Secretary of Labor and it was overlooked." He also
indicates in the letter that Drew is a small company with only two employees.

1

Pursuant to section 113(c) ofthe Federal Mine Safety and Health Act of 1977,30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

42

The judge's jurisdiction in this matter terminated when his decision was issued on
December 18, 1996. 29 C.F.R. § 2700.69(b). Under the Mine Act and the Commission's
procedural rules, relief from a judge's decision may be sought by filing a petition for
discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.
§ 2700.70(a). We deem Drew' s letter to be a timely filed petition for discretionary review, which
we grant. See, e.g., Middle States Resources, Inc., 10 FMSHRC 1130 (September 1988).
On the basis of the present record, we are unable to evaluate the merits of Drew's
position. In the interest of justice, we vacate the default order and remand this matter to the
judge, who shall determine whether relief from default is warranted. See Hickory Coal Co.,
12 FMSHRC 1201, 1202 (June 1990).
.

~~d!;-J:i4:

.

,~t~
Marc Lincoln Marks, Commissioner

43

Distribution

Edwin E. Drew, Jr., President
Drew Drilling and Blasting
P.O. Box 519
Thomaston, CT 06787
David L. Baskin, Esq.
Office of the Solicitor
U.S. Department of Labor, E-375
John F. Kennedy Federal Bldg.
Boston, MA 02203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

44

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

January 30 ~ 199 7

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. CENT 96-84
CENT96-103
CENT96-I04

V.

H M I a.k.a. HEATHERLY MINING, INC.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 95-201

v.

P & K CO., LTD.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners 1

ORDER

BY THE COMMISSION:
In each of the above-captioned cases, Chief Administrative Law Judge Paul Merlin issued
an Order of Default to H M I a.k.a. Heatherly Mining, Inc. ("HMI") or P & K Co., Ltd. ("P&K"),
and assessed civil penalties, for failure to answer the Secretary of Labor's petition for assessment

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.

45

of civil penalty or the judge's Order to Respondent to Show Cause.2
In November 1996, the Commission received an Application to File Answer Out of Time,
Answer to Petition for Assessment of Penalty, and Motion to Dismiss in each case from HMI or
P&K.3 In their motions, HMI and P&K assert that they understood that they had settled all
outstanding citations issued by the Department of Labor's Mine Safety and Health
Administration ("MSHA") against them on or before June 30, 1996, pursuant to a settlement
agreement dated July 23, 1996. 4
In late November of 1996, the Commission was advised by counsel for the Secretary that
MSHA had decided to write off the penalties covered by these default orders as uncollectible. In
a subsequent letter dated December 27, 1996, the Secretary's counsel confirmed that MSHA had
agreed to deem all civil penalties assessed ~gainst HMI and P&K before August 1, 1996, to be
uncollectible, and recommended that these cases be withdrawn from consideration by the
Commission.

2

In No. CENT 96-84, Chief Judge Merlin issued a Default Order on August 14, 1996,
after HMI failed to respond to his Order to Show Cause dated June 7, 1996. In Nos. CENT 96103 and CENT 96-1 04, Chief Judge Merlin issued Default Orders on October 11, 1996, after
HMI failed to respond to show cause orders issued in each case on August 13, 1996. In No.
CENT 95-201, Chief Judge Merlin issued a Default Order on October 27, 1995, after P&K failed
to respond to his show cause order dated August 14, 1995.
3

The Commission received an application, answer, and motion to dismiss filed by HMI
in No. CENT 96-84 on November 8, 1996, and in Nos. CENT 96-103 and 96-104 on November
13, 1996. Th~ Commission received an application, answer, and motion to dismiss filed by P&K
in No. CENT 95-201 on November 12, 1996.
The Commission received an amended motion to dismiss filed by HMI in No. CENT.96l 04 on November 18, 1996. The Commission received amended versions of the application,
answer and motion to dismiss filed by P&K in No. CENT 95-201 on November 25, 1996. These
amended pleadings do not differ in material respects from the original versions of the documents
filed previously.
4

This settlement agreement, which is attached to each motion to dismiss, contains an
express agreement by MSHA that "upon the wire transfer of funds [in the amount of $75,000]. ..
on the 19th day of July, 1996, or thereafter, MSHA shall be deemed paid in full for all MSHA
violations assessed through June 30, 1996, .. . ." HMI and P&K assert that they paid this sum to
MSHA by wire transfer on or about July 31, 1996.

46

In light of the Secretary's response, we deem there to be no live controversy regarding the
penalty. Accordingly; this case is dismissed as moot.

tf-r:&d!c~

\~
Marc Lincoln ·Marks, Commissioner

Distribution

Thomas Stringer, Jr., Esq.
502 W. Broadway
Henryetta, OK 74437
Yoora Kim, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

47

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

January 31, 1997

SECRETARY OF LABOR.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 94-97-M

v.
WALKER STONE COMPANY, INC.

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'

DECISION
BY THE COMMISSION:
This civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
I 977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), involves an alleged significant and
substantial ("S&S")2 violation of30 C.F.R. § 56.141053 by Walker Stone Company, Inc.
("Walker" ), for failure to protect a miner from hazardous motion during testing of a rock crusher

1

Pursuant to section ll3(c) of the Federal Mine Safety and Health Act of 1977,30
U.S.C. § 823(c), this panel of three Commissioners has been designated to exercise the powers of
the Commission.
2

The S&S terminology is taken from section 104(d)(l) of the Mine Act, 30 U.S.C . .
§ 814(d)(l), which distinguishes as more serious in nature any violation that "could significantly
and substantially contribute to the cause and effect of a . .. mine safety or health hazard ...."
3

Section 56.141 05 states:
Repairs or maintenance of machinery or equipment shall be
performed only after the power is off, and the machinery or
equipment blocked against hazardous motion. Machinery or
equipment motion or activation is permitted to the extent that
adjustments or testing cannot be performed without motion or
activation, provided that persons are effectively protected from
hazardous motion.

48

following its repair or maintenance. Administrative Law Judge Roy Maurer concluded that the
operator did not violate the standard. 17 FMSHRC 600, 604-05 (Aprill995) (ALJ). The
Commission granted the Secretary of Labor' s petition for discretionary review challenging the
judge's determination. For the reasons that follow, we reverse and remand.

I.
Factual and Procedural Background
On June 25, 1993, the primary impact crusher at Walker's open-pit limestone quarry in
Dickinson County, Kansas, became clogged with rock, causing its drive motor to stall. 17
FMSHRC at 600-02; Tr. 191. The primary impact crusher is located below a hopper into which
trucks dump loads of rock. Tr. 30-33. The crusher is powered by a diesel motor, which turns a
rotor inside the crusher. Tr. 27. As the rotor turns, rock is tossed inside the crusher housing until
it breaks into pieces small enough to drop out of the crusher onto a splash pan and conveyor belt,
which transports the rock for further processing. 17 FMSHRC at 602 n.1; Tr. 33-35, 38-39, 219,
225-26. When rock becomes lodged inside the crusher, it prevents the rotor from turning and
stalls the drive motor, rendering the crusher inoperable until the rock is removed. Tr. 45, 62-63,
231-32.
· Rock frequently clogged the crusher and had clogged it earlier that day. 17 FMSHRC at
602,607. As usual when this occurred, the crusher operator, Roy Brooner, changed the signal
light at the hopper from green to red to indicate to the truck drivers to stop dumping their loads
and to help him unclog the crusher. Id. at 602. Truck drivers Danny Boisclair, Bill Scott, and
Frank Esterly arrived at the scene. /d. at 602-03. Boisclair and Scott entered the interior of the
crusher and, using a sledgehammer, broke up large boulders that were resting on top of the rotor.
/d. at 602. Upon their exiting the crusher, the crusher operator attempted to jog the rotor to see if
it had been unclogged. Id The rotor did not turn, so Scott, after conferring with the crusher
operator, went underneath the rotor to see if rock was lodged in the area of the splash pan. ld at .
602-03. Unbeknownst to the crusher operator, Boisclair reentered the interior of the crusher. ld
at 603. Esterly followed Boisclair but remained just outside the crusher. Id While Scott cleared
rock from under the rotor, Boisclair used his hunting knife to remove rock that was lodged
between the top of the rotor and the crusher housing. ld Esterly observed Scott working below
and asked him if he needed help. /d. Scott responded that he thought he had removed the rock
that was clogging the rotor and that he was ready to leave. ld Esterly told Boisclair to hurry and
get out of the crusher because Scott was done. /d. Boisclair began to exit the crusher but, before
he was out, Scott told the crusher operator that the rotor was clear and the crusher operator
jogged the rotor. Id The rotor turned and Boisclair was pulled between the rotor and the crusher
housing, causing·massive injuries to his upper and lower torso that resulted in his death. ld
The next day, Ro6er Nowell and Lloyd Caldwell, inspectors from the Department of
Labor's Mine Safety and Health Administration ("MSHA"), began an investigation of the
accident. 17 FMSHRC at 603; Gov't Ex. 1. Based on the results of the investigation, Inspector

49

Nowell issued Walker Citation No. 4337450, pursuant to section 104(a) oftl:le Mine Act, 30
U.S.C. § 814(a), alleging an S&S violation of section 56.14105 for failure to protect Boisclair
from hazardous motion during testing of the rotor following removal of the obstruction. 17
FMSHRC at 603-04; Gov't Ex. 2. In addition, Nowell issued Walker Citation No. 4337451,
pursuant to section 104(a), alleging an S&S violation of30 C.F.R. § 56.1420Q4 for failure to
warn Boisclair before jogging the rotor. 17 FMSHRC at 603, 605; Gov't Ex. 3. The Secretary
subsequently proposed civil penalty assessments of$9,000 for each of the alleged violations and
Walker challenged the proposed assessments.
Following an evidentiary hearing, the judge concluded that section 56.14105 is
inapplicable to the facts of this case. 17 FMSHRC at 605. He based his determination on his
finding that, under the plain meaning of the standard, the phrase "repairs or maintenance of
machinery or equipment" is not intended t<? encompass the work of removing rocks which are
clogging a crusher. /d. at 604. The judge explained that the standard "was written to apply to
repair or maintenance evolutions, as those terms are commonly used and not relatively minor
annoyances that arise during the on-line production usage of the machinery or equipment, that do
not involve any adjustments, mainte~ance or repairs to the equipment itself." /d. at 605. The
judge determined that no repairs or maintenance were being performed because miners were not
doing mechanical, maintenance, or repair work or making a structural modification to the
crusher. /d. at 604. He found that "[t]he only thing [the miners] were actually working on were
the rocks, breaking them up with a sledgehammer, and/or otherwise dislodging them from the
crusher." /d. Accordingly, he vacated the citation. /d. at 605, 607. The judge, however,
concluded that Walker had committed an S&S violation of section 56.14200 and assessed a civil
penalty of $7,500. /d. at 605-07.

II.
Disposition
The Secretary argues that the judge erred in failing to accord deference to his
interpretation of the terms "repairs or maintenance" to include the process of removing rock that
had stalled the crusher. S. Br. at 4-10. He asserts that his interpretation is consistent with the
language and safety-promoting purpose of the standard. /d. Walker responds that the judge
properly rejected the Secretary's overly broad interpretation of the standard because its language
is clear and unambiguous, and breaking up rock does not constitute repairs or maintenance of the

4

Section 56.14200 states:
Before starting crushers or moving self-propelled mobile
equipment, equipment operators shall sound a warning that is
audible above the surrounding noise level or use other effective
means to warn all persons who could be exposed to a hazard from
the equipment.

so

crusher itself. W. Br. at 3-16. Walker further contends that, if the Commission accords
deference to the Secretary's interpretation, it was not provided notice that unclogging the crusher
is an activity that the standard addresses. /d. at 12-16.
The Commission has recognized that where the language of a regulatory provision is
clear, the terms of that provision must be enforced as they are written unless the regulator clearly
intended the words to have a ditierent meaning. See, e.g., Utah Power & Light Co., 11
FMSHRC 1926, 1930 (October 1989) (citing Chevron U.S.A ., Inc. v. Natural Resources Defense
Counsel, Inc., 467 U.S. 837,842-43 (1984)). If, however3 the standard is ambiguous, the
Commission has examined whether the Secretary's interpretation is reasonable. See, e.g.,
Rochester & Pillsburgh Coal Corp., 12 FMSHRC 189, 193 (February 1990); Missouri Rock,
Inc., 11 FMSHRC 136, 139 (February 1989); see also Energy West Mining Co. v. FMSHRC, 40
F.3d 457, 463 (D.C. Cir. 1994). As the D.C. Circuit Court of Appeals has stated, deference is
accorded "only when the plain meaning ofthe rule itself is doubtful or ambiguous." Pfizer Inc. v.
Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984) (emphasis in original); see also Udall v. Tallman,
380 U.S. 1, 16 (1964); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410,414 (1945).
We conclude that the language of section 56.14105 clearly and unambiguously reaches
the facts presented in this case, i.e., the breakup and removal of rocks clogging the crusher. The
term "repair" means "to restore by replacing a part or putting together what is tom or broken:
fix, mend ... to restore to a sound or healthy state: renew, revivify ...." Webster's Third New
International Dictionary, Unabridged 1923 (1986). The term "maintenance" has been defined as
"the labor of keeping something (as buildings or equipment) ina state of repair or efficiency:
care, upkeep ... "and "[p]roper care, repair, and keeping in good order." /d. at 1362; A
Dictionary of Mining, Mineral, and Related Terms 675 (1968). That the miners were trying to
dislodge rock rather than working on the motor or other parts of the crusher does not remove the
activity from the definition of repair or maintenance within the meaning of section 56.14105.
The broad language of section 56.141 05 does not limit the types of "repairs or maintenance of
machinery or equipment" that are included within its scope. In this case, it is undisputed that the
obstructing rock caused the crusher' s drive motor to stall, rendering the crusher defective or
inoperable until the rock was removed. The purpose of Boisclair's work was to unclog the
malfunctioning crusher and restore it to functioning condition. 17 FMSHRC at 602-03. The
removal of rock was necessary to "restore [the crusher] to a sound state" or "keep [it] in a state of
repair or efficiency." Whatever the definitional distinctions between repair and maintenance~ the
effect of removing the rock was to eliminate the malfunctioning condition and enable the crusher
to resume operation. In our view, the removal of rock to restore the crusher to working cqndition
is clearly covered by the broad phrase "repairs or maintenance of machinery or equipment," and,
therefore, the standard adequately expresses the Secretary's intention to reach the activity to
which he applied it.
We find unpersuasive Walker's reliance on Southern Ohio Coal Co., 14 FMSHRC 978
(June 1992), to support the judge's determination that the activity of removing rock from the
crusher is not repair or maintenance. W. Br. at 6-7. In that case, the Commission concluded that

51

the activity of extending a conveyor belt was not " maintenance" within the plain meaning of30
. C.F.R. § 75.1725(c). 5 l4FMSHRCat982-83. TheCommissionreasoned:
(T]he belt moYe was not designed to prevent the belt from lapsing
from its existing condition or to keep the belt in good repair but,
rather. to increase its usefulness . . . . [N]o work was performed
... to keep the belt in the same condition that it was in the day
before, ... no "deteriorating condition" was being "upgrad(ed],"
and ... the belt would run without adding additional length to it.
... [T]he belt move did not preserve the ability of the existing belt
to convey material. The belt was not in need of upkeep. Instead,
the belt move was an improvement of the belt system . ...

ld at 983 (citations omitted). Here, in contrast, the operation of the crusher had ceased due to a
malfunction; removal of rock was necessary to restore the crusher to the same condition that it
was in before it became clogged; the malfunctioning condition was being eliminated; the crusher
would not operate without removal of rock; and removal of rock was necessary to restore the
ability of the crusher to process material. Thus, we conclude that the activity of extending a
conveyor belt is readily distinguishable from that of removing rock that is clogging a crusher.
Based on the foregoing, we conclude that the judge erred in determining that section
56.14105 is inapplicable to the facts of this case. Accordingly, we reverse the judge's
determination.6
Having determined that Boisclair's and Scott's efforts to dislodge rock constitute repair
or maintenance, we next consider whether the operator violated the standard by failing to protect
Boisclair from hazardous motion during testing of the rotor. The record indicates that activation
ofthe crusher was necessary to test it. Tr. 165, 188. Moreover, Walker does not dispute that the
crusher operator failed to accurately account for all employees present before he jogged the rotor
and, therefore, that Boisclair was unprotected from hazardous movement of the crusher
machinery .7 Thus, we conclude that the record as a whole supports no other conclusion than that

s Section 75.1725(c) is an underground coal standard similar to section 56.14105.
6

In light of our conclusion that the standard is clear, we do not reach the question of
whether the Secretary's interpretation is reasonable and entitled to deference.
7

Instead, Walker contends that it had policies that prohibited employees from working in
the crusher alone and from working above other employees. 17 FMSHRC at 606. Walker argues
that Boisclair violated its policies when he reentered the crusher to perform work above Scott.
Tr. 202-03, 213-15; W. Post-Hearing Br. at 4-5. Although Walker's purported reliance on its
policies is a factor that may be considered in determining the level of negligence for purposes of
assessing the penalty, it has no bearing on whether the operator violated the standard. As the

52

the Secretary established a violation of section 56.14105. In ad9ition, we conclude that the
violation was S&S. ·Clearly, it was a significant contributing cause to the fatal acCident.8
Because the record as a whole allows only one conclusion, we need not remand the issues of
violation and S&S to the judge. See American Mine Services, Inc., 15 FMSHRC 1830, 1834
(September 1993) (citing Donovan v. Stafford Constr. Co., 732 F.2d 954, 961 (D.C. Cir. 1984)
(remand would serve no purpose because evidence could justify only one conclusion)).
In sum, we conclude that the judge erred in determining that section 56.141 05 is
inapplicable to the facts of this case. We further conclude that the Secretary proved that Walker
violated the standard and that the violation was S&S. Accordingly, we remand the matter to the
judge for assessment of an appropriate civil penalty.

Commission has frequently observed, the Mine Act imposes liability without regard to fault.
E.g., Fort Scott Fertilizer- Cullor, Inc., 17 FMSHRC 1112, 1115 (July 1995).
8

·

We note that, in afftrming the violation of section 56.14200, which arose from the same
facts as the violation at issue, the judge concluded that such violation was S&S.

53

III.
Conclusion
:·:.·

For the foregoing reasons, we reverse the judge's determination that section 56.14105 is
inapplicable, find an S&S violation, and remand for penalty assessment.
.·:

' r....-"'-:Marc Lincoln Marks, Commissioner

·.

C: . ~
Distribution

Robin A. Rosenbluth, Esq.
Office of the Solicitor
U.S.De~entofLabor

4015 Wilson Blvd., Suite 400
Arlington, VA 22203

.·

Katherine Shand Larkin, Esq.
Jackson & Kelly
1600 Lincoln Street. Suite 2710
Denver, CO 80264
.·~

Administrative Law Judge Roy J. Maurer
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike Suite 1000
Falls Church, VA 22041

54

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

January 31, 1997

BILLY R. McCLANAHAN
Docket No. VA 95-9-D

v.
WELLMORE COAL CORPORATION

BEFORE: Jordan, Chairman; Marks and Riley, Commissioners'
DECISION
BY THE COMMISSION:
In this discrimination proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Billy R. McClanahan seeks
review of a decision by Administrative Law Judge David Barbour dismissing a complaint that he
filed pursuant to section 105(c)(3) ofthe Mine Act, 30 U.S.C. § 815(c)(3).2 17 FMSHRC 1773

1

Pursuant to section 113(c) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 823(c), this panel ofthree Commissioners has been designated to exercise the powers of
the Commission.
2

Section 105 provides in part:
(c)(l) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the statutory
rights of any miner ... because such miner ... has filed or made a
complaint under or related to this Act, including a complaint
notifying the operator ... of an alleged danger or safety or health
violation in a coal or other mine, or because of the exercise by such
miner ... of any statutory right afforded by this Act.
(c)(2) Any miner ... who believes that he has been
discharged, interfered with, or otherwise discriminated against by
any person in violation of this subsection may ... file a complaint

55

(October 1995) (ALJ). The judge determined that McClanahan's safety complaints regarding the
weight haulage limitation required by his employer, Wellmore Coal Corporation ("Wellmore"),
were not based on a good faith belief that hauling the required weight was hazardous. For the
reasons that follow. we reverse and remand.
I.

Factual and Procedural Backiround
In 1978, McCI~nahan began working for Wellmore as a haulage truck driver. 3 17
FMSHRC at 1774. On August 20, 1992, McClanahan was advised that Wellmore was
terminating its trucking business but that its former truckers could purchase trucks and haul as
independent contractors at Knox Creek's ~o . 3 Preparation Plant, or Wellmore's No.7 or No. 8
plants. ld ~ Tr. 316-18. McClanahan entered into an agreement, dated August 21. 1992, to
purchase Truck No. 42, the truck he usually drove. 17 FMSHRC at 1775. As an independent
contractor, McClanahan hauled refuse regularly at the No. 3 Preparation Plant and continued to
be paid by the hour for hauling at that location. /d. at 1775; Tr. 61, 319.
In December 1993 or January 1994, a new refuse fill area was opened at Knox Creek No.
3. /d. The haulage route to the new area was approximately two miles longer than the route
previously traveled by the truckers, and included a one-lane road over a hill. ld As a result,

with the Secretary alleging such discrimination ....
(c)(3) Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify ... the miner ... of
his determination whether a violation has occurred. If the
Secretary, upon investigation, determines that the provisions of this
subsection have not been violated, the complainant shall have the
right ... to file an action in his own behalf before the Commission,
charging discrimination or interference in violation of paragraph
(1) .... Whenever an order is issued sustaining the complainant's
charges under this subsection, a sum equal to t.he aggregate amount
of all costs and expenses (including attorney's fees) as determined .
by the Commission to have been reasonably incurred by the
miner .. . for, or in connection with, the institution and prosecution
of such proceedings shall be assessed against the person
committing such violation.
30 U.S.C. § 815(c).
3

Wellmore and Knox Creek Coal Corporation (" Knox Creek") were affiliated with
United Coal Company ("United"). 17 FMSHRC at 1774; W. Br. at 1-2.

56

trucks took longer to travel the distance to dump refuse. ld At approximately this time, in an
effort to increase refuse removal, the company instituted a policy requiring trucks to haul at least
25 tons per load. /d.; Tr. 300, 362, 366, 438. The policy was later modified to a,llow trucks to
haul no less than 24 tons. 17 FMSHRC at 1775. A trucker with a load weighing less than 24
tons was prohibited from hauling for the remainder of the shift and the nexrday. Tr. 77-78.
McClanahan testified that he repeatedly made safety complaints about the weight
requirement from its.inception.4 17 FMSHRC at 1788. He maintained that, on January 27, he
told Danny Estep, the tru_cking foreman, that he was afraid to haul 25 tons up the one-lane road,
that 25 tons was too much weight for the truck, and that if the truck' s drive line broke, the truck
could travel over the high wall. /d.; Tr. 74. McClanahan stated that, on January 31 , he told Estep
that it was unsafe and unfair to make the truckers choose between being injured or going home,
and that on February 1, he informed Estep that he could not haul that much weight safely or
efficiently. 17 FMSHRC at 1788; Tr. 78-79. He testified that, on February 4, he complained on
the CB radio about "overloading being so hazardous," and that, on February 27, he told Charles
Carter, the president of Wellmore, that he was "scared of trying to haul that much weight because
ofthe hazards." 17 FMSHRC at 1788; Tr. 79, 87.
On March 2, McClanahan's truck was weighed. 17 FMSHRC at 1778. The load was 100
pounds under 24 tons. ld Estep told McClanahan that he could not return to work the next day.
ld McClanahan testified that it was snowing and that he told Estep that he already was "scared
to death" but that the snow made it worse. ld ; Tr. 93. He stated that Estep told him that he did
not want to hear any excuses. Tr. 93. After McClanahan ha~led that load, Estep ordered him to
have his next load weighed. Tr. 93-94. McClanahan's next load weighed 21 tons. Tr. 94.
McClanahan stated that Estep informed him that Dave Fortner, the company's vice president of
preparation, would fire him if he refused to haul 24 tons. Tr. 94, 294-95. McClanahan replied
that he was refusing to haul because he was scared, not because he "didn't want to work." Tr.
94. McClanahan testified that he also informed Estep about the manufacturer's recommended
maximum gross vehicle weight ("GVW" ) for his truck,s and tried to show him the portion of the

4

Wellmore witnesses denied that McClanahan had made safety complaints, testifying .
that McClanahan's only stated concern was for the wear-and-tear that the weight requirement
would inflict on his truck. 17 FMSHRC at 1788. The judge found·that, at least by September
22, 1994, management understood that McClanahan's complaints about the weight requirement
were related to safety. ld at 1788-89. Well more challenged that finding for the first time at oral
argument. Oral Arg. Tr. 38-40. Although we need not address arguments raised for the first time
at oral argument (Tarpley v. Greene, 684 F.2d 1, 7 n.l7 (D.C. Cir. 1982)), we conclude that the
judge's finding is supported by substantial evidence. As noted by the judge, McClanahan
meticulously documented the dates and substance of his complaints. 17 FMSHRC at 1788; C.
Ex. 4. At least nine of those complaints were related to safety. 17 FMSHRC at 1788.
s The manufacturer's recommended maximum GVW is the weight of the empty truck
plus the amount that the manufacturer recommends that the truck haul. McClanahan' s truck had

57

manufacturer's manual stating that it was hazardous to haul loads exceeding ~he recommended.
. GVW, but that Estep had responded, "Bull." 17 FMSHRC at 1778. Estep denied that
McClanahan ever mentioned the GVW sticker or any other safety concerns at any time. Id; Tr.
450. 473, 477,479.
On March 3, McClanahan went to the mine office and spoke with David Wampler, the
president of Knox Creek. 17 FMSHRC at 1778-79. McClanahan stated that as soon as he
walked in the office, Wampler told him that he had to haul the 24-ton limit. /d. at 1779.
McClanahan told him that hauling that much weight scared him. ld He stated that Wampler
said that the company would buy back the truck for McClanahan's ownership interest in it. /d.
McClanahan testified that he then offered to sell the truck for the book or appraised value, but
Wampler replied that he would just terminate McClanahan. Tr. 97. McClanahan testified that he
tried to get Wampler to look at the GVW i~formation and the truck owner's manual, but that
Wampler refused. 17 FMSHRC at.1779. Wampler testified that McClanahan had informed him
that he could not haul the 24-ton limit because of the wear-and-tear to his truck. ld; Tr. 323.
McClanahan testified that, on March 4, he called MSHA but was informed that MSHA
could not help. l7 FMSHRC at 1779. He stated that he also called Virginia's Department of
Mine Land Reclamation ("DMLR") and eventually spoke with Inspector Lawrence Odum. ld
On March 7, Odum met McClanahan at the plant. ld
During the March 7 meeting, McClanahan expre.ssed concern over dumping refuse into
the sluny basins. ld at 1780. He was afraid that his truck would get too near the edge of a basin
and fall in, and that the weight that he was hauling would make it more likely that the edge
would give way. /d. Odum informed McClanahan that the conditions at the mine did not look
like something his agency would be involved in, rendered no opinions about safety, and referred
McClanahan to the Occupational Safety and Health Administration ("OSHA"), MSHA, or the
Virginia Division of Mines. /d.; Tr. 26, 43.
On September 12, McClanahan's load was weighed at 23.65 tons. 17 FMSHRC at 1781 .
According to McClanahan, Estep told McClanahan to "straighten up [his] attitude." ld
According to Estep, after McClanahan's load was found to be underweight, Estep told him that
he needed to haul the required weight and to stop being stubborn about it. Tr. 450. When Estep
pressed McClanahan about whether he was going to comply with the haulage requirements,
Estep testified that McClanahan had replied, "I might be light again and I might not." 17
FMSHRC at 1781. McClanahan was told to go home and to not come to work the next day. !d.

a manufacturer's recommended GVW of56,800 pounds and weighed 26,900 pounds empty. Tr.
230-31. The maximum amount that the truck could haul in accordance with the manufacturer's
GVW is calculated by subtracting the weight of the empty truck (26,900 pounds) from the GVW
of the truck (56,800 pounds) to arrive at the difference of29,900 pounds. Tr. 230-31. To
convert the amount of29,900 pounds to tons, the figure of29,900 is divided by 2,000 to arrive at
the amount of 14.95 tons, or approximately 15 tons. Tr. 231.

58

On September 14, when McClanahan returned, his load was again weighed. !d. His load
weighed 22.74 tons. · !d. McClanahan was laid off for the rest of the shift and the next day. /d.
When he returned to work on September 19, his load was w~ighed- again. !d. His load weighed
23.50 tons. /d. McClanahan was again sent home for the remainder of the shift and the next day.
/d. When he returned on September 21, McClanahan's load was again weighed. !d.
McClanahan's load weighed 24.96 tons. ld McClanahan explained that he had been loaded
with mud, which is heavy, along with slate. Tr. 122.
On the morning of September 22, Estep called McClanahan via the CB radio and asked
him to go the mine office. · 17 FMSHRC at 1781 . Estep, Fortner and Gross were waiting for him
when he arrived. /d. According to McClanahan, Fortner told McClanahan that he would be fired
if he hauled under the weight limit again. !d. at 1782. McClanahan testified that when he tried
to explain that he was scared of hauling that excessive weighr and that he did not want to risk his
health or life, Fortner replied that he had a solution for him and offered him a job at Weilmore
No.8. Tr. 123. McClanahan rejected the offer because truckers at Wellmore No.8 were paid by
the ton hauled, and he believed that he would have to haul twice his truck's recommended GVW
"just to make a living." Tr. 123.
Later that day, McClanahan's truck was weighed. Tr. 124. McClanahan's load weighed
22.96 tons. 17 FMSHRC at 1783. Gross told McClanahan, "That's all for you." Tr. 124. When
McClanahan asked him if that was all for the day or for good, Gross replied, "You're fired." Tr.
124.
On November 7, 1994, McClanahan filed with MSHA a complaint alleging
discrimination in violation of section 105(c) of the Mine Act. /d. at 1773. After an investigation,
MSHA advised McClanahan of its conclusion that no violation of section 105(c) had occurred.
ld. On January 6, 1995, McClanahan filed with the Commission a complaint on his own behalf
pursuant to section 105(c)(3) of the Act. Jd.
The judge denied McClanahan's discrimination complaint. 17 FMSHRC at I 793. He
found that McClanahan had made safety complaints to management regarding dumping refuse ·
into slurry basins, but that those complaints lost their protected status under the Mine Act
because management had adequately addressed them. ld. at 1787. He also found that ·
McClanahan had expressed safety concerns to management about hauling 24 or more tons. !d. at
1788-89. The judge concluded, however, that McClanahan's concerns were those of a truck
owner for cost and repair, and were not based on a good-faith belief that the haulage requirement
was hazardous to his safety. /d. at 1789. The judge based his conclusion on evidence that, as an
employee ofWellmore's, prior to McClanahan's purchase of the truck, McClanahan repeatedly
hauled more than 24 tons without making known his complaints to management or MSHA. !d.
at 1789-91. In addition, the judge relied on evidence that, after purchasing his truck,
McClanahan failed to complain to MSHA about the purported hazards of the weight limit. !d. at
1791-92. The judge also found unsupported by the record McClanahan's assertion that hauling

59

loads in excess of the manufacturer's recommended GVW was inherently dangerous. ld at
1792. Accordingly, the judge dismissed the proceedings.
On November 29, McClanahan filed a petition for discretionary review, challenging the
judgc·s decision, which the Commission granted.6 The Commission subsequently heard oral
argument.

II.
Disposition
McClanahan argues that the judge erred in dismissing his discrimination complaint. He
submits that substantial evidence does not support the judge's findings that he consistently
hauled loads of 24 or more tons as an employee, that he failed to contact MSHA, and that it is not
inherently dangerous to haul loads exceeding the manufacturer's recommended GVW. M. Br. at
7- J5. McClanahan also asserts that substantial evidence does not support the judge's finding that
his concerns about dumping refuse into the slurry basins were adequately addressed by
management. !d. at J5-17. He requests that the Commission sustain his discrimination
complaint, reverse the judge's decision, and grant him "reinstatement with full back pay and
benefits, including any and all costs related to his unlawful discharge, and including attorney's
fees." Jd at 19. Wellmore responds that each of the judge's findings is supported by substantial
evidence and that the judge correctly dismissed the complaint. W. Br. at 4-24.
A.

General Principles

A miner alleging discrimination under the Mine Act establishes a prima facie case of
prohibited discrimination by proving that he engaged in protected activity and that the adverse
action complained of was motivated in any part by that activity. Secretary of Labor on behalfof
Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,2797-800 (October 1980), rev 'd on other
grounds, 663 F.2d 1211 (3d Cir. 19SI); Secretary of Labor on behalfofRobinelle 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 in no
part motivated by protected activity. Pasula, 2 FMSHRC at 2799-800. If the operator cannot
rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving
that it is also was motivated by the miner's unprotected activity and would have taken the
adverse action for the unprotected activity alone. ld at 2800; Robinelle, 3 FMSHRC at 817-18;

6

Prior to filing his petition for discretionary review, McClanahan mailed a letter to Judge
Barbour, which was forn arded to and received by the Commission on November 20, 1995. The
existence of the letter was disclosed to counsel of both parties and copies were provided upon
counsels' requests. The Commission determined that the letter is outside of the record on review
and, accordingly, did not consider it in its disposition of the case. See 30 U.S.C. § 823(d)(2)(C).

60

see also Eastern Assoc. Coal Corp. v. United Castle Coal Co., 813 F .2d 639, 642 (4th Cir. 1987).

The Mine Act grants miners the right to complain of a safety or health danger or
violation, but does not expressly grant the right to refuse to work under such circumstances.
Nevertheless, the Commission and the courts have inferred a right to refuse to work in the face of
a perceived danger. See Secrelary of Labor on beha(fo.fCooley v. Ouawa Silica Co., 6
FMSHRC 516,519-21 (March 1984), aff'd, 780 F.2d 1022 (6th Cir. 1985); Price v. Monterey
Coal Co., 12 FMSHRC 1?05, 1514 (August 1990). A miner refusing work is not required to
prove that a hazard actually existed. See Robinette, 3 FMSHRC at 812. In order to be protected,
work refusals must be based upon the miner's "good faith, reasonable belief in a hazardous
condition." /d.; Gilbert v. FMSHRC, 866 F.2d 1433, 1439 (D.C. Cir. 1989). The complaining
miner has the burden of proving both the good faith and the reasonableness of his belief that a
hazard existed. Robineue, 3 FMSHRC at 807-12; Secretary of Labor on beha(fof Bush v. Union
Carbide Corp., 5 FMSHRC 993, 997 (June 1983). A good faith belief"simply means honest
belief that a hazard exists." Robinette, 3 FMSHRC at 810. The purpose of this requirement is to
"remove from the Act' s protection work refusals involving frauds or other forms of deception."
/d.
The Commission is bound by the terms of the Mine Act to apply the substantial evidence
test when reviewing an administrative law judge's decision. 30 U.S.C. § 823(d)(2)(A)(ii)(l).
The term "substantial evidence" means "such relevant evidence as a reasonable mind might
accept as adequate to support [the judge' s] conclusion." Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159. 2163 (November 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197,229 (1938)). While we do not lightly overturn a judge' s factual findings and credibility
resolutions, neither are we bound to affirm such determinations if only slight or dubious evidence
is present to support them. See, e.g., Krispy Kreme Doughnut Corp. v. NLRB. 732 F.2d 1288,
1293 (6th Cir. 1984); Midwest Stock Exchange, Inc. v. NLRB, 635 F.2d 1255, 1263 (7th Cir.
1980). We are guided by the settled principle that, in reviewing the whole record, an appellate
tribunal must also consider anything in the record that "fairly detracts" from the weight of the
evidence that supports a challenged finding. Universal Camera Corp. v. NLRB, 340 U.S. 474,
488 (1951).
B.

Wei~:ht Reguirement Complaints

1.

Good Faith Beliefthat Wei~:ht ReQuirement was Hazardous
a.

McClanahan' s Actions as an Employee

We conclude that substantial evidence does not support the judge's finding that
McClanahan' s actions, including his complaints about hauling 24 or more tons as an independent
contractor, were not based on a good faith belief in a hazard. Although, as an employee.
McClanahan hauled loads with actual weights in excess of 24 tons on the seven days enumerated

61

by the judge, a large majority of his weighed loads over the course of his employment weighed
. less than 24 tons.- SeeR. Ex. 2, at 27, 33-36, 38, 39. 43, 45, 46, 49, 51, 54, 59, 62, 67, 70, 74, 76.
In addition, on January 4 and 5, 1990, two of the·days listed by the judge, McClanahan was
driving Truck No. 33, a different truck than the truck he usually drove and ultimately purchased.
C. Ex. 8, at 31-33. Contrary to the judge's finding that McClanahan did not maintain that the
trucks were essentially different ( 17 FMSHRC at 1790). McClanahan testified that Truck No. 33
was "a little bit heavier duty truck'' that probably had a higher GVW than Truck No. 42. Tr. 216.
Moreover, it is not clear that McClanahan knew the actual tonnage he was carrying when
he hauled as an emplo)iee. McClanahan explained that, as an employee, he did not know how
much weight he was hauling because the truck was loaded by an endloader operator with just one
"hump," or mound, ofmaterial. 7 Tr. 151-52,227. He believed that one hump generally weighed
20 tons. Tr. 226, 228.
In any event, evidence that McClanahan hauled loads in excess of 24 tons on the
occasions relied upon by the judge does not establish that McClanahan was unconcerned with his
safety. On October 12 and December 20, 1990, two of the seven days listed by the judge,
McClanahan complained to his supervisor that his loads were too heavy. Tr. 144, 217-18, 219.
McClanahan also generally testified that when he was hauling in Kentucky or loading out of a
gob pile, his weights were high and that, after he got to the scales and found out his weight, he
told his supervisor at the first opportunity that "was way too much weight for the trucks." Tr.
216-17. It is difficult to construe this statement as anything other than a safety-based complaint;
there is no evidence that McClanahan had an economic motivation, as McClanahan did not own
the truck at that time, and McClanahan was paid the same hourly rate regardless of the tonnage
that he hauled. McClanahan's failure to expressly link these complaints to safety does not
preclude the characterization of those complaints as relating to safety, particularly given the
possibility of equipment failure resulting from hauling excessive weight. C. Ex. 16, at 2-3; Tr.
75, 108, 112, 191.
Unlike the judge, we do not find demonstrative of a lack of good faith evidence that
"McClanahan's complaints concerning the hauling of24 tons or more are definitely linked to
safety only after he became the owner of the truck." 17 FMSHRC at 1790 (emphasis in
original). The basis for the safety complaints that McClanahan made as an independent
contractor was not present at the time that McClanahan was an employee. Wellmore did not
begin its practice of regularly weighing trucks and sending home drivers that were not hauling at
least 24 tons per load until January 1994.8 17 FMSHRC at 1775. McClanahan owned the truck

7

In contrast, during the time that Wellmore enforced its weight requirement, truckers
were responsible for operating the hopper that loaded their trucks. Tr. 509.
8

Wellmore, relying upon testimony of its witnesses, asserts that there had been a 25-ton
haulage requirement at the plant for years while McClanahan was an employee. W. Br. at 5-8.
The judge declined to credit such testimony. 17 FMSHRC at 1775. Even if this testimony were

62

for one-and-a-half years before making complaints that hauling 24 or more tons was hazardous.
His complaints began not after he assumed ownership of the truck in August 1992 but, rather,
after Wellmore implemented its policy requiring truckers to consistently haul at least 24 tons or
be sent home.
Nor do we find determinative of a lack of good faith evidence that, as an employee,
McClanahan repeatedly estimated that he hauled loads weighing 25 tons. See R. Ex. 2. The
judge, relying upon such evidence, stated that "it strikes me as completely incongruous to
McClanahan's purported belief in the inherent hazards of hauling more than 24 tons, that he
would have indicated he was engaging consistently in hazardous work." 17 FMSHRC at 1790.
The judge discredited McClanahan's testimony that, although he estimated 25 tons, he was
hauling less, relying upon evidence of the seven days in which loads were actually weighed in
excess of 24 tons. !d. As noted, a majority of the weighed loads that McClanahan hauled as an
employee had actual weights of less than 24 tons. Moreover, we do not agree with the judge that,
because McClanahan signed weight sheets estimating his loads at 25 tons, McClanahan
essentially acknowledged the safety of hauling loads that actually weighed that arnount.9 Section
105(c) was enacted in recognition that miners are sometimes placed in the situation where they
must effectively choose between engaging in an activity that would compromise their safety or
forfeiting employment in areas where employment opportunities are scarce. See S. Rep. No. 181 ,
951h Cong., P' Sess. 35 (1977), 95'h Cong., 2d Sess., Legislative History ofthe Federal Mine
Safety and Health Act of 1977, at 623 ( 1978) (recognizing that miners must be protected against
discrimination as a result of their participation in safety matters and that "mining often takes
place in remote sections ... and in places where work in the mines offers the only real
employment opportunity").

credited, the evidence is undisputed that the policy requiring truckers to haul 24 or more tons or
be sent home was not instituted at the preparation plant until January 1994. Tr. 77, 300-01, 366.
9

There is evidence in the record supporting McClanahan's perception that he was
actually hauling less than those estimated weights. McClanahan and Curtis Christian, a former
trucker for United, testified that, at the time that United owned the trucks, truckers were sent
home for hauling loads that weighed more than 20 tons. Tr. 226, 249, 275-76. In addition,
McClanahan testified that the truckers had estimated their loads to be 20 tons until approximately
1989, when their foreman had told them to begin estimating their loads at 25 tons although they
did not have to actually load more weight. Tr. 142-43, 145-46,215. He explained that other
United operations wanted them to haul more, while the truck supervisors did not. Tr. 215. He
stated that his supervisors asked the truck drivers to estimate 25 tons to "keep them off their
back[s]." Tr. 215. McClanahan stated that management knew that the estimates of25 tons were
not accurate and told the truckers to estimate 25 tons "no matter if you had half a load or a full
·
load or two buckets full." Tr. 215, 221.

63

b.

McClanahan's Contacts with MSHA

The judge detennined that McClanahan did not have a good faith belief that the weight
requirement was hazardous because the judge found McClanahan failed to make a safety
complaint to MSHA. This conclusion is premised on errors of fact and Jaw.
Even if McClanahan had not made a safety complaint to MSHA, the judge erred in
considering that as evidence of a lack of good faith. In making that inference, the judge rejected
out of hand McCJanah~n' s testimony that he feared his identity would not be kept confidential by
MSHA if he filed a complaint and that he might be the subject of retribution. 17 FMSHRC at
1792. Despite the Act's confidentiality requirements, we do not consider McClanahan's fear to
be unreasonable. See United Mine Workers ofAmerica on behalfofNelson v. Secretary of
Labor, 15 FMSHRC 365 (March 1993) (invp1ving allegations that MSHA officials failed to
protect confidentiality of miners who had reported safety violations). Moreover, the Commission
has previously rejected the contention that a miner must file a complaint with MSHA in order to
make a protected safety complaint to an operator. Sammon , .. Mine Services Co., 6 FMSHRC
1391, 1396-97 (June 1984).
In any event, substantial evidence establishes that McClanahan engaged in actions that
clearly constitute a safety complaint, and fails to support the judge's conclusion to the contrary.
McClanahan testified that he contacted MSHA about the weight requirement, but was infonned
that MSHA could not help. The judge discredited this testimony based on his findings that: (1)
McClanahan later modified that testimony, stating that either he or his wife had called; (2)
McClanahan's failure to keep records ofthat alleged contact was inconsistent with his recordkeeping habits; and (3) if Mr. or Ms. McClanahan had contacted MSHA, MSHA would not have
responded that there was nothing it could do. 17 FMSHRC at 1791.
First, contrary to the judge's findings, the record establishes that Mr. or Ms. McClanahan
did, in fact, contact MSHA. Ms. McClanahan testified that she made two calls to MSHA on
March 4, 1994, related the conditions at the mine, and was infonned that an effort would be
made to find the correct contact for her. Tr. 260-62. She stated she was given various agency
names and phone numbers because MSHA was not sure that it was the appropriate agency to
contact. Tr. 266. Ms. McClanahan explained that she made several calls and that every agency
she contacted referred her to a different person or agency to contact. Tr. 263. She stated that
MSHA called back prior to the time that McClanahan filed his discrimination complaint and
spoke with each of them on different dates. Tr. 265. She stated that, at the time, MSHA "didn't
think it was their department to handle it until [she] explained in detail, and [she] ended up ·
sending some infonnation to them to help them decide that they should follow up on it." Tr. 266.
She said that they later heard from MSHA when they took McClanahan's statement in
connection with his discrimination complaint. Tr. 266. The McCianahans' phone bill introduced
at trial, and ignored by the judge in his decision, indicates two calls to MSHA on March 4 for
three minutes and twenty-seven minutes. C. Ex. 31.

64

In addition, it appears that McClanahan made a concerted effort to have his concerns
addressed by other government agencies, although he may have been uncertain as to which
agency to contact. The M~Clanahans ' phone bill reflects a March 4 call to DMLR, a March 4
call to the Virginia Employment Commission, two March 4 calls to the National Labor Relations
Board, and March 4, March 11 and March 14 calls to the Virginia Department of Labor. M. Br.
at 13-14; C. Ex. 31. On March 7, 1994, McCla~ahan met with DMLR Inspector Odumat the
refuse dumping site. Tr. 26. Odum also informed McClanahan that his agency was not the
appropriate agency to .contact and referred McClanahan to OSHA or MSHA or the Virginia
Division of Mines. Tr. 26. Such repeated efforts do not support the judge's finding of lack of
good faith.

c.

Summary

In sum, substantial evidence does not support the judge's finding that McClanahan failed
to demonstrate a good faith belief that hauling 24 or more tons was hazardous. Accordingly, we
reverse the judge's finding that McClanahan's safety complaints regarding Wellmore's weight
requirements were not based on a good faith belief in a hazard.
2.

Reasonableness of Belief that Wei~ht Requirement was Hazardous

Because the judge dismissed McClanahan's complain~s regarding Wellmore' s weight
requirement on the basis that they were not made in good faith, he.did not reach the question of
the reasonableness of McClanahan's belief that the weight requirement was hazardous.
However, the judge rejected McClanahan's assertion that it was inherently dangerous to haul
over the manufacturer's recommended GVW. 17 FMSHRC at 1792. The judge reasoned the
assertion was not supported by the record because McClanahan had consistently hauled loads in
excess of that amount, and Virginia and Kentucky licensed the truck to haul loads beyond the
manufacturer's maximum GVW. ld. McClanahan argues that substantial evidence does not
support the judge's finding. M. Br. at 7-13.
The Commission has "rejected a requirement that miners who have refused to work must
objectively prove that the hazards existed ... [and has] adopted a 'simple requirement that the
miner's honest perception be a reasonable one under the circumstances.'" Secretary ofLabor on
behalfofPratt v. Hurricane Coal Co., 5 FMSHRC 1529, 1533 (September 1983), quoting .
Robinette, 3 FMSHRC at 812. Our focus, therefore, is on the reasonableness of McClanahan's
belief that the weight requirement was hazardous.
The record reveals that, after Jariuary 1994, McClanahan was required to haul on a
regular basis an amount that exceeded the manufacturer's recommended GVW by approximately
60 percent. M. Reply Br. at 4. As acknowledged by the judge, "if the truck was going to have to
haul24 tons or more each time it was loaded, there was going to be wear and tear on the truck."
17 FMSHRC at 1790-91. Equipment failure could lead to serious accidents. C. Ex. 16, at 2-3;

65

Tr. 75, 108) 112, 191. For instance, McClanahan testified that if the drivelin~ broke, the truck
would be unable to stop and could travel over the highwall. Tr. 74-75, 85.
In recognition of such hazards, MSHA issued an alert, dated November 22, 1994,
cautioning mine operators and independent contractors that accidents involving haulage trucks
are the leading cause of death at surface mines. C. Ex. 16, at l. The MSHA alert states in part
that, to prevent haulage accidents, equipment operators should not overload their trucks. C. Ex.
16, at 3. See also C. Ex. 17, at 1 (to prevent surface haulage accidents, truck[ers] .. . should ...
[n]ever exceed the truck's rated load capacity"). Similarly, the 1990 Ford Truck Owner's Guide
states that "{u]nder no circumstances should your vehicle be loaded in excess of the
[recommended GVW]," while the warranty booklet provides that exceeding the recommended
GVW may void the truck's warranty. C. Exs. 18, 19. A memorandum from MSHA District
Manager Ray McKinney, dated November_I, 1994, also refers to problems.at the mine associated
with hauling in excess of the maximum GVW:
The trucks hauling slate to the slate dump are required to haul at
least 24 tons which exceeds the manufacturer recommended load
by 7 to 9 tons (depending on type of truck). Several ofthe
employees interviewed felt like at certain times this is unsafe.
When the haul road is wet and muddy it is difficult to control the
truck. The excessive weight that the trucks are required to haul
also causes breakdowns while operating the truck which causes
unsafe operating conditions ....
(I
C. Ex. 27, at 3.

We find unavailing evidence relied upon by Wellmore to support its contention that
McClanahan's safety concerns about the weight requirement were unfounded. Wellmore
el)'lphasizes that, during a haulage technical inspection conducted at the mine on November 9,
1994, MSHA investigators did not observe any unsafe conditions or practices at the mine. C. Ex.
27, at 1-2. However, the trucks observed during that inspection were not weighed and could
have been hauling under Wellmore's weight limitation. C. Ex. 27, at 1-2. In addition, the
Commission has repeatedly recognized that the "fact that a subsequent investigation fails to
confirm an actual violative condition does not vitiate the reasonableness of a miner's work
refusal., Secretary ofLabor on behalfof Hogan v. Emerald Mines Corp., 8 FMSHRC 1066,
1073 n.4 (July 1986) (citations omitted). Moreover, Wellmore offered no persuasive evidence to
refute the assertion that consistently hauling in excess of the rated capacity of trucks posed safety
risks. In fact, the only evidence it offered was testimony by its witnesses that they did not
consider Wellmore's haulage requirement unsafe. Tr. 491, 517-18; R. Ex. 1, at 25-37. 10 The
10

Evidence was offered showing that Virginia and Kentucky licensed the truck to carry
loads beyond the manufacturer's recommended GVW. 17 FMSHRC at 1792. However,
Wellmore's counsel confirmed at oral argument that these limits applied only to highway, not

66

operator's vice president of preparation acknowledged that Wellmore instituted the 24-ton
requirement without consideration of the size of the trucks or their GVW. Tr. 302-.03.
Wellmore's sole criterion in establishing the weight limit was simply the amount of refuse that
needed to be hauled by each truck in order to keep the plant operating. Tr. 302-03.
We therefore conclude that the record supports no other conclusion than that McClanahan
reasonably believed Welhnore's weight requirement was hazardous. In such circumstances, a
remand to the judge for consideration of the issue would serve no purpose. See American Mine
Services. Inc., 15 FMSHRC 1830, 1834 (September 1993), citing Donovan v. Sta.ffordConstr.
Co., 732 F.2d 954,961 (D.C. Cir. 1984) (remand unnecessary because evidence could justify
only one conclusion). Accordingly, we conclude that McClanahan expressed a good faith,
reasonable concern about the safety ofWellmore's weight requirement.
3.

Adequacy of Operator's Response

Once it is determined that a miner has expressed a good faith, reasonable concern about
safety, the analysis shifts to an evaluation of whether the operator addressed the miner's concern q
"in a way that his fears reasonably should have been quelled." Gilbert, 866 F.2d at 1441; see
also Bush, 5 FMSHRC at 997-99; Thurman v. Queen Anne Coal Co., 10 FMSHRC 131, 135
(February 1988), aff'd, 866 F.2d 431 (6th Cir. 1989). A miner's continuing refusal to work may
become unreasonable after an operator has taken reasonable steps to dissipate fears or ensure the
safety of the challenged task or condition. Bush, 5 FMSHRC at'998-99. Having dismissed
McClanahan's complaint on the ground of lack of good-faith belief in the existence of a
hazardous condition, the judge did not reach the issue of the adequacy ofWellmore's response to
McClanahan's concerns.
At the September 22 meeting, the last time McClanahan expressed his safety concerns to
Wellmore about the weight requirement, McClanahan was offered work at Wellmore No.8,
where truckers were paid by the tonnage hauled rather than by the hour. 17 FMSHRC at 1775,
1782. McClanahan testified he declined the offer because he would have to haul twice the GVW
just to make a living, that the truckers there were "having all kinds of problems," and that the
hazardous conditions would remain unchanged. Tr. 123. McClanahan testified that in late 1992,
Clifford Hurley had informed him that since the company had begun paying truckers at Wellmore
No.8 by the ton, truckers were "more or less racing," and Hurley was afraid to visit the site
because he might get run over. Tr. 155-56. McClanahan testified that truckers .were being paid
approximately 65 cents a ton and those truckers had informed him they were hauling 35 to 40
tons per trip to make a living. Tr. 156. Wellmore presented no evidence rebutting·
McClanahan's testimony.

off-road, travel. Oral Arg. Tr. 51-52. Moreover, even ifthe Virginia weight limit had applied, it
only would have permitted McClanahan to haul about 16.5 tons. 17 FMSHRC at 1778.

67

We conclude the record supports no other conclusion than that Wellmore's offer for
.alternate employment did not adequately quell McClanahan's safety concerns about the 24-ton
weight requirement. Wellmore took no action to determine whether McClanahan's concerns
regarding consistently hauling approximately 60 percent in excess of the truck's recommended
GVW were reasonable. Rather, it ignored those concerns, essentially offering McClanahan the
choice of hauling equal or greater weights than the 24-ton limit that he reasonably and in good
faith believed to be unsa'c, or transferring him to Wellmore No.8 where McClanahan believed
the working conditions were unsafe and where he would be taking an untenable reduction in pay.
A conclusion that Wellmore adequately quelled McClanahan's fears under such circumstances
would run counter to the remedial purposes of section 105(c) of the Mine Act. See Secretiuy of
Labor on behalfof Parker v. Metric Constructors, Inc., 766 F.2d 469,472 (ll'h Cir. 1985), aff'g
6 FMSHRC 226 (February 1984) {discrimination found where operator offered discriminatees
the choice of returning to hazardous conditi9ns or going home ). 11 Therefore, we conclude
Wellmore failed to address McClanahan's concern about the weight requirement in a way that his
fears reasonably should have been quelled. Accordingly, we hold that McClanahan's refusal to
haul Wellmore's weight requirement was protected under the Act, and that Wellmore's
termination of McClanahan violated section 105(c)(l) of the Act. 12
4.

Remedy

Wellmore is hereby ordered to immediately reinstate McClanahan to the position he held
as a trucking contractor to the operator prior to his termination on September 22, 1994. By this
decision we also advise the Secretary of Labor, who was not a party to this action, that we have
ordered reinstatement and that, pursuant to section 103(a)(4) of the Mine Act, 30 U.S.C.
§ 813(a)(4), the Secretary has the authority and duty to ensure that "there is compliance with
the ... decision" rendered herein. We remand for calculation of the amount of back pay, interest,
hearing expenses and reasonable attorney's fees to be awarded McClanahan.

11

An offer of reemployment conditioned upon a miner's willingness to work under
dangerous conditions of which he has previously complained has been held to constitute a
separately actionable violation of section 105(c) of the Mine Act. Secretary ofLabor on behalf
of Keene v. Mullins, 888 F.2d 1448 (D.C. Cir. 1989).
12

Given our holding, we need not address whether McClanahan's slurry basin
complaints lost their protected status under the Act because management adequately addressed
them .

68

III.

Conclusion
For the foregoing reasons, we reverse the judge' s conclusion that Wellmore did not
discriminate against McClanahan in violation of section 105(c)( 1) of the Mine Act. We order
McClanahan's immediate reinstatement and remand for expeditious calculation of~ monetary
award consistent with this decision.

Marc Lincoln Marks, Commissioner

69

Distribution

Martin Wegbreit, Esq.
Client Centered Legal Services
of Southwest Virginia, Inc.
P.O. Box 147
Castlewood, VA 24224
Ronald L. King, Esq.
Robertson, Cecil, King & Pruitt
23 7 Main Street
Box 1560
Grundy, VA 24614
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

70

ADMINISTRATIVE LAW JUDGE DECISIONS

OFFICE OF ADMINISTRATIVE LAW JUDG~S
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN
BUCK CREEK COAL, INC.,
Contestant

v.

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

3 199l

. CONTEST PROCEEDINGS
.
Docket No. LAKE 95-26-R
.: Citation
No. 4054811; 10/3/9.4
.
.. Docket No. LAKE 95-64-R
. Citation No. 4260208; 10/7/94
. Docket No. LAKE 95-86-R
. Citation
No. 4260198; 10/31/94
.
Docket No. LAKE 95-96-R
.: Citation
No. 4260199; 11/7/94
.
Docket No. LAKE 95-97-R
. Citation
No . 4262573; 11/3/94
. Docket No. LAKE 95-98-R

. Citation No. 4262574; 11/3/94
.

.. Docket No. LAKE 95-99-R
. Citation No. 4262575; 11/7/94
. Docket No. LAKE 95-100-R
.
.. Citation No. 4262576; 11/8/94
. Docket No. LAKE 95-101-R
.. Citation No. 4262577; 11/9/94
:

..

Docket No. LAKE 95-102-R
Citation No. 4262578; 11/9/94

.. Docket No. LAKE 95-103-R
Citation No. 4262579; 11/9/94
Docket No. LAKE 95-104-R
.. Citation
No. 4262580; 11/10/94

71

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

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-158
A.C. No. 12-02033-03659
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent
BUCK CREEK COAL, INC.,
Contestant
v.

CONTEST PROCEEDINGS
Docket No. LAKE 94-702-R
Citation No. 4386055; 9/1/94

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

Docket No. LAKE 95-115-R
Citation No. 4259541; 11/14/94
Docket No. LAKE 95-116-R
Citation No. 4259542; 11/14/94
Docket No. LAKE 95-117-R
Citation No. 4259543; 11/15/94
Docket No. LAKE 95-118-R
Citation No. 4259544; 11/18/94

.

Docket No. LAKE 95-136-R
Citation No. 4259595; 11/21/94
Docket No. LAKE 95-137-R
Citation No. 4259596; 11/21/94
Docket No. LAKE 95-139-R
Citation No. 4259598; 11/21/94

.

Docket No. LAKE 95-140-R
Citation No. 4259599; 11/22/94
Docket No. LAKE 95-143-R
Citation No. 4259854; 11/23/94
Docket No. LAKE 95-144-R
Citation No. 4259485; 11/23/94
Docket No. LAKE 95-145-R
Citation No. 4259486; 11/23/94
Docket No. LAKE 95-146-R
Citation No. 4259487; 11/23/94

72

On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them . Consequently, the Secretary requested
that the company be compelled t o respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Mo~ion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that " [ f] ailure to respond will·
result in the issuance of an Order of Default ; without the
iaauance of a prior Order to Show Cauae."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq . , the
company's bankruptcy counsel . Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary fil~d a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion .
I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company . 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc . , 12
FMSHRC 1521, 1530 (August 1990) .
Commission Rule 59, 29 C.F.R. § 2700.,.59, states that "[i)f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate •• . • " Commission
Rule 66(a), 29 C.F.R. § 2700 . 66{a), requires that "[w]hen a party
fails to comply with an order of a Judge . . • an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."

73

Docket No. LAKE 957147-R
Citation No . 4259~8a; 11/23/94
Docket No . LAKE 95-148-R
Citation No. 42594894 11/28/94
Docket No. LAKE 95-149-R
4259~90; . 11/28/.94

.. Citation No.

Docket No. LAKE 95- 151-R
Citation No. 42~9492; 11/28/94
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION . (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 95-173
A. C. No . 12-02033-03660
Buck Creek Mine

BUCK CREEK COAL, INC.,
Respondent

DJ!lAtJL% DICISXON
Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc . , Petitions for Assessment of Civil Penalty
filed by the Secretary of Labor, acting through his Mine Safety
and Health Administration (MSHA}, against Buck Creek pursuant to
section lOS of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 815. The petitions allege 29 violations of the
Secretary's mandatory health and safety standards and seek
penalties of $14,084.00 . For the reasons set forth below, I find
the company in default, affirm the orders and citations, and
assess penalties of $14,084.00.
·
These cases are several .in a lon.g line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The crim~al cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it .
/
1

Because of the number of cases involving Buck Creek,
Docket No . LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption , the specific docket numbers of the cases
involved.

74

In view of the Respondent's consistent failure to respond to
the Secretary~s discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct·.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66(a) were complied with.
QRDER

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., IN DEFAULT in these cases. Accordingly, Citation Nos.
4054811, 4260208, 4260198, 4260199, 4262573, 4262574, 4262575,
4262576, 4262577, 4262578, 4262579 and 4262580 in Docket Nos.
LAKE 95-26-R, LAKE 95-64-R, LAKE 95-86-R, LAKE 95-96-R, LAKE 9597-R, LAKE 95-98-R, LAKE 95-99-R, LAKE 95-100-R, LAKE 95-101-R,
LAKE 95-102-R, LAKE 95-103-R, LAKE 95-104-R and LAKE 95-158; and
Order No. 4386055 and Citation Nos. 4259541, 4259542, 4259543,
4259544, 4259595, 4259596, 4259598, 4259599, 4259854, 4259485,
4259486, 4259487, 4259488, 4259489, 4259490 and 4259492 in Docket
Nos. LAKE 94-702-R, LAKE 95-115-R, LAKE 95-116-R, LAKE 95-117-~,
LAKE 95-118-R, LAKE 95-136-R, LAKE 95-137-R, LAKE 95-139-R, LAKE
95-140-R, LAKE 95-143-R, LAKE 95-144-R, LAKE 95-145-R, LAKE 95146-R, LAKE 95-147-R, LAKE 95-148-R, LAKE 95-149-R, LAKE 95-151-R
and LAKE 95-173 are AFFIRMED." Buck Creek Coal Inc., or its
successor, 2 is ORDERED TO PAY civil penalties of $14,084.00
within 30 days of the date of this decision. On receipt of
payment, these proceedings are DISMISSED.

tl.~~

T. ~~ddro~

Administrative Law Judge

2

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

75

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 s. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RRS,
Box 203, Sullivan, IN 47882 . (Certified Mail)
Mr. Randall Hammond, Superintendent, Buck Creek Coal Co., Inc.,
2156 S. County Rd., 50 West St., Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 (Certified
Mail)
/lt

76

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN

3 1997

CONSOLIDATION COAL COMPANY,
Contestant

CONTEST PROCEEDING
Docket No. WEVA 94-235-R
Citation No. 3101220; 4/19/94

v.

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

Robinson Run No. 95 Mine
Mine ID 46-01318

DECISION AFTER REMAND
This contest proceeding, arises under section 105 of the
Federal Mine Safety and Health Act 1977 (the Act) (30 U.S.C.
§ 815) and involves the validity of a citation issued pursuant to
section 104(a) of the Act. The citation alleges that
Consolidation Coal Company (Consol) violated mandatory safety
standard 30 C.F.R. § 75.342(b) (2) and that the violation was a
significant and substantial contribution to a mine safety hazard.
Consol maintains it did not violate the standard .
The matter was assigned to Commission Administrative Law
Judge Arthur Arnchan who scheduled an expedited hearing. At the
hearing, the Secretary moved to amended the citation to one
issued pursuant to section 104(d) (2) of the Act (30 U.S.C.
§ 814(d) (2)) and to add to the citation a finding of
unwarrantable failure.
In a decision on the merits, (Consolidation Coal Company,
16 FMSHRC 1241 (~une 1994)), Judge Arnchan held that Consol did
not violated section 75.342(b) (2). The standard requires methane
monitors on longwall face equipment to give warning signals when
methane concentrations reach 1.0 percent and that the warning
signal devices be visible to persons who can deenergize the
equipment . The judge concluded Consol•s method of compliance
provided "equivalent protection" to the standard (16 FMSHRC 1245).
Accordingly, the judge vacated the citation.
The Secretary sought and was granted review. On review, the
Commission held that the evidence established a clear violation
of the standard (Consolidation Coal Company, 18 FMSHRC
(November 4, 1996)). Therefore; the Commission reinstated the
citation and remanded the case for consideration of the
Secretary's motion to modify the citation to a section 104(d) (2)
order and for the assessment of a civil penalty 18 FMSHRC ___
(November 4, 1996) (Slip Op. 5). (On remand, the case was
reassigned to me, as Judge Amchan had left the Commission.)

77

Subsequent to the Commission's decision, the parties entered
into settlement negotiations. As a result, the Secretary . has
withdrawn his motion to modify the c itation. Further, the
Secretary and Consol have agreed that a civil penalty of $204 is
appropriate for t he violation of section 75.342(b) (2). Finally,
the parties have agreed that the settlement in no way affects
•cconsol's] right to appeal the Commissions's decision . . . once
that decision becomes final• (Motion to Enter Order Assessing
Civil Penalty 2) .
Having considered the proposed settlement in light of the
statutory civil penalty criteria and the purposes of the Act, I
find it is reasonable and in. the public interest. Accordingly,
the motion is GRANTED and the settlement is APPROVED.
QRDER
Conso l is ORDERED to pay a civil penalty of $204 for the
violation of section 75.342(b) (2) as set forth in Citation
No. 3101220, dated April 19, 1994 . Payment shall be made to MSHA
within 30 days of the date of this decision. Upon receipt of
full payment, this proceeding is DISMISSED .

:Ow;a.6~C-;'"-

oavid Barbour
Administrative Law Judge

Distribution:
Elizabeth Chamberlin, Esq., CONSOL, Inc., Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified Mail)
Roberts . Wilson, Esq ., Office of the Solicitor, U. s . Department
of Labor, 4015 Wilson Boulevard, Suite 516, Ballston Towers
No. 3, Arlington, VA 22203 (Certified Mail )
dcp

78

FEDERAL MXNB SAFETY AND BEAL'rB UVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, lOth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 2204'1

lJAN
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (~SHA),
Petitioner
v.

6 1997
CIVIL ~ENALTY PROCEEDING
Docket No. ,WEVA 95-169
A.C. No. 46-07166-03536
No. 1 Surface

ANCHOR MINING INCORPORATED,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 96-74
A.C. No. 46-07166-03539 A

v.
No. 1 Surface
JAMES SIMPKINS, Employed by
ANCHOR MINI-NG INCORPORATED,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 96-75
A. C. No. 46-07166-03540 A
No. 1 Surface

JAMES TACKETT, Employed by
ANCHOR MINING INCORPORATED,
Respondent
DECISIONS

Appearances:

James B. Crawford, Esq., Office of the Solicitor,
U.S. Dept. of Labor, Arlington, Virginia, for the
Petitioner;
David J. Hardy, Esq., John T. Bonham, Esq.,
Jackson and Kelly, Charleston, West Virginia, for
the Respondents.

Before:

Judge Koutras

79

Statement of the Proceedings
These consolidated proceedings concern proposals for
assessment of civil penalties filed by the petitioner against the
respondents pursuant to the Federal Mine Safety and Health Act of
1977, 30 U.S.C. 801 ~ ~· Docket No. WEYA 95-169, concerns
civil penalty proposals filed by the petitioner against the
respondent Anchor Mining Inc., for alleged violations of
mandatory safety standards 30 C.F.R. § 77.1006(a) and 77.1006(b).
The petitioner seeks civil penalty assessments of $8,500, for the
alleged violations.
Docket Nos. WEYA 96-74 and WEYA 96-75, concern civil penalty
proposals filed by the petitioner against the named individual
respondents pursuant to section llO(c) of the Act for allegedly
"knowingly# authorizing, ordering, or carrying out an alleged
violation of 30 C.F.R. 77.1607(g)·. The petitioner seeks civil
penalty assessments of $2,000 against Mr. Simpkins, and $2,500
against Mr. Tackett for the alleged violations.
The respondents filed timely answers denying the alleged
violations, and a consolidated hearing was held in Charleston,
West Virginia. The parties filed posthearing briefs and I have
considered their arguments in the course of my adjudication of
these matters.
Issues
In Docket No. WEYA 95-169, the issues include (1) whether
the corporate operator violated the cited mandatory safety
standards; (2) whether the violations were "significant and
substantial# (S&S), (3) whether the violations were the result of
unwarrantable failures to comply with the cited standards; and
(4) the appropriate civil penalties to be assessed, taking into
account the civil penalty assessment criteria found in section
110(i) of the Act.
In the two individual section llO(c) cases, the principal
issue is whether or not the named respondents knowingly
authorized, ordered, or carried out the alleged violation, and if
so, the appropriate civil penalties that should be assessed for
the violation taking into account the relevant criteria found in
section 110(i) of the Act. Also in issue is whether or not the
violation was "S&SH and the result of an unwarrantable failure to
comply with the requirements of the cited standard.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 ~ ~-

80

2. .

Commission Rules, 20 C.F.R.

3.

Sections 110(a) and 110(c) of the Act. Section
110(a) provides for asse~sment of civil penalties
against mine operators for violations of any
mandatory safety or health standards, and section
110(c) provides as follows:

§

2700.1 ~ ~·

Whenever a corporate operator violates a
mandatory health or safety standard or
knowingly violates or fails or refuses to
comply with any order issued under this Act
or any order incorporated in a final decision
issued under this Act, except an order
incorporated in a decision issued under
subsection (a) or section 105(c} , ~
director.. officer. or agent of such
corporation who knowingly authorized,
ordered. or carried out such violation,
failure, o~ refusal shall be subject to the
same ciyil penalties, fines, and imprisonment
that may be imposed upon a person under
subsections (a} and (d) (emphasis added).
An "agent" is defined in Section 3(e} of the Act (30 U.S.C.
802(e)) to mean "any person charged with responsibility for the
operation of all or part of a coal mine or other mine or the
supervision of the miners in a coal mine or other mine."

§

Stipulations
The parties stipulated in relevant part to the
following (Tr. 8-12):
1.

The respondent is the operator of the subject
mine and the operations of the mine are subject
to the jurisdiction of the Mine Act.

2.

The Commission and the presiding Judge have
jurisdiction to hear and decide these matters.

3.

The information contained in the proposed
assessments (MSHA FORM 1000-179) is accurate.

4.

MSHA's computer print-out concerning Anchor
Mining's listing of prior violations (Exhibit G1) is authentic and admissible, except that the
proposed penalty assessments associated with the
two instant section 110(c) cases should be
excluded as part of the history.

81

5.

Respondent James Simpkins served as an officer of
Anchor Mining and as an "agentu ·as defined in
section 3(e) of the Mine Act.

6.

Respondent James Simpkins has the financial
ability to pay the assessed penalty in this
matter.

7.

Respondent James Tackett served as an "agent" of
Anchor Mining as that term is defined in Section
3(e) of the Mine Act, and, was employed as mine
superintendent at the time of the violations.

8.

The section 104(d) (1) and (d) (2) "chain" was
procedurally correct and followed the sequence
pursuant to the Act.

Docket No. WEYA 95-169
Section 104(d) (1) "S&S" Order No . 4001122, October 12, 1994,
cites an alleged violation of 30 C.F.R. 77.1006(a), and the cited
condition or practice is described as follows:·
It was revealed during an investigation of a nonfatal machinery accident that James G. Tackett,
superintendent, performed work in a underdrain at
the Dorothy Pit on September 15, 1994. Tackett
exposed himself to the hazards of the unstable
spoil on the sides of the underdrain. James
Simpkins, President/Owner, was directing the
construction of the underdrain.
Section 104(d) (1) "S&S" Order No. 4001124, October 12, 1994,
cites an alleged violation of 30 C.F.R. 77.1006(b), and the cited
condition or practice is described as follows:
It was revealed during an investigation of a nonfatal machinery accident that James G. Tackett,
superintendent, performed work in an underdrain
at the Dorothy Pit on September 15, 1994, while
an Hitachi Model EX 1000 excavator was positioned
at the top of the underdrain which blocked
Tackett's egress. The spoil on both sides of the
underdrain was unstable. James Simpkins,
President/Owner, was operating the excavator and
directing the construction of the underdrain.

82

Docket Nos. WEYA 96-74 and WEVA 96-75
Respondents James Simpkins and James Tackett are both
charged with a "knowing" violation of mandatory safety standard
30 C.F.R. 77.1607(g), as stated in a section 104(d) (1) "S&S"
Citation No. 3745835, issued on September 19, 1994. The cited
condition or practice states as follows:
It was revealed during a non-fatal accident
investigation that James Simpkins, mine operator,
failed to insure that all persons were in the
clear before moving a Hitachi EX 1000 excavator at
the Dorothy Pit on September 15, 1994. Simpkins
was placing rock into an underdrain when Dempy
Cline, Dozer operator, stepped between the
excavator and a spoil pile. Cline sustained
serious injuries to his right leg which became
pinned between the excavator and spoil. Simpkins
knew that 3 persons were standing in close
proximity to the excavator and said that he should
have instructed them to move to a safe location .
MSHA's Testimony and Evidence
Ricky D. Adams, Environmental Engineer, employed by
Cumberland River Coal Company, testified that his company holds
the coal mine leases and that the respondent was mining coal as a
contractor. Since Cumberland River was responsible for surface
environmental compliance, Mr. Adams was at the mine on ~eptember
15, 1994, to observe the construction of a French drain. He
confirmed that he took photographs to document that the drain was
constructed properly to drain the water from the underground
mine, and he explained what was taking place when the photographs
were taken (Exhibits G-2 through G-11; Tr. 22-51).
Mr. Adams stated that the excavator was digging at the base
of the highwall creating a drainage ditch running away from the
highwall. The highwall was approximately 80 feet high above the
edge of the ditch nearest the highwall, and the loose spoil
materials excavated from the ditch were placed on either side of
the ditch (Tr. 28). He confirmed that Mr. Tackett went into the
ditch to spread a Typar covering material that had fallen off .the
excavator teeth. over the rocks that were placed in the ditch (Tr.
33, 35).
Mr. Adams ·'stated that the ditch was approximately six-foot
deep near the edge of the excavator and at least six-foot deep or
more at the end of the ditch near the spoil bank at the base of
the highwall. After the initial layers of rock and Typar were

83

placed in the ditch, there was still depth to the ditch and spoil
was piled on each side when he observed Mr. Tackett in the ditch
(Tr. 39-40).
Mr. Adams stated that the Typar material had to be stretched
from end-to-end in the drain. However, Mr. Tackett did not go
further into the ditch than the location shown in photographic
exhibits G-8 and G-9-A and uhe just reached over and brought the
Typar back to completely cover the section of ditch that they had
constructed" (Tr. 42). He confirmed that Mr. Tackett was below
the height of the spoil material that was on each side of the
ditch (Tr. 45).
Mr. Adams marked a red ~ircle on exhibit G-11, to show the
vicinity of the area where he was standing for a good view of the
drain. He stated that it was a flat area composed of the spoil
material that was dug out of the ditch (Tr. 51). He confirmed
that at one time he, Troy Perry, Dempy Cline, Mr. Simpkins, and
Mr. Tackett were all standing at that location before the
accident (Tr. 52-53).
Mr. Adams stated that Mr. Cline was standing to his left
within ua step and a reach," and that they were 16 to 18 feet
from the rear machine counterweight before it turned and
swiveled. When the machine swiveled, he estimated that they were
5 or 6 feet from the rear counterweight. After standing with the
group looking at the ditch, Mr. Simpkins commented "let's finish
the job," and he and Mr. Tackett walked around the other side of
the machine. The machine then started to turn and he noticed
that Mr. Cline was in its path. He did not notice that Mr. Cline
had moved from his prior position. Mr. Cline was looking toward
the ditch and did not see the machine. Mr. Adams yelled at Mr.
Cline and reached to grab him, but the machine trapped his leg
and dragged him into the spoil pile under the machine (Tr. 5459) .
Mr. Adams stated that before Mr. Cline was struck, he
(Adams) knew that Mr. Simpkins was going to get on the machine,
but did not know the instant he was going to swivel the machine.
Mr. Adams noticed no signal from Mr. Simpkins and Mr. Simpkins
did not tell him that he was going to move the machine. Mr.
Adams stated that Mr. Tackett gave no warning to him, and he
noticed no warning to anyone else (Tr. 60).
Mr. Adams confirmed that when the accident occurred
preparations were being made to construct and extend the next
section of the ditch. He identified exhibit G-12 as a photograph
of the counterweight that struck Mr. Cline (Tr. 63).

84

Mr. Adams· stated that his safety training included spoil
bank loose and unconsolidated materials . He · saw nothing about
Mr. Tackett's location in the drain ditch that would cause him
any safety concern, and saw no dangerous situation involving
Mr. Tackett (Tr. 69-70).
Mr. Adams was of the opinion that the accident was
preventable if the drain had been constructed two or three weeks
earlier before pushing any spoil off the highwall because little
excavation work ~ould have been required, and if Mr . Cline had
been standing somewhere else behind him. However, he conceded
that the state regulations did not prohibit - constructing the
drain the way the respondent was doing it, and he felt reasonably
safe where he was standing, and Mr. Cline was near him (Tr. 727 6) •

On cross-examination, Mr . Adams confirmed that he holds a
mining engineering degree from West Virginia Tech and has had
daily experiences with spoil banks and highwalls (Tr. 80). He
stated that the drain design called for a six-foot deep ditch
with rock in it four-feet high and four-feet wide. The dr~in
area was five or six feet wide (Tr. 81-82).
Mr. Adams confirmed that photographic exhibit G-9-A shows
where Mr. Tackett was standing in the ditch and he did not see
him go further into the ditch when he was stretching the Typar
over the rock. He stated that in the photograph the rock appears
to be directly over Mr. Tackett, but that is not the way he
recalled the situation when he took the picture. At that time he
had no safety concerns that Mr. Tackett was in danger of being
covered up, and the spoil banks on either side of Mr. Tackett
were not in danger of giving way (Tr. 83). He characterized
those spoil banks as "tapered out~ to zero, and the ditch where
Mr. Tackett was standing was probably six feet deep and four to
six feet wide (Tr. 84). Mr. Adams stated that Mr. Tackett was iri
the ditch less than a minute and he did not recall that he had
any difficulty in leaving (Tr. 85). He confirmed that he would
have spoken out if he believed Mr. Tackett was in an unsafe
position (Tr. 88).
Mr. Adams stated that the area in which he was standing
prior to the accident was loose, unconsolidated spoil material
near the toe of the spoil bank, and it con~isted of ninety
percent sandstone rock. The material never slipped while he was
standing on it, and it showed no indication that it would slip
(Tr. 89). The area was level and it was approximately "five-by~
six, four-by-six, twenty-four feet square" (Tr. 90). The area .
was close to the elevation of the counterweight, and he observed
that the counterweight had made a clear indentation in the spoil
bank between the level area where he was standing and the
excavator (Tr. 90-91).

85

Mr. A~ams believed that everyone was in the clear while
standing on the level area in question, including himself and Mr.
Cline, and he perceived no hazard from that position. If he had,
he would have relocated and informed the others to do so. He
confirmed that Mr. Cline moved from the position that he had
originally observed him in, .and it was not clear when he was
struck, but he did not observe him move (Tr. 93).
Mr. Adams stated that Mr. Tackett had to come "back behind,
back tow~rd the excavatorn to get out of the ditch and he was
sure that he "could get out on either side of the excavatorn (Tr.
97). He observed no problem, did not believe that the excavator
was blocking Mr. Tackett's egress, and saw nothing that prevented
him from leaving the ditch area from where hP, was standing.
In response to further questions, Mr. Adams stated that
although the rock shown in exhibit G-9-A was away from Mr.
Tackett towards the highwall, .it was part of the loose,
unconsolidated spoil bank material above the spoil bank in front
of Mr. Tackett, and if the spoil bank gave way, it could have
affected him (Tr. 108). He further confirmed that anyone going
further into the ditch to stretch the Typar all the way to the
back of the ditch would be exposed to 20 feet of spoil bank on
either side of the ditch (Tr. 119).
Mr. Adams stated that the Typar was spread by the bucket
teeth of the excavator and that Mr. Tackett did not go into the
ditch to spread it out against the farthest end of the ditch
(Exhibit G-4, G-5). He characterized the installation of the
Typar as a "sloppy job,n and to spread the Typar "nice and tidyn
would require someone to do it by hand (Tr. 127-130). However,
he saw no one do this while he was there (Tr. 131).
With regard to the accident involving Mr. Cline, Mr. Adams
stated that he knew the machine was going to move and was not
surprised by the swinging of the counterweight, and he expected
it (Tr. 133-134). Mr. Simpkins was operating the machine the
entire time, and before it swiveled striking Mr. Cline he did not
hear or see Mr. Simpkins give an audible signal or "eyeball"
anyone standing at the rear (Tr. 137). He did not believe the
machine had an alarm that sounded when the counterweight
swiveled, and the area to the rear of the machine was not
posted, flagged, or barricaded. He was not aware that industry
practice or the regulations required an alarm or posting and he
believed that he and the other individuals were at a safe
distance where they were standing (Tr. 139).
Roy T. Perry, employed by the respondent as a security
guard, testified that he was present at the time of the accident
on September 15, 1994, and was taken to the site by Mr. Tackett

86

to help cut the Typar material that was installed in the drainage
ditch. The Typar was placed on the bucket teeth of the excavator
to be placed into the ditch, and Mr. Tackett, assisted by
Mr . Cline, were hanging the Typar on the excavator. The fabric
fell off, and he saw Mr. Tackett go into the ditch and hang the
Typar up again . After this was done, he stood to the rear left
side of the machine with Mr . Cline and Mr. Adams (Exhibit G-11;
Tr . 147-148). Mr. Cline was looking into the ditch when the
machine swung and struck him (Tr. 150). Mr. Perry further
explained as follows at (Tr. 151-152):
Q.

And before the machine moved, did you ha·v e
any signal or any type of warning from anyone
that it was going to move?

A.

I wasn't -myself, I wasn't expecting it. I
don't know whether there was any indication
of it, you know, to l~t me know or somebody
else know. I was interested in watching him
work the material in the hole.

Q.

Do you recall anyone s~gnaling you or
notifying you at all that it was going to
move?

A.

I didn't see no one. Like I said, I wasn't
paying no attention. You know, I was just
looking over in the . hole.

Q.

How close were you to the counterweight, the
rear part of the machine, as it went by you?

A.

Well, I thought I was far enough away, but
after it went by me there, if I would have
made one step, I would have probably been
under it. I could have reached up and
probably tipped it . That is why I looked
off. When it went by me, I felt the wind of
it and I jumped and looked back.

Q.

How many feet would you estimate that you
were close to it?

A.

It's like I told the others, an arm's length .
I could have reached out and tipped (sic) it.

Mr. Perry stated that Mr . Tackett e xplained the possibl e
dangers to him before he started the work and told him to "watch
the ma chine. Be careful," and warned him not to get too close .

87

When he observed Mr. Tackett in the ditch, Mr. Tackett was on the
right side of the bucket hanging up the Typar (Tr. 153).
On cross-examination, Mr. Perry stated that Mr. Simpkins was
operating the excavator when Mr. Cline was struck, and he
described what occurred as follows at (Tr. 156):
A.

Like I said, he was standing out in front of
me. I was looking at the hole and I could
· see him. He moved his foot like he was going
to turn. And when he done that, that is when
everything went into motion and I looked off.
I never did see him put down his foot. The
next time I looked back around, he was under
the machine arid Rick was trying to get him
out.

Mr. Perry stated that he did not realize that he and Mr.
Cline were close to the counterweight or in danger. He confirmed
that he observed Mr. Tackett hook the Typar on the teeth of the
excavator but saw no one in the ditch laying it out, and he did
not observe Mr. Tackett straightening out the ~ypar (Tr. 159}.
In response to bench questions, Mr. Perry viewed Exhibit G-9-A,
and confirmed that it shows Mr. Tackett in the ditch next to the
ex-cavator bucket straightening out the Typar. However, he
indicated that he only observed Mr. Tackett hang the Typar on the
excavator teeth (Tr. 161) .
Dempy Cline, testified that he was unemployed, and that he
worked for the respondent for eight years as an equipment
operator. He confirmed that he was working on September 15,
1994, helping Mr. Simpkins in the construction of the ditch.
Mr. Cline operated a 0-9 dozer pushing dirt out of the way while
Mr. Simpkins excavated dirt out of the ditch (Tr. 163-168).
Mr. Simpkins was operating the excavator, and after holes were
cut into the end of the Typar material, it was placed on the
excavator teeth and Mr. Simpkins dropped it in the ditch and
stretched it out with the machine (Tr. 168}.
Mr. Cline stated that when the second piece of Typar was
dropped in the ditch "it didn't go in there good,n and Mr.
Tackett went into the ditch to move and stretch the material. He
stated that Mr. Tackett stretched the material toward the back of
the ditch to the farthest distance from the edge of the excavator
(Tr. 170).
Mr. Cline stated that he and Mr. Simpkins, Mr. Perry, and
Mr. Adams were standing at the left rear of the excavator
talking, and Mr. Tackett was in the ditch. Mr. Cline then moved
to the area circled in red on exhibit G-11, with Mr. Perry and

88

Mr. Adams, and they were talking and looking up the hill where a
strip job wa~ working. Mr. Cline stated that he was looking up
and to the left, with his back turned toward the excavator when
"Rick Adams grabbed me by the shoulder and I sort of turned
around. About that time, the machine hit me and knocked me down,
cut my leg offH (Tr. 173).
Mr. Cline stated that he had no warning that the excavator
was going to move and he believed that Mr. Simpkins should have
known where he was positioned because he got on the machine on
the left side where the cab ladder was located, and that was the
same side where he (Cline) and the others were standing at the
left rear of the machine. Mr. Cline stated that Mr. Tackett was
not aware where he was standing (Tr. 174). He confirmed that he
was standing on recently placed spoil (Tr. 175). Mr. Cline
stated that he had no indication by the sound of the machine that
it was going to turn in the direction where he was standing, and
he did not expect that the counterweight would turn to the left
before it hit him (Tr. 176, 179)).
Mr. Cline estimated that the height of the spoil bank on
each side of the ditch was 10 to 15 feet at the excavator end of
the ditch, and 40 feet at the end toward the highwall (Tr. 179).
Based on his experience, Mr. Cline believed that a prudent
distance for anyone to be close to the machine would be 50 feet
away from the back of the machine. He was not 50 feet back
because the excavator was idling, and he was not present when the
counterweight was previously moving from right to left because he
was operating the bulldozer (Tr. 183-184).
On cross-examination, Mr. Cline confirmed that he previously
gave a taped interview to MSHA immediately following the
accident, has given at least one deposition, and has filed a
civil lawsuit against the respondent as a result of his injuries
(Tr. 187-188) .
Mr. Cline agreed that people around machinery have a
responsibility to look out for its movements. He confirmed that
he was at the work location for three and one-half hours prior to
the accident and observed Mr. Simpkins swing the machine more
than once (Tr. 190).
Mr. Cline stated that he heard no loud machine noises and
observed no diesel smoke immediately prior to the accident and
that he had his back to the machine. He did not believe that it
was idle with no one in it (Tr. 197). He did not notice Mr.
Simpkins leave · the group when they were standing at the rear of
the machine talking and Mr. Simpkins said nothing to him that he
heard. He thought Mr. Simpkins "was still there hanging aroundu
(Tr. 198). Conceding that it was possible that he took a step

89

into the pa~h of the counterweight, Mr. Cline did not recall ever
· moving. He also stated that it was possible that he told MSHA
that this is what occurred (Tr. 199).
Respondent's counsel stated that he was prepared to play the
tape of Mr. Cline's MSHA interview statement that it was possible
that he took a step to the side or forward at the same time the
machine started to turn. MSHA's counsel stipulated that the tape
would reflect that Mr. Cline did make the proffered statement
(Tr. 200 ) . Mr. Cline confirmed that he stated "it was possible,"
but he did not recall moving (Tr . 203).
Mr. Cline confirmed that he was standing when he was struck
and that he did not slip or f.all, and the area where he was
standing did not give way (Tr. 205). He confirmed that he did
not actually see Mr. Tackett positioning the Typar at the point
farthest away from the excavator, and stated "that is what he was
supposed to have done" (Tr. 206). Mr. Cline read a portion of
his prior deposition on October 31, 1995, at page 73, stating
that he did not know where he was standing prior to the time he
was struck. He could not recall making the statement, but
confirmed that he didn't know exactly where he was standing (Tr.
207-209) •

Mr. Cline confirmed his prior deposition statement that
since the excavator was not operating he didn't believe he had
anything to worry about, and had he known it was operating he
would have been back out of the way (Tr. 213}. Further, since
Mr. Simpkins was near him immediately before he was struck, Mr.
Cline had no concern about the rotation of the machine because
there was no operator on it (Tr. 215-216) . The second phase of
the operation would entail Mr. Simpkins tramming the machine back
to continu~ placing rock and Typar in the ditch (Tr. 219). Mr.
Cline confirmed that Mr. Tackett was on the right side of the
machine prior to the accident and would not have known where he
was positioned before he was struck (Tr. 222).
Roderick B. Wallace, West - Virginia state surface mine
inspector, testified that he has inspected the respondent's
mining operation and investigated the accident that occurred on
September 15 , 1994. The investigation took place the following
day and Mr . Simpkins and Mr . Tackett were present and he spoke
with them. He explained what he covered and observed during his
investigation, including the dimensions of the French drain and
how it was constructed (Tr. 223-236).
Mr. Wallace stated that the loose unconsolidated soil
material that was excavated out of the drain ditch constituted "a
very high potential of this stuff slipping and sliding off of
there," and he believed "it would be foolish to go into that hole

90

for any reason" (Tr. 236). He further stated that the spoil in
and around the ditch was ~all near vertic~!. It was all loose,
unconsolidated material" (Tr. 236). Based on his interviews, he
determined that the people who were present· at the time of the
accident were standing on loose, unconsolidated material that was
on a slope, and they were in very close proximity to the swinging
arc of the excavator. He confirmed that he interviewed Mr.
Simpkins, Mr. Tackett, Mr. Adams, and Mr. Perry (Tr. 243). In
his opinion, any location within the swinging radius of the
excavatqr is a hazardous position, and standing on unconsolidated
spoil will increase the potential for personal injury (Tr. 245,
24 8) •
Mr. Wallace stated that no one told him that they were
standing on unconsolidated material or were unsure of their
footing. Nor did they tell him that they were slipping or
sliding or thought that they were in a hazardous position
(Tr. 245). He stated that Mr. Perry told him he was within an
arm's length of the excavator (Tr. 246). Mr. Wallace stated that
anyone within the swinging radius of the excavator boom could
come in contact with the machine (Tr. 251).
Mr. Wallace stated that in an interview with Mr. Cline after
his initial investigation Mr. Cline told him that Mr. Tackett
went into the drain to spread the Typar, and Mr. Tackett later
confirmed that he was in the ditch (Tr. 255). Mr. Wallace was of
the opinion that it was not safe for anyone to be anywhere in the
ditch because of the surrounding unconsolidated material (Tr.
256).
Mr. Wallace stated that in the event of a spoil bank
collapse, anyone in the ditch would have to come out the front,
and the excavator would partially block that area and make it "a
little more difficult to get out" (Tr. 258). He confirmed that
Mr. Simpkins indicated to him that if he had made sure everyone
was in a safer location the accident would not have occurred (Tr.
260). Mr. Wallace stated that if he had observed the individuals
standing in the location indicated, he would have cited them for
being in close proximity to the moving machine (Tr. 260).
On cross-examination, Mr. Wallace confirmed that he has no
mining engineering degrees, has no experience operating an
excavator, and took no measurements concerning the width or depth
of the ditch. He also confirmed that his accident report
reflects that there is conflicting evidence concerning
Mr. Cline's position in that Mr. Adams and Mr. Perry indicated
that Mr. Cline stepped down into the excavator, and Mr. Cline did
not recall that he had done so (Tr. 268) . . His report also
reflects that "as the excavator began to move, Oempy Cline
appeared to step onto a flat area where the counterweight had
scruffed off on the spoil bank" (Tr. 269).

91

Mr. Wallace stated that no state personal action was taken
against Mr. ·Tackett, Mr. Adams, Mr. Cline, or Mr. Perry, but
charges were recommended against Mr. Simpkins for a knowing
violation (Tr. 280-281). He confirmed that his report contains
no statement that anyone was within the zone of danger on the
swing of the excavator boom (Tr. 284 ) . He further confirmed that
he did not personally know whether Mr. Tackett had a means of
egress and ingress to the left of the excavator, and it was
po~sible that he could have exited on the right side or under the
tracks of the m~chine (Tr. 285).
Mr. Wallace confirmed that he cited Mr. Simpkins "for
operating a piece of equipment with people in such proximity as
to be injured" <rr. 287). He also cited the company for the same
violation and for operating an excavator within four feet of a
spoil pile, and the citations were issued as "unknowing"
violations (Tr. 290).
William A. Blevins, MSHA supervisory mine inspector,
testified that he went to the mine on September 16, 1994, in
response to a notification by the respondent that a serious
accident occurred the prior evening, and he discussed his ·
investigation and what he observed, including a sketch of the
accident scene, his accident report, and several photographs
(Exhibits G-12, G-13 , G-18; Tr. 291-311).
Mr. Blevins confirmed that he· issued all of the citations in
question.
He issued section 104(d) (1) Citation No. 3745835, for
a violation of section 77.1607(g), because of the respondent's
failure to assure that everyone was clear of the excavator at the
time of the accident (Exhibit G-14, Tr. 315). He based his "S&S"
gravity conclusions on the fact that an accident occurred and Mr.
Cline lost part of his leg. He based his "high negligence"
finding on the fact that Mr. Simpkins was directing the work
being performed and Mr. Tackett was in the area helping with the
work (Tr. 317-318).
Mr. Blevins stated that he based his unwarrantable failure
findings on the fact that Mr . Simpkins and Mr. Tackett were in
the area directing the work force, had direct knowledge of the
position of Mr. Adams, Mr . Perry, and Mr . Cline, and failed to
exercise reasonable care to assure that they were in a safe
location before moving the machine. He believed that this
constituted aggravated conduct (Tr. 319 ) . He further explained
that he was told that before getting back on the machine, Mr.
Simpkins glanced to the left to see where the three people we~e
located and Mr~ Tackett was to the right side of the machine.
Mr. Simpkins signaled Mr . Tackett that he was getting back on the
machine , but did not signal the other individuals (Tr. 320).

92

Mr. Blevins stated that the cited regulation requires the
equipment operator to check around the machine to be sure that
everyone is in the clear, or give a signal or use other means to
assure that everyone is in the clear before moving the machine
(Tr. 322) . Mr. Blevi ns stated that duri ng his interview, Mr.
Simpkins told him that he saw the three indi viduals standing in
close proximity to the excavator. He fur t her stated that he
asked Mr. Simpkins what he could have done to prevent the
accident, and . Mr. Simpkins stated "have the people move to a safe
locationn (Tr. 327).
With regard to section 10 4(d) (1 ) Order No. 4001122, citing a
violation of section 77.1006(a) because Mr. Tackett entered the
drain ditch and exposed himself to loose and unstable spoil ,
Mr. Blevins stated that he based it on statements made by Mr.
Cline , Mr. Adams, and Mr. Tackett that Mr. Tackett had indeed
entered the ditch (Exhibit G- 15; Tr. 331- 332) . He based his
"S&Sn and gravity findings on the fact that the unstable
materials would cover up a person in the ditch if work were to
continue. He based his high negligence finding on superintendent
Tackett's admission that he entered the ditch and exposed himself
to a hazard . His unwarrantable failure finding was based on the
following {Tr. 334):
A.

Well, when I went back to the mines and talked to
Mr. Tackett about it, he then admitted that he had
gone into the ditch and realized that it was
unsafe for him to do so and said that he shouldn' t
have done it. And I don ' t remember his exact
remarks, but he wouldn't ask anybody else to go in
and do it, but he would do it himself, something
of that nature.

Mr. Blevins confirmed that he issued section 104(d) (1) Order
No. 4001124, citing a violation of section 77.1006(b), after
concluding that Mr. Tackett's egress from the ditch where he had
worked would be blocked by the manner in which the excavator was
positioned (Exhibit G-16; Tr. 334). He believed the only access
out of the ditch was up by the excavator tracks , but that mode of
access "was just about blocked, " although not completely. While
it is possible that Mr. Tackett could have escaped under the
machine and between the tracks, Mr. Blevins believed this would
be unsafe (Tr. 336 ) .
Mr. Blevins explained his gravity findings , and he stated
that Mr. Tackett had a small area on each side of the machine
that would possibly have allowed him through depending on where
unstable spoil fell , but in the event of a spoil failure, "it
would probably have been fatal , " and he would have been covered
up (Tr. 337). He based his unwarrantable failure finding

93

basically on the fact that Mr. Tackett was the superintendent and
agent of the operator and placed himself in a dangerous position
by getting in the ditch (Tr . 339).
On cross-examination, Mr. Blevins confirmed that he has
worked at a surface strip mine but has never operated an
excavator. He further confirmed that he made no measurements
during his investigation, and that all of the distances he
mentioned were estimates (Tr. 344) . He stated that Mr . Tackett
admitted that he was in the ditch but that the boom was not
extended out over him (Tr. 346-347).
Mr . Blevins agreed that nothing in his investigation led him
to believe that any of the witnesses thought they were in a
dangerous situation prior to · the accident. He confirmed that his
accident report does not address the swing of the excavator boom
in the "zone of danger" associated with the range of the boom
(Tr. 349-350).
Mr. Blevins confirmed that his report reflects that Mr.
Cline positioned himself in a location where he would be struck
by the counterweight, and Mr. Blevins cold not recall that Mr.
Adams beli~ved that the material he was standing on was loose and
unconsolidated. Mr. Blevins could not recall whether he asked
Mr . Tackett or Mr. Simpkins whether they recognized the area
where they were standing as hazardous, and he confirmed that Mr.
Simpkins believed they were in a safe location (Tr. 352).
Mr. Blevins confirmed that the statement attributed to Mr.
Simpkins as reflected on the face of the citation was made in
response to "what could we do to prevent a reoccurrence," and
that it was made after the accident (Tr. 354-355).
Mr. Blevins confirmed that Mr. Simpkins told him that he
looked back to see the location of the three miners. Mr . Blevins
stated that this was an unobstructed view to the left of the
machine and he found no evidence to refute Mr. Simpkins'
statement, or to refute his statement that he looked and made
visual contact with Mr. Tackett on the right side of the machine
(Tr . 357) .
Mr. Blevins confirmed that Mr. Adams and Mr. Perry stated
that Mr. Cline took a step in towards the machine, and these
statements were made a day after the accident. Mr. Cline's
interview was conducted approximately three weeks later afer Mr.
Cline's attorney contacted him and advised him that Mr. Cline was
available at his home for an interview (Tr . 357-359).
Mr. Blevins was of the opinion that the men were in an
unsafe location even before the counterweight swung around, and

94

the fact that the miners did not recognize the hazard would not
mitigate the respondent's negligence (Tr. 360). He believed that
the hazard should have been obvious to the miners , but he did not
GOnsider Mr. Cline's movement as part of his unwarrantable
failure finding , and he based his determination on their position
prior to the accident (Tr. 361) .
Mr. Blevins did not . know whe~her or not Mr. Tackett could
have gone around the ri~ht or left side of the machine when he
was in the ditch, but stat~d it was possible. He also did not
know if Mr. Tack~tt could have exited the ditch under the machine
and betwee~ the tracks because the machine had been moved. The
ques~~gn of Mr. Tackett's ability to get himself in and out of
tp~ ~~ea was not addressed during his initial investigation
interviews, but he obtained the information weeks later. He
spoke to no eyewitnesses and issued the citation based on his
judgment alone (Tr. 375-376).
Mr. Blevins stated that during his interviews of Mr. Perry,
Mr. Adams, and Mr. Cline, they gave no indication that Mr.
Simpkins warned or informed them that he was going to move .the
machine, and they stated that they did not know that Mr. Simpkins
had gotten back into the machine (Tr. 380). Mr. Blevins observed
that there was an indentation in th~ spoil where the accident
occurred, and according to the statements of the miners they were
standing within a few feet of th~ indentation. He concluded from
this that they were too close to the machine (Tr. 382).
Dr. Kelyin K. Wu, PH.D.( Chief, Mining Engineering Division,
MSHA Pittsburgh Safety 9nd Health Technology Center, was accepted
as an expert in g~Qt~chnical matters, including ground control
(Exhib~~ G~!9;
12-21). He testified that he reviewed the
acciq~~~ ~eport and gained further information concerning the
respondent's mining operation through discussions with MSHA's
counsel and Inspector Blevips, and also reviewed the photographic
exhibits and equipment specifications for the Hitachi Model 1000
excavator. He also gave a deposition attended by respondent's
counsel and has been present during the testimony in these
proceedings (Tr. 30). Based on his review of the photographs and
witness testimony, Dr. Wu was of the opinion that the ditch was
not very wide and that the sloped sides of the ditch consisted of
loose materials that "can fall in unpredictably anytime" (Tr.
37). He also believed that anyone standing at the end of the
ditch closest to the excavator would be in a hazardous location
because the sloped materials can slide and cover him up (Tr. 41).

Tr.

Dr . Wu described the working parameters of the machine that
was used in excavating and constructing the ditch (Tr. 48-53).
He confirmed that the machine boom can make a complete 360 degree
turn, with a resulting 45 foot radius. He agreed that the boom

may not s wing completely around in a circle while excavating, but
since it is capable of doing so, he was of the opinion that a
location outside of the 45 foot boom swing would be a ~safe
locationn for people to be in. He further believed that only
those people necessa r y t o the work being performed be allowed
around the machine, and that in order to avoid an accident it was
critical for the machine operator to make acknowledged eye
contact with persons near the machine (Tr. 57-60}.
Dr. Wu stated that depending on the prevailing conditions,
and in an emergency , Mr. Tackett could have crawled out of the
ditch under and through the openings of the undercarriage of the
machine (Tr. 62-66}. However, given the fact that the ditch area
is sloped, a sudden slide of . materials would make it very
difficult to get out of the ditch (Tr. 66-67}. Reviewing
photographic exhibits G-9(a} and G-11 , Dr. Wu believed that Mr.
Tackett would be exposed to a hazard if he were positioned
between the machine shovel bucket and the front of the machine,
and in the event of a massive slide of loose material, the
machine boom area would be covered up (Tr. 68-7 0}. Dr. Wu
believed that providing clearance on either side of the machine,
or providing a wider area on either side of the ditch slopes,
could have provided a means of egress for Mr. Tackett {Tr. 8486) .
Dr. Wu believed that the area outside the farthest reach of
the ma chine would be a "safe zone ." Although Mr. Simpkins may
have made visual contact with the people standing behind the
machine, he did not receive any acknowledgment (Tr. 72). Dr. Wu
believed that the people standing behind the machine on loose
material s as shown by the red circle on photographic exhibits G-2
and G-11, could have lost their footing while the machine was
turning, and he was of the opinion that these hazardous
conditions would be obvious to the equipment operator, and
precautions should have been taken (Tr. 78, 81-82). He further
stated as follows at {Tr. 90):
Would a reasonably prudent equipment
operator, first of all, under these circumstances,
have been aware that these miners, as testified to
were in the counterweight area, were in an unsafe
area?
Q.

A. As I stated before, based on this
specification, I can comfortably say there is a
blind area or spot behind this piece of equipment
the operator wouldn ' t see. So if he knows there
is a certain blind spot and very close if he knows
people are there, then special precaution should
be taken .
96

Q. And from testimony as was stated earlier,
there was· testimony that Mr. Simpkins looked
toward these people. And would a reasonably
prudent equipment operator do that? Was that
enough under the circumstances to - A. Under this circumstances, I would say no,
because when the machine was faced to the
highwall, the operator sitting in the cab, when he
turns left, he can see those people. As I stated ,
you might misjudge the distance . And the major
things happening here is miscommunication. Seems
to me that testimony is no acknowledgment of those
people receive his visual contact. When the
machine swing to the right, then those people
behind the counterweight is in the blind spot. He
no longer can see them.
And at (Tr. 92):
Q. And in terms of the spoil bank conditions
surrounding the ditch, would a reasonably prudent
superintendent or someone in charge of the health
and safety of the area of the mine permit someone
to go into that ditch to work under those
conditions?

A. If those people responsible for the
operation have a knowledge of the hazardous
conditions , then they probably would recognize it.
If they do not, then probably not.
On cross examination, Dr. Wu acknowledged that he has never
worked as a miner or operated an excavator (Tro 97)o He
confirmed that his involvement in this case began in July 1996,
and he has never visited the accident scene (Tr. 100) o He agreed
that no exact measurements were made with respect to the areas in
and around the excavator, and after reviewing photographic
exhibits G-2, G-9(A), G-10 and G-11 , he agreed that they do not
show a lack of clearance on the left or right of the machine
tracks (Tr. 104-106) o He confirmed that he was aware of no
definite or clear testimony indicating the clearance between the
left and right tracks where Mr. Tackett was moving the Typar
mate.rial (Tr. 107-108) . Dr o Wu was of the opinion that a minimum
of 2 ~ feet of clearance on each si~e of the tracks would be
sufficient clearances to meet the requirements of the regulation.
In addition, a further safe practice would be to stabilize the
side slopes in order to maint.ain the clearances, even though this
is not required by the cited regulation (Tro 116-118).

97

Reviewing photographic exhibit G-9(A), Dr. Wu described what
he believed were loose materials around the area where Mr.
Tackett is standing. He estimated that the machine boom is
extended 25 feet from the front of the excavator track, and that
Mr. Tackett is approximately 5 to 10 feet from the boom bucket
teeth (Tr. 122-124). Dr. Wu could not speculate or predict where
the rock that is circled in the photograph would go if it fell
and rolled down the slope (Tr. 124-125).
Dr. Wu est.i mated from the photographs and testimony that the
ditch was approximately 30 to 40 feet long, and from 0 to 30 feet
deep. He further estimated that the ditch was 10 to 15 deep
where Mr. Tackett was standing, and that he was standing within
25 feet of the end of the ditch (Tr. 131-135). He believed that
a safe depth for Mr. Tackett ' to stand with loose material around
him would be 4 ~ feet (Tr. 136) . ·
Dr. Wu stated that an equipment operator has a duty to make
sure he makes eye contact with a person in a hazardous area
before he moves the equipment, and the person needs to
acknowledge that he received the signal and must also be alert
that he is in a hazardous area (Tr. 138-139). He agreed that
when Mr. Simpkins looked left before swinging the machine, he
could see the people and they were not in his blind spot. It
could take two seconds for the machine to swing in the other
direction, and someone could move to his blind spot and he would
not have time to do anything once he starts the turn. Under this
scenario, it is extremely important that the person acknowledge
the operator's signal (Tr. 141). The operator sits on the left
side of the machine and has a blind spot on the right side for
anything below his visual line of sight (Tr. 142).
Dr. Wu was not aware of any MSHA policy guidelines or
bulletins regarding an equipment operator's duty pursuant to
sections 77.1006(a} and (b) (Tr. 143-144). Although he believed
that Mr. Adams honestly believed he was standing on stable
material when the accident occurred, Dr. Wu believed that Mr.
Adams' belief was based on a lack of training. He would have
expected Mr. Adams to understand that loose materials are
unstable and that any disturbance can cause the materials to flow
(Tr. 147). Dr . Wu acknowledged that there is no evidence that
the area where Mr. Adams and the others were standing moved an
inch or caused the accident, and the accident report reflects
that Mr. Cline, for whatever reason, "got himself down in that
indentation" (Tr. 148). Dr. Wu was unaware of any MSHA
regulation that would have prevented the way the drain was
constructed (Tr. 153).
Dr. Wu confirmed his deposition testimony that a slope such
as the one at the ditch would generally be hazardous if it was

98

over six feet, or at the height of the individual standing in the
ditch (Tr. 153-157). He also confirmed that he performed no
calculations in formulating his opinion (Tr . . 163) .
In response to further questions, Dr. Wu stated that there
would be no serious safety concern if Mr. Tackett were standing
in the five or ten foot area at the end of the ditch coming out,
but there would be a hazard if he were beyond that point in the
ditch towards the highwall. However, if he were standing in the
ditch where it was four feet deep, and the ditch slope bank was
an additional four feet, this would be hazardous because of the
presence of the loose materials (Tr. 165-166). He also believed
that the individuals who were behind the excavator when it swung
around were too close to the machine, and they were standing on
loose, unconsolidated materials. Under these conditions, they
were exposed to a hazard of slipping or loosing their footing
while in close proximity to the machine (Tr. 167-168}.
Respondent's Testimony and Eyidence
James G. Tackett, mine superintendent, testified that .he was
serving in that capacity on the day of the accident, but he did
not observe it take place, and did not observe Mr. Cline's
actions immediately prior to the accident because the excavating
machine was between them and blocked his view (Tr. 180}.
Mr. Tackett stated that Mr. Simpkins called him and asked
him to come to the area where the ditch was being constructed and
he explained the work that was being performed, including
preparing and installing the first layer of Typar material in the
ditch. He stated that he never entered the ditch during the
installation of the first layer because Mr. Simpkins used the
excavator bucket to spread the Typar (Tr. 181-185). He stated
that h~ and Mr. Cline and Mr. Perry then stood to the left side
of the rear of the machine in a flat area approximately 10 feet
wide and watched Mr. Simpkins loading rock into the ditch over
the Typar. Everyone was standing 8 to 10 feet away from the
machine at that time, and he confirmed that the counterweight of
the machine was swinging around and digging into the soil bank
(Exhibit G-11; Tr. 185-188}.
Mr. Tackett believed that everyone was in the clear and in
no danger while Mr. Simpkins was loading the rock into the ditch
over the first layer of Typar. He also believed that the rock
and dirt spoil materials in the area where they were standing
"was good and stable there, because it was solid and there was no
loose rock, everything was compact and I wasn't walking on no
loose rock," and no one had any trouble with their footing (Tr.
191) .

99

Mr. Tackett confirmed that he went into the ditch when the
second layer of Typar was being spread ov~r the rocks and it
overlapped itself close to the front of the machine, and he
looked to both sides and under the machine, checked the spoil on
both sides, and determined that it would be safe to step onto the
rock and spread the Typar. He believed he had at least three
feet on each side of the machine as an escapeway in the event
spoil materials carne into the ditch (Tr. 195).
Mr. Tackett stated that the ditch was approximately two to
three feet deep at the end closest to the excavator where he was
standing in front of the machine bucket on the other side of the
track. He was able to see around and out of the area while he
was in that position (Tr . 196-197, Exhibit G-11) . He believed he
had access in and out of the . ditch to the right and left, and
could have gone out under the machine, and he estimated the
tracks to be three to four feet high (Tr. 199).
Mr. Tackett stated that he was never in front of the machine
bucket toward the highwall side of the ditch area and from what
he observed he believed he was safe and would not have gone into
the ditch if he thought he would be hit by a rock. He confirmed
that he did not initially inform Inspector Blevins that he was in
the ditch because "I didn't even think nothing about it . two or
three weeks later." He denied telling Mr. Blevins that he
"should have known better" or should not have done it. He did
not believe that it was unsafe for anyone else to go into the
ditch, but stated "I wouldn't care to put either one of them men
in there" (Tr. 201-203).
Mr. Tackett stated that Anchor Mining is presently doing
reclamation work and is not mining coal, and when the reclamation
is completed the company has no further contractual obligations
to mine coal. He expects that Anchor Mining will close its
operation and be out of business by October 1996, and he will
probably be laid off and will have to look for a job. He expects
·to earn $50,000 in 1996, has savings accounts and a car payment
of $520 a month . His wife is unemployed, and if he is laid off,
he expects to receive $1,000 a month in unemployment . He owes
$10,000 for his wife's 1994 automobile. He stated that if he.
were required to pay the proposed $2,000 assessment it would
create a hardship for him and he would have to use some of the
$1,900, he has saved for his 13 year old daughter's college fund
(Tr. 206) .
Mr. Tackett stated that he was approximately five feet ten
inches tall and at the location where he was standing, he
estimated that the ditch was three to four feet high, or "waist
high" on each side of him (Tr. 207).

100

~

On cross-examination, Mr. Tackett could not recall stating
in his deposit~on of July 16, 1996, that the ditch was "between
five and ten feet or something like that" where he was standing
(Tr. 209). He explained further that this statement referred to
the height of the spoil b~nk on the side of the machine where he
had been walking and standing and where the machine counterweight
was rubbing the spoil (Tr. 214; Exhibit G-9-A).
Mr. Tackett estimated that there was three feet of spoil
material on the e~ge of the ditch where he was standing and
"plenty of spoil," approximately 30 to 40 feet, toward the
highwall. However, he was not in that area (Tr. 215). When he
stretched out the Typar at the point where it was overlapping he
pulled it toward the back of the machine, and at no time did he
stretch it back in the direction of the highwall (Tr. 216-218).
Mr. Tackett stated that he was never instructed to stretch
the Typar along the entire length of the ditch as shown in
Exhibit R-12, nor was he instructed to go into the ditch, and
stated "I took that on myself to do that" (Tr. 221). He
confirmed that he was aware of the spoil bank material on each
side of the ditch as shown in exhibit G-9-A. He was also aware
of the spoil bank at the highwall area, and knew that the spoil
bank materials were loose and unconsolidated materials that were
dug out from the ditch. He also knew that none of these
materials were supported by any shoring, posts, or timbers
(Tr. 224). Referring to exhibits G-7 and G-8, . he stated that Mr.
Simpkins stretched out the rest of the Typar with the machine
bucket as shown in exhibit R-12 (Tr. 228-230). He confirmed that
he was between the machine bucket and the machine when he
stretched out the Typar (Tr. 235-236).
Mr. Tackett reiterated that he never stated to Mr. Blevins
that he knew it was unsafe to go into the ditch, and he explained
further as follows at (Tr. 238):
I just got in the ditch. I observed both
sides, looked carefully, seen if there was a way
to get in and out of that ditch. I could have
walked to either side of the machine, went under
the machine. I chose to just step off the rock,
onto the flat area.
Mr. Tackett stated that just before the accident he was
standing to the left side of the machine with Mr. Perry, Mr.
Cline, and Mr. Adams, and with the machine counterweight
swinging, they were in the "danger zone." He stated that he
observed that everybody was safe and away from the machine. He
did not recall if Mr. Simpkins was there at that time, but he was
not in the machine and "was probably off, on the ground" (Tr.

101

239-240). He received no communication from Mr. Simpkins at that
time that he was going to move the machine, nor could he recall
Mr. Simpkins tell him that he was going to· do so (Tr. 241-242).
Mr. Tackett stated that after he left the area where the
three individuals were standing he went to the right side of the
machine and saw .Mr. Simpkins in the operator's seat. Mr.
Simpkins did not give him any signal. However, he signaled to
Mr. Simpkins with his arm that he was in the clear and he knew
that after spre~ding the Typar, Mr. Simpkins would move the
machine (Tr. 247-248).
Mr. Tackett stated that he did not signal the people
standing to the left side of the machine or try to warn Mr.
Simpkins that they were there because he was on the right side of
the machine and Mr. Simpkins "was aware" and "was over there with
the people on the left side of the machine" (Tr. 250). He stated
that Mr. Simpkins made eye contact with him, but he did not
signal Mr. Simpkins to stop the machine to check the other side
because "the last time I was on the other side of the machine,
all the men were in the clear when I was over there with them"
(Tr. 252) .
In response to further questions, Mr. Tackett stated that
the excavator dual diesel engines are noisy, and when the machine
throttles up to swing around, it was very loud and everyone in
the area could hear it. Mr. Tackett stated that he never had any
concern that the three. people standing to the left of the machine
were not in the clear. While he was in that area everyone was
safe and out of the swing of the machine. He stated that Mr.
Cline was an experienced miner and had operated the excavator
ninety percent of the time. Mr. Tackett stated that he advised
Mr. Perry to stay away from the swing of the machine because he
was inexperienced. Mr. Tackett reiterated that it would be
difficult for him to live on his unemployment if he were laid off
and that it would be "tough" for him to make ends meet if he had
to pay the proposed penalty assessment (Tr. 263).
James Simpkins, testified that he is one of the mine owners
and has been in business for 8 to 10 years. He confirmed that he
was operating the excavator constructing the ditch in question on
the day of the accident, and has operated excavators for 20
years. He considered himself to be an excellent operator and
explained how the ditch was excavated and how he spread the Typar
with the machine.
(Tr. 265-274).
Mr. Simpkins stated that the rock shown in Exhibit G-9-A,
that appears to be above Mr. Tackett's head was secure and nearly
halfway up into the ditch and he tried to dig it out but could
not move it (Tr. 277). He attempted to remove it because he was

102

concerned that materials might flow from under the rock into the
ditch while he was digging at the bottom. He speculated ' that the
rock was 5 to 10 feet in front of Mr . Tacket~ (Tr. 178).
Mr. Simpkins stated that he tested and checked the rocks and
the sides of the ditch, and did not believe that there was a
potential for Mr. Tackett to be covered up by any loose spoil
where he was located. If Mr. Tackett had gone inby that area he
would have exposed himself to some danger, but he did not do so
(Tr. 279). Mr. S~mpkins stated that the company has no assets,
no prospects for future coal production, and "has been in the red
for the last four years," and has no way of paying any
assessments (Tr. 281).
Mr. Simpkins described what occurred prior to the accident.
After Mr. Tackett stretched the Typar, he came out of the ditch
and went to the right side of the machine and Mr. Adams, Mr.
Cline , and Mr . Perry were in the area where they had been
standing all day (Exhibits G-11). He estimated that they were 15
to 20 feet from where he was located and clearly out of the way
of the swing of the machine counterweight (Tr. 283-285) . He
further explained at (~r. 285-286):
A. At that point in time, Tackett had
flipped the Typar back over. The bucket was
already turned down into the hole with the teeth
down in the right direction. I simply made a
couple of quick, short passes to stretch the
Typar, looked to the left and right, revved the
machine up and proceeded to swing the machine to
the right , but could not, since I had raised the
boom up, see Jim Tackett and I had to lean up and
look· forward to locate him.
Having spotted Jim, knowing he was now in the
clear, I proceeded to swing, and at that point,
made a swing out of the hole with the machine,
turned it around almost a ninety degree turn. And
at that point in time, Troy Perry came running
around the side of the machine, waving me down, ·
and I knew something had happened.
Mr. Simpkins stated that after the last swing of the machine
his work was finished and he planned to tram the machine out of
the ditch. He stated that "I told the men that I was finished
and I was going to tram the machine out of the hole," but up to
that point, he gave Mr. Cline no indication that he would· turn .
the machine around and tram out. Although he could not state for
certain whether Mr. Cline heard him state that the work was
finished, Mr. Simpkins stated "If he didn't, he should have" (Tr.
288) .

103

Mr. Simpkins stated he "felt perfect1y comfort.a ble" with the
three individuals standing on the left side of the machine, and
he further explained at (Tr . 289-290 ) :
Q.

Would you rather have had them in a different

position?
A.

I liked having them where I could see them.

Q.

Why?

· A. Because I knew where they were. Had they been
to my rear, all the time , then I would have had to
swing around completely to have located them. And when
they were standing · off to my l e f t - - that is why Rick
had chosen that spot to take the pictures, so I could
see him, and not gotten off on right side or behind me.
He got on my left where there was clear visible contact
between the two of us and I could always see where he
was.
Q. Did you have any reason - - did you have any
indication at all that anyone was going to step into
the path of the counterweight?

A.

No, I had no idea that Dempy was going to do

that.

Q. Did you have any reason to believe that Mr .
Cline or anyone else out there was going to move - that any one of those people on the left-hand side of
your machine was going to move from the position that
you last saw them in?
A. No. They had been there for two or three
hours in that position and they seemed to be quite
content there.
Q.

Had they all been in that position?

A. At times. Troy and Rick had been there most
of the time and even, I think, at times, Tackett was
there with them, and Dempy at different times.
Mr. Simpkins stated that the company paid the assessment for
the violation that was issued for failure to make certain that
people were in· the clear because he had instructed his controller
to promptly pay for all violations . He did not have time to stop
the payment, and he would not have paid it (Tr. 291).

104

Mr. Simpkins confirmed that he made a statement to the MSHA
inspectors during the accident investigation, but he could not
recall the exact words, and indicated that "the only thing that
could have been done was just not to have those people there,
period." He stated that he had no control over what any of the
people would do "because they could have walked up to the machine
while I was busy with the equipment and had my back to it" (Tr.
292). He further stated that "he may have" acknowledged
to the inspector that the people were not in the clear when he
began to move the . machine (Tr. 293). Mr. Simpkins· stated that
Mr. Cline was a close friend of his and worked for him for 8
years, and he "was heartbroken" and grief stricken over the
accident, the first such incident at the mine (Tr. 293-294).
On cross-examination, Mr. Simpkins stated as follows at
(Tr. 294-295).
Q. All right, Mr. Simpkins, according to our
transcription from the tape recording interview of
you by Mr. Blevins, you were asked by him, as
indicated by Mr. Bonham, what could be done to
prevent this accident from happening. And the
answer from the tape transcription is, "If I had,
before I moved the machine, if I had moved
everybody from the area and made sure they were
back away completely, this accident would not have
happened." Does that refresh your memory a~ to
what you said?

A. Yes. If you're reading from the
transcript, then that is what I said, yes.

* * * *
Q. And you made mention to them that you
were going to tram the machine out of there?

A.

Yes.

Q. And you didn't mention to them, did you,
that you were going to swing the counterweight to
the left and swing the boom to the right, did you?

A. It would have been necessary to have done
that to have trammed the machine.
Mr. Simpkins confirmed that he did not exchange any signals
with the people standing on the left side of the machine because
"they were already in the clear and I could plainly see them"
(Tr. 299). He believed they should have known he was going to

105

move the machine when he throttled it up because it would have
been impossible for them not to hear the engines, a·n d he
acknowledged that the machine responds quickly and the
counterweight turns in seconds (Tr. 302- 303).
With regard to the rock near Mr. Tackett as shown in Exhibit
G-9-A, Mr. Simpkins confirmed that it was secure, but that it was
located in loose, unconsolidated material , and even at 8 feet
away, it could have caved in and effected Mr. Tackett . However,
he tried to move the rock and found it very secure (Tr. 310) . He
stated that the ·machine bucket is five feet wide and that the
ditch .was approximately ten feet wide and the reach of the bucket
boom is 47 feet (Tr. 311).
Mr. Simpkins confirmed that the mine produced 1,000 tons of
coal per day until mid-July 1996, and he sold it for $10 or $15 a
ton. He stated that the company is owned by Pehem Industries,
Inc., a parent company, and it has mined coal in 1995 and 1996
(Tr . 317-318). He confirmed that he also owns the cattle that
are at the mine and is co-owner of Pehem Industries , the owner of
Anchor Mining's stock (Tr. 319).
pr. Wu was recalled, and stated as follows at (Tr. 323- 324):
A. I do believe as what Mr . Simpkins stated ,
that he did try to loosing the material and the
rock is his concern. It should be a simple thing
to do with this particular piece of equipment.
And my concern is for loose materials, we ' re not
only talking one piece of rock or one particular
piece of rock when you try to move it and you're
sure the thing will not come down.
Basically, when we're talking dealing
with loose material , he is talking overall the
spoil bank. So there could be this piece of rock
at the time was firm, but as time goes and the
bottom, the material, starts getting loose and a
big piece can come down anytime. So it ' s always
important to slope back those banks , the spoil
banks, to provide a safe working environment.
Findings and Conclusions
Pocket No. WEYA 95- 169.

Fact of violations.

Section 104 !dl Cll "S&S" Order No . 4001122 . October 12 . 1994.
30 C.F . R. 77 . 1006(a)
Inspector Blevins cited Anchor Mining Company with a
violation of mandatory safety standard 30 C.F.R. 77.1006(a) after

106

making a determination that Mr. Tackett went into the ditch that
·was under construction at the base of the highwall to smooth out
a part of the Typar covering material that was over the rock that
had been placed in the ditch. The cited se~tion 77.1006{a),
provides as follows:
77.1006 Highwalls; men working.
(a) Men, other than those necessary to
correct unsafe conditions, shall not work near or
under dangerous highwalls or banks.

§

Based on the evidence adduced with respect to this
violation, I conclude and find that the construction of the
drainage ditch in question was taking place near or under a
dangerous highwall and spoil banks that were located on either
side of the ditch and formed by the materials that either came
off the highwall or were excavated from the ditch during
construction and placed on either side of the ditch.
Accordingly, the cited safety standard clearly applied to the
work that was being performed on September 15, 1994, the day of
the accident in question.
Mr. Tackett admitted that he went into the ditch to pull
back and straighten out a piece of the Typar material, and this
act on his part was confirmed by eye witnesses Adams, Cline, and
Simpkins. I conclude and find that Mr. Tackett was in the ditch
near and under the dangerous ditch spoil banks performing work
and that his presence there was a clear violation of section
77.1006.(a). Under the circumstances, the violation IS AFFIRMED.
Section 104Cdl Cll "S&sn Orde~ No. 4001124. October 12. 1994.
30 C.F.R. 77.1006(b)
I

Inspector Blevins cited Anchor Mining Company with a
violation of 30 C.F.R. 77.1006{b), after concluding that the
excavator being used to construct the drainage ditch on September
15, 1994, was positioned in such a way as to block Mr. Tackett's
egress from the ditch which he had entered to perform the work
that resulted in the issuance of the prior section 104(d) (1)
"S&Sn Order No . 4001122. Section 77.1006(b), provides as
follows:
§

77.1006 Highwalls; men working.

* * * *

(b) Except as provided in paragraph {c) of
this section, men shall not work between equipment
and the highwall or spoil bank where the equipment
may hinder escape from falls or slides.
Photographic exhibits G-8 and G-9-A, clearly depict Mr.
Tackett in the ditch pulling on the Typar material, and he is

107

positioned between the excavator and the highwall and adjacent
ditch spoil banks that were on either side of him. · Further, his
location in the ditch was observed by several of the witnesses,
and I conclude and find that Mr. Tackett presented no credible
evidence to rebut the fact that he was in the ditch between the
excavator and the highwall and spoil banks . The critical issue
however , is whether or not the excavator would have hindered Mr.
Tackett's escape from his location in the ditch in the event of a
fall or slide of the spoil materials. Webster's New Collegiate
Dictionary , defines "hinder"as follows at pgs. 536-537:
to make slow or difficult the progress of; to
delay, impede, or prevent action.
The burden of proof is on the petitioner to establish the
violation by a preponderance of all of the credible and probative
evidence presented in support of the charge described in the
citation. I take note of the fact that although section
77.1006(b), prohibits an individual from working between
equipment and a highwall or spoil bank where the equipment may
hinder his escape from falls or slides , the citation issued by
Inspector Blevins states that the excavator blocked Mr . Tackett's
egress from the ditch. The word "block" is defined by Webster's
New Collegiate Dictionary, as "to make unsuitable for passage by
obstruction; to hinder the passage of; . " I conclude and find
that both words have essentially the same meaning and the fact
that the citation states "blocked" rather than "hindered" is not
critical to the charge.
Eyewitness mining engineer Adams, testified credibly that
Mr. Tackett was in the ditch for less than a minute and he did
not recall that Mr. Tackett experienced any difficulty in leaving
after he pulled back the Typar (Tr. 85). Mr . Adams further
believed that the excavator did not block Mr. Tackett's egress
and he was certain that he could have exited the ditch on either
side of the excavator (Tr. 97).
State mine inspector Wallace , who investigated the accident
the following day, confirmed that he made no measurements of the
width or depth or the ditch, and he was of the opinion that in
the event of a collapse of the spoil bank anyone in the ditch
would have to exit out of the front of the ditch and that the
excavator would partially block the area and make it "a little
more difficult to get out" (Tr. 258, 268). Mr. Wallace conceded
that he had no personal knowledge as to whether Mr. Tackett had a
means of egress or ingress to the left side of the excavator, and
that it was possible that Mr. Tackett could have exited the ditch
on the right side of the excavator or under the tracks (Tr. 285) .
MSHA Inspector Blevins confirmed that he too made no
measurements during the course of his accident investigation and
108

his report is . confined to the accident itself and contains no
information concerning this alleged violation. Indeed, Mr.
Blevi~s admitted that Mr. Tackett's ability .to get in and out of
the ditch was not included as part of his accident investigation
and that he spoke to none of the eyewitnesses about this
violation at that time. He confirmed that he obtained
information about this event "weeks lateru and that the citation
was based on his judgement alone (Tr. 375-376).
Mr. Blevins believed that the only access out of the ditch
was by the excavator tracks that "was just about blocked,u _but
not completely (Tr. 336) . However, he also believed that
assuming there was no spoil failure, there was an area on each
side of the machine that would possibly have allowed Mr. Tackett
to pass through (Tr. 337). He later testified that he had no
knowledge as to whether or not Mr. Tackett could have exited the
ditch around the right or left side of the excavator, but
nonetheless believed this was possible (Tr. 367-368). I find Mr.
Blevins's testimony in support of this particular violation to be
rather equivocal, contradictory, and less than credible.
Mr. Tackett's credible and unrebutted testimony is that he
had access in and out of the ditch to the left and right side of
the excavator, as well as under the machine tracks, and that
before going into the ditch he looked carefully to both sides and
determined that there was a way to get in and out by walking to
either side of the excavator or under the tracks (Tr. 199-238).
His testimony is essentially corroborated by Dr. Wu, who, after
viewing several photographic exhibits, agreed that they do not
show a lack of clearance on the right and left sides of the
excavator, and that Mr. Tackett could have crawled out of the
ditch and through the undercarriage of the machine in an
emergency (Tr. 66, 104-106).
Although Dr. Wu believed than a minimum of 2 ~ feet of
clearance on each side of the machine would provide sufficient
clearance to meet the requirements of section 77.1006(b), he
agreed that no measurements were taken by anyone in connection
with this violation, and as noted above, his own testimony lends
support to Mr. Tackett's belief that he had sufficient clearance
on either side of the machine, as well as under it, to leave the
ditch unimpeded by the position of the machine.
After careful review and consideration of the evidence and
testimony adduced with respect to this alleged violation, I
conclude and find that the petitioner has not established a
violation of section 77.1006(b), by a preponderance of the
credible and probative evidence presented in this case. Under
the circumstances, the violation and contested order ARE VACATED.

109

Docket Nos. WEVA

96~74

and WEVA 96-75

Fact of violation, Section 104(d) (1) "S&Sn Citation No. 3745835,
September 19, 1994, 30 C.F.R. 77.1607!gl. ·
Mr. Tackett and Mr. Simpkins are charged individually
pursuant to section 110(c) of the Act as agents of Anchor Mining
Company with "knowingly authorizing, ordering, or carrying out" a
violation of mandatory safety standard 30 C.F.R. 77.1607(g),
which states as follows:
§ 77.1607 Loading and haulage equipment;

operation.
(g) Equipment operators shall be certain, by
signal- or other meqns, that all persons are clear
before starting or moving equipment.
Respondent Anchor Mining Company did not contest section
104(d) (1) Citation No. 3745835, issued on September 19, 1994, for
a violation of section 77.1607(g), and pursuant to section 105(a)
of the Act, the uncontested violation and proposed civil penalty
assessment became a final order of the Commission. Pursuant to
the Commission's decision in Old Ben Coal Company, 7 FMSHRC 205,
209 (February 1985), such final orders reflect violations of the
Act and the asserted violation contained in the citation is
regarded as true.
Although Mr. Simpkins and his counsel stated that the $4,000
civil penalty assessed against Anchor Mining was paid (Tr. 291,
320), an MSHA computer print-out of the respondent's history of
prior violations prepared on July 8, 1996, reflects that the
penalty was not paid and that a delinquency letter was issued
(Exhibit G-1).
Further, at page 4 of his post-hearing brief,
MSHA's counsel states that as of the filing of the brief on
October 28, 1996, the penalty assessment of $4,000 has not been
paid.
The respondent's suggestion that Mr . Cline caused the
accident and violation by stepping in front of the excavator
counterweight, thereby absolving Anchor Mining and its management
from any responsibility or liability for the violation is
rejected. It is well settled that mine operators are liable
without regard to fault for violations of the Act. ~:
Secretary y. Fort Scott Fertilizer-Culler. Inc., 17 FMSHRC 1112,
1115 (July 1995); Secretary y. Western, Fuels-Utah. Inc., 10
FMSHRC 256 (March 1988). However, the absence of fault by the
mine operator may mitigate its negligence and any civil penalty
assessment for the violation.
In Austin Power, Inc., 9 FMSHRC 2015, 2018-2019 (December
1987), the Commission stated as follows:

110

We hold that section 77.1607(g) requires the
operator of equipment subject to the standard to
be certain that all persons within the potential
zone of danger are clear from reasonably
foreseeable hazards resulting from the starting or
moving of the equipment.
* * *·
As contrasted with more detailed regulations,
the requirement of section 77 . 1607(g) that
"[e]quipment operators be certain . . • that all
person·s are clear before starting or moving
equipment" is the kind of regulation made "simple
and brief in order to be broadly adaptable to
myriad circumstances." Kerr-McGee Corp., 3 FMSHRC
2496, 2497 (November 1981) . Generally, the
adequacy of an equipment operator's efforts to
comply with section 77.1607(g) is evaluated in
each case with reference to an objective test of
what actions would have been taken by a reasonably
prudent person familiar with the mining industry,
relevant facts, and the protective purpose of th~
standard. ~, ~, United States Steel Corp., 6
FMSHRC 1908, 1910 (August 1984); United States
Steel Corp., 5 FMSHRC 3, 5 (January 1983); Alabama
By-Products, 4 FMSHRC 2128, 2129 (December 1982).
The critical issue here is whether or not Mr. Simpkins, who
was operating the excavator, acted reasonably and prudently in
making certain that Mr. Cline was clear of the machine when he
put it in motion by swinging the boom to the right, causing the
rear counterweight to swing to the left into Mr. Cline, causing
serious injuries to his leg.
Mr. Adams, Mr. Perry, and Mr. Cline were standing together
to the left rear of the machine shortly before Mr. Simpkins put
it in motion. Mr. Adams testified that they were standing in a
level area close to the elevation of the machine and he saw that
the machine counterweight had made an indentation in the spoil
bank between the area where they were standing and the excavator
as it swung around in the course of the work that was taking
place (Tr. 90-91).
Mr. Adams testified that he perceived no hazard to Mr. Cline
where he was standing, and he felt "reasonably safe" where he
(Adams) was standing, and that Mr. Cline was near him. However,
he nonetheless believed that the accident was preventable, in
part, if Mr. Cline had been standing somewhere else behind him
(Tr. 72-76). Mr. Adams also indicated that he and Mr. Cline were
5 or 6 feet, or "a step and a reach" from the cou~terweight when
it swiveled (Tr. 54-57).

111

Although Mr. Adams stated that he was not surprised by the
swinging counterweight and expected it, he confirmed that he did
not hear Mr. Simpkins give any audible signal or see him
"eyeballu anyone before putting the machine in motion (Tr. 133,
137) .
Mr. Perry and Mr. Cline testified credibly that they had no
advance warning that Mr. Simpkins would put the machine in
motion, and Mr. Perry observed no signal from Mr. Simpkins (Tr.
151-152). Mr. Perry further testified that he was "one stepu and
an "arm's lengthu away from the counterweight as it swung by him,
and that he "felt the wind" as it passed him (Tr. 151-152).
Mr. Tackett testified that Mr. Cline, Mr. Perry, and Mr.
Adams were standing 8 to 10 feet from ' the excavator on the level
area to the rear left of the machine while Mr. Simpkins loaded
rock into the ditch. Although they were in the "danger zone,"
Mr. Tackett believed the men were clear and in no danger at that
time (Tr. 188, 190). He could not recall that Mr. Simpkins ever
told him that he was goin9 to move the machine and he received no
communication from Mr. Simpkins that he was going to do so
(Tr. 241-242).
Contrary to the testimony of Mr. Perry, Mr. Cline, and Mr.
Tackett, Mr. Simpkins testified that he told them that he was
going to tram the machine out of the area. With respect to Mr.
Cline, Mr. Simpkins did not know if Mr. Cline heard him, and
stated, "if he didn't, he should have"
(Tr. 288).
I find the
testimony of Mr. Simpkins to be less than credible, and conclude
that he did not inform Mr. Cline that he was going to move the
machine before he put it in motion.
Mr. Simpkins' assertion that the machine was loud enough for
Mr. Cline to hear it and realize that it was going to move is
rejected. The cited standard requires the equipment operator to
be certain "by signal or other means" that all persons are clear
before moving the equipment.
I reject as unreasonable any notion
that revving up the engine is an acceptable means of warning
anyone to stand clear of the machine, particularly since the
machine boom can swing around in a matter of seconds (Tr. 302303) .
Mr. Simpkins acknowledged his prior statements to MSHA's
inspector that the accident would not have happened if he had
moved Mr. Cline and the other individuals from where they were
standing to the rear left of the machine and made sure they were
completely clear of the machine (Tr. 295). Mr. Simpkins also
admitted that he did not exchange any signals with these
individuals, and claimed he did not do so because he believed
they were clear of the machine and he could see them (Tr. 299).

112

Mr. Simpkins' assertion that he was in complete compliance
with section 77.1607(g), because he made certain that all men in
the vicinity of the excavator were in the clear before he moved
is rejected. The evidence establishes that Mr. Simpkins did not
signal the men standing to the rear of the machine that he was
going to move it and swing the counterweight around in their
direction. He clearly violated that part of section 77.1607(g)
that requires a signal by the equipment operator. The "other
meansn of compliance argued by Mr. Simpkins is that he visually
observed the men standing to the rear of the machine, and based
on his experience and judgment, concluded that they were clear of
the machine counterweight (Tr. 284-285).
I conclude and find that the credible testimony of Mr.
Cline, Mr . Perry, and Mr. Tackett establishes that they were not
completely clear of the swing of the counterweight and were in
the "danger zonen when Mr. Simpkins put the machine in motion.
While it may be true that Mr. Cline may have stepped into the
counterweight when it swung in his direction, the evidence
strongly suggests that he did not step far before the machine
contacted his leg, and reasonably supports a conclusion that he
was not completely clear of the counterweight. The same can be
said of Mr. Perry who was standing near Mr. Cline and testified
that he could have reached out and touched the counterweight and
heard the rush of air as it passed him.
I conclude and find that Mr. Simpkins acted less than a
reasonably prudent mine operator when he failed to make sure that
the three individuals who he observed standing to the rear of the
excavator acknowledged the fact that he saw them and clearly
understood that he was about to put the machine in motion and
swing the countefweight in their direction. In the absence of a
clearly communicated and acknowledged signal by Mr. Simpkins
indicating that he was going to put the machine in motion, I
conclude and find that his unilateral observation of the three
men standing to the rear of the machine was an inadequate and
unreasonable means of making certain that the men were in fact
clear of the counterweight before putting the machine in motion.
This is particularly true in this case where Mr. Simpkins claimed
that his work with the machine was finished and that he intended
to tram the machine out of the area. If this were the case, I
can only conclude that the three individuals had no particular
reason for being so close to the machine, and that it would have
been a rather simple matter for Mr. Simpkins to make sure that
the men were completely removed from the area before moving the
machine . I believe that a reasonably prudent mine operator would
have done so in these circumstances. I further believe that Mr.
Simpkins's tacit admission that he should have removed all of the
individuals from the area and made sure they were completely away
from the machine supports these conclusions.

113

Based on the foregoing findings and conclusions, I conclude
and find that the petitioner has established a violation of
section 77.1607(g), by a preponderance of· all of the credible
evidence adduced in these proceedings.
· The alleged "knowing" violation.
The Conunission has defined the term "knowingly" as used in
the statutory predecessor to section 110(c), in Kenny Richardson
v. Secretary of Labor, 3 FMSHRC 8 (January 1981), aff'd 669 F.2d
632 (6th Cir. 1982), ~denied, 461 U.S. 928 (1983), as
follows:
"Knowingly," as usPd in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent.
Its meaning is rather that used in contract
law, where it means knowing or having reason to know.
A person has reason to know when he has such
information as would lead a person exercising
reasonable care to acquire knowledge of the fact in
question or to infer its existence . . . . We believe
this interpretation is consistent with both the
statutory language and the remedial intent of the Coal
Act. If a person in a position to protect employee
safety and health fails to act on the basis of
information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute. 3 FMSHRC 16.
in Secretary of Labor CMSHAl Bethenergy Mines. Inc .. et al.,
14 FMSHRC 1232 (August 1991), the Commission reaffirmed its prior
holding in Kenny Richardson, supra, and stated that "the proper
legal inquiry for purposes of determining liability under section
110(c) of the Act is whether the corporate agent knew or had
reason to know" of a violative condition, and that the Secretary
must prove only that the cited individual knowingly acted and not
that he knowingly violated the law, 14 FMSHRC 1245. The
Commission has also stated that a corporate agent in a position
to protect employee safety acts knowingly when, based on the
facts available to him, he knew or had reason to know that a
violation would occur, but failed to take preventive steps. BQy
Glenn, 6 FMSHRC 1583 (July 1984). Further, a "knowing" violation
requires proof of aggravated conduct exceeding ordinary
negligence. Wyoming Fuel Co., 16 FMSHRC 1618, 1630 (August
1994); Beth Energy Mines,~, 15 FMSHRC 1232, 1245 (August
1992).

114

WEVA 96-75. James Tackett.
The evidence establishes t hat as the mine superintendent,
Mr. Tac kett was an "agent" of Anchor Mining Company on the day of
the violation, and he has stipulated that this was the case. The
petitioner argues that Mr. Tackett and Mr. Simpkins were both
supervisory personnel with a heightened standard of
responsibility for the safety of the miners at the work site, and
its theory of section llO(c) liability on the part of Mr. Tackett
fot the violation ~eems to be based on the fact that Mr. Tackett
occupied a supervisory position and was present at the area where
the violative conduct took place.
The evidence in this case establishes that Mr. Simpkins, and
not Mr. Tackett, was supervising and directing the drain
construction work on the day in question. Indeed, at page 19 of
its post-hearing brief, the petitioner recognizes that this was
the case. The evidence further establishes that Mr. Simpkins
summoned Mr. Tackett to the ditch area to explain the work that
was to be performed, and although Mr . Tackett was the mine
superintendent, Mr. Simpkins was in charge and directed the work
force which I find included Mr. Tackett. Under the
circumstances, I conclude and find that Mr. Tackett had little,
if any, supervisory authority or responsibility for the ditch
construction work that was taking place on September 15, 1994,
when the violation occurred.
The evidence further establishes that Mr. Simpkins was
operating the excavator when the violation occurred and was aware
of the fact that Mr. Adams, Mr. Cline, and Mr . Perry were
standing to the rear of the machine. As the operator of the
equipment, Mr. Simpkins was directly obligated under section
77 . 1607(g), to make sure that the individuals were clear of the
machine, and I conclude and find that he, rather than
Mr. Tackett, was in the best position to make sure that this was
done.
Mr. Tackett testified credibly that before leaving the area
where the three individuals were . standing, he was satisfied that
they were clear of the machine. Mr. Tackett then went to the
other side of the machine, and he had no further visual contact
with the individuals because the excavato~ blocked his view _a nd
he assumed that Mr. Simpkins had them in view because his
operator's compartment was on the left side of the machine. Mr.
Tackett's credible testimony that his view was blocked is
corroborated by Mr. Cline, the injured miner, who was an
experienced excavator operator who often operated the machine.
Mr. Cline testified credibly that Mr. Tackett was not aware where
he (Cline) was standing when Mr . Simpkins put the machine in
motion. Further, Mr. Perry, who was inexperienced and normally

115

worked as a security guard, testified credibly that before the
work was started, Mr. Tackett explained the hazards associated ·
with the ditch work to him and warned him -to be careful and not
to get too close to the machine (Tr. 153).
In view of the foregoing, and in particular the fact that
Mr . Tackett was not supervising the ditch work that was taking
place and was located in an area where he could not see the three
individuals standing behind the machine before Mr. Simpkins put
it in motion, I cannot conclude that Mr. Tackett acted in a
knowing and inientional manner, or engaged in any _aggravated
conduct. In short, I cannot conclude that the credible evidence
adduced with respect to Mr. Tackett establishes that he knowingly
authorized, ordered, or carried out a violation of section
77.1607(g), within the meani~g of section llO(c) of the Act, and
the applicable case law. Accordingly, the alleged violation
charged to Mr. Tackett is VACATED, and the proposed civil penalty
assessment filed against him IS DENIED and DISMISSED.
WEVA 96-74. James Simpkins
I agree with the petitioner' assertion that in his
supervisory capacity as the part mine owner, Mr. Simpkins had a
heightened duty and standard of care to insure compliance with
the cited standard. As I found earlier, Mr. Simpkins was
supervising the work, while at the same time operating the
excavator, and he clearly gave no signal to the individuals
behind the machine before placing it in motion. I have also
concluded that Mr. Simpkins acted less than a reasonably prudent
operator when he failed to make sure that the individuals who he
observed to the rear of the machine either acknowledged the fact
that he had seen them, or to remove them completely from the area
near the machine ..
As the supervisor in charge of the ditch construction, Mr.
Simpkins was in the best position to provide protection for Mr.
Cline and the other individuals standing to the rear of the
excavator, and by failing . to take reasonable steps to -insure that
they were not in close proximity to the machine when he put it in
motion, causing the counterweight to swivel around and strike Mr.
Cline, I conclude that he acted knowingly within the meaning of
section llO(c) of the Act. Under the circumstances, I conclude
and find that the petitioner has carried its burden of proving by
a preponderance of the evidence that Mr. Simpkins knowingly
carried out the cited violation. Accordingly, the violation IS
AFFIRMED.
Significant and Substantial Violations
A "significant and substantial" (S&S) violation is. described
in section 104(d) (1) of the Act as a violation "of such nature as

116

could significantly and substantially contributed to the cause
and effect of · a coal or other mine safety or health hazard."
30 C.F.R. § 814(d} (1}. A violation is properly designated S&S
"it, 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 reasonable serious
nature." Cement Division, National Gypsum Co. 3 FMSHRC 822, 825
(April 1981} .
In Mathies Coal Co., 6 FMSHRC 3-4 (January 1984}, the
Commission explained its interpretation of the term •s&s" 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:
(1) the underlying violation of
a mandatory safety standard; (2) a discrete safety
hazard - - that is, a measure of danger to safetycontributed 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.
See also Austin Power, Inc. V. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)
(approving Mathies criteria) .
The question of whether any particular violation is S&S must
be based on the particular facts surrounding the violation,
including the nature of the mine involved, Secretary of Labor v.
Texasgulf. Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio
Coal Company, 9 FMSHRC 2007 (December 1987) . Further, any
determination of the significant nature of a violation must be
made in the context of continued normal mining operations.
National Gypsum, supra, 3 FMSHRC 327, 329 (March 1985). Halfway.
Inco~orated, 8 FMSHRC 8 (January 1986) .
In United States Steel Mining Company. Inc., 7 FMSHRC 1125,
1129 {August 1985}, the Commission stated further as follows:
We have explained 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} (1), 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).

117

The Commission reasserted its prior determinations that as
part of his "s&s• finding, the Secretary must prove the
reasonable likelihood of an injury occurring as a result of the
hazard contributed to by the cited violative condition or
practice. Peabody Coal Company, 17 FMSHRC 508 (April 1995); Jim
Walter Resources. Inc., 18 FMSHRC 508 (April 1996).
Section 104 Cdl (1 ) " S& S" Ci tat ion No . 3745835 . September 19. 1994.
C.F.R. 77 .1607 Cg l
After careful consideration of all of the evidence and
argumen t s presente d with r es pect to th i s cit a t ion, I conclude and
f i nd tha t the peti ti oner has established by a preponderance of
the credible evidence that this violation was significant and
substantial (S&S) .
I have concluded that a violation of section 77.1607(g ) has
been established. I further conclude and find that the failure
of Mr . Simpkins to signal or take other reasonable precautions to
insure that the three individuals who were located behind and
close to the excavator when he put the machine in motion were
clear of the machine, or to remove them from the area where t hey
were standing, presented a discrete hazard of ·the machine
counterweight striki ng one of the individuals when it was plac ed
in motion and turned to the right by Mr ; Simpkins.
I further conclude and find the failure to signal the
individuals or otherwise insure that they were clear of the
machine, or moved away from the area, presented a reasonable
likelihood that the machine would come in contact with any
individual in close proximity to the swinging machine
counterweight. If this were to occur, I further conclude and
find that the individual contacting the counterweight as it
turned would reasonably likely suffer injuries of a reasonably
serious nature. Indeed, in this case, that is precisely what
happened, and Mr. Cline lost a leg as a result of the accident.
Under the circumstances, the inspector's "S&S" finding IS
AFFIRMED.
Section 104 (d l (1 l "S&S" Order No. 4001122, October 12, 1994. 30
C.F.R. 77.1006Ca l
After careful consideration of all of the evidence and
arguments presented with respect to this violation, I conclude
and find that the petitioner has established by a preponderance
of the credible evidence that the vi olation was significant and
substantial (S&S ).
The respondent's assertion that Mr. Tackett went no further
than the outside edge of the drain area to grasp and pull tau t
the Typar fabric is not we l l taken. While there is no evidence

118

to establish that Mr. Tackett ventured beyond the excavator
bucket in the· direction of the highwall while he was in the
ditch, the fact remains that the testimony and evidence
presented, including the photographs, establishes that he was in
the ditch, and not simply "at the outside edge . " Mr. Adams
testified that the location where Mr. Tackett was standing was
approximately 6 feet deep and 4 to 6 feet wide, and that Mr.
Tackett was below the spoil bank material that was on each side
of the ditch (Tr. 45, 84).
Mr. Tackett estimated that the height of the ditch where he
was standing was 3 to 4 or 5 feet or "waist high" on each side of
him, and he estimated that there was 3 feet of spoil material on
the edge of the ditch where he was standing (Tr. 207, 215).
Mr. Tackett confirmed that he was 5 feet, 10 inches tall, and I
conclude and find that if the spoil bank where Mr. Tackett was
standing in the ditch had given away, he could have been covered
up by the materials.
The fact that Mr. Tackett may have been in the ditch for
less than a minute, as testified to by Mr. Adams (Tr. 85), is not
particularly relevant in my view. Accidents involving roof
falls, falling rocks, and sliding loose unconsolidated spoils
materials have been known to occur instantaneously and in less
than a minute.
Although Mr. Simpkins indicated that the rock shown in
photographic exhibit G-9-A, was secure, and that he also tested
and checked the sides of the ditch and did not believe that Mr.
Tackett could potentially be covered up by any loose spoil where
he was located in the ditch, Mr . Simpkins further testified that
the secured rock was located in loose, unconsolidated material,
and even though it was 8 feet away from Mr. Tackett, if these
materials caved in, it would have affected Mr. Tackett (Tr. 279310). He also testified that he attempted to remove the rock
because he was concerned that loose materials might flow from
under the rock and into the ditch that was being constructed (Tr.
178) .
Mr. Adams did not believe that the spoil banks on either
side of the ditch at the location where Mr. Tackett was standing
were in danger of giving way. However, he stated that the rock
that Mr. Simpkins found to be secure was part of the loose,
unconsolidated spoil bank material in front of where Mr. Tackett
was located, and if it were to give way, the rock may have
affected Mr. Tackett (Tr. 83, 108).
State mine inspector Wallace viewed the scene of the
accident the next day and testified credibly that the spoil banks
around the ditch consisted of loose, unconsolidated materials and
were nearly vertical. He believed that these materials had a

119

very high potential of slipping or sliding and that that "it
would be foolishn for anyone to go into the ditch for any reasori
(Tr. 236).
MSHA inspector Blevins, who also viewed the scene the day
following the accident, testified credibly that he based his
"S&Sn finding on the fact that the unstable spoil materials would
cover up anyone in the ditch if work were to continue (Tr. 216).
Dr. Wu, wh~ did not view the scene, but was nonetheless
competent to express his expert opinion, stated that standing in
a 4 foot deep ditch adjacent to an additional 4 foot sloped spoil
bank, would be hazardous to Mr. Tackett because of the presence
of the loose spoil materials (Tr. 165-166).
I have concluded that a violation of section 77.1006(a), has
been established. I further conclude and find that working near
or under spoil banks consisting of loose unconsolidated soil and
rock materials presents a discrete hazard of anyone working in
such a location to be covered up or being hit in the event of a
slide or fall of the materials into the ditch. If this were to
occur in the normal course of mining activities, I find that it
would be reasonably likely that the person in the ditch would
suffer injuries of a reasonably serious nature. In this case, I
conclude and find that Mr. Tackett placed himself in just such a
position when he went into the ditch in close proximity to a
slide or fall of materials hazard. Accordingly, I conclude and
find that the violation was significant and substantial (S&S),
and the inspector's finding in this regard IS AFFIRMED.
Unwarrantable Failure Violations
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held, in pertinent part, as follows at
295-96:
In light of the foregoing, we hold that an
inspector should find that a violation of any
mandatory standard was caused by an unwarrantable
failure to comply with such standard if he determines that the operator involved has failed to
abate the conditions or practices constituting
such violation, conditions or practices the
operator knew or should have known existed or
which it failed to abate because of a lack of due
diligence, or because of indifference or lack of
reasonable care.
In several decisions concerning the interpretation and
application of the term "unwarrantable failure," the Commission
further refined and explained this term, and concluded that it

120

means "aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the
Act." Energy Mining Cox:poration, 9 FMSHRC 1·997 (December 1987);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987);
Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249
(March 1988). Referring to its prior holding in the Emeh¥ Mining
case, the Commission stated as follows in Youghiogheny & Ohio, at
9. FMSHRC 2010 :.
We stated that whereas negligence is
conduct · that is "inadvertent," "thoughtless" or
"inattentive," unwarrantable conduct is conduct
that is described as "not justifiable" or
"inexcusable." Only by construing unwarrantable
failure by a mine operator as . aggravated
·
conduct constituting more than ordinary
negligence, do unwarrantable failure sanctions
assume their intended distinct place in the Act's
enforcement scheme.
In Emeh¥ Mining, the Commission explained the meaning of
the phrase "unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary mea~ing of
the phrase "unwarrantable failure."
"Unwarrantable" is defined as "not justifiable" or
"inexcusable." "Failure" is defined as "neglect or
an assigned, expected, or appropriate action."
Webster's Third New International DictionakY
(Unabridged) , 2514, 814 (1971) ("Webster's"') .
Comparatively, negligence is the failure to use
such care as a reasonably prudent and careful
person would use and is characterized by
"inadvertence," "thoughtless," and "inattention."
Black's Law Dictionah¥ 930-931 (5th ed. 1979).
Conduct that is not justifiable and inexcusable is
the result of more than inadvertence,
thoughtlessness, or inattention. * * *
Section 104(d) (1) "S&S" Order No. 4001122. October 12. 1994.
30 C.F.R. 77.1006(a).
As noted earlier, Mr. Tackett did not deny that he went into
the ditch, and he did so with the full knowledge of the presence
of loose and unconsolidated materials on both s·ides of the spoil.
banks where he was standing. I conclude and find that he failed
to exercise such care as a reasonable and prudent person would be
expected to use, particularly someone in a responsible position
like Mr. Tackett, who in his capacity as the mine superintendent,
should set an example. I conclude and find that Mr. Tackett's
conduct was aggravated and inexcusable, exceeded ordinary
negligence, and constituted an unwarrantable failure on his part
to comply with the requirements of the cited standard.
Accordingly, the inspector's finding in this regard IS AFFIRMED.

121

Although Mr. Tackett asserted that he was not instructed to
.go into the ·ditch, and took it upon himself to do so, and exposed
no one other than himself to a hazard, I nonetheless conclude and
find that his conduct and negligence may be imputed to Anchor
Mining Company, particularly in light of the fact that a high
level agent of Anchor Mining {part-owner and officer}, in the
person of Mr. Simpkins, was supervising the work and obviously
observed Mr. Tackett go into the ditch and did nothing to prevent
him from doing .so. ~: NACQQ Mining Co., 3 FMSHRC 848 (April
1981); Rochester & Pittsburgh Coal Company, 13 FMSHRC 189, 197
{February 1991) ~
Section 104(d) {1) "S&S" Citation No. 3745835. September 19. 1994.
30 C.F.R. 77.1607(g).
After careful review and consideration of all of the
testimony and evidence presented with respect to this violation,
and based on my findings and conclusions with respect to Mr.
Simpkins' "knowing" violation of section 77.1607{g), which I
incorporate herein by reference, and where I found that Mr.
Simpkins acted in a knowing and intentional manner because he
knew or had reason to know that Mr . Cline and the other
individuals with him were standing dangerously close to the rear
area of the excavator when he was about to put the machine in
motion causing the counterweight to swing around and contact Mr.
Cline's leg, I conclude and find that Mr. Simpkins's conduct was
aggravated, exceeded ordinary negligence, and resulted in an
unwarrantable failure to comply with the cited standard.
Accordingly, the inspector's finding in this regard IS AFFIRMED.
I further conclude and find that the negligence of Mr.
Simpkins, including his unwarrantable failure conduct in his
supervisory capacity, is imputable to Anchor Mining Company,
NACCO Mining Co., 3 FMSHRC 848, 849-850 {April 1981).
History of Prior violations
With respect to Anchor Mining Company, a computer print-out
for the period beginning on October 12, 1992, and ending October
11, 1994, reflects that it paid penalty assessments for 41 prior
section 104(a) citations, none of which are for violations of the
same standards at issue in these proceedings. Further, there is
no evidence that Mr. Tackett or Mr. Simpkins have ever been
previously charged pursuant to section 110(c) of the Act .
I have considered the compliance record of the respondents
in these proceedings in assessing the penalties which I have
affirmed and I conclude that any additional increases over those
penalty assessments are not warranted.
Gravity
Based on my "S&S" findings and conclusions, I conclude and
find that the violations that have been affirmed were serious
violations.
122

Good Faith Compliance
I conclude and find that the violations were all abated in
good fa i th by the respondents.
Negligence
Based on my unwarrantable failure findings, I conclude and
find that the violations resulted from a high degree of
negligence on the part of the respondents.
Size of Business and Effect of Ciyil · Penalty Assessments
on the Respondent's Ability to Continue in Business
I conclude and find that Anchor Mining Company was a small
to medium sized mining operation at the time of the violations.
Mr. Simpkins stipulated that he has the financial ability to pay
the assessed penalty in his case, and I find no credible evidence
to the contrary . With regard to the respondent Anchor Mining
Company, I find no credible evidence to establish that it lacks
the resources to pay the penalty assessment for the violation
that I have affirmed.
Ciyil Penalty Assessments
On the basis of my foregoing findings and conclusions, and
my de DQYQ consideration of the civil penalty assessment criteria
found in section 110(i) of the Act, I conclude and find that the
following penalty assessments are reasonable and appropriate for
the violations that have been affirmed in these proceedings:
Docket No· WEVA 95-169
Order No.
4001122

~

30 C. F.R .
Section

Assessment

10/12/94

77 . 1006(a)

$4,500

~

30 C.F.R.
Section

Assessment

09/19/94

77.1607(g)

$2,500

Docket No. WEVA 96-74

Citation No.
3745835

OBDBR
XT IS ORDERED as follows:
1. Section 104(d) (1) "S&S" Order No. 4001122,
October 12, 1994, 30 C. F.R. 77.1006(a), IS
AFFIRMED.

123

2. Section 104(d) {1) •s&s• Order No. 4001124,
October 12, 1994, 30 C.F.R. 77.i006(b), IS
VACATED, and the proposed civil penalty
assessment IS DENIED ANP DISMISSED.
3. The section 110(c) charge that Respondent
James Tackett violated mandatory safety standard
77.1607 (g), as stated in section 104 (d) (1) •s&s•
Citat.ion No. 3745835, issued on September 19,
1994, IS VACATED and DISMISSED, and the proposed
civil penalty assessment IS DENIED and DISMISSED.
4. The section 110{c) charge that Respondent
James Simpkins violated mandatory safety standard
77.1607(g), as stat~d in section l04(d) (1) •s&S"
Citation No. 3745835, issued on September 19,
1994, IS AFFIRMED.
5. The respondents Anchor Mining Company and
James Simpkins shall pay civil penalty
assessments in the amounts shown above for the
violations that have been affirmed. Payment is ,
to be made to MSHA within thirty (30) days of the
date of these decisions and order, and upon
receipt of payment, these matters ARE DISMISSED.

~~.lou~

Administrative Law Judge

Distribution:
James B. Crawford, Esq., Office of the Solicitor,

u.s. Department of Labor, 4015 Wilson Blvd., Suite 400, Arlington,
VA 22203 (Certified Mail)
John T. Bonham, Esq., David J. Hardy, Esq., Jackson & Kelly,
P.O. Box 553, Charleston, WV 25322 (Certified Mail )
\mea

124

FEDERAL MINE SAFETY AND HEALTH REVJ:BW COMMJ:SSJ:ON
OFFICE OF ADMINISTRATIVE lAW Jti)GES
2 SKYLINE, 10th flOOR
5203 LEESBURG PIKE
FAllS CHURCH, VIRGINIA 22041

JAN

6 1997

SAMUEL J. Mc LAUGHLIN, employed
By CONSOLIDATION COAL COMPANY
Applicant

EQUAL ACCESS TO JUSTICE
PROCEEDING
Docket No . EAJ 96 - 5

v.
Formerly WEVA 94 - 366
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
by CONSOLIDATION COAL
COMPANY,
Respondent
ORDER OF DISMISSAL
Before:

Judge Barbour

The Applicant, Samuel J. McLaughlin, through counsel has
stated that he wishes to withdraw his application. In a
response, Counsel for the Secretary recognizes the discretion of
the administrative law judge to rule on McLaughlin's request.
However, counsel suggests that any withdrawal be with prejudice,
since McLaughlin •was given full opportunity to present
his . . . claims and future reconsideration of these matters could
unnecessarily expend judicial time and present an undue burden"
(letter, December 20, 1996).
Commission Rule 11 provides that a party may withdraw a
pleading at any stage of a proceeding with the approval of the
judge (29 C.F.R. § 2700.11). There is no reason apparent why
McLaughlin should not be permitted to withdraw .
Also, there is no reason apparent why the withdrawal should
not be with prejudice . I agree with counsel that McLaughlin has
had ample opportunity to establish his claims and that future
reconsideration of the matter would be unwarranted and intrusive.
Accordingly, McLaughlin's application is WITHDRAWN and this
proceeding is DISMISSED WITH PREJUDICE.

r.

j),v/r/ JSJ~

David F. Barbour
Administrative Law Judge

125

Distribution:
Stephen D. Williams, Esq ., Steptoe & Johnson, Bank One Center ,
Clarksburg, WV 26301-2190 (Certified Mail )
James B. Crawford, Esq., Office of the Solicitor,
U. s. Department of Labor, 4015 Wilson Boulevard,
Arlington, VA . 22203 (Certified Mail )
dcp

126

4 th

Floor,

FEDERAL MINE SAI'E'.rY AND BBAL'.rB REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
6203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN . 6 1997

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

v.

CIVIL PENALTY PROCEEDINGS

Petitioner

BUCK CREEK COAL, INC.,
Respondent

Docket No. LAKE 94-72
A.C . No. 12-02033-03606
Docket No. LAKE 95-327
A.C. No. 12-02033-03676
Docket No. LAKE 96-359 .
A.C. No. 12-02033-03681
Docket No. LAKE 96-10
A.C. No . 12-02033-03690
Docket No. LAKE 96-13
A.C . No. 12-02033-03691
Docket No . LAKE 96-20
A.C. No . 12-02033-03693
Buck Creek Mine

DllAUL'l' DICISION

Before:

Judge Hodgdon

These cases are before me on Petitions for Assessment of
Civil Penalty filed by the Secretary of Labor, acting through his
Mine Safety and Health Administration (MSHA), against Buck Creek
Coal, Inc., pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815. The petitions allege 40
violations of the Secretary's mandatory health and safety
standards and seek penalties of $39,808.00 . For the reasons set
forth below, I find the company in default, affirm the orders and
ci~ations, and assess penalties of $39,808.00 .

12 7

These cases are several in a long line of proceedings
involving Buck Creek. 1 At various times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent . On June 24, counsel filed a Motio~ to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings. Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was .issued on July 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further ca-utioned that "[f) ailure to respond will
result in the issuance of an Order of Default, without the
iaauance of a prior Order to Show Cauae."

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq., the
company's bankruptcy counsel. Return Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. · Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases. However, this decision identifies,
in the caption, the specific docket numbers of the cases
involved.

128

I am aware that Buck Creek is apparently in bankruptcy.
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company. 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February 1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990).
Commission Rule 59, 29 C.F.R. § 2700.59, states that "[i]f
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate • • • • " Commission
Rule 66(a), 29 C.F.R. § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge • • • an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futile act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate ~hat that conclusion was correct.
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements' of Rule
66(a) were complied with.
OJU)IB

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., XN DBPAULT in these cases. Accordingly, Order No. 3843667
and Citation Nos. 4054444, 3843807, 3843811, 4055896, 4055897,
3843784, 4055898 and 3843941 in Docket No. LAKE 94-72; Order No.
4262944 in Docket No. LAKE 95-327; Order No. 4262951 in Docket .
No. LAKE 95-359; Order Nos. 4050151 and 4050152 in Docket No.
LAKE 96-10; Order Nos. 4050155, 4050156, 4050157, 4050158 and
4049744 and Citation Nos. 4262986, 4262994, 4049748, 4049749,
4049750, 4049754, 4049755, 4Q50241, 4050242, 4050243, 4050244,
4050246, 4049961 and 4049962 in Docket No. LAKE 96-13; and Order
Nos. 4049527, 4049529 and 4050094 and Citation Nos. 4050253,
4050254, 4050255, 4050256 and 4050259 in Docket No. LAKE 96-20 .

129

are Al'PIRMBD . Buck Creek Coal Inc·., or its successor/ is
ORDERED TO ·PAY civil penalties of $39,808.00 within .30 days of
the date of this de.c ision. On receipt of · payment, these
proceedings are DISMISSED.

'1':!!:~

Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., Office ·of the Solicitor, U. S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Mail)
Mr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RRS,
Box 203, Sullivan, IN 47882 (Certified Mail)
I

Mr. Randall .Hammond, Superintendent, Buck Creek Coal Co., Inc.,
2156 s. County Rd., 50 West St., Sullivan, IN 47882 (Certified
Mail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 (Certified
Mail)
/lt

2

According to a July 19, 1996, news release, issued by the
United States Attorney for the Southern District of Indiana, the
company is now known as Indiana Coal Company.

130

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
Washington, D.C. 20006-3868
,January 7, 1997
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION . (MSHA)
Petitioner

CIVIL PENALTY PROCEEDING
Docket No . SE 96-355-M
A. C. No. 54-00333-05510

v.
ARENAS MATILDE INCORPORATED,

Arenas Matilde

Respondent
ORDER DENXING MOTION TO WITHDRAW
DECISION APPROVING SETTLEMENT
QRDER TO PAY
Before :

Judge Merlin

This case is a petition for the assessment of a civil
penalty filed by the Secretary of Labor against Arenas Matilde
Incorporated under section 105(d) of the Federa1 ~ne Safety and
Health Act of 1977. 30 U.S . C. § 81S(d) .
One violation is involved in this case. The originally
assessed penalty was $119 . On October 25, 1996, the Solicitor
and the operator' s attorney filed a joint motion seeking approval
of a settlement in the amount of $70. To support their request
they advised that the operator was small in size and the violation was promptly abated . The motion was signed by both the
Solicitor and the operator's attorney.
The motion is well taken . Section 110(i) of the Act, 30
U.S.C. § 820(i), sets forth six factors that must be taken into
account in determining the appropriate amount of penalty. The
motion identifies two of the relevant factors in explaining why a
reduction from the original assessment is warranted . The motion
also provides the basis for me to determine that the recommended
settlement is a proper amount under all the criteria specified in
section 110(i) . The motion is therefore, entitled to approval.
However, on December 16, 1996, the Commission received a
copy of a letter dated December 13, 1996, from operator's counsel
to the Solicitor. Operator's counsel requested that all settlement proceedings be stopped unless i t was understood that the

131

~ne

Safety and Health Administration had no jurisdiction in the
future. On ·December 26 , 1996 , the operator filed a · motion to
· clarify or withdraw the settlement . By letter dated December 31 ,
1996, the Solicitor opposed the operator's request to withdraw
the settlement and stated that the settlement represented a
binding agreement of the parties.
It is well established that settlements are favored as a
way of avoiding protracted and expensive litigation. Core-Vent
Co~ . v . Implant Innovations, Inc . , 53 F . 3d 1252, 1259 (Fed Cir.
1995) . In this case there is no question that the terms of the
settlement were understood and accepted by both parties. Also,
i t is undisputed that counsel for both sides were authorized to
enter into the settlement on behalf of their clients. In Re
Artha Hanagement. Inc . , 91 F.3d 326, 328-329 (2M Cir . 1996) ;
U.S . v. International Brotb. Of Teamsters , 986 F . 2d 15, 19-20
(2M Cir. 1993) . All that appears is that some time after entering into the settlement, the operator decided to challenge the
jurisdiction of the ~ne Safety and Health Administration. 1
However, the settlement into which the operator freely and
knowingly entered is binding . Wilson v . Wilson, 46 F . 3d 660, 667
(7th Cir . 1995). The Commission has recognized that settlement
is an integral part of dispute resolution under the ~ne Act.
Kathleen I. T•rm•nn y. International Salt Company, 12 F.MSHRC 1, 2
(January 1990) . A settlement agreement may be reopened only on
the grounds of mutual mistake or fraud. A unilateral mistake is
not sufficient to allow the mistaken party to avoid the effect of
an otherwise valid settlement agreement . QMWA v . Utah Power and
Light Company, 12 F.MSHRC 1548, 1555 (August 1990).
The operator is free to raise jurisdictional questions with
respect to future citations .
Accordingly, i t is ORDERED that the request to withdraw
settlement be DENIED .

1

A previous jurisdictional challenge by this operator was
rejected and no appeal was taken. Arenas Matilde Inco~orated,
15 FMSHRC 2304 , 2309-2311 (November 1993) .

132

It is further ORDERED that the settlement motion be APPROVED
and that the operator PAY $70 within 30 days of the date of this
decision.

Paul Merlin
Chief Administrative Law Judge
Distribution :

(Certified Mail)

James A . Maqenheimer, Esq . , Office of the Solicitor, U. S .
Department of Labor , 201 Varick Street , New York , NY 10014
Juan B. Soto-Balbas, Esq. , Mercado & Soto, P. 0 . Box 4839, Old
San Juan, PR 00902
/ql

133

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 1Oth FLOOR
5203 LEESBURG PIKE .
FALLS CHURCH, VIRGINIA 22041

JAN 7 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of PERRY PODDEY,
Complainant

. . DICRIMINATION PROCEEDING
Docket No. WEVA 93-339-D
MSHA Case No. MORG CD 93-01
Coal Bank No. 12
Mine ID No. 46-07062

v.
TANGLEWOOD ENERGY, INC . ,
Respondent

REMAND DECISION
AnSi
ORDER

Before:

Judge Koutras
Statement of the Case

This case concerns a decision of November 29, 1993, by
former Commi5sion Judge Arthur Amchan, concluding that the
respondent violated section 105(c) of the Mine Act in discharging
the complainant Perry Poddey on January 6, 1993, and assessing a
civil penalty of $100 against the respondent for the violation,
15 FMSHRC 2401 {November 1993), and a subsequent decision of
January 25, 1994, awarding damages and other relief to Mr.
Poddey, 16 FMSHRC 176 (January 1994).
Judge Amchan's damages decision reflects that the parties
stipulated to the damages amount due Mr . Poddey, and the judge
stated as follows in this regard at 16 FMSHRC 176:

* * * * Pursuant to this stipulation,
Respondent is hereby ordered to pay Mr. Poddey
$9,094.38. This figure represents the back wages
due Mr. Poddey from January 7, 1993, through May
17, 1993 minus $4,000 received in unemployment
compensation benefits from the state of West
Virginia. It also includes interest calculated at
the short-term federal interest rate on all net
backpay earnings (gross backpay minus unemployment
insurance benefits) through the end of calendar
year 1993, payment for Mr. Poddey's travel
expenses related to this case, and compensation

134

for one day of work missed to attend the hearing
in ·this matter.

The Secretary filed an appeal of Judge Arnchan's decision,
and the issues on appeal included Judge Arnchan's civil penalty
assessment of $100 for the violation, a "significant reduction of
the $2,500 to $3,000 penalty proposed by the Secretary," and his
reduction of Mr. Poddey's backpay award by the amount of
unemployment compensation he had received.
On August 5; 1996, the Commission issued its decision
reversing Judge Arnchan's deduction of unemployment compensation
from Mr. Poddey's backpay award, and vacating his $100 penalty
assessment, 18 FMSHRC 1315, 1326 (August 1996) . The matter was
remanded for a penalty assessment with further findings on the
respondent's history of prior violations. The case was
reassigned to me for further adjudication.
The parties were afforded an opportunity to further resolve
this matter in accordance with the Commission's remand, and in
response to my remand order of October 29, 1996, the petitioner
advised me by letter dated January 2, 1997, that the parties have
reached a dispositive agreement of the case. The agreement is as
follows:
The parties have agreed that $1,000.00, is an
appropriate penalty, given the determinations made
by the Federal Mine Safety and Health Review
Commission concerning negligence, gravity, and the
operator's history of previous violations.
In addition, the parties agree that, pursuant
to the Commission's ruling, the $4,000.00,
received by Perry Poddey as unemployment
compensation should not be deducted from his back
pay award, and that additional interest is due on
the unpaid portion of the back pay award from the
date of Judge Arnchan's Decision and Order to the
present.
Order
In view of the foregoing, IT IS ORDERED as
follows:
1). The respondent shall pay a civil penalty
assessment of $1,000, for its violation of section
105(c) of the Act. Payment is to be made to MSHA

135

within thirty (30) days of the date of this
decision and order.
2).
In addition to the $9,094.38, damage
award that the respondent was ordered to pay by
Judge Amchan in his January 25, 1994, pecision on
Pamages, 16 FMSHRC 176 (January 1994), the
respondent shall pay to the complainant Perry
Poddey, the sum of $4,000, received in
unemployment compensation benefits from the state
of West Virginia, and previously deducted from his
back pay award, with interest from the date of
Judge Amchan's Decision and Order of November 29,
1993, to the present, 15 FMSHRC 2401, 2416
(November 1993) .
Interest should be computed in
accordance with the short-term Federal rate
applicable to the underpayment of taxes.
Clinchfield Coal Co., 10 FMSHRC 1493 (November
1988).

.

Payment shall be made to the Complainant
Perry Poddey within thirty (30) days of this
Remand Decision and Order .

.&Jik~
Act;i~strative

Law Judge

Distribution:
James Blair, Esq., Office of the Solicitor, U.S. Dept. of Labor,
4015 Wilson Blvd., Suite 516, Arlington, VA 22203
(Certified Mail)
Paul 0. Clay, Jr., Esq., Laurel Creek Road, P.O. Box 746,
Fayettville, WV 25840 (Certified Mail)
\mea

136

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE. 1Oth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN

8 1997

BUCK CREEK COAL, lNC.,
Contestant

v.

CONTEST PROCEEDINGS

:

Docket No. LAKE 94-255-R
Citation No. 3862187; 6/1/94

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

Docket No. LAKE 94-257-R
Citation No. 3862188; 6/1/94
Docket No. LAKE 94-268-R
Citation No. 4056453; 5 / 31/94
t

Docket No. LAKE 94-295-R
Citation No. 4259841; 5/28/94
.Docket No. LAKE 94-296-R
Citation No. 4259842; 5/28/94
Docket No. LAKE 94-297-R
Citation No. 4259843; 5/28/94
:
:

Docket No. LAKE 94-298-R
Citation No. 4259845; 5/28/94
Docket No. LAKE 94-377-R
Citation No. 4262302; 5/20/94

..
:

.
:

1 37

Docket No. LAKE 94-381-R
Citation No. 4262306; 5/20/94
Docket No. LAKE 94-392-R
Citation No. 4262318; 5/31/94
Docket No. LAKE 94-393-R
Citation No . 4262319; 5/31/94
Docket No. LAKE 94-409-R
Citation No. 4262370; 5/23/94

. Docket No. LAKE 94-410-R

Citation No. 4262371; 5/23/94

Docket No. LAKE 94-411-R
Citation No. 4262373; 5/23/94
Docket No. LAKE 94-452-R
Citation No. 4262124; 6/11/94

..
Docket No . LAKE 94-461-R
. Citation
No. 4262126; 6/13/94
.
. Docket No. LAKE 94-467-R
... Citation
No. 4261555; 6/14/94
Docket No. LAKE 94-468-R
. Citation
No. 4261556; 6/14/94
Docket No. LAKE 94-469-R
Citation No. 4261557; ~/14/94
Docket No. LAKE 94-470-R
Citation No. 4261558 ; 6/14/94
Docket No. LAKE 94-471-R
Citation No. 4261559; 6/14/94
Docket No. LAKE 94-472-R
Citation No. 4261560; 6/14/94
Docket No. LAKE 94-473-R

.. Citation No • 4261561; 6/14/94
. Docket No. LAKE 94-474-R
. Citation No . 4056790; 6/14/94
. Docket No. LAKE 94-476-R
. Citation No • 4056792; 6/14/94
.. Docket No. LAKE 94-477-R
. Citation No • 4056793; 6/14/94
Docket No. LAKE 94-478-R
. Citation
No • 4056794; 6/14/94
Docket No . LAKE 94-479-R
Citation No. 4056795; 6/14/94

138

. Docket No . LAKE 94-480-R

Citation No. 4056796; 6/14/94

Docket No . LAKE 94-481-R
Citation No. 4056797; 6/14/94

.
. Docket No. LAKE 94-482- R
.
. Citation No. 4056798; 6/14/94
. Docket No . LAKE 94-483-R
. Citation No. 4056799; 6/14/94
. Docket No. LAKE 94-485-R
. Citation No. 4056800; 6/15/94
. Docket No. LAKE 94-486-R
. Citation No. 4258861 ; 6/15/94
. Docket No. LAKE 94-487-R
. Citation No . 4261562; 6/15/94
.

.

. Docket No. LAKE 94-488-R t
. Citation No.

4261563; 6/15/94

Docket No. LAKE 94-489-R
Citation No. 4261564; 6/15/94
Docket No . LAKE 94-491-R
. Citation
No. 4262077 ; 6/15/94
Docket No. LAKE 94-493-R
Citation No. 4258862; 6/16/94

.
. Docket No. LAKE 94-494-R
. Citation No • 4258863; 6/16/94
.
. Docket No. LAKE 94-496-R
. Citation No • 4261566; 6/16/94
Docket No. LAKE 94-497-R
. Citation
No • 4261758; 6/16/ 94
Docket No. LAKE 94-501-R
. Citation
No • 4261901; 6/17/94
Docket No . LAKE 94-502-R
. Citation
No • 4262079; 6/17 / 94

139

Docket No. LAKE 94-506-R
Citation Nd. 3862539; 6/19/94
Docket No. LAKE 94-509-R
Citation No. 3862710; 6/19/94
Docket No. LAKE 94-510-R
Citation No. 3862711; 6/19/94
:

Docket No. LAKE 94-511-R

. Citation No. 3862712; 6/19/94
:

:

Docket No. LAKE 94-512-R
Citation No. 3862713; 6/19/94
Docket No. LAKE 94-513-R
Citation No. 3862714; 6/19/94

Docket No. LAK.E 94-514-R
. Citation
No. 3862715; 6/19/94
.

. Docket No. LAKE 94-515-R

Citation No. 3862716; 6/19/94

.. Citation
Docket No. LAKE 94-518-R
No. 4259232;
..

~/19/94

Docket No. LAKE 94-519-R
Citation No. 4259233; 6/19/94

:

Docket No. LAKE 94-521-R
Citation No. 3826719; 6/20/94
Docket No. LAKE 94-522-R
Citation No. 3859802; 6/20/94
Docket No. LAKE 94-523-R
Citation No. 4259234; 6/20/94
Docket No. LAKE 94-528-R
Citation No. 3861582; 6/21/94
Docket No. LAKE 94-529-R
Citation No. 3862720; 6/21/94

:

140

Docket No. LAKE 94-531-R
Citation No. 3861583; 6/22/94

.. Docket No. LAKE 94-532-R
. Citation
3861584; 6/22/94
. Docket No. LAKE 94-533-R
.
No ~

. Citation No. 3861585; 6/22/94
.. Docket No. LAKE 94-534-R
.. Citation No. 3861586; 6/22/94
.

Docket No. LAKE 94-536-R
.. Citation
No. 3861588; 6/22/94
. Docket No. LAKE 94-539-R

.. Citation No. 4261568; 6/22/94
Docket No. LAKE 94-540-R
Citation No. 4261567; 6/22/94
Docket No. LAKE 94-541-R
Citation No. 4261569; 6/22/94

..
Docket No. LAKE 94-542-R
. Citation
No. 4261570; 6/22/94
.
. Docket No. LAKE 94-544-R
:

Citation No. 4267425; 6/22/94

Docket No. LAKE 94-545-R
.: Citation
No. 4267426; 6/22/94
Docket No. LAKE 94-550-R
Citation No. 4261905; 6/24/94

.
. Docket No. LAKE 94-553-R
. Citation No . 4261944; 6/26/94
. Docket No. LAKE 94-557-R
Citation No. 4261881; 6/29/94
.
. Docket No. LAKE 94-572-R
:

Citation No. 4261951; 7/2/94

... Docket No • LAKE 94-573-R
. Citation No. 4050832; 7/5/94
.

Docket No . LAKE 94-576-R
.: Citation
No. 3037099; 7/5/94

141

Docket No. LAKE
. Citation
No. 4054808; 7/6/94
. Docket No. LAKE 94-578-R
. Citation No. 4054809; 7/6/94
94~577-R

Docket No. LAKE 94-579-R
Citation No. 4267448; 7/6/94
Docket No. LAKE 94-586-R
Citation No. 3847802; 7/7/94

.. Docket No. LAKE 94-587-R
. Citation No. 4267450; 7/7/94
Docket No. LAKE 94-588-R
.. Citation No. 4267451; 7/7/94
Docket No. LAKE 94-589-R
Citation No . 4267452; 7/8/94
t

Docket No . LAKE 94-613-R
Citation No. 4259795; 7/25/94

.. Docket No. LAKE 94-622-R

Citation No. 4259800; 7/26/94

. Docket No . LAKE 94-625-R

Citation No. 4260061; 7/27/94
Docket No. LAKE 94-627-R
Citation No . 4260063; 7/27/94.

.
. Docket No. LAKE 94-639-R

Citation No . 3843969; 8/2/94

.. Docket No. LAKE 94-672-R

Citation No . 4286052; 8/9/94
Docket No. LAKE 94-699-R

.. Citation No • 4260034; 8/31/94
Docket No. LAKE 94-703-R

. .. Citation No • 3844461; 8/18/94
Docket No. LAKE 94-717-R
Citation No. 4386056; 9/6/94

142

Docket No. LAKE 95-37-R
Citation ~o. 4260186; 10/5/94
:

Docket No. LAKE 95-38-R
Citation No. 4260187; 10/5/94
Docket No. LAKE 95-39-R
Citation No . 4260188; 10/5/94

...
Docket No. LAKE 95-63-R

. Citation No. 4260207; 10/7/94
. Docket No. LAKE 95-65-R
. Citation No. 4260192; 10/12/94

.. Docket No . LAKE '95-66-R

Citation No. 4260193; 10/12/94

. Docket No. LAKE 95-72-R
.. Citation
No~ 4262571 ; 10/12/94
.
Docket No. LAKE 95-82-R
. Citation
No. 4260215; 10/26/94
.
:
:

Docket No. LAKE 95-141-R
Citation No . 4259852 ; 11/22/94

:
:

Docket No. LAKE 95-153-R
Citation No . 9941923; 11/29/94

.

PII'AW.'I PICJSXQN

Before:

Judge Hodgdon

These cases are before me on Notices of Contest filed by
Buck Creek Coal, Inc., pursuant to section 105 of the Federal
Mine Safety and Health Act of 1977 , 30 u.s.c. § 815. With the
exception of Docket Nos. LAKE 95-63-R, LAKE 95-65-R and LAKE 9566-R, all of the notices pertain to violations for which either
no civil penalty has been assessed or Buck Creek has not
contested the penalty proposed . For the reasons set forth below,
I find the company in default, affirm the orders and citations,·
and dismiss the Notices of Contest .

143

These cases are several i n a long line of proceedings
involving Buck Creek. 1 At ~arious times during the past two
years proceedings in these cases have been stayed pending the
outcome of criminal actions brought by the U.S. Attorney against
the company. The criminal cases were completed in the spring of
this year when the company pleaded guilty to all 12 counts of the
indictment against it.
On May 1, 1996, counsel for the Secretary served
Interrogatories and a Request for Production of Documents on the
Respondent. On June 24, counsel filed a Motion to Compel stating
that Buck Creek had received the discovery requests on May 3, but
had not responded to them. Consequently, the Secretary requested
that the company be compelled to respond to the requests and that
if the company did not respond to the requests a default decision
be issued in the proceedings . Buck Creek did not respond to the
Motion to Compel.
Based on the Secretary's unopposed motion, an Order
Compelling Response to Discovery Requests was issued on Juty 29,
1996. Buck Creek was ordered to respond to the Secretary's
discovery requests within 21 days of the date of the order. The
company was further cautioned that "[f]ailure to respond will
result in the issuance of an Order of Default, without the
iaauance of a prior Order to Show Cauae . n

The order was sent by Certified Mail-Return Receipt
Requested to Chuck Shultise, President of Buck Creek; Randall
Hammond, Mine Superintendent; and Terry G. Farmer, Esq . , the
company's bankruptcy counsel . Ret urn Receipt Cards have been
received from all three indicating that the order was received on
either July 31 or August 1.
On September 17, 1996, the Secretary filed a Motion for an
Order of Default stating that as of that date the company had not
responded to the discovery requests. Therefore, the Secretary
requested that an order of default be issued. Buck Creek has not
responded to the motion.

1

Because of the number of cases involving Buck Creek,
Docket No. LAKE 94-72 was designated as the master docket for
filings in any of the cases . However, this decision identifies ,
in the capt ion , the specific docket numbers of the cases ·
i nvolved.

144

I am aware that Buck Creek is apparently in bankruptcy .
However, filing a petition in bankruptcy does not automatically
stay proceedings before the Commission or foreclose an entry of
judgment against the company . 11 U.S.C. § 362(b) (4); Holst
Excavating, Inc., 17 FMSHRC 101, 102 (February ·1995); Secretary
of Labor on behalf of Price v. Jim Walter Resources, Inc., 12
FMSHRC 1521, 1530 (August 1990 ).
Commission Rule 59, 29 C.F.R . § 2700.59, states that "[i]t
any person, including a party, fails to comply with an order
compelling discovery, the Judge may make such orders with regard
to the failure as are just and appropriate . • • . " Commission
Rule 66(a), 29 C. F. R. § 2700.66(a), requires that "[w]hen a party
fails to comply with an order of a Judge • •• an order to show
cause shall be directed to the party before the entry of any
order of default or dismissal."
In view of the Respondent's consistent failure to respond to
·the Secretary's discovery requests or motions regarding the
requests, I concluded that issuing an order to show cause before
issuing a default decision in these cases would be a futil~ act.
Consequently, I warned the Respondent in the order compelling
discovery that failure to respond would result in default without
going through the motion of issuing an order to show cause. The
Respondent's subsequent failure to respond to the order
compelling responses to the discovery requests or the Secretary's
motion for default demonstrate that that conclusion was correct .
Furthermore, by putting the warning in the order and sending it
Certified-Return Receipt Requested, the requirements of Rule
66 (a) were complied wi th •.
OIDQ

Based on the above, I find the Respondent, Buck Creek Coal,
Inc., XN DEFAULT in these cases . Accordingly, Citation No .
3862187 in Docket No. LAKE 94-255-R, Citation No. 3862188 in
Docket No. LAKE 94-257-R, Citation No. 4056453 in Docket No. LAKE
94-268-R, Citation No. 4259841 in Docket No. LAKE 94-295-R,
Citation No . 4259842 in Docket No. LAKE 94-296-R, Citation No.
4259843 in Docket No. LAKE 94-297-R, Citation No. 4259845 in
Docket No. LAKE 94-298-R, Citation No . 4262302 in Docket No . LAKE
94-377-R, Order No. 4262306 in Docket No. LAKE 94-381-R, Citation
No. 4262318 in Docket No. LAKE 94-392-R, Citation No. 4262319 in
Docket No . LAKE 94 - 393-R, Citation No. 4262370 in Docket No. LAKE
94 · 409-R, Citation No . 4262371 in Docket No. LAKE 94-410-R, Order
No. 4262373 in Docket No. LAKE 94-411-R, Citation No. 4262124 in
Docket No. LAKE 94-452-R, Citation No . 4262126 in Docket No. LAKE
94-461-R, Citation No . 4261555 in Docket No . LAKE 94-467-R,
Citation No . 4261556 in Docket No . LAKE 94-468-R, Citation No . ·

145

4261557 in Docket No. LAKE 94-469-R, Citation No. 4261558 in
Docket No. LAKE 94-470-R, Citation No . 4261559 in DOcket No. LAKE
· 94 - 471-R , Citation No . 4261560 in Docket No . LAKE 94-472-R,
Citation No . 4261561 in Docket No. LAKE 94-473-R, Citation No.
4056 790 in Docket No. LAKE 94-474 - R, Citation No . 4056792 in
Docket No . LAKE 94-476-R, Citation No. 4056793 in Docket No. LAKE
94-477 - R, Order No . 4056794 in Docket No . LAKE 94 - 478- R, Citation
No . 4056795 in Docket No . LAKE 94 - 479-R, Citation No. 4056796 in
Docket No . LAKE 94-480-R, Citation No . 4056797 in Docket No. LAKE
94-481-R, Citation No . 4056798 in Docket No . LAKE 94-482-R,
Citation No . 4056799 in Docket No. LAKE 94-483-R, Citation No.
4056800 in Docket No. LAKE 94-485-R, Citation No. 4258861 in
Docket No . LAKE 94-486-R, Citation No . 4261562 in Docket No . LAKE
94-487-R, Citation No. 4261563 in Docket No . LAKE 94-488-R,
Citation No. 4261564 in Docket No. LAKE 94-489-R, Order No.
4262077 in Docket No. LAKE 94·-491-R, Citation No. 4258862 in
Docket No . LAKE 94-493-R, Citation No. 4258863 in Docket No. LAKE
94-494-R, Citation No . 4261566 in Docket No. LAKE 94-496-R,
Citation No. 4261758 in Docket No. LAKE 94-497-R, Citation No .
4261901 in Docket No . LAKE 94-501-R, Order No. 4262079 in Docket
No . LAKE 94-502-R, Citation No. 3862539 in Docket No. LAKE 94506-R, Citation No. 3862710 in Docket No. LAKE 94-509-R, Citation
No. 3862711 in Docket No . LAKE 94-510-R, Citation No . 3862712 in
Docket No. LAKE 94-511-R, Citation No. 3862713 in Docket No . LAKE
94-512-R, Citation No. 3862714 in Docket No . LAKE 94-513-R,
Citation No. 3862715 in Docket No. LAKE 94-514-R, Order No.
3862716 in Docket No . LAKE 94 - 515-R, Citation No. 4259232 in
Docket No . LAKE 94-518-R, Citation No. 4259233 in Docket No. LAKE
94-519-R, Citation No. 3826719 in Docket No. LAKE 94-521-R,
Citation No. 3859802 in Docket No. LAKE 94-522- R, Citation No .
4259234 in Docket No . LAKE 94-523-R, Citation No . 3861582 in
Docket No. LAKE 94-528-R, Citation No. 3862720 in Docket No . LAKE
94-529-R, Citation No. 3861583 in Docket No . LAKE 94-531-R,
Citation No . 3861584 in Docket No . LAKE 94-532-R, Citation No.
3861585 in ·Docket No. LAKE 94-533-R, Citation No. 3861586 in
Docket No . LAKE 94-534-R, Citation No. 3861588 in Docket No . LAKE
94 - 536-R, Citation No. 4261568 in Docket No. LAKE 94-539-R,
·
Citation No . 4261567 in Docket No . LAKE 94-540-R, Citation No.
4261569 in Docket No . LAKE 94-541 - R, Citation No. 4261570 in
Docket No . LAKE 94-542-R, Citation No. 4267425 in Docket No . LAKE
94-544 - R, Citation No. 4267426 in Docket No . LAKE 94-545-R, Order
No . 4261905 in Docket No. LAKE 94-550-R, Citation No . 4261944 in
Docket No. LAKE 94-553-R, Citation No. 4261881 in Docket No . LAKE
94 - 557-R, Order No . 4261951 in Docket No. LAKE 94-572-R, Order
No. 4050832 in Docket No . LAKE 94-573-R, Order No . 3037099 in
Docket No . LAKE 94-576-R, Citation No . 4054808 in Docket No. LAKE
94-577-R , Citation No . 4054809 in Docket No. LAKE 94-578-R,
Citation No. 4267448 in Docket No. LAKE 94-579-R, Citation No .
3847802 in Docket No. LAKE 94-586-R, Order No. 4267450 in Docket
No . LAKE 94 - 587-R, Citation No . 4267451 in Docket No. LAKE 94588-R, Citation No . 4267452 in Docket No . LAKE 94-589-R, ·citation

146

No. 4259795 in Docket No. LAKE 94-613-R, Order No. 4259800 in
Docket No. LAKE 94-622-R, Order No. 4260061 ·iri Docket No. LAKE
94-625-R, Order No. 4260063 in Docket No. LAKE 94-627-R, Citation
No. 3843969 in Docket No. LAKE 94-639-R, Citation No. 4286052 in
Docket No. LAKE 94-672-R, Order No. 4260034 in Docket No. LAKE
94-699-R, Order No. 3844461 in Docket No . LAKE 94-703-R, Order
No. 4386056 in Docket No. LAKE 94-717-R, Citation No. 4260186 in
Docket No. LAKE 95-37-R, Citation No. 4260187 in Docket No. LAKE
95-38-R, Citation No. 4260188 in Docket No. LAKE 95-39-R, Order
No. 4260207 in Docket No . LAKE 95-63-R, 2 Citation No. 4260192 in
Docket No. LAKE 95~65-R , 3 Order No. 4260193 in Docket No . LAKE
95-66- R, 4 Order No. 4262571 in Docket No . LAKE 95-72-R, Order No .
4260215 in Docket No . LAKE 95-82-R , Order No. 4259852 in Docket
No . LAKE 95-141-R, and Citation No. 9941923 in Docket No. LAKE
95-153-R are AFFIRMED and the Notices of Contest are DISMISSED .

~t:>J'IN.~

T. Todd
~
Administrative Law Judge

a':;j/;;

This order was affirmed in a Default Decision encompassing
Docket No . LAKE 95-214 issued on November 1~ 1996. Buck Creek
Coal, Inc . , 18 FMSHRC 1925 (November 1996).
2

This citation was affirmed in a Default Decision
encompassing Docket No. LAKE 95-111 issued on December 27, 1996 .
Buck Creek Coal, Inc., 18 FMSHRC ____ (December 1996).
3

• This order was affirmed in a Default Decision encompassing
Docket No. LAKE 95-206 issued on November 1, 1996 • . Buck ·creek ·
Coal, Inc., 18 FMSHRC 1925 (November 1996).

147

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 S. Dearborn St., 8th Floor, Chicago, IL 60604
(Certified Hail)
Hr. Chuck Shultise, President, Buck Creek Coal Co., Inc., RR5,
Box 203, Sulliv~n, IN 47882 (Certified Hail)
Mr. Randall Hammond, Superintendent, Buck Creek Coal Co., Inc.,
2156 S. County Rd., 50 West St., Sullivan, IN 47882 (Certified
Hail)
Terry G. Farmer, Esq., Bamberger, Foreman, Oswald, & Hahn,
708 Hulman Bldg., P.O. Box 657, Evansville, IN 47704 (Certified
Hail)
/lt

148

PBDBRAL IUD SAPBTY Mm BBALTJI REVIEW COJOUSSl:Oit
1244 SPEER BOULEVARD #280 ·
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268

JAN 1 3 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING

.
:

v.

.
:

FALKIRK MINING COMPANY,
Respondent

.

'

Docket No. CENT 96-81
A.C. No. 32-00491-03514
Falkirk Mine

:

DBCl:SIOM

Appearances:

Kristi L. Floyd, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Andrews. Good, Esq., North American Coal
Corporation, Dallas, Texas, for Respondent.

Before:

Judge Manning

This case is before me on a petition for assessment of a
civil penalty filed by the Secretary of Labor, acting through the
Mine Safety and Health Administration ("MSHA"), against Falkirk
Mining Company ("Falkirk"), pursuant to sections 105 and 110 of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. SS 815
and 820. The petition alleges one violation of the Secretary's
safety regulations.
A hearing was held in Washburn, North Dakota. The parties
presented testimony and documentary evidence, · but waived posthearing briefs. For the reasons set forth below, I affirm the
citation and assess a civil penalty of $50.
I.

DISCUSSION Wl:TB PIHDINGS OP PACT AHD CONCLUSIONS OP LAW

A.

Background

Falkirk operates the Falkirk Mine, a surface coal mine, in
McLean County, North Dakota. On September 13, 1995, MSHA inspector Calvert Browning issued Citation No. 4058725 to Falkirk
alleging a violation of 30 C.F.R. S 77 . 502 . The citation states:
The electrical power connections were
unguarded and exposed where the welding leads
connected to the generator mounted on the 369
149

belt maintenance truck. Adequate examinations were not made to disclose a potentially
dangerous condition.
on November 5, 1995, MSHA issued a subsequent action notice
for the citation , which states as follows:
Citation No. 4058725, issued on 09-1395, tor a violation of 77.502, was modified
during a Health and Safety Conference held
10-27-95. Mitigating information provided by
the operator and the results of the conference were as follows:
The Part and Section of Title
30 CPR was modified to indicate the
proper standard. The electrical
connections were not insulated to
the saae degree of protection as
the remainder of the wire.
Section I, item 9c is aodified to
indicate 77.504.
Section 77.504, entitled "Electrical Connections or Splices;
Suitability,• provides:
Electrical connections or splices in
electric conductors shall be mechanically and
electrically efficient, and suitable
connectors shall be used. All electrical
connections or splices shall be reinsulated
at least to the same degree of protection as
the remainder of the wire.
Inspector Browning determined that the alleged violation was
neither serious nor of a significant and substantial nature
("S&S"). He also determined that Falkirk's negligence was
moderate. The Secretary proposed a penalty of $50 for the
citation.
The basic facts in this case are not in dispute. The cited
equipment is a welding machine that generates DC current for
welding operations. Two posts are on the front of the welding
machine (the "welder"), one marked positive and the other marked
negative. These posts are recessed from the vertical plane of
the front of the welder. Welding leads are attached to each of
the posts with lugs . The lugs are placed around the posts and
tightened. A nut i s also attached to the top of each post. An

150

insulated wire is attached to each lug. These wires are welding
leads that are used in welding operations .
On the day of the inspection, the positive lead was insulated with insulating material. The positive post and lug were
insulated by their recessed position. An insulating sleeve was
present where the wire entered the lug. The area where the
negative lead attached to the welder was not fully insulated. A
bare conductor ~as present where the welding lead entered the lug
because an insulating sleeve was not present. Part of this bare
conductor was outside the vertical plane of the front of the
welder. The conditions at the welder are depicted in Ex. G-7.
B.

Arguments of the Parties

The Secretary contends that he established a violation
because the electrical connection on the negative side was not
reinsulated to the same deqree of protection as the remainder of
the wire as required by section 77.504. The Secretary relies on
the plain language of the standard and the deference that is owed
his reasonable interpretations of safety standards.
Falkirk argues that the Secretary's interpretation of the
safety standard is not reasonable. First, it contends that the
application of the standard is limited to splices and similar
electrical connections. It argues that the cited area was
neither a splice nor an electrical connection. Second, it
contends that because the cited area was never insulated, the
standard does not apply. Section 77.504 requires wires to be
"reinsulated" where they have been stripped of insulation to make
a splice or similar connection. Third, Falkirk argues that the
Secretary did not require it to insulate the alleged electrical
connection to abate the citation.
Finally, Falkirk argues that the Secretary failed to provide
the mining community with notice of his interpretation of the
safety standard. It states that the Secretary's witness could
not think of a single MSHA document that supports the Secretary's
interpretation of the standard. Falkirk also maintains that MSHA
did not make any other attempt to provide notice of his interpretation. In addition, it notes that the Secretary's witness was
unaware of any other citations issued by MSHA under similar conditions prior to September 1995. 1
1

Falkirk raised other issues in a motion for summary
decision. I ruled on these issues in an order denying Falkirk's
motion. Falkirk Mining co. , 18 FMSHRC 1521 (August 1996). At
the time I issued that order, genuine issues of material fact had
not been resolved. Accordingly, any findings and conclusions
contained in that order that are inconsistent with this decision
are hereby superseded .

151

C.

Analysis of the Issues

I find that the Secretary's interpretation of section 77.504
is reasonable and is supported by the ·plain language of the
standard. Thus, I do not consider issues of deference.
Mr. Terrance D. Dinkel, an electrical engineer with MSHA's Denver
Safety and Health Technoloqy Center, testified that the cited
area is an electrical connection as that term is used in the
standard. He defined an electrical connection as a connection of
an insulated wire to another insulated wire or to a piece of
electric equipment to allow electric current to flow through the
connection. (Tr. 14-16, 22, 37-38). Examples of electrical
connections include a splice, a junction box, a plug in an electric outlet, and an insulated wire attached to a terminal of a
light switch.
The safety standard states on its face that it applies to"all electrical connections." The term "electrical connection"
is not so complicated that it necessarily requires the Secretary
to provide written policy guidance to mine operators. An electrical connection, as applicable here, is simply a connection
between an insulated wire and a piece of electric equipment which
allows current to flow either from the wire to the equipment or
from the equipment to the wire. An electrical connection need
not be a splice between two wires. The connection must include
at least one insulated wire to be covered by the standard, however. Connections between uninsulated wires or between an
uninsulated wire and a piece of electric equipment are not
required to be "reinsulated" at the point where they are
connected. (Tr. 15).
The connection between the welder and a welding lead is
clearly an electrical connection. (Tr. 62-63). The welder
generates DC current. This current passes through the electrical
connection to the end of the welding lead. As explained above,
the connection is very similar to the connection on an automobile
or truck battery. The lead is attached to a post on the welder
by means of a lug that is tightened to the post. The electricity
passes through the post, through the lug, and into the lead. The
lead is an insulated wire . Thus, I find that the cited connection is an electrical connection in insulated wire as that phrase
is used in the standard.
The cited standard requires wires to be reinsulated at electrical connections. Falkirk maintains that because the area
where the leads connect to the welder (the "terminals") had never
been insulated, the standard cannot apply. How can you reinsulate something that was never insulated in the first place? It
is clear that the posts and the lugs on the welder were never
insulated in the sense of an insulating material being applied to
them. It is not clear whether the bare conductor at the negative
post was ever insulated. Mr. Dinkel testified that there are two

152

basic ways to insulate connections under section 77.504. First,
insulating material can be placed around the connection. (Tr. 2325, 52-54). Second, the connection can be insulated by isolation. Id. For example, the connection can be placed in a
junction box or an air gap can be created by recessing the
connection. Id.
Mr. Dinkel testified that, at the time the citation was
issued, the post~ and part of the lugs were insulated by isolation. (Tr. 27-31). These parts of the connection were
recessed from the vertical plane of the front of the welder.
He testified that although someone could deliberately come in
contact with the posts, they were protected by location and were
therefore insulated. That part of the lug on the positive side
that protruded outside of the vertical plane of the welder was
protected by an insulating sleeve. Part of the lug on the negative side also protruded outside the vertical plane of the
welder, but this area had not been reinsulated with an insulating
sleeve. Id. The sleeve was either missing from the negative ·
welder lead or a lead without such a sleeve had been installed.
Dinkel testified that it was this lug and the bare wire entering
the lug that was not reinsulated as required by the standard.
Thus, according to Mr, Dinkel, Falkirk was not required to
"reinsulate" those areas of the terminals that were recessed
because they were already insulated by location. (Tr. 58). or,
to put it another way, Falkirk actually reinsulated these areas
of the terminals because they were recessed behind the vertical
plane of the welder. Dinkel testified that Falkirk was only
required to reinsulate the lug on the negative side where the
insulating sleeve was not present. I credit Mr. Dinkel's testimony in this regard . Id.
Falkirk also arques that the Secretary did not require it to.
insulate the terminals to abate the citation. Falkirk abated the
citation by installing a rubber flap in front of the terminals.
I find that Falkirk reinsulated the terminals when it abated the
citation. Mr. Dinkel's broad definition of insulation would
include the rubber quard that Falkirk installed. The quard provided physical separation and the quard was made of an insulating
material.
Finally, Falkirk contends that the Secretary failed to provide any notice to the mining community of its requirement that
terminals on welders are electrical connections that must be
reinsulated. As stated above, I have determined that the Secretary's interpretation of section 77.504 is supported by the plain
language of the standard. Ordinarily, when the plain language of
safety standard supports a violation, the Secretary is not
required to show that he provided additional notice of the
requirements of the standard. Nevertheless, the language of the
standard is "simple and brief in order to be broadly adaptable .to

153

myriad circumstances . • Kerr-McGee Corp., 3 FMSHRC 2496, 2497
(November 1981) ; Alabama By-Products corp .• , 4 FMSHRC 2128, 2130
(December 1982) . such broad standards must afford reasonable
n9tice of what is required or proscribed. U.S. Steel Corp . , 5
FMSHRC 3, 4 (January 1983). 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.'" Ideal Cement Co., 12
FMSHRC 2409, 2416 (November 1990)(citation omitted). A safety
standard must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibi ted, so that he may act
accordingly . " Lanham Coal Co., Inc., 13 FMSHRC 1341, · 1343
(September 1991)(citation omitted). In this context, the
Commission further explained : ·
When faced with a challenge that a
safety standard failed to provide adequate
notice of prohibited or required conduct, the
co. .ission has applied an objective standard ,
i.e., the reasonably prudent person test.
The comaission recently summarized this test
aa "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 . "

Id.

(cita~ions

omitted) .

I find that a reasonably prudent person would have recognized that the terminals on a welder that generates electricity
are electrical connections in insulated wire and that section
77.504 requires that these terminals be insulated to prevent
·inadvertent contact with the terminals by persons working in the
area . As stated above, the plain language of the standard states
that "(a]ll electrical connections •• • in insulated wire shall be
reinsulated at least to the same degree of protection as the
remainder of the wire . " Given the Secretary's broad, commonsense definition of the term insulation set forth by Mr. Dinkel,
a reasonable prudent person would have recognized that the missing sleeve on the lug attached to the negative post needed to be
replaced to cQmply with the safety standard . Additional explanation or interpretation of the standard by the Secretary was not
necessary in this instance.
In addition, a safety booklet published by the American
Welding Society entitled "Safety in Welding and cutting," makes
clear that the accepted industrial safety practice is to protect
terminals for welding leads from "accidental electrical contact . "
(Tr. 19-20, 48-49, 61-62; Ex. G-5). This document is consistent
with the testimony of Mr. Dinkel .

154

o.

Ciyil Penalty Assessment

Section 110(i) ·of the Mine Act sets forth six criteria I
must consider in determining the appropriate civil penalty.
Based on this criteria, I assess a civil penalty of $50 for the
violation. Falkirk was issued 9 citations in the 20 months
preceding the inspection in this case. (Ex. G-1). None of the
citations were S&S. It appears that the mine produced 26,000
tons of coal and ·employed 251 individuals. Id. I find that the
Falkirk Mine is a small to medium sized operation. The violation
was promptly abated ·in good faith.
I find that the violation was not serious or S&S. Only a
small area of the electrical connection was exposed. In addition, the area that was exposed would generally be the ground for
the welder and would not pose a safety hazard. (Tr. 59). A
hazard would be presented only if negative welding was being
performed with the welder. In such an instance, the voltage
between the negative terminal and the earth would be approximately 75 volts. (Tr. 55). There is no evidence that negative
welding ever occurs at the mine. (Tr. 64). 2
I find that Falkirk's negligence was low. There is no
evidence that the mine's employees were inattentive to safety in
general or believed that the condition of the welder presented a
safety hazard. As stated above, there is no showing that the
cited condition presented a serious hazard to employees.
II.

ORDER

Accordingly, Citation No. 4058725 is AI'I'IRMBD and Falkirk
Mining Company is ORDERED TO PAY the Secretary of Labor the sum
of $50.00 within 40 days of the date of this de ·

Richard w. Manning
Administrative Law Judge
2

To establish a violation of a safety standard, the
Secretary is not required to prove that the violation contributed
to a safety hazard. Asarco Inc. v. FMSHRC, 868 F.2d 1195, 1197
(lOth Cir. 1989); Allied Products Co., 666 F.2d 890, 892-93 (5th
Cir. 1982). The degree of the hazard is taken into consideration
when assessing a civil penalty.

155

Distribution:
Kristi L. Floyd, Esq., Office of the Solicitor, u.s. Department
of Labor, 1999 Broadway, Suite 1600 , Denver, co 80202-5716
(Certified Mail)
Andrew s. Good, Esq., NORTH AMERICAN COAL CORP., 14785 Preston
Road, Suite 1100, Dallas, TX 75240-7891 (Certified Mail)
RWM

156

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

JAN 1 3 1997

KENNETa L. DRIESSEN,
Complainant
v.

DISCRIMINATION PROCEEDING

NEVADA GOLDFIELDS INC. ,
Respondent

WE MD 96-08
Nixon Fork Mine

Docket No. WEST 96-291-DM

DECIS];ON

Appearances :

Patrick J. Blackburn, Esq., Anchorage, Alaska, for
Complainant;
Parry Grover, Esq., Davis Wright Tremaine LLP,
Anchorage, Alaska, for Respondent.

Before :

Judge Hodgdon

This case is before me on a Complaint of Discrimination
brought by Kenneth L. Driessen against Nevada Goldfields, Inc.,
under section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(c). For the reasons set forth below, I
find that while the Complainant may have engaged in activities
protected under the Act, he was not discharged by Nevada Gold
Fields for engaging in those activities.
Driessen filed a discrimination complaint with the Secretary
of Labor's Mine Safety and Health Administration -(MSHA) pursuant
to section 105(c) (2) of the Act, 30 U. S.C. § 815{c) {2), 1 on March
4, 1996. On June 4, 1996, MSHA informed both the company and the
Complainant that on the basis of its investigation it had
determined that •the complainant was not discriminated against _in

1

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

157

violation of Section 105(c) ." (Resp. Ex. C.) Driessen then
instituted this proceeding before the Commission, on July 2,
1996, under section 105(c) (3), 30 U.S . C. § 815(c) (3) . 2
A hearing on the complaint was held on November 13, 1996, in
Anchorage, Alaska . 3
Background

The Nixon Fork Mine, in the central interior of Alaska,
began mining operations in October 1995. It has 50 employees and
produces gold and some silver and copper. The only access to the
mine is by air; everything brought in or shipped out is by
airplane. The ore comes out ·of the mine in rocks which are then
conveyed through crushers, ball mills and other processors until
it is shipped out as bagged concentrate or dore ingots.
The miners work 12-hour shifts, seven days a week . The
shifts begin at 7:00 a.m. and 7:00 p.m. The miners work either
two weeks on, one week off, or four weeks on, two weeks off .
Kenneth Driessen began working at the mine on October 23,
1995, as a mechanic . On December 8, 1995, he was promoted to
Senior Mechanic. He was fired on February 7, 1996 .
Findings of Pact and Conc;lu1iona of Law

In order to establish a prima facie case of discrimination
under Section 105(c) of the Act, 4 a complaining miner bears the
2

Section 105(c) (3) provides, in pertinent part, that: If
the Secretary, upon investigation, determines that the provisions
of this subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's
determination, to file an action in his own behalf before the
Commission . . . . •
8

3

At the hearing the parties elected to make final arguments
and waive the filing of proposed findings of fact and conclusions
of law. (Tr. 200.) On December 17, 1996, Driessen •taxed" to my
office a letter which he characterized on the cover sheet as •a
few afterthoughts.• As the parties decided not to file briefs
and the record was not kept open to receive additional evidence,
I have neither read nor considered this letter.
·
Section 105(c) (1), 30 u.s.c . § 815(c) (1), of the Act
provides that a miner cannot be discharged, discriminated agai~st
4

158

burden of establishing (1) that he engaged in protected activity
and (2) that the adverse action complained of was motivated in
any part by that activity . Secretary on behalf of Pasula v.
Consolidation Coal Co ., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom . Consolidation Coal Co . v. Marshall, 663
F.2d 1211 (3rd Cir . 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (April 1981) f Secretary on
behalf of Jenkins v . Hecla-Day Mines Cor,p., 6 FMSHRC 1842 {August
1984); Secretary on behalf of Chacon v ·. Phelps Dodge Cor,p . , 3
FMSHRC 2508 (1981), rev'd on other ground~ sub nom. Donovan v .
Phelps Dodge Cor,p ., 709 F . 2d 86 (D . C. Cir . 1983).
The operator may rebut the prima facie case by showing
either that no protected activity occurred or that the adverse
action was in no part motivated by the protected activity.
Pasula, 2 FMSHRC at 2799-800 . If the operator cannot rebut the
prima facie case in this manner, it nevertheless may defend
affirmatively by proving that it was also motivated by the
miner's unprotected activity and would have taken the adverse
action for the unprotected activity alone . Id . at 2800;
Robinette, 3 FMSHRC at. 817-18; see also Eastern Assoc . Coal Cor,p.
v. PMSRRC, 813 F.2d 639, 642 (4th Cir . 1987); Donovan v. Stafford
Const. Co . , 732 F.2d 954, 958-59 (D.C . Cir . 1984); Boich v.
PMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983) (specifically
approving the Commission ' s Pasula-Robinette test ) .
In his complaint with MSHA as well as in his complaint
before the Commission, Driessen claims to have twice engaged in
protected activities. The first occurred on January 24, 1996 ,.
when he advised the mill superintendent that it would be .
dangerous to start up the No. 1 ball mill . The second transpired
on the morning of February 7, 1996, when he informed company vice
pres~dent Joe Kercher what problems he believed still existed
with the No . 1 Ball Mill. The Complainant maintains that, as a
result of bringing to the company's attention what he considered
fn . 4 (continued)
or interfered with in the exercise of his statutory rights
because: (1 } he •has filed or made a complaint under or related
to this Act, including a complaint . . . of an alleged danger or
safety or health violation;~ (2) he •is the subject of medical
evaluations and potential transfer under a standard published .
pursuant to section 101;~ (3) he "has instituted or caused to be
instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding;• or, {4)
he has exercised •on behalf of himself or others . . . any
statutory right afforded by this Act . "

159

to be danger9us situations, he was fired shortly after talking
with Kercher .
Not surprisingly, the company views the matter differently .
It is the company's position that Driessen was assigned three
specific tasks on the night of February 6 and the morning of
February 7 and that he failed to complete any of them ., In fact,
the Respondent asserts that not only did the Complainant fail to
do what he was assigned, but he spent his time working on matters
on which he was told not to work . Consequently, the company
contends that Driessen was terminated for insubordination and
that his safety complaints were not considered at all.
I find that the Complainant engaged in protected activity,
but that he has not established that he was fired because he
engaged in that activity. I .find that the Respondent's
explanation of events is the more believable one. Therefore , I
conclude that Driessen was not terminated in violation of section
lOS (c ) •

Driessen testified that on ·January 24, while working on the
night shift, he was assigned to •clean [the No. l Ball Mill] and
grease it, and put it back together as it was.• (Tr. 20 . ) He
stated that while he was performing this task -he observed .defects
in parts of the ball mill which lead him to conclude that it
would be dangerous to restart the machine.· The Complainant
related that in the early morning hours of January 25 he told
this to Mike Rusesky, the mill superintendent, who decided,
without consulting anyone else, not to restart the ball rnill. 5
Driessen claimed that Ted Botnan, the maintenance supervisor
and his direct supervisor, reproached him the next day for
shutting down the mill . He testified :
And he said some - something. This is
paraphrased because I can't get his exact words , but
part of it is his exact words. He had said by making
this decision to call it unsafe was a million dollar
call, and that I should have not made that decision or
made that statement on my own. And be also said that
if there was any other problems of this type that were
either dangerous or - or severe, you know, equipment
problems, that I would talk only to him about these
problems .
(Tr. 22. )
5

Driessen testified that the ball mill was not restarted
because he had advised that it was a dangerous situation •and it
was not totally put back together and ready to go at that time . "
{ T r. 2 1. )

160

In fact, . both Botnan and Mel Swanson, · the Mine Manager, were
upset that they had not been informed that the ball mill was
going to be shut down. Rusesky testified that Swanson got mad at
him for not informing him right away. Botnan testified with
regard to his discussion with Driessen:
I told him that if you're going to make these
million dollar decisions, please get me involved in it,
you know, we'd like to go through the standard
procedures . . If you're going to shut down the mill, you
know, I'd like to know about it. I don't want to find
out about it when I wake up in the morning, you know, I
am part of this, and Mel has to authorize any of these
things. If you're going to make these big decisions,
please go through the normal channels.
(Tr. 140.)
As can be seen, both Botnan's and Driessen's versions of the
incident are essentially the same. Viewing the matter
objectively, it is apparent that what Botnan and Swanson were mad
about was not being awakened and consulted before a decision to
shut the mill down was made, not that Driessen had raised safety
matters. Thus, I find that Driessen's subsequent conclusion that
he was being admonished because he had a safety concern about the
ball mill was mistaken. His claim, first articulated at the
hearing, that Botnan threatened to fire him if he talked to
anyone but Botnan about such problems is not corroborated by any
other evidence and certainly cannot be inferred from what
Driessen maintains that Botnan said to him . 6
Turning to February 6, it was Driessen's testimony that he
was assigned to troubleshoot the ball mill and not given any
other assignments. His testimony, however, was so filled with
inabilities to recall, irrelevancies, blanks, inconsistencies and
lack of corroboration that it lacks credibility. The following
are some examples of his testimony.
On direct examination, he was questioned about what he was
told to do and the following colloquy took place:
Q. Were you given any specific orders for that night
other than to troubleshoot the piece of equipment which
you had already testified to?
6

It is not clear from the evidence when Driessen arrived at
the conclusion that Botnan was threatening him for raising a
safety issue. There is no evidence that the incident was
mentioned again, or that Driessen took any actions because of the
incident, until Driessen was fired and filed his discrimination
complaint.

161

A. There i s - it's not up for exhibit , but there was
a shop log which also c·o ntained work projects ·to do,
and there was a big loader tire that was, you know, it
was mentioned that we had to keep filling it up with
air, and . . . .
Q.

Did you

A.

. I think it was .

Q.

. . . in fact do that?

A. . . . in fact flat. I - I did not. There was
also another mechanic on duty, and- there was at
least another mechanic on duty. I did not - I do not
believe I worked on that loader tire .
But had you been given instructions to work on that
loader tire?

Q.

A. The loader tire was on our list of things to do,
and there was also other things on the list such as the
water . We were having problems with the water freezing
up and - and running out of water. And so I - as I
remember, I be- - I worked on the mill and on the
water. And there was sometimes other little chores,
like if a miner needed some piece of equipment or
whatever looked at, there might have been a few other
things that I did.

(Tr. 31-32 . )
loader tire.

Later on he claimed that he did help work on the

With regard to cutting the intake spout, or flange, to the
ball mill, Driessen seemed to have trouble recalling what
occurred . Thus, he testified : •I do not think that I cut the
flange. I said that it should be cut or moved, but at that night
I do not recall cutting any flange . • (Tr. 32.) Later on the
following discussions took place :
Judge :
A.

Was [the flange] cut?

I don't think that the

that I cut that . . .

Judge :

I ' m not asking

A.

. flange that night.

Judge :

. . . if you cut it.

Was it cut?

A. I don't - I don't know . I don ' t think-~ don 't
think so be- - becaus.e I didn't even want it to be

162

cut. l wanted the flan- -the- the fill pipe to be
moved or it to be aligned so that if could be tight.
Q.
(By Mr. Grover.) You don't remember whether it was
cut or not. Is that what you're saying?

A. Yeah. I don't think I cut it because that rubber
was awful darn thick .

Mr . Driessen, Mr . Swanson and Mr . Botnan are going
to testify· the next morning when they got up they found
that the flange had been cut. They found a half-moon
piece of rubber cut laying [sic) on the ground
underneath the mill. Do you have any idea how that
happened?
Q.

I'm- I'm trying to think, you know, I was doing
my best to try and get that thing going, and .. . .
A.

So you don't recall .
happened?

Q.

A.

I can't say.

I -

You just can't say how that

I don't know .

(Tr. 62-63, 65-66.)
Finally, he testified, •I'm like in lack of
memory on it, and I - I really don't think I cut it. And if I
did, it was maybe a - I don't think I cut it. ~ really don't
think I cut it that night . " (Tr. 97 . )
Conversely, .Botnan and Swanson testified that after letting
Driessen try various remedies to get the mill running again, none
of which worked, they became convinced that the problem was
.
electrical. ' Accordingly, sometime around 10:30 or 11:00 p.m. on
February 6, they told Driessen to stop working on the ball mill.
Swanson testified:
·
He - he was instructed to tighten up the feed
chute tube, put that back as it was, put the coupling
back together, put the guard back on it, and that was
it. That would make the mill operative when we
determined what the other problem was . And he was
given specific instructions to get that loader tire
fixed because it is ou~ prime mover on the site.

7

They were correct . The electrical problem was corrected
by the electrician the next day and the ball mill had run without
incident up through the date of the trial.

163

During the discussion and throughout the evening,
we fixated on this rubber seal, and he pointed ·out that
it was out of alignment and yeah, that was - we knew
that, but it had never been a problem other than it
does wear and it leaks, and so we replace those things
every four to six weeks. And we had j~st -day shift
had just spent about four hours fabricating a new ..one
and installing it. And he and I had a bit of a
discussion. He pointed out that the mill foundation
was sinking, and - and I said no, it if was sinking
then the floor must be sinking with it because I don't
see any differential sinking here.
And some other, you know, strange discussions that
had already made up my mind that it was an
electrical problem. I w~nt to wait for the
electrician. And he wanted to make - he suggested
cutting this flap to release that binding, and we
determined though that that was not the problem. The
thing failed to function when we had it relieved. And
instructions were specifically given, •oo not touch
that seal. Do not cut that seal.•

-

I

(Tr. 182-83.)
Botnan and Swanson testified that when they arrived at the
mill on the morning of February 7, Driessen was working on some
drawings of the ball mill. On going to the mill, they found that
the chute bad not been tightened up to the mill, the flange had
been cut, the coupling had not been put back together, and
nothing had been done on the loader tire since Botnan had blocked
it and taken off some of the lug nuts the night before. After
discussing the matter between themselves and with Joe Kercher,
they decided to fire Driessen because -we had given him three
specific instructions on what to do and he failed to do them, and
he had done a project that he was, you know, he was not
instructed to do.• (Tr. 186.)
Driessen bears the burden of proving that he was fired for
engaging in protected activities. While in is own mind he may
have convinced himself that this was why he was fired, his
rambling, contradictory, inconsistent and somewhat illogical
testimony has not convinced me. Furthermore, his story is not
supported by any corroborating witnesses or evidence. I find
that the Complainant's conclusions that it would be dangerous to
operate the ball mill on January 24 and February 6 - 7 had no
bearing on his being terminated. I conclude that he was fired,
as claimed by the Respondent, because he was insubordinate.
Consequently, he was not discriminated against because he engaged
in protected activity.

164

QRDER
Accordingly, since the Complainant has .failed to . show that
he was terminated for engaging in activity protected under the
Act, it is ORDERED that the complaint of Kenneth L. Driessen
against Nevada Goldfields, Inc . , under section 105(c) of the Act,
is DISMISSED.

\./.~~

T. Todd H6d~
Administrative Law Judge

Distribution:
Patrick J. Blackburn, Esq., 700 W. 41st Ave., #203, Anchorage,
99503 (Certified Mail)

AK

Parry Grover, Esq., Davis Wright Tremaine LLP, 550 W. 7th Ave. ,
Suite 145 0, Anchorage, AK 99501 (Certified Mail )
/lt

165

PBDBRAL KINE SAPBTY AND BBALTB RBVZBW COKNl:SSXON
OffJC£ Of AIMIIIJSTIATJVE LAW .IUIGf$2 IKYLJN£, 10th fLOOR
5203 LEESBURG PIKE
fALLS CNURCH, VJIGJNJA 22041

JAN 2 3 1997
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of .LQNNIE BOWLING,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. KENT 95-604-D
MSHA Case No. BARB CD 95-11
Mine ID No. 15-17234-NCX
Huff Creek Mine

MOUNTAIN TOP TRUCKING CO ., INC.,
ELMO MAYES; WILLIAM DAVID RILEY;
ANTHONY CURTIS MAYES; and MAYES
TRUCKING COMPANY, INC . ,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
on behalf of
EVERETT DARRELL BALL,
Complainant

DISCRIMINATION PROCEEDING
Docket No . KENT 95- 605-D
MSHA Case No. BARB CD 95-11
Mine ID No. 15-17234-NCX
Huff Creek Mine

v.

MOUNTAIN TOP TRUCKING CO., INC.
ELMO MAYES; WILLIAM DAVID RILEY ;
ANTHONY CURTIS MAYES; and MAYES
TRUCKING COMPANY, INC.,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of WALTER JACKSON
Complainant
v.

DISCRIMINATION PROCEEDING
:

Docket No. KENT 95-613-D
MSHA Case No. BARB CD 95-13
Huff Creek Mine

MOUNTAIN TOP TRUCKING CO . , INC.,
ELMO MAYES; and MAYES TRUCKING
COMPANY, INC. ,
Respondents

166

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of DAVID FAGAN,
Complainant
I

Docket No . KENT 95-615-D
MSHA' Case No . BARB CD 95-14
Huff Creek Mine1

v.

MOUNTAIN TOP TRUCKING CO ., INC.,
ELMO MAYES; WILLLIAM DAVID RILEY
ANTHONY CURTIS MAYES; and MAYES
TRUCKING COMPANY, INC . ,
·
Respondents
DECXSXON QN LXABXLJTX

Appearances :

Donna E. Sonner, Esq . , Office of the Solicitor, .
U.S. Department of Labor, Nashville, · Tennessee,
for the Complainants;
Tony Oppegard, Esq., Mine Safety Project of the
Appalachian Research & Defense Fund of Kentucky,
Inc., Lexington, Kentucky, for the Complainants;
Edward M. Dooley, Esq . , Harrogate, Tennessee, . for
the Respondents .

Before:

Judge Feldman

These consolidated discrimination proceedings are before me
as a result of complaints filed by the Secretary on behalf of
Lonni e Bowling, Darrell Ball, Walter Jackson and David Fagan,
pursuant to section 105(c) (2) of the Mine Safety and Health Act
of 1977 (the Act) , 30 U.S.C. § 815(c) (2) . The complaints were
filed against the captioned Respondents, Mountain Top Trucking
Company, Inc., (Mountain Top) , Mayes Trucking Company, Inc.,
(Mayes Trucking), Elmo Mayes (Elmo), Anthony Curtis Mayes (Tony);
and William David Riley (David Riley) . Also before me are
amended discrimination complaints, filed by the Secretary on
September 15, 1995, seeking to impose total civil penalties of
$9,000 on the respondents, consisting of a $3,000 civil penalty
for each of the three alleged violations of section 105(c) that
are the subject of these proceedings .
On October 5, 1995, I issued a Decision ordering Mayes
Trucking, as the successor of Mountain Top, to temporarily

The Huff Creek mine and the Darby Fork mine are
essentially adjacent mine sites located along State Road 38 .
Previous captions in these proceedings noted Darby Fork as the
mine site . The caption has been corrected to reflect the
complainants were engaged in hauling coal from the Huff Creek
facility.
1

167

reinstate Bowling to his former pQsition ~s a haulage truck
driver at the same rate of pay and with the same work
hours as .
the other truck drivers at the Huff Creek mine site. 2 17 FMSHRC
1695, 1709. Bowling was never reinstated and the Secretary
brought no action in his behalf to enforce the temporary
reinstatement decision . 3
The reinstatement decision determined that Mayes Trucking
was a proper party to these proceedings . As discussed herein,
the reinstatement decision also determined that Mayes Trucking
was the successor to Mountain Top Trucking, and, as successor,
Mayes Trucking i's liable for the discriminatory conduct of
Mountain Top. The temporary reinstatement decision was not
timely appealed and has become final . Mayes Trucking Co. y.
Secretary of Labor and EMSHEC, No. 95-4170 (6th Cir. April 19,
1996).
Although these discrimination complaints were brought on
behalf of the complainants pursuant to section 105(c) (2) of the
Act, Tony Oppegard appeared on behalf of the complainants as
their personal counsel . Commission Order , 18 FMSHRC 487 (April
1986). Edward M. Dooley appeared on behalf of all of the
respondents in these proceedings .
These discrimination cases were consolidated for hearing by
Order dated February 6, 1996. The hearing was convened on three
separate occasions in June, July and August 1996 . ~ On June 11,
1996 , the initial hearing day, the Secretary and Mr. Oppegard
moved to withdraw the discrimination complaint of David Fagan .
The motion to withdraw was granted on the record and Fagan's
complaint docketed as KENT 95-615-D shall be dismissed.
(I, 35-37).
The hearing in the Bowling and Ball complaints was held on
June 11 through June 14, 1996, and July 16 through July 18 , 1996 .
The hearing in the Jackson complaint was held on August 7 and

2

Mayes Trucking was also ordered to reinstate Fagan.
However , the underlying discrimination complaint filed by Fagan
has been withdrawn . The Secretary withdrew the application for
temporary reinstatement filed on behalf of Jackson. Ball did not
seek temporary reinstatement .
3

The transcript and exhibits in the temporary reinstatement
proceedings conducted on August 23 and August 24, 1995, are
incorporated by reference and have been considered in the
disposition of these discrimination matters.
4

The hearing transcripts for June, July and August are
cited as Volume s I, II and III, respectively .

168

August 8, 1996. During the course of these proceedings, to avoid
the repetition of evidence , I ruled that any pertinent evidence
adduced during the Bowling and Ball hearing was applicable t o
Jackson a nd vice-versa. {III, 299-300 ) .
The parties have filed thorough post-hearing proposed
findings and conclusions, and replies . These post-hearing
filings have been considered in my disposition of the issues
raised in these proceedings.
Statement of the Case
Bowling and Ball assert that Riley and Mountain Top
discharged them on March 7, 1995, in violation of section 105{c)
of the Act because of their good faith, reasonable refusal to
continue driving their coal trucks after they became exhausted
and fatigued as a result of working excessive and unsafe hours.
Bowling and Ball were subsequently called back to work by
Mountain Top after they filed discrimination complaints with the
Mine Safety and Health Administration (MSHA) as a result of their
March 7, 1995, discharges. Ball argues that after having been
briefly reinstated to his truck driving job by Mountain Top, he
was constructively discharged on March 28, 1995 , when he was
compelled to quit because of intolerable working conditions
imposed upon him by the company.
Bowling· contends that, although he agreed to return to work
after he had filed his discrimination complaint, he was never
actually reinstated because Mountain Top would not provide him
with a safe truck to operate . Thus, Bowling argues that the
respondents are liable under section 105(c) as a result of his
unlawful discharge on March 7, 1995 . In the alternative, Bowling
argues, he too was constructively discharged on March 28, 1995,
in violation of section 105(c), when he was compelled to quit
because of intolerable working conditions .
Jackson maintains that Elmo Mayes and Mountain Top Trucking
discharged him on February 17, 1995, in violation of the antidiscrimination provisions of section l05(c) of the Act after he .
refused to continue operating a coal truck that he reasonably and
in good faith believed was unsafe to drive.
The discrimination complaints of Bowling and Ball are
factually similar and involve contemporaneous events. The
alleged discrimination suffered by Jackson occurred at a
different time and involves circumstances and issues that are
distinguishable from the Bowling and Ball cases. Thus, the
Bowling and Ball complaints will be addressed separately from the
complaint filed by Jackson .

169

Findings of Fact
Mountain Top is incorporated in the State of West Virginia.
Its corporate officers are Tommy C. (Kip} Bays, President, and
his son, Tommy Bays, Jr. Mayes Trucking is also incorporated in
the State of West Virginia. Tony Mayes is the corporate
President and his wife, Mary Mayes, is the Secretary. Mountain
Top and Mayes Trucking leased their haulage trucks from E&T
Trucking, a sole proprietorship owned and operated by Elmo Mayes,
Tony's father. E&T Trucking has approximately 40 trucks
registered to it in the name of Elmo Mayes, d/b/a E&T Trucking.
E&T Trucking is the registered operator in the State of Kentucky
for fuel tax purposes. Mountain Top and Mayes Trucking do not
own any trucks.
From 1991 until 1993 Mountain Top hauled coal in Mount
Carbon, West Virginia from the Cypress Mine at Armstrong Creek .
Mayes Trucking also hauled coal from the Cypress mine site during
this period. The trucks operated by Mountain Top and Mayes
Trucking were leased from Elmo Mayes .
On July 12, 1993, Mountain Top contracted with Lone Mountain
Processing, Inc . , (Lone Mountain) to haul coal from Lone
Mountain's Huff Creek mine, an underground mine located
immediately off State Road 38 at Holmes Mill in Harlan County,
Kentucky, to Lone Mountain's processing plant at St. Charles in
Lee County, Virginia . Mountain Top operated approximately 30
trucks to haul Lone Mountain's coal from the Huff Creek mine.
Mountain Top continued to lease its trucks from Elmo Mayes.
Helen Mayes, Elmo's wife, signed and issued the pay checks for
Mountain Top's employees.
Mountain Top ' s truck lot, where trucks are parked for the
night, and where trucks are repaired, is located off the haul
road directly across from the scale house at Lone Mountain's
processing plant. Each morning the truck drivers depart from the
truck lot for Huff Creek to begin haulage operations.
The Huff Creek facility is approximately 7~ to 8 miles from
the processing plant . Upon arriving at the mine, the trucks
would line up to be loaded. After loading, the haulage truck
drivers drove the first 2~ miles on Route 38, a 2·-lane public
road maintained by the State of Kentucky. The drivers then
exited the state road onto a gravel haulage road maintained by
Lone Mountain. The drivers traveled this haulage road up and
over a mountain down to the dumping point in Virginia, a distance
of approximately 6 miles. The haulage road had steep grades and
sharp curves. There were areas called •switchbacks• where the
road was only wide enough for the passage of one truck.

170

There were usually 35-40 coal trucks driving simultaneously
on the haul road, which consisted of 20-30 trucks operated by
Mountain Top · as well as 10-12 trucks operated by Hillis Breese,
another haulage contractor. 5 (I, 403). Lone Mountain used a
grader to smooth out bumps and potholes on its haulage road. (I,
403 ) .
Upon approaching the dump site destination, the trucks would
line up to be weighed at Lone Mountain's scale house which was
located approximately .3 mile from the dump site. After being
weighed, the drivers would proceed to the dump site. The waiting
time for loading~ weighing and unloading varied . For example,
Ball stated waiting time for loading varied from 2 to 8 minutes.
(I, 155-56) . There were presumably similar waiting times during
the weighing and unloading process. The entire round trip from
Huff Creek to the dump site, including the loading and unloading
process, took approximately 1 hour and 15 minutes. Truck drivers
communicated with each other, with Mountain Top management, and
with the scale house, ·via CB radio.
The haulage hours were determined by Lone Mountain based on
its scale house operating hours. The scale house hours were
determined by Craig Mullen, Lone Mountain's preparation plant
manager. The scale house always opened at 6:00 a .m. Mullen
would convey the cutoff time to Bruce Kelly, Lone Mountain's
scale man. Kelly stated that normal cutoff time was between 5:00
and 6:00 p .m. The same cutoff time applied to Mountain Top and
Hillis Breese trucks . (III, 131).
The "cutoff" time does not refer to the drivers ' quitting
time. Rather, it is the time when a cutoff truck is designated
to make the last round trip to load and unload a truck of coal.
For example , if the cutoff time is 5:00p.m., the truck passing
the scale house at 5:00 p . m. must return to the mine for the last
load of coal . This cutoff truck will return to the scale house
at approximately 6:15p.m. All truck drivers passing the scale ·
house after 5:00 p.m . that are behind the designated cutoff truck
proceed to the truck lot to end their workday .
Kelly would designate the cutoff truck according to the
cutoff schedule established by Mullen. Kelly experienced
resentment from truck drivers who were designated as cutoff.

5

The trucks operated by Hillis Breese hauled coal from Lone
Mountain's Darby Fork mine, located along Route 38, approximately
1 mile from the Huff Creek mine . The Breese trucks were weighed
at the same scale house and they unloaded their coal at the same
dump site as the Mountain Top trucks .

171

Therefore, Kelly began communicating the cutoff time to David
Riley, Mountain Top's truck boss, so that ~iley could select and
inform the cutoff driver.
In the fall of 1994, Mountain Top truck drivers generally
reported to the truck lot between 5:00 and 5:30 a.m so as to
return to the scales when they opened at 6:00 a.m.
As
previously noted, the "cutoff" time, established by Lone
Mountain, was between 4:00 and 6:00p.m. Mountain Top paid truck
drivers $13.00 per load of coal. Drivers were paid $6 . 00 per
hour for down periods when trucks were being repaired.
Lone Mountain was dissatisfied with Mountain Top ' s haulage
production . Consequently, Mountain Top's contract was extended
for only six mont'hs on October 12, 1994. This relatively brief
contract extension apparently placed additional pressure on
Mountain Top to satisfy Lone Mountain's haulage requirements.
Near the end of December 1994, David Riley had a meeting
with the truck drivers and informed them that from that point
starting time was promptly at 5:00 a.m. However, there was no
change in the normal 6:00 a.m . opening of Lone Mountain's scales.
In late January or early February 1995, Lone Mountain opened
a new section of the Huff Creek mine. Contemporaneous with the
opening of this new section, inclement snowy and icy conditions
interfered with Mountain Top's normal haulage operations.
Consequently, Lone Mountain's coal stockpile increased
substantially .
Lone Mountain pressured Mountain Top to increas~ haulage in
order to reduce its stockpile. In order to comply with Lone
Mountain's demand, Mountain Top's truck drivers were required to
haul more loads per day. Thus the cutoff time got progressively
later: from 6:00 to 8:00 p . m. During February 1995, it was not
unusual for Mountain Top's drivers to work 15 to 16 hours per day
6 days per week. Kelly testified he recalled some evenings in
February 1995 when the last load passed the scales as late as
10 : 30 p.m. These long work hours continued into mid to late
March. As spring approached and the stockpile receded the normal
cutoff time was moved back to between 4:00 and 6:00 p.m. 6 The
complaints of Bowling and Ball must be viewed in the context of
this factual background.

6

Kelly testified the average cutoff time during the
·previous two years was between 4:00 and 6:00 p.m. (I, 554-55).

172

The Bowling and Ball Discrimination Complaints
Everett Darrell Ball was hired by Mountain Top trucking in
July 1994. Lonnie Bowling was hired by Mountain Top in August
1994.
Shortly after Ball was hired, his assigned truck was taken
out of service for repair. After a week of reporting to work
with nothing to drive, Ball asked Riley for a •lay off slip.•
Ball returned to .work for Mountain Top approximately two months
later .
When Ball returned to work in November or December 1994, he
testified there was no particular set starting time, although
truck drivers routinely reported in the early morning hours.
Bowling testified the normal starting time was 5:00 a.m.
Consistent with the testimony of scale man Kelly, Ball and
Bowling testified that the normal cutoff time, prior to the onset
of bad winter weather and the increase in the size of the
stockpiled coal, was between 4:00 and 6 : 00 p.m. Ball estimated
the normal cutoff was •probably five o'clock, on average.• (I,
215-16, 405, 467).
Bowling and Ball's duties included general preshift
inspections and minor maintenance such as •keeping the tires and
the wheels tight and the oil levels checked and the water
fluids.• (II, 71). Truck drivers routinely completed checkoff
slips noting any truck defec ts or other maintenance problems
experienced during the shift. Each driver submitted his checkoff
slip detailing his truck's condition at the end of each workday
when the truck was parked in the truck lot.
Bowling and Ball testified about the challenging nature of
the haulage trip . They related that route 38 is narrow and
winding. They described Lone Mountain's haulage road as very
steep with an almost continuous up or down grade. Ball stated
•it was one of the roughest hauls I've ever been on in my life, I
think . • (II, 75). Bowling stated the haul road was in •real bad
shape• in February and March 1995. Bowling and Ball did not work
for three days in February 1995 because of snow.
Bowling and Ball routinely drove to work together. They
arrived at the truck lot at approximately 5:00 a.m. They would
preshift their trucks and start them to allow for warm-up and to
let the air build up. They would then drive the trucks across
the mountain to Huff Creek where they would load for the first
return trip . They would continue to make return trips until the
4 : 00 to 6:00 p.m cutoff.

173

Ball stated it took between 30 to 40 minutes after the last
scale reading to finish work. During this time , Ball dumped his
last load , . drove to the truck lot, spent approximat·e ly 20 minutes
fueling his truck , completed his checkoff list, and turned in his
t ime sheets .
As discussed above, Bowling and Ball testified about the
significant increase in the length of the workday beginning in
February 1995 . They stated it was not uncommon to work 14 to 16
hours per day from February until early March. Ball stated in
February and early March 1995, Big Dave (David Riley) was the
boss if he was .alone . Riley deferred to Tony Mayes if Tony was
at the job site. Both Riley and Tony Mayes deferred to Elmo
Mayes if he was present at the mine site. Elmo Mayes had a twoway radio at his home that was capable of communicating with
Riley in his truck. Both Riley and Kip Bays had worked for Elmo
Mayes in the past .
Beginning in February 1995, Bowling and Ball periodically
complained to David Riley, Tony Mayes and Bill Lefevers, the
l oader man, about the long hours and the road conditions. 7 In
fact, most drivers complained about the extremely long workday
that was required during this catch-up period. Riley responded
that when they got •caught-up• the company would do what it could
to cut back the hours - but the cutoff time would still be
between 5:00 and 6:00 p.m . (I, 115) .
Bowling and Ball discussed the long hours. They decided to
call the State Of Kentucky's Division of Motor Vehicle
Enforcement to complain about the long working hours at Mountain
Top Trucking . Major Michael Maffett testified that he received
calls from Bowling and Ball. Ball's telephone records reflect
calls to Maffett on February 21 and March 2, 1995. Bowling and
Ball complained that Mountain Top's long hours •would cause
somebody to get killed . " (I, 90). As an initial matter, Maffett
determined Mountain Top Trucking had no Kentucky ·F uel Tax
License. Maffett determined that Mountain Top was operating
under the Fuel Tax License issued to Elmo Mayes d/b/a E&T
Trucking. (I, 287).
Maffett told Bowling and Ball there were Federal and State
laws that governed how many hours truck drivers could drive . For
example, Maffett advised them of 49 C. F.R . Part 395 of the
Department of Transportation (DOT) regulations concerning 10
hour , 15 hour, and 60/70 hour service hour limitations. Maffett

7

Driving on narrow, winding roads with steep grades was a
normal condition of the complainants' employment. There is no
evidence of any complaints concerning road conditions that are
relevant to these proceedings .

174

explained a truck driver cannot drive after having driven ten
hours, without an eight hour qualifying break. A driver cannot
drive after having been on duty 15 hours . . If a company operates
six days per week, drivers cannot drive after having been on duty
60 hours in seven days . Similarly, if a company operates seven
days a week, a driver cannot drive after having been on duty 70
hours in eight days. (I, 292; Gov . Ex. 1; 49 C. F.R. § 395.1).
Although not a DOT official, Maffett opined that the ten
hours driving limitation was determined based upon the period a
truck was in gear . Maffett was uncertain about the applicability
of this DOT regulation to situations where drivers wait to load
and unload throughout the day . However, the applicable DOT
regulations provide all time spent loading and unloading a
vehicle as uon-duty time• rather than actual •driving time.•
49 C.F.R .. § 395.2.
Moreover, the record is unclear with regard to DOT's
application of this regulation to the SM mile trip in this case ,
which is comprised of 6 miles over a private road. The
complainants did not call a DOT official to testify in these
proceedings to explain how its Part 395 Hours of Service
regulations impact on short haulage operations with frequent
loading and unloading throughout the day.
Maffett considered their complaint to be a •labor• issue
because Ball expressed the opinion that he would be terminated if
he refused to drive . Maf~ett recommended that Bowling and Ball
contact the Occupational Safety and Health Administration in
Atlanta, Georgia . Maffett also recommended that they file a
written complaint with the Federal Highway Administration's
Office of Motor Carriers located in Frankfort, Kentucky. No one
from Maffett's office investigated Bowling and Ball's complaint .
(I, 296). To the best of Maffett's knowledge, the respondents
were never cited by any state or federal authorities for any
violations related to excessive working or driving hours.
On the morning of March 7, 1995, Bowling and Ball decided to
confront management about the excessive hours. Later that day,
they heard over the CB radio that cutoff time was 7:00 o'clock.
At approximately 5:30p.m., Ball pulled into the truck lot to
talk to Riley. Ball was followed into the truck lot by trucks
driven by Bowling and Leonard McKnight. Ball and Bowling told
Riley they couldn't continue working these hours because they
were exhausted and it was unsafe . They informed Riley they had
contacted DOT and that they had been advised about a ten hour
workday rule.
Ball testified that Riley was sympathetic until Elmo Mayes
pulled into the truck lot. They informed Elmo of their concerns .

175

Elmo responded •the cutoff time tonight is 7:00 o'clock, you get
your ass back out there and haul coal.• They informed Riley and
~lmo Mayes that they had called DOT and that DOT said they were
not supposed to be hauling such long hours . Ball stated Riley
said he Mdidn't gi ve a s hit what the DOT said" · because they
worked for him. Ball further testified Riley told them if they
couldn't work the hours they were supposed to work, •that they
didn't need us and to get our ass to the house." (I, 116).
Bowling asked Riley, •if I park up, am I fired?• Riley
replied, •I can' .t make it any plainer, you work when I tell you
to work or I don't need you.• Although McKnight supported
Bowling and Ball's concerns, he decided to return to work to
avoid losing his job . (I, 118, 241).
Bowling and Ball turned in their time sheets. Ball
testified Elmo Mayes Mhollered and told us both, said, don't
bring your ass back." (I, 120).
Bowling and Ball filed discrimination complaints with MSHA
on March 9, 1995. Their discrimination complaints sought the
following:
Back-pay for all lost wages, jobs back with regulated
10 hour work days with required breaks and lunch
periods for all employees and we request our regular
trucks back, Bowling truck #144 and Ball truck #147.
We also request that load sheets be required to reflect
starting and stopping times . (Gov. Ex 9).
Bowling and Ball's complaints were investigated by MSHA
investigator Gary Harris . On March 22, 1995, following Harris'
interviews with company personnel, Tony Mayes telephoned Harris.
Tony Mayes explained to Harris that everyone at Mountain Top was
under a lot of pressure because of the backed up coal. Tony Mayes
conceded that everyone had been complaining about the long hours.
He informed Harris that Bowling and Ball were •good truck
drivers• and he expressed a willingness to work things out.
(III, 473-75).
Shortly after talking to Harris on Wednesday, March 22,
1995, Tony Mayes called Bowling and Ball to offer them their jobs
back. Tony Mayes called Bowling at home first . Bowling stated
he thought he was unjustly fired. Tony Mayes told him he was
trying to get him back to work so that things could be worked
out. Bowling agreed to return to work the following day on
Thursday, March 23, 1995.
Tony Mayes then called Ball and left a message with Ball's
wife. Ball was not home because he was traveling to Bowling's
house . When Ball arrived at Bowling's house, Bowling informed

176

him that Tony Mayes had just called to offer their jobs· back.
Ball returned to his home to return Mayes' call. Ball agreed to
return to work. (I, 121). There is conflicting testimony
concerning on which day Ball agreed to return . Tony Mayes and
Riley testified Ball agreed to return to work on Friday, March
24, 1995. (II, 331, 477; Ex. R-4). Ball testified he did not
agree to return to work until Monday, March 27, 1995, because he
•didn't have any money for gasoline, and [he] had an appointment
to get [his] CDL license upgraded in Somerset and I already
borrowed a truck .to do so.• (I, 121) .
Bowling had 20 years experience as a truck driver. He was
somewhat familiar with the Federal regulations concerning driving
hours and time.
(I, 452). Bowling concluded, based on the
information provided by Major Maffett, that upon his return to
work, he would work 8 ten hours, not one minute longer.• (I, 414 ,
419, 456). Thus, Bowling believed that an appropriate quitting
time was 3:00p .m. on days when he began driving at 5:00 a.m .
without significant out-of-service interruptions. {I, 490) .
Ball also was unwilling to work significantly more than ten hours
per day. (I, 126).
Bowling reported to work at approximately 5:00 a . m. on
Thursday, March 23, 1995 . Tony Mayes and Riley testified that
they informed Bowling he would be driving truck #139 . Prior to
Bowling's March 7, 1995, discharge he generally drove tru-ck #144
which was a newer 1989 model in better condition . (I, 426, 663).
Bowling asked Mayes why he couldn't have his regular truck back.
Mayes responded that he didn't want to cause ·any conflict with
his drivers.
(I, 426).
Bowling testified he told Tony Mayes truck #139 8 probably
wouldn't pass inspection• because he didn't think it was tagged
(had license plates) . • (I, 427) . Bowling contends he was
concerned about the truck's wipers and lights. Bowling also was
concerned about a broken wheel stud on the rear wheel. Mountain
Top truck mechanic William Bennett testified he did not discuss
the operational condition of truck #139 with Bowling on the
morning of March 23, 1995. (I, 657) . In this regard, Bowling
conceded he never inspected #139 on the morning of March 23. His
objections to driving it were based on •his previous experience
with the truck.• (I, 448-49).
Riley and Mayes indicated Bowling left the site shortly
after his arrival at 5:00 a.m. Bowling testified he left the
truck lot at approximately 7:30 to 8:00a.m., after having waited
for Tony Mayes to arrive at work. (I, 428). When Bowling
departed, Mayes and Riley testified that Bowling informed them
that he would not drive truck #139, and that he would wait on
MSHA's investigative decision . (II, 331, 477-78).

177

Tony Mayes testified that he . called investigator Harris
after Bowling left on March 23 to inform him of the situation.
Harris told Mayes he would talk to Bowling. (II, 479).
'

Mayes and Riley indicated Bowling did not report to work or
otherwise contact them on Friday, March 24, 1995. Bowling also
testified he did not show up for work on March 24. Bowling
stated on that morning he -called in sick to the guard shack
because that was the quickest way to get in touch with David
Riley.• (I, 429) . There is no evidence that Bowling ever spoke
directly to Tony Mayes or Riley to provide an explanation for his
absence on March 24, 1995.
Although Tony Mayes testified that Ball had agreed to return
to work on Friday, March 24, 1995, Ball also did not report to
work on that day . Mayes testified that Ball left a telephone
message on March 24 with someone at the mine indicating he would
not come to work because he was waiting on a check, and he had no
gas money. Ball denies making this telephone call because he
maintains that he did not agree to return to work until Monday,
March 27, 1995. However, Ball does attribute the delay in his
return to work to a lack of gas money.
Both Bowling and Tony Mayes testified that, at approximately
6:00 a.m. on Monday, March 27, 1995, Bowling telephoned Mayes to

ask if he could come back to work . Mayes told him that the job
offer from the previous week still stood. (I, 430; II, 481).
Bowling reported to work at approximately 8:00 a.m . but he found
that the wheel stud on #139 was still broken. Bowling complained
to mechanic Bennett about the wheel stud. (II, 335). Bowling
also complained to Bennett about a recapped tire on the front
wheel . Bennett told Bowling the recapped tire was permissible
and would not be changed . Bennett told Bowling he could not
replace the wheel stud because there was no welder available to
remove it . (I, 657, 659-61). Bennett indicated the lights on
#139 and •other stuff• had been worked on.
(I, 664).
The haulage trucks driven by the complainants were
Model RD 800, manufactured by· Mack Truck. Each truck is equipped
with two front tires and eight rear tires. The rear tires
consist four rear pairs of tires, with two pairs of tires on each
side of the rear axles.
There are a total of 24 rear wheel
studs comprised of six wheel studs on each rear set of wheels .
The wheel studs consist of a lug nut and bolt with a spacer
placed between each double set ~f rear tires. The wheel studs
hold the double wheels together on the axle.
The broken stud in issue had a missing lug nut. The shaft
of the stud remained in the wheel and could be removed by welding
a fitting on the end of the shaft to enable the shaft to be
unscrewed from the wheel axle. Both Hank Villadsen, a Service

178

Manager for Mack Trucks, and Bennett testified that broken wheel
studs are not uncommon. Villadsen opined that it is not
necessary to immediately remove a truck from service with one
broken and five intact wheel studs. {III, 301-07) . Be~ett
stated one broken wheel stud "wouldn't really make a whole lot of
difference ." {I, 671). In an effort to moderate his initial
opinion, Bennett went on to state that 60 percent of drivers
would not consider such a condition hazardous and that 40 percent
of drivers would consider it a hazard. {I, 672) . MSHA inspector
Adron Wilson opined that one broken wheel stud puts additional
pressure on the five remaining wheel studs. He concluded that
there was a danger that the wheel could come off if an additional
wheel stud on the same wheel broke . 8 {II, 610) .
Bowling testified that he •concluded my truck was not going
to get fixed that day unless I was to stand around there all day
long and see to it myself . .. . I told Bill Bennett to have my
truck fixed by fiv e o"clock the next morning, I would be back to
work . (I, 436} . Bowling then went home approximately 1~ hours
after he arrived . Bowling was paid $9.00 for the 1~ hours down
time on March 27, 1995 . { II, 335-36}.
Ball returned to work at 5:45 a . m. on Monday, March 27,
1995 . (Resp. Ex . 6) . Tony Mayes told Ball truck #147,
previously driven by Ball, was not available . Mayes gave Ball a
choice between truck #134 and #139 . Ball chose #134 . Ball told
Mayes he would preshift #134 and that he •would work a ten-hour
shift and that was all I was going to work . •- (I, 126 ; II , 184}.
Mayes told Ball he didn't want to hear anymore about •any ten
hour bullshit." Mayes told Ball if everyone parked at 4 : 00 p . m.
he would need 30 trucks to haul the coal. {II , 126) . Ball's ·
operator checklist for March 27 reflects he completed 7 round
trips from 5 : 45a.m. until approximately 4:00p.m., with 45
minutes down time. Mayes testified the cutoff time on that day
was between 5 : 00 and 6 : 00 p . m. Mayes inquired about Ball and was
told he had left at approximately 4 : 00 p . m. Parking at 4:00 p . m.
would indicate that Ball last loaded at Huff creek at
approximately 3 : 00 p.m .
Ball indicated that he parked about 4 : 00p.m . At
approximately 4:15p.m. , before leaving the truck lot, Ball told
mechanic Lee Payne there was a loose U-joint that caused truck
#134 to •wander real bad" whenever it hit a hole. Lee Payne did
8

As discussed infra , Bowling ' s refusal to drive #139
because of the broken wheel stud was protected activity under the
Act if made in good faith . However, there is conflicting
evidence regarding whether one broken wheel stud on one set of
rear wheels, that could only be removed with welding, constituted
an out-of-service defect.
·

179

not testify in these proceedings . . Tony Mayes testified that,
upon learning of Ball's complaint, he and Riley checked the
U-joint and found nothing wrong with it. (II, 495 ).
At approximately 5 : 00 a . m. on Tuesday, March 28, 1995,
Bowling and Ball arrived at the truck lot together in Bowling's
pickup truck . Mayes told Bowling the wheel stud on #139 had not
been fixed . Bennett testified he could not fix the wheel stud
because the diesel powered welding tool required to remove the
stud was not working . (I, 661, 665-66) . Bowling stated he would
not drive #139 in that condition. Mayes asked Bowling to get out
of his pickup so they could discuss the situation . Bowling
remained in his pickup.
Ball asked Riley if he was fired because he left at
4 : 00 p.m. the previous day. Riley answered, "I never said that,
did I." Ball said he would not drive #134 until the U-joint was
replaced . Tony Mayes told Ball to drive #147, his former truck .
Ball testified he told Tony Mayes he would preshift the truck.
Ball testified Tony Mayes called Ball a "cry-ass" who wanted to
•preshift everything in the damn lot." Ball also stated that
Mayes called him a "sorry ass" and accused him of just wanting to
find some •bullshit" because he -wasn't interested in working . "
(I, 146) . Ball stated he told Mayes he was not going to allow
himself to be •cussed" and he turned to leave. ·
Mayes denies that Ball wanted to preshift #147. Mayes
testified that when he told Ball he could drive #147, Ball said
he wanted to see if he had a ride home . Mayes alleges Ball got
in Bowling's pickup and they both left without saying anything
further.
Tony Mayes telephoned Bowling and Ball on the morning of
Wednesday, March 29, 1995. Bowling told Mayes he had a meeting
with the "investigator . " When Mayes asked Bowling if that was
why he wasn't coming to work , Bowling replied he wasn't coming to
work because he was sick . (II, 487) . Bowling's version of
events is that Mayes called him on March 29 and accused him of
•nitpicking shit about this wheel stud." Bowling reported that
he hung up on Mayes .
Mayes then called Ball on March 29, 1995. Ball told Mayes
he felt like he was getting the run around . Mayes told him he
had several trucks without drivers and asked Ball to come to
work. Ball said that he would, but he never returned . (II, 48788). Ball, on the other hand, testified he told Mayes he could
not return because of all the cussing and friction the last two
days.
(l, 147, 181) . Mayes called investigator Harris to advise
him of the situation.

180

As a res.ult of the Bowling and Ball complaints, DOT
conducted a compliance review of Mayes Trucking between May and
July 1995. (Gov. Ex. 7). During this review, DOT cited Mayes
Trucking for a May 10, 1995, violation involving the failure of
truck driver Colen Kelly, who had worked 12~ hours, to keep a
record of duty status. Significantly, there is no evidence that
DOT considered Kelly's 12~ hour workday to be a violation of its
ten hour driving restriction. Although Mayes Trucking was not
cited for any pertinent violation of DOT's Hours of Service
limitations, it 4id recommend that Mayes Trucking establish a
system to control drivers' hours of service and it cautioned
Mayes Trucking to •not allow drivers to exceed the 10, 15 and
60/70 hour limits• in Part 395 of its regulations.
The Jackson Discrimination Complaint
Walter Jackson was hired by Mountain Top Trucking
approximately nine months prior to his discharge on February 17,
1995. Jackson had no prior experience as a truck driver. He was
hired by Riley after he drove a test run with Riley from Huff
Creek to the processing plant. To gain experience, Riley secured
Elmo Mayes' approval to have Jackson drive a ~mile route hauling
mud from the refuge pile at the tipple to a dump site. After
approximately two weeks of hauling mud, Jackson assumed the
normal driver's duties hauling coal from Huff Creek.
On the date of his discharge, Jackson began hauling coal at
approximately ·5 :30 a.m. Jackson was driving truck #139. Truck
#139 was one of the slower trucks in Mountain Top's fleet.
Jackson stated that he had been driving this truck for six or
seven months, and that it had previously had a new transmission ·
installed. (III, 69).
At approximately 9:15p.m., Jackson was in the process of
completing his tenth load. Jackson stopped at the top of the
mountain on the haulage road and exited the truck to urinate.
Jackson returned to the truck and put it in gear. However, all
of the trucks' functions were reversed. When Jackson put the
truck in first gear it went in reverse. When the truck was
placed in reverse gear, it went forward. Jackson noticed blue
smoke coming from the passenger side through the headlight beams.
Jackson also noticed the truck did not have any oil pressure.
Hank Villadsen, a Mack Truck Service Manager, explained the
problem experienced by Jackson. When a loaded haul truck is on a
hill, if the driver lets out the clutch and permits the truck to
roll backwards in forward gear, or, permits the truck to roll
forward in reverse gear, the engine will turn in the opposite
direction that it was designed to rotate. Engine oil pressure
drops, and the gears and the exhaust system reverse.
Consequently, air is taken in through the exhaust system and oil

181

and smoke are vented through the air filter housing located on
the front passenger side of the truck. The phenomenon of the
reversed exhaust system accounted for the blue smoke observed by
Jackson.
Villadsen stated the remedy for Ma truck running
backwards" is to shut the truck off for a few minutes so that oil
pressure can be restored and the oil can drain back into the pan.
Villadsen stated that drivers experiencing this problem
frequently Mdon't know what's happening.• (III, 293). He
further opined, •its scary. It scared me the first time it ever
happened to me . • (III, 315).
Jackson observed Riley, who was also hauling coal that
evening, pass him on the haulage road. Jackson radioed ahead to
Riley and described the problem. Riley responded over the radio
advising Jackson to turn off the truck and wait until Riley could
return to check it out .
Jackson turned the engine off. After a
few minutes, Jackson restarted the truck and determined it was
operating normally . Jackson informed Riley who instructed him to
•ease" the truck down the mountain so that it could be checked
out in the truck lot. Jackson interpreted the word Mease" as an
instruction by Riley to be careful.
During the time Jackson was talking to Riley, Elmo Mayes was
in the scale house with Kelly. Elmo Mayes overheard the radio
transmissions between Jackson and Riley. Elmo Mayes became upset
and radioed to Riley to determine what the problem was. Kelly
told Elmo Mayes that it was cutoff time. Elmo Mayes asked Kelly
which driver was due at the scales next. Kelly told Mayes that
Mud Puppy was due. Mud Puppy is Jackson's CB handle . Elmo Mayes
instructed Kelly to make Mud Puppy the cutoff driver. Elmo Mayes
testified that he did not know Mud Puppy was the driver
communicating with Riley when he selected him as cutoff.
Upon Jackson's arrival at the scales, Jackson noticed Elmo
Mayes' pickup parked outside the scale house. Kelly informed
Jackson that Elmo Mayes had designated him as cutoff driver.
Jackson told Kelly he was willing to be the cutoff driver.
However, Jackson informed Kelly that he was going to drive to the
truck lot after dumping his load in order to meet Riley who had
agreed to check out his truck.
When he arrived at the truck lot, Jackson shut off his truck
and opened the hood. As Riley jumped on the hood, Elmo Mayes
pulled up in his pickup and told Riley, •the damn truck had oil
in it,• and to put Jackson's •ass• back in the truck so that he
could go across the hill to get the last load.
Riley did nothing further to check the truck. Elmo Mayes
told Jackson he was tired of drivers •pussy footing• around, and
that they were going to work when he said they should work or

182

else he would send them to the house . Jackson told Mayes he
would return . for the last load as soon as it was determined that
the truck was safe. Mayes objected to any further delay and told
Jackson if he didn't go back for another l dad, he was fired.
Jackson told Mayes the best thing he could do would be to give
him his check . Jackson was given hi s check and Mayes told him to
get his things out of the truck.
Jackson testified that after he left his job, a fellow truck
driver, Benny Ray Carver, told him that Tony Mayes said he could
have his job back if he apologized. There is no credible
evidence that Jackson was ever contacted by Tony Mayes or anyone
else from Mountain Top about his return to work .
Jackson filed his discrimination complaint with MSHA on
March 14, 1995 . Jackson's complaint stated:
I feel like I was discriminated against due to me being
fired for refusing to operate an unsafe truck after
being in that truck for 16 hours already, on February
17, 1995. In recourse, I request my job back, with
back pay, regulated working hours, and regulated breaks
and lunch breaks . (Gov . Ex . 34) .
Disposition of Xssues

Discriminato&Y Discharge
The purpose of section 10S(c) of the Act is to protect and
encourage miners "to play an active part in the enforcement of
the Act" recognizing that, •if miners are to be encouraged to be
active in matters of safety and health, they must be protected
against any possible discrimination which they might suffer as a
result of their participation. " S . Rep. No . 95-181, 95th Cong . ,
2d sess . Legislative Histo&Y of the Federal Mine Safety and
Health Act of 1977, at 623 (1978 ).
A miner alleging to be a victim of prohibited retaliatory
conduct bears the burden of proving a prima facie case of
discrimination under section 105(c) of the Mine Act . In order to
establish a prima facie case, a miner must establish that he
engaged in protected activity, and, that the adverse action
complained of, was motivated in some part by that protected
activity . ~ Secreta&Y on behalf of Dayid Pasula y.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980)
rev'd on other grounds sub nom. Consolidation Coal Co. y.
Marshall , 663 F.2d 1211 (3rd Cir . 1981); Secreta&Y on behalf of
Thomas Robinette y. Qnited Castle Coal Co., 3 FMSHRC 803, 817-18
(April 1981 ) .

183

An operator may rebut a prima facie case by demonstrating
either that · no protected activity occurred or that ·the
adverse action was in no part motivated by· protected activity.
Pasula , 2 FMSHRC at 2799-8 00. If the operator cannot rebut t he
prima fac i e 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 for the unprotected activity alone . ~; Robinette,
3 FMSHRC at 817-18 ; ~ alaQ Jim Walter Resources, 920 F.2d at
750, citing with a~~royal Eastern Associated Coal Co~. y.
EMSHRC , 813 F.2d 639, 642 (4 th Cir. 1987) .
An operator must carry the burden of establishing an
affirmative defense. Hare y. Magma Cqgper Company, 4 FMSHRC
1935, 1937 (November 1982) . However, the ultimate burden of
persuasion remains with the complainants in these proceedings.

Protected Actiyity
It is axiomatic that miners have an absolute right to make
good faith safety or health related complaints about mine
practices or conditions when the miner believes such
circumstances pose hazards. Secretary of Labor ex rel. Pasula y.
Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rey'd on
other grounds sub nom. Consolidation Coal Co. y. Marshall, 663
F . 2d 1211 (3rd Cir. 1981); Secretary of Labor ex rel. Robinette
y. united Castle Coal Co., 3 FMSHRC 803 (April 1981). This
statutory right is afforded to miners who bring to the attention
of mine management conditions or circumstances that pose hazards
to fellow employees as well as to themselves . ~ Secretary on
behalf of Cameron y. Consolidation Coal Company, 7 FMSHRC 319
(March 1985) .
Communication of potential health or safety hazards, and
responses thereto , are the means by which the Act's purposes are
achieved. Once a reasonable. good faith concern is expressed by
a miner, an operator, usually acting through on-the-scene
management personnel, has an obligation to address the perceived·
danger. Boswell y. National Cement Co., 14 FMSHRC 253, 258
(February 1992); Secretary o.b.o . Pratt y . Riyer Hurricane Coal
Company. Inc., 5 FMSHRC 1529, 1534 (September 1983); Secretary of
Labor y. Metric Constructors. Inc., 6 FMSHRC 226, 230 (February
1984), aff'd sub nom. Brock y . Metric Constructors. Inc., 766
F.2d 469 (11th Cir. 1985 ) .
fyrther _Findings and Conclusions
As a threshold matter, I note that whether Jackson, Bowling,
or Ball, initially quit or were fired is not material in the
resolution of ·these cases . The February 17, 1995 , termination of
Jackson and the March 7, 1995, discharges of Bowling and Ball,

184

were clearly .adverse actions resulting from the complainants'
work refusals. The issues to be determined are whether these
work refusals warrant the statutory protection provided by
section 105 (c ) of the Act.
Although the Act grants miners the right to express safety
and health related concerns, it does not expressly grant the
right to refuse to work under such circumstances . Nevertheless,
the Commission and the Courts have recognized the right to refuse
to work in the f~ce of perceived dangers . See SecretabY of Labor
on behalf of Cooley y . Ottawa Silica Co . , 6 FMSHRC 516 , 519-21
(March 1984), aff'd mem., 780 F.2d 1022 (6th Cir . 1985); Pricey.
Monterey Coal Co. , 12 FMSHRC 1505, 1514 (August 1990) (citations
omitted) . In order to be protected, work refusals must be based
upon the miner's Mgood faith, reasonable belief in a hazardous
condition . • ~; Gilbert y . fMSBRC, 866 F.2d 1433, 1439 (D . C.
Cir. 1989) . The complaining miner has the burden of proving both
the good faith and the reasonableness of his belief that a hazard
existed . Robinette, 3 FMSHRC at 807-12; Secretary of Labor on
behalf of Bush v. Union Carbide Corp . , 5 FMSHRC 993 , 997 (June
1983) . The purpose of the *good faith• belief requirement is to
*remove from the Act's protection work refusals involving frauds
or other forms of deception . • Robinette , 3 FMSHRC at 810.
For a work refusal to be protected under the Mine Act, a
miner should first communicate· his safety concerns to some
representative of the operator. SecretabY of Labor on behalf of
Dunmire y. Northern Coal Co. , 4 FMSHRC 126, 133 (February 1982).
If the miner expresses a reasonable, good faith fear concerning
safety, the operator has a duty to address the perceived danger .
Metric Constructors . Inc. 6 FMSHRC at 230; SecretabY of Labor on
behalf of Pratt y. Riyer Hurricane Coal Co., 5 FMSHRC 1529, 1534
(September 1983 ).
Jackson's February 17, 1995, complaint to Elmo Mayes and
Riley concerning his continued use of his backward running truck,
particularly over mountainous terrain, evidenced a good faith
reasonable belief that a hazard existed. Similarly, Bowling and
Ball's March 7, 1995, complai nts concerning their fatigue as a
consequence of their excessive work hours, communicated to
Elmo Mayes and Riley, were also reasonably eXpressed safety
related concerns.
Having communicated these good faith, reasonable concerns
about safety, the analysis shifts to an evaluation of whether the
respondents addressed these concerns in a way that should have
alleviated the complainants• fears. Gilbert, 866 F . 2d at 1441;
~ also Bush, 5 FMSHRC at 997-99 ; Thurman y. Queen Anne Coal
~. 10 FMSHRC 131, 135 (February 1988), aff'd mem., 866 F . 2d 431
(6th Cir. 1989). For a miner's continuing refusal to work may
become unreasonable after an operator has taken reasonable steps

185

to dissipate fears or ensure the safety of the challenged task or
90ndition . . ~, 5 FMSHRC at 998-99.
Elmo Mayes' refusal to permit the inspection of Jackson's
truck in the truck lot immediately following the malfunctioning
incident on the mountain failed to address Jackson's reasonable
concerns for his personal safety. So too, Riley's promise of the
resumption of •normal" work hours when the stockpiles were
reduced was not responsive to Bowling and Ball's immediate
concerns of fatigue. Thus, the respondents provoked the
complainants' initial work refusals by taking no meaningful
actions to address their fears. The reasonableness of the
complainants' work refusals are further discussed below.
Jackson's February 17. 1995. Work Refusal
With respect to Jackson, the reasonableness of his
reluctance to resume driving late in the evening on FebrUary 17,
1995, is self evident. Jackson was an inexperienced truck
driver. Even the respondents' witness Hank Villadsen, a Mack
Truck Service Manager, admitted a truck running backwards is
•scary. • A miner must communicate his safety complaint to an
operator. I credit the testimony of Kelly, over Elmo Mayes'
denial, that Elmo Mayes was aware of Jackson's troubles when he
designated Jackson as cutoff driver on February 17, 1995. In
this regard, Kelly provided a statement to MSHA investigators
shortly after this incident reflecting that Elmo Mayes selected
Jackson as cutoff specifically because he had overheard Jackson
complain about the malfunction at the top of the mountain. (I,
713-14). Moreover, Riley was certainly aware of Jackson's
concerns, which he acknowledged by instructing Jackson to •ease"
the truck down the mountain .
Simply stated, can anyone seriously question the propriety
of Jackson's refusal to continue to drive his truck at 9:00 p.m .
on a winter evening, over mountainous terrain, after having
worked approximately 16 hours and experiencing this •scary"
situation? As noted above, the Mine Act imposes an obligation on
operators to reasonably address a miner's fears. Gilbert, 866 F.
2d at 1441. Elmo Mayes' response to Jackson's reasonable
concerns was retaliatory in nature and precisely the type of
conduct the Act seeks to dissuade.
Accordingly, the respondents' failure to address Jackson's
fears is actionable. Thus, Jackson's February 17, 1995, refusal
to act as the cutoff driver until his truck was adequately
inspected for defects was reasonable, and constitutes protected
activity under section 105(c) of the Act. Consequently,
Jackson's discrimination complaint shall be granted.

18 6

Bowling and Ball's March 7. 1995. Work Refusal
With respect to Bowling and Ball's March 7, 1995, work
refusal, it is necessary to determine what constitutes
unreasonable work hours that would justify a work refusal
protected by section 105(c). As these are discrimination
complaints brought pursuant to the Mine Act, whether Mountain Top
violated any provision of the DOT regulations governing
permissible truck driver working hours is beyond the scope of
these proceedings. In fact, MSHA investigator Harris stated that
he was not familiar with DOT's regulations and they were not
considered during the course of his investigation. (I, 743).
Whether Mountain Top violated any other state or federal
regulation related to wages and hours is also not the subject of
these proceedings. The issues in these· proceedings are limited
to what relief, if any, is available to Bowling and Ball under·
the Mine Act.
Thus, in assessing the propriety of Bowling and Ball's March
7, 1995, work refusal, it is necessary to distinguish Mountain
Top's •normal• work hours from excessive work hours. The
overwhelming evidence, including Bowling and Ball's own
testimony, reflects they accepted positions with Mountain Top
knowing that the workday consisted of an approximate 5:00 a.m.
starting time, with cutoff times varying between 4:00 p.m. and
6:00 p.m. 9 These working hours were out of the control of
Mountain Top as they were established by Lone Mountain. These
work hours also applied to Hillis Breese, Lone Mountain's other
haulage contractor. Consequently, the record reflects that, in
resolving the matters in issue, the applicable normal working
hours are from 5:00 a.m. until a cutoff time as late as 6:00 p.m.
Using an average .cutoff time of 5:00p.m., it is helpful to
quantify the miles driven during a •normal• 12 hour workday.
With respect to Mountain Top, assuming an approximate 1~ hour .
round trip from Huff Creek and an average of a 5:00 p.m. cutoff
time, a truck driver would complete approximately nine round
trips. 10 Nine round trips would constitute driving a total of 45
miles over state road 38, and 108 miles· over Lone Mountain's haul
road. Under these circumstances, Bowling and Ball, having
accepted the working conditions and hours of employment, have

9

Virtually every Mountain Top driver called in these
matters, as well as Lone Mountain scale man Kelly, testified
normal cutoff times varied between 4:00 and 6:00p . m.
Nine round trips during a 12 hour day is consistent with
Ball's completion of seven round trips on March 27, 1995, during
his ten hour workday.
(Resp. Ex. 6).
10

187

failed to establish that a 4 : 00 to 6:00p.m . cutoff. time is
unlawful, or otherwise unreasonable .
However, from early February 1995 until Bowling and Ball's
March 7, 1995, discharge, the required work hours were
considerably longer than the customary 6:00p.m . cutoff limit .
Kelly testified that cutoffs were as late as 9:00 to 10:00 p.m.
Even a 9:00 p.m cutoff would require the cutoff driver to work
past 10 : 00 p.m., a 17 hour work day. Moreover, the extended
workdays du.r ing. this period are not in dispute. Tony Mayes has
conceded throughout these proceedings that mistakes were made
with regard to Mountain Top ' s insensitivity to the drivers safety
related complaints regarding these excessive work hours.
(I,
713; II, 295-96, 526; III, 473-74).
Under these conditions, ' it was reasonable for Bowling
and Ball to refuse to co~tinue working on March 7, 1995, past a
6 : 00p . m. cutoff because of their belief that their fatigue ,
caused by working excessive hours, posed a risk to their
continued safe operation of their vehicles . The hazards
associated with the complainants' fatigue were accentuated by the
necessity for them to drive multi-ton haul vehicles over
mountainous terrain on narrow and winding roads. Consequently,
Bowling and Ball's March 7, 1995, work refusals were protected
under section 105(c ) of the Act.
Bowling and Ball's Alleged Constructive Discharge
A constructive discharge occurs if the operator attempts to
thwart a miner's rights under the Act by retaliating against a
miner's protected activity by maintaining intolerable working
conditions ·in order to force the miner to quit. Thus, the
doctrine of constructive discharge extends liability to operators
that indirectly effect a discharge that is forbidden by the Act
if done directly. Nally & Hamilton Ente~rises. Inc., 16 FMSHRC
2208, 2210 (November 1994), citing Simpson y. fMSHBC 813 F . 2d
639, 642 (4th Cir . 1987) . In this regard, section 105(c) of the
Act seeks to protect miners from not only common forms of
discrimination, such as discharge or demotion, but also more
subtle forms of interference such as threats of reprisal or
harassment. Elias Moses y. Wbitley Development Co~., 4 FMSHRC
1475, 1478 (August 1982) gyoting Pasula , 2 FMSHRC at 2790. To
this end, the remedial goal of section 105(c) is to •restore the
[victim of illegal discrimination] to the situation he would have
occupied but for the discrimination . • Secretary on behalf of
Punmire and Estle y. Northern Coal Co., 4 FMSHRC 126 , 142
(February 1992 } .
Disposition of a constructive discharge allegation is a
delicate issue because of the potential for abuses by operators,
as wel l as complainants , that undermine the Mine Act's

1 88

fundamental purpose of encouraging the legitimate free exercise
of miners' rights that is so *essential to the achievement of
safe and healthful mines". Elias Moses, 4 FMSHRC at 1478. The
Mine Act is a remedial statute. It seeks to discourage
discriminatory conduct and make victims of discrimination whole
through back pay and reinstatement.
In addressing whether a constructive discharge occurred in
these cases, I am keenly aware that direct evidence of
discriminatory motive is rare and that discriminatory intent may
be established through circumstantial evidence. Secretary on
behalf of Chacon y. Phelps Dodge CokP., 3 FMSHRC 2508, 2510-11
(November 1981), rey'd on other grounds sub nom. Donoyan y.
Phelps Dodge Co4P., 709 F.2d 86 (D.C. Cir 1983). However, in
cases such as these, where complainants have been called back to
work after a discriminatory discharge, an operator's defense that
a constructive discharge claim is disingenuous, because the
complainants were not interested in returning to work, must also
be established by circumstantial evidence.
In the instant cases, Bowling and Ball contend they were the
victims of constructive discharges upon their return to work
after Tony Mayes had offered their jobs back on March 22, 1995.
Thus, Bowling and Ball have the burden ~f establishing that they
were forced to endure the requisite intolerable working
conditions that forced them to quit their jobs on March 29, 1995.
An analysis of the circumstantial evidence surrounding the
alleged intolerable working conditions during the period in issue
follows.
Wednesday. March 22. 1995
Following Bowling and Ball's March 7, 1995, discriminatory
discharge, Tony Mayes telephoned both complainants on March 22,
1995. As a result of Tony Mayes' phone calls, Bowling agreed to
return to work on Thursday, March 23, 1995.
Mayes stated Ball agreed to return to work on Friday, March ·.
24, 1995. Ball maintains he agreed to return to work on Monday,
March 27, 1995, because he did not have money for gas and he had
an appointment to upgrade his commercial driver's license.
Both Mayes and Ball agree that Ball did not intend to return
to work immediately. I credit Mayes testimony that Ball
indicated he would return to work on Friday, March 24, 1995, over
Ball's testimony. Mayes' testimony is consistent with the
testimony of Bowling and Ball with respect to other details of
these conversations. Moreover, contemporaneous notes made by the
respondents reflect that Ball was due back to work on March 24.
(Resp. Ex 4). · Finally, Ball's contention that he could not
return to work until the following Monday because he lacked gas

189

money is unavailing since he routinely rode with Bowling, and, he
knew Bowling was scheduled to return to work as of March 23.
Ball's failure to return to work immediately undermines his
asserted interest in returning to his job .
Thursday. March 23. 1995
Ball did not report to work on March 23, 1995 . Bowling
reported to work at 5:00 a . m. He refused to drive truck #139
based on •his previous experience with the truck.•
There is no
evidence that he spoke to truck mechanic Bennett about the
condi tion of #139 on March 23, or, that he took any action t o
secure the repairs he claimed the truck needed . Bowling l.eft the
truck lot in the early morning hours of March 23. The
respondents claim Bowling left after one hour and that he stated
he would wait for the results of MSHA's investigation. I credit
Mayes testimony in this regard as it is undisputed that Bowling
did not return to work the next day and Bowling has not provided
a credible explanation for his absence.
Friday. March 24. 1995
Significantly , neither Bowling nor Ball reported to work on
Friday , March 24 , 1995 . Bowling testified that he •called in
sick to the guard shack." There is no corroborating ev idence
that Bowling called in sick . Nor is there any evidence about the
details of his reported illness . Finally, Bowling's purported
call reporting his illness to Mountain Top on March 24 is belied
by his admission that he called Mayes at approximately 6:00 a .m.
on Monday, March 27 to ask if he still had a job.
As noted, Ball also did not report to work on Friday, March
24, 1995. I credit Tony Mayes' testimony that Ball called in on
May 24 to state he had no gas money, although Ball maintains he
did not agree to return to work until March 27. The failure of
both Bowling and Ball to report to work as expected on March 24,
without adequate reasons for their absence, further undermines
their claims of constructive discharge .

Monday. March 27 . 1995
Bowling returned to work on Monday, March 27 after
telephoning Mayes earlier that morning to inquire if he still had
a job . Bowling still objected to driving #139. He had numerous
complaints about #139, including a recap on the front tire that
had apparently been on the truck for some time. Mechanic Bennett
informed him the lights on t he truck had been checked out and
that the recap on the front tire was permissible . Bowling
refused to drive t he truck because of the broken wheel stud .
Mayes did not order Bowling to drive #139 before the wheel stud
was f i xe d . Bowling testified that he •concluded my truck was not

190

going to get fixed that day unless I was to stand there all day
long and see to it myself." Bowling was entitled to $6.00 per ·
hour down time while his truck was being fixed. Bowling left
work after 1~ and was paid $9 . 00 down time. Bowling's decision
not "to stand around all day," although he was entitled to
compensation for down time, further undermines his allegations of
a constructive discharge.
Ball reported for work on Monday, March 27, 1995. Mayes
gave him the choice to select #139, which Bowling refused to
drive, or #134. · Ball selected #134 and told Tony Mayes h~ would
only drive ten hours. This remark was made as a non-negotiable
ultimatum . It was apparently intended to provoke Mayes as normal
cutoff times had routinely been as late as 6:00p.m. since Ball
had worked for Mountain Top. The cutoff time on March 27 was
between 5:00 and 6:00 p.m.
Ball drove 7 round trips between 5:45 a.m. and 4:00 p.m. At
approximately 4:00p.m . , Riley saw Ball in his car leaving the
haul road. Ball testified Riley approached him and asked •where
in the hell are you going?" (I, 138). Ball replied he was going
home because he was •only required to drjve ten hours a day, and
that's what I've been told is the safe and legal limit, and
that's all I'm going to operate your truck." ~
Thus, Ball
left work without the approval of Mountain Top management.
Before leaving Ball reportedly complained to Lee Payne, a
truck mechanic who was not called as a witness, about the
condition of his truck. Ball alleged the U-joint on #134 was
loose and made the truck •wander real bad." Tony Mayes stated
the U-joint was checked and it was determined that it was not
defective.
Tuesday. March 28. 1995
Bowling and Ball drove to work together on Tuesday, March
28, 1995 . Upon arriving at work Ball asked Riley if he was fire~
•because of the incident yesterday afternoon." Riley told him he
had not been fired. Bowling made a similar inquiry the previous
morning when he asked Tony Mayes if he was fired. Bowling
refused to drive #139 because the wheel stud had not been fixed.
Bowling's testimony does not reflect that he made any significant
effort to inquire about driving an alternative truck. (I, 44445, 476). Similarly, Ball refused to drive #134 because of the·
claimed loose U-joint .
Tony Mayes then offered Ball truck #147, the truck Ball had
driven prior to his March 7 discharge. Ball said he would only
drive the truck after he preshifted it. Tony Mayes accused him
of being a •cry-ass" who •wanted to preshift everything in the
damn lot." As discussed below, Mayes' re.m arks, when v.iewed in

191

context, do not constitute a constructive discharge. Ball did
not preshift #147 . Rather, he and Bowling .left the · truck lot
together in Bowling's pickup.
Wednesday. March 29 . 1995
Tony Mayes called Bowling and Ball about returning to work.
Both Bowling and Ball testified that they declined to return to
work because of all the Mcussing" that had gone on.
Additional Findings and Conclusions
A review of the above events reflects that B9wling and Ball
acted in concert. They both failed to report to work on Friday,
March 24 without providing a credible reason. Their absence from
work on March 24, coupled with Bowling's statement on March 23 ·
that he would wait for the results of MSHA's investigation, fails
to support their contention that they truly desired to return to
their jobs . Bowling and Ball's inquiries into whether they had
been Mfired,• when they had not been told they were fired, were
manipulative, and are additional indications that they were not
interested in returning to work.
With regard to the condition of the trucks in issue, I note
these vehicles are haulage trucks used to transport multi-ton
loads over unpaved mountain roads. While these trucks must be
maintained in safe operating condition, reasonable people may
differ over when a component part requires replacement . . Although
mine operators are subject to civil penalties for unsafe
equipment, the Mine Act does not strip operators of their
authority to determine when equipment should be repaired, . or
removed from service. In this regard, the respondents' records
for the period March 22 .through March 29, 1995, reflect that
trucks were frequently removed from service for repair.
(Resp.
Ex . 4) .
Ball's assertion that #134 had a loose U-joint is selfserving and uncorroborated. For example, there is no evidence of
similar U-joint complaints by any driver who used #134
immediately prior to Ball . More significantly, Ball operated
#134 for 10 hours on March 27, 1995, without removing the truck
from service . By his own admission, Ball stopped driving at 4:00
p . m. on March 27 because he was Monly required to drive ten hours
a day," not because #134 was unsafe to drive. Thus, his refusal
to drive the truck the following morning, purportedly for reasons
of safety, is inconsistent with his uninterrupted operation of
the truck the previous day . Moreover, the respondents ' records
reflect truck #134 was repaired as recently as Wednesday , March
22, 1995, when the rear end was serviced by replacing the ring
gear and pinion, spur shaft, and bullgear with a new axle gear
kit . (Resp. Ex . 4 ) .

192

It is noteworthy that Ball demonstrated little enthusiasm
for driving truck #147 on March 28, 1995, although his March 9,
1995, discrimination complaint specifically requested
reassignment to #147. Ball's conduct in insisting on
preshifting #147, when viewed in context, was provocative and
calculated to antagonize. Obviously, preshifts are required.
However, Mountain Top's policy called for drivers to mark
checkoff sheets throughout the day detailing maintenance problems
that occurred as the shift progressed. The checkoff sheets,
annotated with maintenance problems, were turned in at the truck
lot at the end of the day. Thus, the trucks, in fact, had been
preshifted in that the previous driver had evaluated the trucks
at the end of the previous day. Moreover, Ball could have taken
#147 out of service if he experienced a significant problem
before exiting the truck lot.
With respect to Bowling, he repeatedly left work shortly
after reporting and made no attempt to stay at work, compensated
for down time, to ensure that his truck was repaired, or, to wait
for another truck to be assigned. Upon returning to work,
Bowling was at work approximately 1~ hours on Thursday, March 23;
he did not report to work on Friday, March 24; he was at work 1~
hours on Monday, March 27; he reported to work but did not get
out of his pickup on Tuesday, March 28; and he refused to return
to work on Wednesday, March 29.
With respect to the condition of truck #139, obviously,
being required to drive an unsafe truck is an intolerable
condition. While the evidence is equivocal concerning whether
one rear broken wheel stud justifies a truck's immediate removal
form service, Bowling's refusal to drive #139 with a broken wheel
stud is protected activity if it was made in good faith.
However, as discussed herein, the credible evidence reflects his
complaint was pretextual in nature given Bowiing's other
provocative conduct and his refusal to work past 3:00 p.m.
Moreover, even if Bowling's refusal to drive #139 was protected,
there is no evidence that his refusal resulted in his discharge.
Turning to the complainants' truck assignments, the
Commission has stated that its jurisdiction is limited to
.
ensuring that miners' rights under the Act are protected. The
Commission's function is not to pass on the wisdom or fairness of
the asserted business justifications for a particular business
decision, but rather, to determine if such justifications are
credible, and, if so, whether they would have motivated the
operator as claimed. Bradley y. Belva, .4 FMSHRC 982, 993 (June
1982). Here, Tony Mayes expressly asked investigator Harris
whether he could assign Bowling and Ball to any truck if he
rehired them. · Harris replied that Mayes could assign them to any
truck as long as it was safe and preshifts were done. · (I, 735) ·.

193

Mayes testified that his inquiry was motivated by his desire to
prevent resentment from other truck drivers over truck
reassignments. This is a reasonable business concern.
Moreover, even if Mayes• failure to assign Bowling and Ball
to their former trucks was motivated by their protected activity,
the Mine Act does not sanction work refusals for adverse
personnel actions that do not create intolerable conditions.
Under such circumstances miners can file discrimination
complaints to remedy the adverse personnel action . The fact that
#134 or #139 may not have been as desirable as Bowling and Ball's
former trucks, because they were older models, does not
constitute intolerable working conditions.
Finally, the asserted safety problems as the motivation for
Bowling and Ball~s refusals to drive #134 or #139, are
inconsistent with their predisposition, expressed in their March
9, 1995, MSHA discrimination complaints, to drive only trucks
#144 and #147 . (Gov. Ex. 9). It is worth noting that it was not
uncommon for Bowling and Ball to be assigned trucks other than
#144 and #147. For example, Bowling drove #134 on Februa.r y 11,
1995, and #150 on March 6 and March 7, 1995. (Miner's Ex. 10).
Ball drove #134 on February 3, February 6, February 10, and
February 13 through 16, 1995, and #138 on Febr.uary 12, 1995.
(Miner's Ex. 9) .
Bowling and Ball allegedly refused to return to work
because they were offended by the respondents• language. Remarks
such as accusing Bowling of "nitpicking shit,• or Ball of being a
•cry-ass,• dp not constitute intolerable working conditions under
these circumstances. There is no evidence of any personal
threats . Passions run high in labor disputes and epithets and
accusations, particularly by truck drivers, are not uncommon in
such instances. Crown Central Petroleum Co6Poration v. NLRB, 430
F.2d 724, 731 (5th Cir. 1970).
The Reliance on POT Regulations
Finally, and most importantly, Bowling and Ball's refusal to
work •a minute• more than ten hours per day, although they had
routinely worked as long as 12 hour days, was unreasonable.
According to Bowling's interpretation of DOT's ten-hour rule, it
was •illegal• for him to drive •one minute• past 3 : 00 p.m. if he
began work at the routine 5:00 a.m. starting time. (I, 456-59).
Bowling's interpretation of the DOT regulations would require his
last load to occur prior to 2:00 p.m. For example, if Bowling
last loaded at Huff Creek at 1:50 p.m., he could not complete
another 1~ hour round trip to return to Huff Creek for another
load before 3:00p.m. These work day limitations would destroy
Mountain Top's ability to fulfill its contractual obligations
with Lone Mountain. Consequently, Bowling and Ball's adherence

194

to their interpretation of DOT's ten-hour rule, regardless of
their sincerity, was unreasonable and provided an independent
justification for their termination. 4 F~SHRC at 993 .
Ironically, Bowling and Ball took it upon themselves to
enforce DOT's •ten-hour rule" even though DOT's investigation
failed to confirm Mountain Top's alleged non-compliance. In this
regard, the fact that drivers routinely worked from
5:00 a.m. until as late as 6:00p.m. cutoffs was easily
ascertainable and presumably known to DOT investigators. ·In
fact, DOT faile~ to conclude that Mayes Trucking's Colen Kelly
had violated the ten hour rule although it was aware Kelly had
worked as a truck driver for a 12~ hour workday. (Gov. Ex 7).
DOT's failure to cite Mayes Trucking for violating the ten
hour rule, a rule that is intended to restrict driving hours 'for
long haul interstate trucking , is not surprising given Mountain
Top's short truck route. The trip from the Huff Creek facility
to the processing plant was approximately 8 miles, consisting of
approximately 6 miles on a private haulage road and only 2 miles
on state road 38. Moreover, it is difficult to apply the ten
hour standard to the facts in these cases because it is difficult
to determine how many work hours constitute driving more than ten
hours. A total of 40 trucks, including those operated by Hillis
Breese, were traveling this 8 mile route. Driving time for the
l~ hour round trip was diminished by the varying times for
waiting in line to load, weigh at the scale house, and unload at
the dump site.
Additionally, while there was a disincentive to stop for
extended lunch periods because drivers were paid by the load,
Geraldine Perkins, who operated a snack shop on state road 38,
testified most drivers stopped daily for varying periods of time.
(II, 455). For example, she estimated that Bowling and Ball
patronized her snack shop two to three times per day . (II, 455 ).
Even if Bowling and Ball misapplied DOT's ten hour rule,
they argue that their work refusal is still protected because it
was reasonable and made in good faith. However, as discussed
below, the complainants' argument fails because their work
refusal lacks the fundamental condition precedent, ~, fear of
a discrete hazard.
Section l05(c) confers on a miner the right to refuse to
work if he sincerely believes his working conditions expose him
to an identifiable danger. Thus, the right to refuse work is
personal to the miner who fears a perceived danger. Although
objective proof that an actual hazard existed is not necessary t o
support a protected work refusal, the miner must demonstrate a
reasonable basis for concluding that he was exposed to an actual
risk. Secretary of Labor on behalf of Hogan y. Emerald Mines

195

CofaP·• 8 FMSHRC 1066, 1074 (July 1996), aff'd ~. 829 F.2d 31
(3r cir . 1987) . In this regard, good faith complaints by
Bowling or Ball of personal illness or fatigue posing a discrete
safety hazard during a workday, regardless of how many hours they
had worked that day, would be protected activity. In other
words, it is the actual personal illness or fatigue, not the
number of hours worked, that creates the protected, reasonable
basis for the perceived hazard.
As an illustration of this concept, it is helpful to
contrast two cases previously brought before this Commission . In
Walter A . Schulte y. Lizza Industries. Inc., 6 FMSHRC 8 (January
1984), the Commission concluded that a miner's unexcused early
departure from work, in a situation where the operator had a
policy requiring employees to .work overtime each day, ·was not
protected by the Act. In Lizza, there was no showing that
Schulte's early departure was necessitated by specific concerns
for his personal safety. However, in James Eldridge y. Sunfire
Coal Company, 5 FMSHRC 108, 464 (March 1983), Judge Koutras found
Eldridge's work refusal was protected when he refused to work
beyond his normal shift because of his communicated concerns that
he was •too tired and exhausted" to continue working on a pillar
section until the entire pillar was extracted.

Thus, the Commission's framework for a protected work
refusal requires •a direct nexus between performance of the
refusing miner's work assignment and the feared resulting
injury to [himself or] another miner.• Cameron, 7 FMSHRC at 324.
Here, Bowling and Ball's work refusal is predicated on their
disinclination to drive more than ten hours as a matter of
policy, rather than being motivated by their fear of a discrete
safety hazard brought about by their physical condition. Thus,
in the final analysis, their refusal to *drive• more than ten
hours per day lacked the requisite nexus to any identifiable
discrete safety hazard. Consequently, their work refusal, with
respect to limiting the hours they were willing to work, is not
protected activity under the Act.
The complainants assert that the respondents' actions from
March 22 through March 29, 1995, must not be viewed in isolation .
Thus, they argue the circumstances surrounding their March 29,
1995, terminations were intimately connected to their earlier
protected activities, ~. their March 7 complaints about long
work hours and the filing of their discrimination complaints on
March 9. Consequently, it is alleged the respondents had a
•predisposition" to get rid of Bowling and Ball whom the company
believed were •troublemakers.• (Complainants' Findings at 3940) .
The Complainants miss the point. The March 7 complaints
concerning excessive work hours, and the filing of their

196

discrimination complaints based on those long workdays, were
protected activities that serve as the basis for their March 7
protected work refusal . However, the complainants' expressed
refusals to "drive" more than 10 hours per day after they were
called back to work by Tony Mayes constituted unprotected and
potentially disruptive activity . The Mine Act does not confer on
miners the unilateral authority to determine their own work
hours. Their work refusals provide an independent basis for
their discharge. MUnreasonable, irrational or completely
unfounded work refusals do not commend themselves as candidates
for statutory protection . . . . " Robinette, 3 FMSHRC at 811 .
Ultimate Findings and Conclusions
It is undisputed that Bowling and Ball refused Tony Mayes'
March 29, 1995, telephone offer to return to work. The
complainants have the burden of demonstrating that their refusal
to return to work was reasonable , and protected activity under
the constructive discharge doctrine. However, Bowling and Ball
have not demonstrated that they were forced to endure intolerable
working conditions that forced them to refuse to return to work.
Rather, their actions during the period March 22 through March
29 , 1995, were provocative in nature and evidenced attempts to
provoke their discharge for the apparent purpose of preserving
their pending discrimination complaints. ~~Hogan, 8 FMSHRC
at 1072 (two miners• work refusals were protected where each
·
miner "acted individually, without knowledge of the intentions of
the other,• and there was no evidence Msuggesting a likelihood of
pretext or ulterior motive for their actions") •
Moreover, their refusals to work more than ten hour days,
conditions they had previously accepted , provided an independent
and unprotected basis for their termination . Consequently, the
discrimination complaints of Bowling and Ball only entitle them
to the protections and relief available under section 105(c) from
March 8, 1995, the day following their discriminatory discharges,
through March 22, 1995, the day they were offered reinstatement.
Liability
Successorship Liability
The related 'temporary reinstatement decision in these
matters established that Mayes Trucking is liable in these
discrimination proceedings as the successor corporation of
Mountain Top . That decision noted the Commission's successorship
standard in discrimination cases is well settled. Secretary on
behalf of James Corbin et al . v. Sugartree CoxP·· Terco. Inc ..
and Randal Lawson, 9 FMSHRC 394, 397-399 (March 1987), aff'd sub
nom. Terce Inc. y . fMSRRC, 839 F.2d 236 , 239 (6th Cir . 1987 ).

197
.

':

~ AlaQ Secretary on behalf ·of Keene y. Mullins, ~88 F.2d 1448,

1453 (o . c ; Cir. 1989). Under this standard, the successor
operator may be found l"iable for, and responsible for remedying,
it's predecessor's discriminatory conduct. The indicia of
successorship are:
(1) whether the purported successor company had notice
of the underlying charge of possible discrimination;
(2) the ability of the purported successor to provide
relief; (3) whether there has been a substantial
continuity of business operations; (4) whether the
purported successor uses the same plant; (5) whether
the purported successor employs the same work force;
(6) whether the purported successor uses the same
supervisory personnel; (7) whether the same job exists
under substantially the · same working conditions;
(8) whether the purported successor uses the same
machinery, equipment and methods of production; and
(9) whether the purported successor produces the same
product. ~ Terce, 839 F.2d at 239; Mullins, 888 F.2d
at 1454.
The temporary reinstatement decision noted •compelling
evidence• of successorship. 17 FMSHRC at 1708-09 . With regard
to notice, Tony Mayes, President of Mayes Trucking, clearly had
knowledge of the alleged discriminatory conduct . Turning to the
other criteria of successorship , the temporary reinstatement
decision noted:
(1) Mayes Trucking employs Riley, the same truck
foreman; (2) to supervise the same drivers; (3) to
drive the same trucks; (4) to haul coal from the same
mine site to the same processing plant; (5) over the
same route; precisely as Mountain Top had done . 17
FMSHRC at 1709.
Thus, Mayes Trucking was determined to be the successor to ·
Mountain Top. Consequently, Mayes Trucking and Mountain Top are
jointly and severally liable for the relief awarded in these
proceedings.
Personal Li&bility
In addition to Mayes Trucking's liability as a successor of
Mountain Top, the complainants assert that David Riley, Elmo
Mayes and Tony Mayes are personally liable under section 105(c).
Section 105(c) (1) provides, in pertinent part, that •no person
shall discharge or in any manner discriminate against . . • any
miner ... [who] .has filed or made [a safety related] complaint
under or related to this Act . . .. • (Emphasis added).

198

Section 3(d) of the Act, 30 U.S.C . § 802(d), defines
•operator" as •any ... person who operates, controls, or supervises
a coal or other mine or any independent contractor p.erforming
services ... at such mine." (Emphasis added).
Section 3(f) of the Act, 30 U.S.C. § 802(f), defines
"person" as "any individual, partnership, association,
corporation, firm, subsidiary of a corporation, or other
organization." (Emphasis added) . Significantly, section 3(f)
does not include •agents" of these business entities within the
meaning of •person. "11
Rather, liability as a 105 (c) •person"
generally only attaches if there is a proprietary interest .
Thus, the term "person" under section 105(c ) , when read in
conjunction with sections 3(d) and 3(f} of the Act, includes any
business entity, regardless of its structure, that operates a
mine, or that performs independent contractor services at a mine.
Although operators can be held accountable for violations of
section 105(c} committed by •agents," such agents are not
individually liable under section 105(c) of the Act, for only
operators are capable of providing the back pay and reinstatement
relief contemplated under section 105(c) . To make an agent
jointly and severally liable with an operator under section
105(c) is to elevate an agent to the status of a principal.
There may be instances where an individual, without a
cognizable proprietary interest, exercises complete de facto
control. In such instances, 105(c) liability may be predicated
on this individual's status as an "operator" given his total
control of the mine. For example, in Glenn Munsey y. Smitty
Baker Coal Co., 2 FMSHRC 3463 (December 1980}, relied upon by the
complainants, Ralph Baker, the manager who was responsible for
the day to day operations of the Smitty Coal Company mine, was
ordered to reinstate the complainant, Munsey, after Baker had
incorporated a new company, Mason Coal Company, and refused to
rehire him. However, in addition to being the mine manager,
Ralph Baker, along with Smitty Baker, apparently was also a
principal in the corporate respondent. ~ Glenn Munsey y.
Smitty Baker Coal Co .. Inc .. Ralph Baker. Smitty Baker. and P&P
Coal Company, 8 IBMA 43 (June 30, 1977).
The conclusion that only "operators• are liable under lOS(c}
is consistent with Commission precedent. In Robert Simpson y.
Kenta Energy. Inc .. & Roy Dan Jackson, 11 FMSHRC 770 (May 1989 }
the Commission determined that Jackson, Keota's President, was
The term •agent" as defined in section 3(e}, 30 u.s .c.
802 (e), incl.udes "any person charged with . .. the supervision" of
miners .
11

§

199

personally liable for back pay and reinstatement under section
105(c) because :
Jackson was the real "operator," the real "person" in
control of the personnel actions at the mine. The
point of this approach was to show that Jackson should
not be permitted to "hide" behind the corporate veil .
11 FMSHRC at 780.
By contrast, Riley was not a corporate officer of Mountain
Top or Mayes Trucking. Rather , Riley was an "agent" who answered
to, and sought the approval of, Elmo and Tony Mayes . The notion
that ordinary supervisors, such as Riley, can be held jointly or
severally liable with their employers in discrimination cases
under 105(c) for back pay and reinstatement is lacking in
foundation. After all, a condition precedent to liability
under 105(c) is the ability to provide the requested relief,
~, the relief required to make victims of discrimination
whole . 2 FMSHRC at 3466 . Rank-and-file supervi~ors are not
capable of providing such relief.
Although agents are not personally liable under 105(c), a
corporate agent •who knowingly authorized, ordered, or carried
out . . . [a) violation" committed by a corporate operator may be
subject to individual liability for civil penalties under section
110(c) of the Mine Act, 30 U. S.C . § 820(c). The proper legal
standard for the purpose of determining 110(c) liability is
whether the corporate agent •knew or had reason to know" of a
violative condition . ~Beth Energy Mines. Inc., 14 FMSHRC
1232 , 1245 (August 1992) citing Secreta&y y. RQY Glenn, 6 FMSHRC
1583, 1586 (July 1984) and Kenny Richardson, 3 FMSHRC 8, 16
(January 1981) . The Commission has consistently held that a
•knowing• violation under section 110(c) involves aggravated
conduct, not ordinary negligence. ~' citing EmehY Mining
CohPoration, 9 FMSHRC 1997, 2003-04 (December 1987).
Although Riley, as a truck foreman , is not personally liable
as an •agent• under 105(c), he may be subject to the civil
penalty provisions of section 110(c) for acts committed in
violation of any provision of the Act . However, the Secretary
has not brought a 110(c) civil penalty_proceeding alleging that
Riley •knowingly" violated section 105(c).
Even if the Secretary had brought a llO(c) case against
Riley, whether the Secretary could prevail on the •knowingly"
violated standard in section 110(c) is uncertain . With respect
to Jackson, it was Elmo Mayes, not Riley, that created the
circumstances behind Jackson ' s protected work refusal . With
regard to Bowling and Ball, Riley's conduct demonstrated no
disparate treatment . Riley was requiring Bowling and Ball to
work the extra hours required of all Mountain Top and Hillis

200

Breese truck .drivers. While Bowling and B'a ll' s initial work
refusal was protected, the issue of whether Riley •knowingly"
violated section 105(c) on March 7, 1995, remains in doubt .
Accordingly, the discrimination complaints filed pursuant to
section 105(c) of the Act against David Riley shall be dismissed.
Similarly, the Secretary's amended discrimination complaints
seeking to impose civil penalties on Riley under section 105(c),
filed on September 15, 1995, shall also be dismissed. 12
Liability under section 105(c) with respect to Elmo and/or
Tony Mayes is based on whether the complainants have demonstrated
they were the •real operators" in that they were the •real
persons" in control of the personnel decisions at the mine.
11 FMSHRC at 780. Resolution of this issue hinges upon whether
they exercised the requisite •control" over the haulage
operations at Huff Creek.
There is ample evidence demonstrating that Elmo Mayes'
relationship with Mountain Top was not an arms length equipment
leasing arrangement. Elmo Mayes received ten percent of Mountain
Top's net profits from its hauling operations. Mountain Top
operated under a Fuel Tax License issued by the State of Kentucky
to Elmo Mayes, d/b/a E&T trucking .
In addition to owning
Mountain Top's trucks, Helen Mayes, Elmo's wife, signed and
issued the pay checks for Mountain Top's drivers. Elmo Mayes
brought the payroll checks to the job s.ite and sometimes
distributed them to Mountain Top's drivers.
Riley had previously worked for Elmo Mayes as an E&T truck
driver for nine years. Kip Bays was also previously employed by
Elmo Mayes. Elmo Mayes had a two-way radio in his home that he
used to communicate with Riley in his truck. Bays and Riley
deferred to Elmo Mayes• management decisions. For example, it
was Elmo Mayes who selected Jackson as the cutoff truck on
February 17,· 1995, without any concurrence from Riley or Bays.
Riley kept Elmo Mayes informed of the number of loads hauled
and the number of trucks running. Sometimes Elmo Mayes was on
the job site three or four days a week if there were problems.
Elmo Mayes occasionally rode with drivers on .the haul route to

The Secretary's September 15, 1995, amended
discrimination complaints seeking to impose civil penalties
against Elmo and Tony Mayes uunder section 10S(c) are consistent
with Commission Rule 44, 29 C.F.. R. § 2700.44. Rule 44 authorizes
the Secretary to seek civil penalties against parties in a
105(c) proceeding that are consistent with the penalty criteria
in section 110(i), 30 U.S.C. § 820(i). Riley, however, is not a
proper party in this matter.
12

201

check on the condition of trucks.
remove a truck from service.

He retained the authority to

Elmo Mayes had an input in job assignments and he had the
authority to fire Mountain Top employees. In this regard, Elmo
Mayes approved Jackson's mud haulage assignment so that Jackson
could acquire experience as a truck driver. When Jackson asked
Riley for time off to attend a computer class, Riley sought
approval from Elmo Mayes. Elmo Mayes unilaterally fired Jackson
on February 17, 1995, and Bowling and Ball on March 7, 1995. In
fact, Kip Bays was unaware of the circumstances surrounding
Bowling and Ball's March 7 terminations, and he was not familiar
with the facts concerning their subsequent return to work.
Significantly, numerous non-party witnesses testified
regarding the control exercised by Elmo and Tony Mayes over
virtually every aspect of Mountain Top's operations . For
example, Billy Jack Lefevers, Mountain Top's loader operator,
stated that he considered Tony his boss . When he asked Riley for
a raise he was told •you need to talk to Tony or Elmo." (I,
389). In response to his inquiry Elmo told Lefevers, •let me run
the numbers, see how things work out." (I, 390) . Kelly, Lone
Mountain's scale man, testified drivers respected and obeyed Elmo
Mayes when he designated them as cutoff driver. As a further
reflection of the commonality of interests between Elmo Mayes,
Tony Mayes and Mayes Trucking, Billy Joe Earl, a former Mountain
Top driver, testified he was given farm work by Elmo Mayes for
approximately six months beginning in June 1995, although he
continued to receive his paycheck from Mayes Trucking, after he
was suspended by Lone Mountain for passing a truck on its haulage
road.
·
Finally, Elmo Mayes was aware that drivers were working
extremely long hours during the winter of 1995. He opined that
•a man is human" and that the amount of work hours that could be
tolerated safely •depends on the driver . • (II, 293). In this
regard Elmo Mayes explained, •I never asked a man to do anything
I wouldn't do myself.• (II, 291). Thus, Elmo Mayes supported
the extended working hours in the winter of 1995 that gave rise
to the discrimination complaints in these proceedings.
Thus, the evidence, when viewed in its entirety, reflects
Elmo Mayes exercised unfettered control of Mountain Top's haulage
operations. His total control, without any need for approval
from Bays, Tony Mayes or Riley, provides an adequate basis for
concluding that he was an •operator• as contemplated by section
3{d) of the Act at the time of the subject discriminatory acts in
February and March 1995. As such, Elmo Mayes is a responsible
party liable under section 105(c) of the Act .

202

The evidence establishing operator status for Tony Mayes is
equally convincing . Tony Mayes was at the Huff Creek site since
October 1994. Kip Bays testified he transferred all control of
operations to Tony Mayes in February 1995 so that Bays could tend
to his ailing mother. This testimony alone supports the
conclusion that Tony Mayes was a person in control .
Tony Mayes control was demonstrated by his assignment of
drivers to trucks . Truck mechanics needed his approval for
repairs. The re~ord reflects Tony Mayes also supervised foreman
Riley. Significantly, Tony Mayes represented Mountain Top in its
dealings with MSHA investigator Harris . Finally, it was Tony
Mayes who recalled Bowling and Ball to work . It was also Tony
Mayes who told Carver, a Mountain Top truck driver , that Jackson
could have his job back if he apologized, although their is ~o
credible evidence that Jackson was ever offered re-employment.
Thus, Tony Mayes is also a proper party in these proceedings.
QRDER

Accordingly, the Secretary's request to withdraw the
discrimination complaint filed by David Fagan in Docket No .
KENT 95-615-D IS GRANTED. Consequently, Docket No. KENT 95-615-D
IS DISMISSED with prejudice. In addition, as discussed herein,
William David Riley is not a proper party to these 105(c)
proceedings. Therefore, the discrimination complaints in these
matters as they pertain to Riley ARE DISMISSED.
For the reasons set forth above, Walter Jackson's February
17, 1995, work refusal was reasonable , and therefore protected
activity under section 105(c) of the Act. Accordingly, Jackson's
discrimination complaint IS GRANTED. Similarly, the initial
March 7, 1995, work refusals of Lonnie Bowling and Everett
Darrell Ball were also reasonable, and therefore entitled to
statutory protection under the provisions of section 105(c).
Therefore, Bowling and Ball's March 9, 1995, discrimi~ation
complaints ARE GRANTED IN PART.
However, Bowling and Ball have failed to establish they were
the victims of a constructive discharge after they were offered
reinstatement on March 22, 1995.
Moreover, their refusal, upon
their return to work, to accept cutoff times as late as 6:00
p.m . , which was the cutoff time required of all other drivers,
and, which was the cutoff time they had originally accepted upon
being hired, was unreasonable and unprotected by the Act.
Consequently, their refusal to work the hours required of them
provided an independent and unprotected basis for the termination
of their employment . Therefore, Bowling and Ball's
discrimination complaints with respect to their refusals to
return to work on March 29, 1995, ARE DENIED .

203

The period for which relief awarded to Jackson under section
105 (c) shall be calculated from February 18, 1995, ·the day
following his protected work refusal, to the present time. The
period for which relief under section 105(c) shall be awarded to
Bowling and Ball is from March 8, 1995, the day following their
protected initial work refusals, through March 22, 1995, the day
they were offered reinstatement .
For the reasons discussed above, IT IS ORDERED that Mountain
Top Trucking, Inc . , Mayes Trucking, Inc., Anthony Curtis Mayes
and Elmo Mayes, ·are jointly and severally liable for the relief
that shall be awarded to Jackson, Bowling and Ball in these
discrimination matters.
Consequently, IT IS PURTBER ORDERED that:
1 . Within 21 days of the date of this decision, the parties
shall confer in person or by telephone for the purposes of:
(a) with respect to Bowling and Ball, stipulating to
the amount of back pay and interest computed from
March 8, 1995, through March 22, 1995, less earnings
from other employment, if any, during this period;
(b) with respect to Bowling and Ball, stipulating to
any other reasonable and related economic losses or
relevant litigation costs incurred as a result their
March 7, 1995, termination;

a

(c) with respect to Jackson, stipulating to
suitable
position and salary, if any, to which Jackson should be
reinstated as an employee of any of the named
respondents who are liable in these proceedings, or, in
the alternative, agreeing on economic reinstatement
terms (~, a lump sum agreed upon payment in lieu of
reinstatement);
(d) with respect to Jackson, stipulating to the amount
of back pay and interest computed from February 18,
1995, to the present, less deductions for earnings from
other employment, or deductions for periods when
Jackson was not available for employment, if any;
(e) stipulating to any other reasonable and related
economic losses or relevant litigation costs incurred
as a result of Jackson's February 17, 1995, discharge .

204

2. If th~ parties are able to stipulate to the appropriate
relief, they shall file with the judge, within 30 days of the
date of this decision, a Proposed Order for Relief. ~
respondents' stipulation of any matter regarding relief shall not
waive or lessen their right to seek review of this decision on
liability or relief.
3 . If the parties are unable to stipulate to the relief, the
complainants shall file with the judge and serve on opposing
counsel, within 30 days of the date of this decision, Proposed
Orders for Relief : The complainants' proposed orders must be
supported by documentation such as check stubs from prior or
current employment, if any, tax returns and W-2 forms, and bills
and receipts to support any other losses or expenses claimed .
In addition, Jackson's Proposed Order for Relief should explain
why he withdrew his application for temporary reinstatement in
this matter.
4 . If the complainants file Proposed Orders for Relief , the
respondents shall have 14 days to reply . If issues on relief are
raised, a separate hearing on relief will be scheduled.
5. This decision shall not constitute the judge's final
decision in this matter until a final Decision on Relief is
entered. The final Decision will address the issue of what civil
penalties, if any, should be imposed in these matters.

Jerold Feldman
Administrative Law Judge
Distribution:
Donna E . Sonner, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215-2862 (Certified Mail)
Tony Oppegard, Esq., Mine Safety Project of the Appalachian
Research & Defense Fund Of Kentucky, Inc., 630 Maxwelton Court,
Lexington, KY 40508 (Certified Mail)
Edward M. Dooley, Esq., P.O . Box 97, Harrogate, TN 37752
(Regular and Certified Mail)
\mea

205

PEDBRAL MINE SAFBTY AND BBALTB R.BVXEW COMMISSION
OFFIC£ OF ADMJIIJSTUTIVE LAW JUDGES ·
2 SIYLJII£, 10th FLOOR
5203 L££se..G PlK£
FALLS CHURCH, YJIGJIIJA 22041

JAN 2 9 1997
COSTAIN COAL INC . ,
Contestant
v.
SECRETARY OF LABOR,
Mine Safety and Health
Administration (MSHA ) ,
Respondent

SECRETARY OF LABOR,
Mine Safety and Health
Administration, (MSHA) ,
Petitioner
v.
COSTAIN COAL INC. ,
Respondent

CONTEST PROCEEDINGS
Docket No . KENT 96-178-R
Order No. 4277266; 2/6/96
Docket No. KENT 96-179-R
Citation No. 4277267; 2/6 / 96
Baker Mine
Mine ID No. 15-14492
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 96-191
A. C. No. 15 - 14492-03708
Docket No. KENT 96-213
A. C. No. 15 - 14492-03709
Docket No. KENT 96-234
A. C. No. 15-14492-03710
Docket No. KENT 96 - 235
A. C. No. 15-14492-03712
Docket No . KENT 96-275
A. C. No . 15-14492-03713
Baker Mine
Docket No . KENT 96-311
A. C. No. 15-16020-03514
Smith Underground #1 Mine
DECXSXON

Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U. S . Department of Labor, Nashville, Tennessee,
for the Petitioner;
Carl B. Boyd, Jr., Esq . , Henderson, Kentucky,
for the Respondent .

Before:

Judge Feldman

206

These consolidated contest and civil penalty proceedings
concern petitions for assessment of civil-penalties fi~ed by the
Secretary of· Labor against the respondent corporation pursuant to
section 110(a) of the Federal Mine Safety and Health Act of 1977
(the Act ) , 30 U.S.C. § 820(a) . The petitions seek to impose
total civil penalties of $43,258 for alleged violations of
mandatory safety standards in Parts 70 and 75 of the regulations,
30 C. F.R. Part 70 & 75.
These matters were called for hearing on December 3, 1996,
in Owensboro, Kentucky. At the commencement of the hearing, the
parties advised that they had reached a comprehensive settlement
with regard to all of the citations a.n d orders in issue.
Consequently, the respondent moved to withdraw its Notices
of Contest in Docket Nos. KENT 96-178-R AND KENT 96-179-R .
(Tr. 16-17). The settlement terms, which were presented and
approved on the record, result in a reduction in the total
proposed penalty from $43,258 to $32,001 . The $32,001 settlement
amount consists of the respondent's agreement to pay civil
penalties of: $2,360 in Docket No . KENT 96-191; $4,606 in Docket
No . KENT 96-213; $4,350 in Docket No. KENT 96-234; $13,250 in
Docket No. KENT 96-235; $5,235 in Docket No. KENT 96-275; 1 and
$2,200 in Docket No . KENT 96-311.
The settlement terms include vacating Citation No. 4068884
in Docket No. KENT 96-191; modifying 104(d) (1) Order No. 4068883
to a 104(a) citation in· Docket No. KENT 96-235 to reflect that
the cited violation was not attributable to the respondent ' s
unwarrantable failure; and modifying 104(d) (1) Citation No.
4276772 and 104 (d) (1) Order No . 4276775 in Docket No. KENT 96-311
to 104(a) citations, thus removing the unwarrantable failure
charges .
I have considered the representations and documentation
submitted in these cases, and I conclude that the proffered
settlement is appropriate under the criteria set forth in
Section 110(i) of the Act, 30 U.S.C. § 820(i). WHEREFORE, the
motion for approval of settlement IS GRANTED.
Accordingly, the respondent's motion to withdraw its
contests in these matters IS GRANTED and IT IS ORDERED that
the contest proceedings in Docket NOS. KENT 99-178-R and
KENT 96-179-R ARB DISMISSED. IT IS PORTBER ORDERED that the

1

The record was left open in order to allow the parties to
finalize their settlement agreement in Docket No. KENT 96-275.
The parties subsequently advised me they had agreed upon a
reduction in the proposed penalty from $8,235 to $5,235, based on
a reduction in the gravity associated with Citation No . 9898360.

20 7

respondent pay a total civil penalty of $32,001 in satisfaction
of the citations in issue within 30 days of this order, and, upon
receipt of timely payment, Docket Nos. KENT 96-191, KENT 96-213,
KENT 96-234, KENT 96-235, KENT 96-275 and KENT 96-311
ARE DISMISSED.

-

/~~:o---)
2
v

Jerold Feldman
Administrative Law Judge

Distribution:

·.

Tom Grooms, Esq., Mary Sue Taylor, Esq., Office of the Solicitor,
U. S . Dept. of Labor, 2002 Richard Jones Rd., Suite B-201,
Nashville, TN 37215 (Certified Mail)
Carl Boyd, Esq . , Box 88, Tropic, Utah 84776 2 (Certified Mail )
Kevin Vaughn, Loss Prevention Advisor, Costain Coal, Inc.,
P . O. Box 289, Sturgis, Kentucky 42459-0298 (Certified Mail )
\mea

2

At the time of the hearing Mr. Boyd's mailing address was
120 N. Ingram St., Henderson, KY 42420. However, Mr. Boyd's
current address is Box 88 , Tropic, Utah 84 77 6. {Tr. 3) .
208

.

.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730KSTREET, "N.W., 6'"'FLOOR
W ASIDNGTON, D. C. 20006-:-3868

January 31, 1997

CIVIL PENALTY PROCEEDINGS

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

Docket No : CENT 9.6-112
A . C . No. 34-01787-03504
Docket No. CENT 96-160
A . C . No . 34-01787-03505

v.

H M I a.k.a. HEATHERLY
MINING, INCORPORATED,
Respondent

Docket No. CENT 96-161
A . C . No . 34-01787-03507
Docket No. CENT 96-165
A. C. No . 34-01787-03506
Docket No . CENT 96-166
A. C . No . 34-01787-03508
Po1lyanna #8
Docket No. CENT 96-167
A . C. No. 34-01633-03601
Pollyanna #4
Docket No . CENT 96-168
A . C . No . 34-01746- 03520
Pollyanna #7

ORDER OF DISMISSAL
Before:

Judge Merlin

On November 26, 1996, I issued an order directing the operator
to provide additional infor.mation to support its motions to dismiss
the above-captioned cases.

The operator had fi1ed identical motions to dismiss in these
cases stating that i t had paid $75,000 pursuant to a settlement
agreement with MSBA for all violations issued to the operator on
or before June 30, 1996 . The operator attached a copy of the
settlement agreement which contained a list identifying the
matters invo1ved in the settlement. The violations in these
cases were issued before June 30, 1996, but the instant cases did
not appear on that list .

209

In a 1etter to operator's counsel dated January 16, 1997, a
copy of which was sent to the Commission, the Solicitor lists al1
current civil penalty assessments pending aqainst Heatherly
Mining Company, BMr, and/or P~K. The ins~t cases · are included
on this list . The Solicitor states that the Secretary has deemed
these cases uncollectible . The Solicitor further states that all
civil penalties assessed against the aforementioned companies for
citations issued after August 1 , 1996 , will be reassessed in the
name of George Colliers, Incorporated.
In light of the foregoing, i t is clear that the Secretary
no longer intends to prosecute these civil penalties against this
operator . Therefore, these matters can be dismissed .
Accordingly, i t is ORDERED that these cases be DISMISSED .

---

- . ··--- -

Paul Merlin
Chief Administrative Law Judge
Distr1bution:

(Certified Mail)

Yoora Kim , Esq., Office of the Solicitor, U. S . Department of
Labor , 4015 Wilson Boulevard, Arlington, VA 22203
Robert A. Goldberg, Esq., Jack F . Ostrander, Esq., Office of the
Solicitor, U. S . Department of Labor, 525 Griffin Street, Suite
501 , Dallas, TX 75202
Thomas H. Stringer, Jr . , Esq., Heatherly Mining, Inc . , 502 w.
Broadway , Henryetta, OK 74437
Ned Zamarripa, Conference and Litigation Representative, 0. S .
Department of Labor , MSBA, P. 0. Box 25367, Denver , CO 80225
Mr . Matt Richardson , IDa, Post Office Box 550 , Henryetta, OK

74437
/gl

210

ADMINISTRATIVE LAW JUDGE ORDERS

PBDBRAL MXNB SAPBTY AND BBALTB RBVXBW COKMXSSXON
1244 SPEER BOULEVARD #280
DENVER, 00 80204-3582
303-844-3577/FAX 303-844-5268

January 7, 19967
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION . (MSHA) ,
Petitione.r

v.

CIVIL PENALTY PROCEEDINGS

..
•

Docket No. WEST 95-104
A.C. No. 05-02820-03729

:

Docket No. WEST 95-494
A.C. No . 05-02820-03766

:
:

Docket No. WEST 96-22
A.C. No. 05-02820-03769

.

.
BASIN RESOURCES INCORPORATED,
.
Respondent
.

Docket No. WEST 96-23
A.C. No. 05-02820-03770

:
:

Docket No. WEST 96-24
A.C. No. 05-02820-03771

:
:

Docket No. WEST 96-36
A.C. No. 05-02820-03773

.

..
.
:

Docket No. WEST 96-128
A.C. No. 05-02820-03781
Golden Eagle Mine

ORDER DBNYXNG SECRETARY'S MOTION POR SUMMARY DBCXSXON ON
JBXLXTY TO COMTXNUI IN BUSINESS CRITERION
A hearing in these cases was held on October 29, 1996,
through October 31, 1996. At the hearing the parties presented
evidence on the merits of the citations and orders and also
addressed issues concerning the application of the ability to
continue in business criterion. At the conclusion of the hearing, the parties requested that I rule on this issue by separate
order. Basin Resources, Inc. ("Basin Resources") takes the
position that the penalties proposed in these cases should be
substantially reduced because it is no longer in business. The
Secretary contends that the ability to continue in business cri~
terion is not applicable if Basin Resources is not in business
and, in any event, Basin Resources failed to offer sufficient
evidence to show that the proposed penalties will adversely
.affect its ability to continue in business. He argues that the
penalties should not be reduced based on this criterion. As
discussed below, I find that Basin Resources established that the
penalties should be reduced as a result of the application of the
ability to continue in business criterion.

211

I.

APPLICATION OF THE cRITERION

The civil penalty criteria are contained in section 110{i)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
S 820{i) {"Mine Act") . Section 110{i) states that the Commission
&hall have the authority t o assess all civil penalties set forth
in the Mine Act. It further states that in assessing civil penalties, th~ CoMmission shall consider six criteria including "the
effect [ t hat the penalty would have] on the operator's abili ty to
continue i n b us :l:ness."
The civ il penalty pr ovision is discussed in the legislative
history, as follows:
The purpose of • • • civil penalties, of
cours e , is not to raise revenues for the
f ederal treas~~·· ·· (T]he purpose of a
c i v i l penalty is to induce those officials
r~sponsible f or the operation of a mine to
co~ply with the Act and its standards.

*

*

*

*

*

*

*

To be successful in the objective of
[inducing] effective and meaningful compliance, a penalty should be of an amount which
is sufficient to make it more economical for
an operator to comply with the Act's requi rements than it is to pay the penalties assessed and continue to operate while not in
compliance.

s. Rep. No. 181, 95th Cong., 1st Sess. 40-41 {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 628-29 {1978).
The assessment of a penalty is mandatory whenever a citation
or order is a ff irmed. Tazco, Inc., 3 FMSHRC 1895 {August 1981).
I hold, however , that if a mine operator establishes that it is
no longer in the mining business and does not intend to reopen
its mines or otherwise r eturn to the mining business, this fact
should be taken under consi deration when assessing appropriate
penalties under section llO{i). I disagree with the Secretary's
contention that the fact that a mine operator is out of business
means that the ability to continue in business criterion should
not be considered when assessing a penalty. As the legislative
history makes clear, civil penalties are remedial not punitive .
Civil penalt ies are assessed to induce "effective and meaningful"
compliance with safety and health standards . Id . If an operator
is out of bus i ness, that fact should be taken into consideration
under the a ~il. ity to conti nue in business criterion.

212

The Commission has not ruled on this issue. In Spurlock
Hining Co . , Inc., 16 FMSHRC 697 (April 1994), the operator was
not mining at the time the penalties were proposed but planned to
reopen its mines if it could secure adequate financing. It
arqued that the size of the proposed penalties would make it
difficult to secure such financing. The Commission held that the
operator did not submit sufficient evidence to show that the proposed penalties would adversely affect its ability to resume
operations and to continue in business. Id. at 700. The Commission stated that .it did not reach the issue of "whether the criterion of the effect of a penalty on an operator's ability to
continue in business applies to an operator who is out of
business •••• " Id.
If an operator is no longer in the mining business, penalties do not have a deterrent effect on future compliance with the
Mine Act and the Secretary's safety and health standards. If an
operator closes a mine or otherwise leaves the mining business
for economic reasons, the application of the ability to continue
in business criterion would generally call for a reduction in the
penalty. When penalties are proposed by the Secretary, the Secretary assumes that the penalties will not have an adverse effect
on the operator's ability to continue in business. 30 C.F.R.
S 100.3(h). The Commission also presumes that a penalty will not
have an adverse effect on the ability of an operator to con~inue
in business. Sellersburg Stone co., 5 FMSHRC 287, 294 (March
1983) aff'd 736 F.2d 1147, 1153 (7th Cir. 1984). Thus, if a mine
operator is forced to close its mines for economic reasons, it
stands to reason that the Secretary's proposed penalties could
have an adverse effect on its ability to continue in business.
I do not agree with Basin Resources that penalties should be
reduced to "nominal amounts" whenever an operator is no longer in
the mining business. Rather, I believe that the judge should
consider all of the evidence and balance the statutory criteria
including, but not limited to, the ability to continue in business when assessing an appropriate civil penalty. See Faith Coal
Company, 17 FMSHRC . 1146, 1208 (July 1995)(Judge Barbour). The
ability to continue in business criteria is but one of the six
criteria set forth in section 110(i). The other criteria must
also be considered. A nominal penalty would not be appropriate,
for example, in the case of a serious violation in which the
operator unwarrantably failed to comply with a safety standard.
Thus, I cannot rule that penalties should be reduced by a set
percentage whenever an operator establishes that it is permanently out of the mining business.
II.

EVIDENCE TO SHOW ADVERSE EFFECT

I find that Basin Resources presented sufficient evidence to
show that it is no longer in the mining business. The Golden
Eagle Mine is not operating, the mine is sealed, and there are no

213

plans to reopen it. All stockpiles of coal have been sold. The
Golden Eagle Mine is the only mine owned or operated by Basin
Resources and the mine stopped producing coal in December 1995.
Reclamation of the land has commenced and only three employees
remain at the mine. Basin Resources has attempted to sell the
mine but has only received "negative offers." That is, potential
bidders have offered to take the mine property in exchange for
payment from Basin Resources.
Financial records presented by Basin Resources show that
Basin Resources incurred a loss of over $13 million from operations in 1995 and that it had a negative net worth of $23 million
as of April 1996 . The proposed penalties in these cases are
about $86,000 and the total proposed penalties for all of the
Basin Resources' cases currently pending before me are about
$500,000 . 1 Basin Resources contends that this potential liability had hindered its efforts to sell the mine.
Based on the evidence presented by Basin Resources, I find
that it established that the penalties should be reduced based on
the ability to continue in business criterion. 2 I reject the
Secretary's contention that Basin Resources failed to offer
sufficient evidence to show that the proposed penalties will
adversely affect its ability to continue in business. I further
hold that the · penalties should be reduced by a significant amount
but, as discussed above, I do not hold that Basin Resources
should be assessed a nominal penalty for each violation. The
particular penalty assessed in each instance will depend on the
application of all six penalty criteria.
III.

CONSIDERATION OF PARENT COMPANY

A few days before the hearing, the Secretary filed a motion
to amend each petition for civil penalty . The Secretary sought
to name Entech, Incorporated ("Entech") as an additional respondent in each case. The Secretary alleges that Entech is the
parent or alter-ego corporation of Basin Resources. He alleges
that Entech exercised complete control over Basin Resources and
My order in these cases is also applicable to the other
Basin Resources cases currently pending before me. These other
cases are : WEST 96-21, -25, -79, -so, -123, -124, -125, -126,
-127, -134, -158, -179, -180, -195, -241, -248, -249, -250, -251,
-271, -272, and -285.
2

I have also considered the record in Basin Resources,
Inc., 18 FMSHRC 1846 (October 1996) (Docket Nos. WEST 95-254 and
WEST 95-255). In those cases, Basin Resources argued that the
penalties should be reduced for the same reasons and presented
similar evidence. I did not decide the issue in that decision
because I vacated most of the citations and orders.

214

that, as a consequence, Entech was an operator of the Golden
Eagle Mine. The Secretary contends that th~ assets and operations of Entech should be taken into consideration when assessing
civil penalties in these cases.
The parties asked me to defer ruling on this issue. · They
requested that I consider only the operating and financial condition of Basin -Resources when ruling on the Secretary's motion
for partial summary decision. As a consequence, I have not considered the operations, assets, or liabilities of Entech in this
order.
At the hearing, counsel for each party agreed that if I
ruled that the penalties should not be reduced when applying the
ability to continue in business criterion to Basin Resources, the
issue of Entech's liability would be moot. Because I have ruled
that the penalties should be reduced, the issue of Entech's liability remains at issue. In accordance with the parties' agree- ·
ment, Basin Resources has not filed a response to the Secretary's
motion. The "hearing in the next group of Basin Resources cases
is scheduled to commence on January 14, 1997. At that hearing, ·
the parties should be prepared to discuss the Entech issue and I
will establish a briefing schedule.
IV.

ORDER

The Secretary filed a motion for partial summary decision
asking that I reject Respondent's argument and evidence that the
proposed penalties should be reduced upon consideration of the
ability to continue in business criterion. For the r
forth above, the Secretary's motion for par~\summary
is DBNJ:BD.
/ .
.·

~

Richard W. Manning
Administrative Law Judge

\.../
Distribution:
Margaret A. Miller, Esq. and Kristi Floyd, Esq., Office of the
Solicitor, U. s. Department of Labor, 1999 Broadway, .suite 1600, .
Denver, CO 80202-5716
Andrew Volin, Esq., SHERMAN & HOWARD, L.L.C., 633 17th Street,
Suite 3000, Denver, co 80202
RWM

215

FBDBRAL MINE SAFETY AND BBALTB RBVIBW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
January 17, 1997

CIVIL PENALTY PROCEEDINGS

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

Docket No . WEST 95-434-M
A.C. No. 26-00500-05542
Docket No. WEST 95-467-M
A.C. No . 26-00500-05543

v.
NEWMONT GOLD COMPANY,
Respondent

south Area - Gold Quarry

ORDBR GRANTING, IN PART, PETITIONER'S MOTION
TO COMP£L TBB PRODUCTION OF DOCUXBNTS
The secretary of Labor filed a motion to compel Newmont Gold
Company ("Newmont") to produce certain documents. The documents
in question are (1) three reports prepared by Dr. Morton Corn for
the Becton-Dickinson Company and (2) a paper on mercury prepared
by Dr . Jonathan Borak. Newmont opposed the motion on the basis
that the reports are irrelevant to these proceedings and are
proprietary. Dr. Corn and Or. Borak will be testifying at the
hearing on behalf of Newmont. I ordered Newmont to provide a
copy of the documents for my in camera review. ·I have reviewed
the documents and enter the following order.
I.

Reports of Dr . Corn

Dr . Corn prepared three reports relating to the control of
mercury vapor for Becton-Dickinson Company ("B-D"). These
reports were prepared for B-D's General Counsel's Office.
Although the reports were prepared by Dr. Corn, they are the
property of B-D.
The reports were prepared following Dr. Corn's inspection of
B-D'e facility in Puerto Rico in 1967 and 1981, and its facility
in Brazil in 1987. These facilities were thermometer plants and
used large amounts of mercury . In the reports, Dr . Corn reviewed
the ventilation controls and housekeeping procedures at the
facilities and made recommendations. Dr. Corn used the Threshold
Limit Value ("TLV") adopted by the American Conference of Government Industrial Hygienists ("ACGIH") as the standard. The
facilities met this standard in most areas. In the two earlier
reports the standard was .1 ·mgjm3 , although he also referenced
the B-0 goal of .05 mgjm3 • The TLV was .05 mgjm3 at the time the
Brazil ~ eport was prepared. The reports do not discuss lunchrooms c~Y other eating areas and do not consider whether a cleaner
envirom:v:::nt should be provided in offices and lunchrooms.

216

I hold that, in reviewing whether proprietary material
should be produced during discovery, I should balance the
interest in keeping the material confidential against the
litigant's need for the material to prepare for trial. Because
Dr. corn will be testifying at the hearing about mercury vapor,
the Secretary has an interest in Dr. Corn's prior work on mercury
vapor. such information may be useful in cross-examination.
In balancing the competing interests, however, I find that
the Secretary's need for the documents does not outweigh the
interest in keeping the documents confidential. First, the
documents do not contain information that is particularly relevant to the instant proceedings. They describe B-D's thermometer plants, the ventilation in the plants and methods for
keeping the mercury vapor levels below the TLV. In the instant
case, the mercury vapors in the cited areas were below the TLV.
The documents are too specific to the plants in question to provide useful information. The documents are also ten years old
and older and would be of marginal use in cross-examination.
The documents are the property of B-D . Without B-D's
written consent, I am unwilling to require the production of the
documents absent a showing of a compelling need for them. After
reviewing the documents, I find that they do not contain information that would be particularly useful in these cases. The Secretary has not shown that his need for the documents outweighs
Dr. Corn's interest in keeping them confidential . Accordingly,
the Secretary's motion to compel the production of these documents is DBHIBD.
II.

Paper on Mercury by Dr. Borak

Dr . Borak prepared a paper entitled "TEMIS: MERCURY and its
INORGANIC COMPOUNDS 1.4." This paper is supported by an extensive bibliography . At the bottom of the first page is printed:
"~1995 by Jonathan Borak & company, Inc."
Newmont states that
this document, which it calls a "toxicological profile for mercury" is a "work in progress and does not constitute Dr. Borak's
• • • final views." (Newmont's response at 2) . Newmont further
states that this document is proprietary and has not been relied
upon by Dr. Borak in the preparation of his testimony in these
cases. It states that this document is not relevant to these
cases and Dr. Borak has "strong objections" to its release.
I find that the Secretary's need for this document in
prepari ng for his examination of Dr. Borak outweighs any
proprietary interest of Dr. Borak . The document contains a
summary of the toxicological properties of mercury, recommendations concerning management and treatment of mercury poisoning,
and recommendations concerning monitoring and surveillance of

217

mercury. It uses the OSHA PEL of ; OS mgfm3 and the "ACGIH TLVTWA for inorganic mercury and mercury vapor of .025 ·mgfm3 . "
(Document at 12) . Although it does not contain specific recommendations for lunchrooms or offices, I believe that it does have
some relevance to these proceedings. It provides information
that may be useful to the Secretary in cross-examination . The
scope of discovery is broad.
Dr. Borak prepared this document to provide information to
his clients. Although this document may not be his final version, the information contained therein would be available to
those who use him as a consultant. It is proprietary because it
is apparently protected by a copyright . With sufficient precautions, Dr. Borak's proprietary interest in the document can be
protected while allowing the Secretary to review it for this
litigation.
Accordingly, the Secretary's motion to compel production of
this document is GRANTED, with the following protective order.
It is ORDERED that:
1. On or before January 22, 1997, counsel for Newmont shall
provide one copy of the document to Mark R. Malecki, of the u.s.
Department of Labor · Solicitor's Office;
2. Mr. Malecki shall not make any copies of this document
and no employee of the u.s. Department of Labor or its agents
shall make a copy;
3. Mr. Malecki shall keep the document in a secure area
where it cannot be obtained or viewed by any other individual;
4. Mr. Malecki shall not show the document to any other
individual, except Jeanne Colby and one other employee of the
Secretary, such as an expert;

s. The Department of Labor shall treat the document as a
privileged and confidential document exempt from disclosure under
5 u.s.c. S 552(b) (4); and
6. The Secretary shall not use the
without the prior approval of the judge.

Richard w. Manning
Administrative Law
218

Distribution:
Jeanne M. Colby, Esq., Office of the Solicitor, u.s. Department
of Labor, 71 Stevenson Street, Suite 1110, san Francis~o, CA
94105-2999

Henry Chajet, Esq., PATTON BOGGS, 2550 M Street, NW, Washington,
DC 20037-1350
Mark R. Malecki, · Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA 22203

RWM

219

IUD SU'ftY UD IIBALD RB'VXBW COJOU88IOH
1244 SPEER BOULEVARD #280
DEHVBR, 00 80204-3582 ·
303-844-3577/FAX 303-844-5268
January 22, 1997

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

v.
MOBILE PREMIX SAND & GRAVEL
COMPANY,

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

v.

...
..
....
.:•
.:
.
...:
.
.

DON DEWILD, employed by
MOBILE PREMIX SAND & GRAVEL :
COMPANY,
Respondent

.

..
KEITH BUESCHER, employed by
MOBILE PREMIX SAND
GRAVEL
COMPANY,
.:
&

CIVIL PENALTY PROCEEDING
Docket No. WEST 95-339-M
A.C. No. 05-00860-05537
Specification Aqqreqates

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 96-223-M
A.C. No. 05-00860-05540 A

Docket No. WEST 96-224-M
A.C. No. 05-00860-05541 A

Res~ndent

ORPIR PllfYING I

Ilf PMT I

Specification Aqqreqates
MOTION TO COMPEL

Respondents filed a motion to compel the Secretary to
respond to certain interroqatories and requests for the production of documents . The Secretary filed a motion for a protective
order on the basis that the requested information is protected by
the informant's privilege and the deliberative process privilege.
For the reasons set forth below, Respondents' motion to compel is
granted, in part, and denied, in part.
These cases concern a section 104(d)(l) citation that was
issued to Mobile Premix sand and Gravel Co. ("Mobile Premix") and

220

section llO(c) proceedings that were brought against Messrs. DeWild and Buescher for the same alleged violation. The requested
information and the Secretary's response is as follows:
1. Respondents requested th~ name, address, employer,
title, and telephone number of each person the Secretary intends
to call as a witness at the hearing. The Secretary stated that
it may call miner witnesses and will provide the requested information for such witnesses two days before the hearing, as provided in 29 C.F.R. S 2700.62.
2. Respondents requested the secretary to describe the
facts he will rely upon to establish that the alleged violation
was the result of an unwarrantable failure. The secretary stated
that he would rely, in part, upon the statements of employees
interviewed by the MSHA special investigator and that these
statements are protected by the informant's privilege.
3. Respondents requested all documents concerning MSHA's
investigation of the conditions described in the citation. In
response, the Secretary stated that he would not provide the
special investigation report because it was protected by the
deliberative process and informant's privileges.
Respondents maintain that they are entitled to the requested
information . First, they state that many, if not all, of the
witnesses for whom the Secretary claims protection are no longer
employed by Mobile Premix and are not protected by the informant's privilege or Commission Rule 62 . Second, they state that
the special investigation report is not protected by the deliberative process privilege or, at a minimum, the deliberative portions of the reports should be redacted and any factual material
provided. Finally, even if some of the information requested is
protected by a privilege, Respondents argue that the Secretary's
interest in maintaining the privileges should yield to Respondents' demonstrated need for the information to defend themselves
against the Secretary's allegations.
The Secretary contends that the information that he withheld
clearly fits within the two asserted privileges. He states that
whether informants are currently employed by Mobile Premix is
irrelevant. In addition, the Secretary argues that the informa~
tion contained in the statements given to the special investigator can be easily obtained by the Respondents from other sources,
including interviewing or deposing those people who have knowledge of the events that gave rise to the citation. The Secretary
contends that the special investigation report contains summaries
of the miner statements, which are protected by the informant's
privilege, and the recommendations and conclusions of the special
investigator, which are protected by the deliberative process
privilege.

221

I.

Names of Miner Witnesses

commission Rule 62 is designed to protect the identity of
miners who will be testifying at a hearing until two days before
the trial. The protection is deemed necessary because the miner
may be an informant. The commission has stressed the importance
of the informant's privilege under the Mine Act. Bright Coal
co., 6 FMSHRC 2520 (November 1984). The Commission held that
this privilege is applicable to the furnishing of information to
government officials concerning violations of the Mine Act. 6
FMSHRC at 2524. It is the name of the informant, not the contents of his stateaents~ that is protected, unless disclosure of
the contents would tend to reveal the identity of an informant .
Asarco, 12 FMSHRC 2548, 2554 .(December 1990), citing Roviaro v.
United States, 353 U.S. 53, 60 (1957). The Secretary bears the
burden of proving facts necessary to support the existence of the
privilege. Asarco, 12 FMSHRC at 2553. In the case of miner
witnesses, the Commission's rule prohibits the disclosure and the
Secretary's burden is minimal.
It appears that some of the Secretary's miner witnesses in
these cases are no longer employed by Mobile Premix. The Commission held that the purpose of the informant's privilege is "to
protect the public interest by maintaining the free flow of
information to the government concerning possible violations of
the law and to protect persons supplying such information from
retaliation." Bright, 6 FMSHRC at 2522-23 (citations omitted).
The Commission went on to state that "the public interest in
protecting persons who discuss alleged Mine Act violations with
government officials is served regardless of the relationship of
the informer to the alleged violator, i.e ., whether the informer
is an employee of the respondent or a non-employee." Id. at
2524. Thus, the informant's privilege applies to individuals who
were miners at the time the citation was issued, even if they are
not currently employed by Mobile Premix or any other mine operator. See Hodgson v. Charles Hartin Inspectors of Petroleum,
Inc., 459 F.2d 303, 306 (5th Cir. 1072). The Secretary established that the requested information should not be provided
under Commission Rule 62.
II.

statements of Miners

For the reasons set forth above, the informant's privilege
generally applies to written statements provided by miners during
an MSHA special investigation, to the extent that providing the
statement would tend to reveal the identity of the individual who
made the statement or the identity of other informants. The
privilege applies even if the individual is no longer employed by
Mobile Premix. As stated above, it is the name of the informant,
not the contents of his statements to the government, that is
protected by the privilege, unless disclosure of the contents

222

would tend to ' reveal the identity of an informant. Thus, if
portions of a statement can be provided without revealing the
identity of an informant, such portions are not protected.
Even if a statement or portion thereof is protected by the
informant's p~ivilege, that does not end the inquiry because the
privilege is a qualified one. I must perform a balancing test to
determine if Mobile Premix's need for the statements is qreater
than the Secretary's need to maintain the privilege to protect
the public interest. Bright, 6 FMSHRC at 2526. The burden is on
Mobile Premix to prove facts necessary to show that disclosure of
the statements is necessary to a fair determination of the
issues. Id. Factors to be considered in conducting this balancing test include whether the Secretary is in sole control of the
requested information and whether Mobile .Premix has other avenues
available from which to obtain the substantial equivalent of the
requested information. Id. In performing the balancing test in
this case, the issue is whether Mobile Premix can get substantially the same information by deposing those miners who have
knowledge of the events leading up to the citation . Asarco, 14
FMSHRC 1323, 1331 {August 1992).
The Secretary states that the information contained in the
statements can be obtained by Respondents from other sources.
The Secretary maintains that Respondents have identified those
individuals who have knowledge of the events surrounding the
alleged violation. Thus, the Secretary believes that counsel for
Respondents could interview or depose these individuals and
obtain substantially the same information. I find Mobile Premix
has not established that disclosure of the statements is necessary for the fair determination of the issues in these cases .
See Hodgson at 307.
I find that the statement of Michael Waggy is not protected
by the privilege, however. During his deposition, Mr. Waggy
testified that he provided a written statement to MSHA. He
further stated that he gave Respondents the same information
during his deposition as he provided MSHA in his statement.
Thus, the identity of the informant has already been revealed.
As stated above, it is the identity of the informant not the
substance of his statement that is protected. Nevertheless, some
courts draw a distinction between informants and those who merely
provide a statement to the government. Hodgson at 306 {informant's privilege upheld even though employer knew which employees
had given statements to the government). Accordingly, the Secretary should send me a copy of Mr. Waggy's statement for my in
camera determination on this issue. On or before January 31,
1997, the Secretary should provide me with two copies of
Mr. Waggy's statement. One copy should be redacted to delete the
names of other informants and, to the extent necessary, those
portions of the statement that would tend to reveal the identity
of other informants.

223

The secretary should also review the statements provided by
other miners to determine whether portions of these statements
could be provided without revealing the identity of an informant.
On or before January 31, 1997, counsel for the Secretary should
provide me with a copy of each statement for my in camera review
along with her designation of those portions of any statement
that she believes could be provided without revealing the identity of an informant .
III .

Special Investigation Report

The reports of an MSHA special investigator contains _a summary of miners' statements, an analysis of the issues, and the
recommendations and conclusions of the special investigator . The
summaries of the statements of miners are protected by the informant's privilege, as set forth above. The Secretary asserts the
deliberative process privilege for the remainder of the report.
This privilege protects communications between subordinates and
supervisors within the government that are "antecedent to the
adoption of an agency policy." Contests of Respirable Dust
Sample Alternation Citations, 14 FMSHRC 987, 992 (June 1992),
quoting Jordan v . Dept. of Justice, 591 F.2d 753 (D.C. Cir .
1978). The communications must be "related to the process by
which policies are formulated." Id. The sections of the report
in which the special investigator analyzes the issues and makes
recommendations and conclusions are protected by the deliberative
process privilege. This portion of the report is not the final
agency decision, but is de·liberative.
I also conclude that Mobile Premix's need for the recommendation section does not outweigh the Secretary's interest in
keeping it confidential. It is simply the investigator's opinion
and, since this proceeding is de novo, it will carry no weight.
The Secretary's interest in keeping its decision-making process
confidential far outweighs Mobile Premix's need for this section
of the report .
Counsel for the Secretary should review the special investigator's report to determine whether portions of the report could
be provided without revealing the identity of an informant or the
Secretary's deliberative process. On or before January 31, 1997,
counsel for the Secretary should provide me with a copy of the
report for my in camera review along with her designation of
those portions of the report that she believes could be provided
without revealing the identity of an informant or the Secretary's
deliberative process.

224

ORDER

Accordinqly, Respondents' motion to compel is DBHZBD, except
as set forth above. The Secretary's motion for a protective
order is also DBRXBD. on or before Jan~ary 31, 1997 , counsel for
the secretary shall provide me with a copy of the following documents for my in camera review, as specified in more detail above:
(1) the statem~nt~ provided by miners to the special investigator, and (2) the special investigator's report .

Richard w. Manning
Administrative Law Judge

Distribution:
Kristi Floyd, Esq . , Office of the Solicitor, u.s. Department of
Labor, 1999 Broadway, suite 1600, Denver, co 80202-5716
Laura E. Beverage, Esq., JACKSON & KELLY, 1660 Lincoln Street,
Suite 2·1 10, Denver, co 80264

RWM

225

FEDERAL MINB SAFETY AND HEALTH RBVIBW COMMISSION
OFFICE OF ADMINISTRAT-IVE LAW JtllG£5 .
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 2 4 1997
SECRETARY OF LABOR,
Mine Safety and Health
Administration (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. SE 94-550
A. C. No. 01-01401-04023
No. 7 Mine

JIM WALTER RESOURCES, INC.,
Respondent
SECRETARY OF LABOR,
Mine Safety and Health
Administration (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 96-276
A. C. No. 01-01401-04044 A

v.

LARRY MORGAN,
DAVID GABLE,
PAUL PHILLIPS,
WILLIAM WIGGINS,
DARRELL KEY,
WILLIAM TRAMWELL, and
MICHAEL WELCH,
employed by
JIM WALTER RESOURCES, INC.,
Respondents

Docket No. SE 96-277
A. C. No. 01-01401-04045 A
Docket No. SE 96-278
A. C. No. 01-01401-04046 A
Docket No. SE 96-279
A. C. No. 01-01401-04047-A
Docket No. SE 96-280
A. C. No. 01-01401-02048 A
Docket No. SE 96-281
A. C. No. 01-01401-04049 A
Docket No . SE 96-282
A. C. No. 01-01401-04050
No. 7 Mine

ORDER GRANTiNG XN PART AND DENXrHG IN PART
SBCQTARY• S MOTION POR PRQTECT:tYE QRDER

Before me for consideration is the Secretary's January 23,
1997, motion to preclude the respondents from deposing Mine
Safety and Health Administration (MSHA) District ~ Manager Joseph
W. Pavlovich, who is assigned to Barbourville, Kentucky. In
opposition, the respondents have filed a motion to compel
Pavlovich's deposition testimony. On January 24, 1997, I had a

226

conference call to further explore the parties• arguments in
support of their motions. This Order formalizes the decision I
rendered on the parties• motions at the culmination of telephone
conference .
Ordinarily, where an agency has, or is willing, to respond
by answering written interrogatories, furnishing documents and
making lower-level officials available for depositions, there is
no justification for requiring the testimony of an agency head or
high-level agency official . Sweeney v. ~, 669 F.2d at 546;
Kyle Engineering Co. v . Kleppe , 60 0 F.2d 226 (9th Cir 1979);
Wirtz v. Local 30, 34 F.R.D . at 14 .
However, executive
department officials may be required to give oral testimony by
deposition or at trial in extraordinary circumstances . Simplex
Time Recorder Co. v. Secretary of Labor, 766 F.2d 575 (D.C. Cir .
1985); Wirtz v . Local 30. International U. v. Northside Realty
Associates, 324 F. Supp. 287 (N.D. Ga. 1971). Extraordinary
circumstances may be established where the executive sought to be
deposed has relevant information not available from any other
source. Sweeny v. Bend, 669 F . 2d 542 (8th Cir. 1982), Cert.
denied, 459 U. S . 878 (1982); Community Fed . Say. & Loan v . ~
Home Loan Bank Bd. , 96 F.R.D . 619 (D.D.C. 1983); Amer.
Broadcasting Companies v. U.S. Info. Agency, 599 F. Supp. 765
{D.D.C. ~984).
Here, the respondents seek to depose Pavlovich to determine
if he has wknowledge relating to the delays, failure to prosecute
and now prosecution of the 110 (c) cases, which are set for trial
. over 3 years after the underlying Orders were issued and over 2
years after the initial 110(c) assessments were withdrawn . "
(Resp. Motion to Compel, p . 2.). Thus, the respondents aver that
the focus of their inquiry is Pavlovich's knowledge, if any,
concerning the reasons for MSHA's November 23, 1994, withdrawal
of the 110(c) assessments initially proposed in these matters,
and MSHA's reissuance of the proposed 110(c) assessments in
April 1996.
It does not appear that any of the individuals who
previously have been made available to the respondents during
discovery have personal ·k nowledge with respect to this issue.
Commission Rule 56(b), 29 C. F.R. § 2700 . 56(b), which sets forth
the scope of discovery, provides that parties ~ay obtain ·
discovery of any relevant, non-privileged matter that is
admissible evidence or appears likely to lead to the discovery of
admissible evidence." The reasons for the withdrawal of the
110(c) assessments initially proposed in these cases is relevant
and may lead to the discovery of admissible evidence .
Consequently, the respondents may depose Pavlovich for the
limited purpose of posing questions that are directly related
to this issue.

22 7

The respondents are not entitled to probe the administrative
enforcement process as it pertains to prosecutorial discretion as
this activity is protected by the -deliberative process privilege.
Nixon y. Sirica, 487 F.2d 700, 763-64 (D.C-. Cir 1973). Thus, the
Secretary's motion for a protective order with respect to any
questions pertaining to Pavlovich's official duties as a
s upervisor or policy making official shall be granted .
Consequently, Pavlovich may not be deposed concerning matters on
which he lacks personal first-hand knowledge.
As discussed during the telephone conference, for the
convenience of the parties and to minimize expense, Pavlovich's
deposition is to be taken by telephone, ·on or before Wednesday,
January 29, 1997 .
QBDER

ACCORDINGLY, the $ecretary•s Motion for a Protective Order
IS GRANTED ZN PART and DENXBD IN PART. CONSEQUENTLY, IT IS
ORDERED that Pavlovich be made available for telephone deposition
on or before January 29, 1997 . The scope of deposition testimony
shall be limited to the issues discussed above .

Jerold Feldman
Administrative Law Judge
Distribution :
Edward H. Fitch, Esq . , Office of the Solicitor, U. S . Dept . of
Labor, 4015 Wilson Blvd ., Suite 516, Arlington . VA 22203 (Via
Facsimile and Certified Mail )
Warren B. Lightfoot, Jr., Esq . , David Smith, Esq., Maynard,
Cooper & Gale, P . C., 1901 6th Avenue, North, 2400 AmSouth/Harbert
Plaza , Birmingham, AL 35203 (Via Facsimile and Certified Mail)
R . Stanley Morrow, Esq . , Jim Walter Resources, Inc., P.O.
Box 133, Brookwood, AL 35444 (Via Facsimile and Certified Mail}

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228

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OP'l"l:CB OP 'l"'IB .lDICllfl:STRA'l':rvE LAW JUDGES
2 S~l:NB, lO'lll FLOOR
s2o3 Ll•sauaG P:rKB
PALLS CHURCH, Vl:RQINU 22041

JAN 2 9 1997
MEDUSA CEMENT COMPANY
Contestant,
v.

SECRETARY OF LABOR,
Mine Safety and Health
Administration (MSHA},
Respondent

CONTEST PROCEEDINGS
Docket No. PENN 97-20-RM
Citation No. 4431561; 8/1/96
Docket No. PENN 97-21-RM
Citation No. 4431562; 8/1/96
Docket No. PENN 97-22-RM
Citation No. 4431563; 8/1/96
Docket No. PENN 97-23-RM
Citation No. 4431564; 8/1/96
Docket No. PENN 97-24-RM
Citation No. 4432408; 8/1/96
Docket No. PENN 97-25-RM
Citation No. 4432409; 8/1/96

ORPER GBANTING CONTESTANt'S MQTlON
FOR CEBTIFICATlQN FOR lNTIRLOCUTQRX RBVlEW
At the request of the parties, these contest proceedings
were stayed on December 2, 1996, to enable the parties to pursue
settlement of th~ matters in issue. A telephone conference is
scheduled for February 18, 1997, to discuss the status of the
parties' settlement efforts. The recusal issue discussed below
is unrelated to the stay that is currently in effect.
On January 28, 1997, counsel for the contestant filed a
motion, pursuant to Commission Rule 76, 29 C.F.R . § 2700.76, for
certification of my December 2, 1996, interlocutory ruling that
denied the contestant's November 15, 1996, Motion to Recuse. 1
1

A party has 30 days to file with the Commission a petition
for interlocutory review of a judge's decision to deny the
party's certification motion. 29 C.F.R. § 2700.76(a) (1) (ii).
counsel's November 15, 1996, Motion to Recuse contained an
alternative request for certification in the event the motion was
denied . I construed the December 2, 1996, Order denying
counsel's motion as a denial of his alternative request for
certification. However, counsel's January 28, 1997, motion for
certification should not be viewed as untimely as his initial
request for certification was not explicitly denied in the
December 2, 1996, Order.

229

The contestant 's November 15, 1996, recusal motion was opposed by
the Secretary.
The recusal request was based on my alleged "personal bias"
towards counsel in an unrelated civil penalty proceeding that is
currently on appeal before the Commission. Rock of Ages
Corporation, 17 FMSHRC 1925 (November 1995), petition for rev.
granted December 13, 1995. The recusal motion was denied because
regulating the course of the hearing, and making bench rulings
on evidentiary matters, are fundamental duties of a presiding
judge that do not support a claim of judicial bias. Commission
Rule 55, 29 C.F~R. § 2700.55.
Interlocutory review by the Commission under Rule 76 is not
a matter of right, but is committed to the sound discretion of
the Commission. To support such a request the moving party must
identify controlling questions that are novel or otherwise
unresolved. While I am reluctant to certify this matter to the
Commission because it is well settled that judicial rulings do
not provide a colorable basis for claims of bias, I also respect
counsel's right to assert such claims. Although it would have
been preferable for counsel to directly petition the Commission
for interlocutory review of the Order denying recusal, I am
certifying this issue to the Commission for appropriate
disposition.
Accordingly, the Contestant's January 28, 1997, motion
SHALL BE GRANTED. Consequently, the December 2, 1996, Order in
the above captioned contest proceedings denying the motion to
recuse IS HEREBY CERTIFIED FOR INTERLOCUTORY REVIEW .

£~~
Jerold Feldman
Administrative Law Judge

Distribution:
Henry Chajet, Esq., Paul Wilson, Esq., Patton Boggs, L.L.P.,
2550 M Street, N.W., Washington, D.C. 20037 (Certified Mail)
Mark V. Swirsky, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104
(Certified Mail)
\mea

230

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